The Public Trust Doctrine and Private Property: The Accommodation Principle

Abstract

The public trust doctrine has been attacked by libertarian property rights advocates for being grounded on shaky history, 1 inefficient, 2 a threat to private property, 3 and inconsistent with the rule of law. Some libertarians see application of the public trust doctrine as an evisceration of private property right. In reality, such claims are hyperbolic. The doctrine actually functions to mediate between public and private rights, and thus is hardly the antithesis of private property; instead, it functions to transform, not eradicate, private property rights.