Joe Sax and the public trust.

• Author: Torres, Gerald
• Position: Developments in the Public Trust

1. INTRODUCTION II. DEMOCRATIC POLITICAL THEORY A. The Social Function of Property B. Environmental and Natural Resource Law and Takings Jurisprudence III. THE DISCURSIVE FIELD A. Changing the Debate about the State's Role in Property Regulation B. The Environmental Movement 1. Linking Environmentalism with Conservation 2. The Consequences for Law of the Environmental Movement IV. CONCLUSION I. INTRODUCTION

   Most legal observers would agree that credit for the resurrection of the modern public trust doctrine ought to be placed at the feet of one scholar: Professor Joseph Sax. (1) Of course, if the only contribution Professor Sax had made was either to the public trust doctrine or to the reconceptualization of takings jurisprudence, his place in the scholarly firmament would be secure. (2) But he did much more. There are few people about whom it could be said--certainly in the law--that they were there at the beginning, when environmental law emerged as a field. Joe was one of those people. Yet as important as Professor Sax's work has been in the field of environmental law and in the cognate fields of property law, water law, and administrative law, I want to suggest in this short Essay that his work belongs in two additional categories.

   First, his arguments all rely on a firm grounding in democratic political theory. He argues for an understanding of law that supports the democratic legitimacy of lawmaking. (3) Remember that property was a jurisdictional term before it signified ownership. (4) As Milsom put it, "[l]ordship was property, the object of legal protection from above, just as it was the source of legal protection for rights below." (5) Professor Sax understood the relationship of property to the legitimate functioning of the state and to the capacity for members of a polity to move beyond the condition of subject to the capacity of citizen. (6) His (1964) article on takings (7)--like Professor Reich's essay on "new property," also published in 1964 (8)--in many ways captured an emerging Zeitgeist. (9) But Professors Sax and Reich were not just riding a current in our culture; they were illuminating the sources of that current. (10)

   Second--and this point is directly related to the first--his work had a direct effect on the discursive field that defined the environmental movement. Aside from his explicitly scholarly work, more popular books like Defending the Environment (11) and Mountains Without Handrails (12) gave a theoretical framework and a language to the claims that environmentalists were making. (13) Importantly, his work insulated environmentalism from the charges of elitism by rooting protection of the environment in our democratic tradition and by reaffirming the public content of private rights. (14)

   This Essay makes the following arguments. Part II argues that Professor's Sax's work is best understood--in addition to his direct contributions to legal theory--as an important contribution to democratic political theory. By focusing on the aspects of his work that deal specifically with property, I argue that his elaboration of both the public and private aspects of property law is rooted in a deep understanding of the role that the institution of property played in the development of our modern concepts of the market and the state. To privilege one aspect of property over another is to misrepresent the evolution of the institution. Professor Sax is careful in his attempt to rescue property theory from pure private law conventions, noting the public and constitutional aspects that the institution has historically played. My argument frames this analysis by looking at the social function of property, especially in the context of the modern public trust doctrine. I then turn to the work on the takings clause that reaffirms the public understanding of property that Professor Sax advances. Moreover, it is this move that lays the groundwork for the contemporary law of environmental and natural resource protection.

   Part III explores the impact of Professor Sax's work on changing not just the debate about property relations, but also the broader debate about the appropriate boundaries for government regulation. In this context the value of Professor Sax's work is even more apparent. His work on property theory revealed the attempts to elevate classical liberal views of property as just one moment in the evolution of a complex and multifaceted institution. His work helped change the political debate, not just the technical legal debate. Finally, he tied traditional links in American cultural traditions--ideas about access to public lands and resources, for example--to the commitments to preserve the public function of property. (15) This understanding enabled advocates to demand that people in positions of power recognize that they are stewards of tradition. (16)

2. DEMOCRATIC POLITICAL THEORY

   When I suggest that Professor Sax's work is rooted in democratic political theory, I mean a couple of things. First, the problem that law is supposed to solve is how we resolve disputes over social life. Second, these disputes have a normative dimension, so that a theory of law must justify the substantive conclusions as well as the process for resolving disputes over ends. By focusing on property--especially the constitutional dimension of property--Professor Sax had to immediately engage a particularly troublesome intersection of public and private law. As I will discuss later, the New Deal was the emblematic effort that signified the remapping of this intersection for the modern era. (17) But what that effort immediately reveals is that notions of property also constitute us as members of the polity. As I suggested in my reference to Milsom's history of the common law, property ideas had as much to do with conceptions of the state as they did with the development of the market. (18) Thus, the changing conceptions of property constituted us as much as the overt specific political charters we adopted. By changing the jurisdiction over disputes both as to possession as well as to proprietary rights, local links could be weakened as claims became regularized. (19) We occupy a seat at the end of a very long train of events that make up our understanding of the social functions of property. What Professor Sax illustrated is that the train continues to add new cars as our understanding of the role of property evolves. But we continue to use the language of old understandings because that language signified our social role and the network of relations in which we found ourselves, as well as our relation to the state. The confluence of vernacular and specialist discourses not only leads to various confusions about the nature of property rights, but is also a site for their transformation outside of the courts. The democratizing currents in American social life could not help but have an effect on our understanding of legal categories.

   1. The Social Function of Property

      Whole volumes have been written on this topic, but I will be brief. (20) The currently dominant idea about property rights is rooted in classical liberalism. (21) Briefly summarized, the state exists to protect established private property rights and to contribute with minimal interference to the free working of the market. (22) This conception begins with the existing distribution of property--broadly conceived--as the baseline, and is predicated on the idea that private uncoerced transactions will produce the optimal ordering of a free society. (23) This ordering will be Pareto-optimal, and it requires a strong justification that is rooted in the normative commitments of the system itself to legitimize state interference. (24)

      The political and legal implications of reliance on this idea in its purest expression mean that some arguments about fairness, community, and public interests in private property are ruled off the table. Professor Epstein argued that this concept of property is at the heart of a correct understanding of the takings clause. (25) What Professor Sax did was to identify and question the role of the state in creating, defending, and regulating property--both private property in his analysis of takings jurisprudence and public property in his work on the public trust. (26) Yet he did this not by asserting a particular normative vision of his own, or by suggesting that the law must conform to one set of abstract commitments or another. Instead, he excavated the traces of his argument from our legal and cultural traditions. Thus, he notes the Roman law and early English law roots of the public trust doctrine. (27) Similarly, he locates the justification for asserting a durable public claim to important cultural artifacts in the response to the revolutionary Terror of 1794. (28)

      This constitutive archeology is one of the foundations of Professor Sax's work, and while his arguments are commonly characterized as "novel," in fact they are faithful to the democratizing forces that balanced the private needs of an emerging market economy with the continuing solidary functions of property. (29) They are, in an important way, illustrations of the ways in which the social function of property constitute us as a people and as a polity. Of course, the law--marking as it does continuing struggles over power--does not trace a straight line, but that is not the point of Professor Sax's work. He locates families of principles as a method of inquiry. This is consistent with the position Holmes took in Hudson Water Co. v. McCarter (30) :

      It is sometimes difficult to fix boundary stones between the private right of property and the police power.... But it is recognized that the State as quasi sovereign and representative of the interests of the public has a standing in court to protect the atmosphere, the water and the forests within its territory, irrespective of the assent or dissent of the private owners of the land most immediately...