Joseph Sax’s illustrious career in the law should be remembered for the importance of blending visionary thinking with rigorous scholarship. At a time when private property rights were the only serious framework for managing air, water, land and seas, Professor Sax single-handedly breathed new life into the public trust doctrine with his seminal 970 law review article. Sax died on Sunday, which prompts these reflections on the far-reaching effects of his creative legal scholarship.
In the late 1960s, as a professor at the University of Colorado teaching courses on mining, water and oil and gas law, Sax realized that all of it was oriented towards the maximal private exploitation of natural resources. He asked: “How come there’s no public dimension to natural resource law, and the public who uses these areas and actually owns most of them doesn’t have a say in what goes on?”
His answer, in 1970, was “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” in the Michigan Law Review -- a piece that went on to become one of the most influential law review articles ever.
The essay looked to Roman law, English common law and a handful of U.S. Supreme Court rulings to declare that the “public trust doctrine” empowers courts to intervene in government and market actions to protect citizens' sovereign interests. The basic idea is that the government does not own natural resources; it is merely a trustee who must act on behalf of the unorganized public to protect their interests and those of future generations who cannot yet represent their interests in court.