Public Choice and Public Trust
The public trust doctrine, originally a legal principle designed to protect public access to navigable waters for commerce and navigation, has been expanded far beyond its historical scope. Courts and policymakers now use the doctrine as a broad instrument of environmental intervention, often invoking it to justify sweeping regulatory mandates and restrictions on private property. This expansion facilitates rent-seeking, allowing interest groups and regulators to pursue policy objectives without bearing the attendant costs. By shifting control over natural resources, the modern doctrine allows political actors to redistribute property rights under the false guise of public benefit, yielding inefficiencies and discouraging private conservation. This Article examines the historical development of the doctrine, criticizes its contemporary applications, and argues against its continued expansion. A more restrained approach, grounded in the doctrine’s original justifications, would better balance public and private interests while reducing rent-seeking behavior.
Cite as Jeremy Kidd & Randy Simmons, Public Choice and Public Trust, 19 N.Y.U. J.L. & Liberty 138 (2025).