What Lakefront Reveals About the Public Trust Doctrine, Standing to Enforce Public Rights, and Possession in Property Law

 

As summer began, one of my colleagues introduced readers of this blog to Tom Merrill’s and my new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). The book explores how Chicago, a city known for commerce, came to have such a splendid public waterfront—its most treasured asset. Tom and I worked on the book for more than 20 years, but apparently we had more that we wanted to say. So, over the past couple of months, we gratefully accepted invitations from three national law blogs to present some reflections based on Lakefront. These posts, though drawing on, are not excerpts from the book, and each of the three series has a strong thematic element or substantive focus.

1. Volokh Conspiracy—The Public Trust Doctrine. Our first series of guest posts, appearing at The Volokh Conspiracy this past June, focused on the public trust doctrine, both in its original American conception (on the Chicago lakefront) and in its development (also there) over more than a century. We explained also that the preservation of Grant Park as an open space, in downtown Chicago, had nothing to do with the public trust doctrine, but stemmed from the public dedication doctrine. Having previously collected these posts, I include the link to that collection and thus to that series, for the sake of completeness here.

2. The Faculty Lounge—Standing to Enforce Public Rights. Our second series last month (July) at The Faculty Lounge concerned standing to enforce public rights. We began by explaining that standing in the law is nearly always discussed in terms of the Supreme Court’s doctrine governing who may sue in federal court consistently with Article III of the Constitution—and that this is unfortunate. For a wider array of standing rules comes into the picture when one considers common-law doctrines governing who may sue to enforce public rights—making Lakefront, which unpacks a century and a half of controversies over various such rights, a valuable resource.

Here is a sort of table of contents for the future reader:

We concluded by urging something of an intermediate rule, given the concerns that we identified in the cases of the most restrictive standing rule (viz., underenforcement of public rights) and the least restrictive standing rule (overenforcement).

3. PrawfsBlawg—Possession vs. Ownership in Property. The third series appeared earlier this month at PrawfsBlawg. Its focus was the role of possession in property. We framed the central question thus: “In particular, the book documents a number of episodes in the history of Chicago (its lakefront, that is) in which someone either was in possession of some resource but had no clear right of ownership or, by contrast, had a fairly clear legal right of ownership but lacked possession. Who was more likely to prevail: the possessor without ownership, or the owner without possession?”

Here is the table of contents, if you will, to this third five-part series:

With respect to the substance of this series, suffice it to say here that, at least on the Chicago lakefront, courts have been reluctant to interfere with possession—and further, in its absence, often have been reluctant to uphold seemingly strong legal claims of property rights. There is, necessarily, much history along the way, including versions of the stories of Cap’n Streeter and of how Jean Baptiste DuSable Lake Shore Drive (as Lake Shore Drive was renamed this summer) came to be—and why it stops where it does.

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To be sure, my summer was largely spent in administrative work, but I continue very much to believe in the usefulness of blog posts to foster intelligent discussion and engender learning about the law, as I suggested in one additional post that I smuggled into The Faculty Lounge. I hope for a great academic year to come on this blog.

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Mike Gousha to Become Law School’s Senior Advisor in Law and Public Policy

Mike GoushaFifteen years ago, at the suggestion of one of my faculty colleagues, I began a conversation with Mike Gousha, who had announced his intention to depart his daily broadcast television news duties at WTMJ, here in Milwaukee (“Channel 4,” if you prefer). Mike accepted our invitation to join Marquette University Law School as distinguished fellow in law and public policy. Thus was born what we came first to denominate our public policy initiative and now (since 2017) tend to refer to as our Lubar Center for Public Policy Research and Civic Education.

My occasion for noting all this—which omits for the moment everything in between—is that Mike has decided to shift to a new role at the Law School, as of the end of this new semester. In particular, he will step back from his daily obligations here and assume a sort of emeritus status. The word is especially appropriate: Although Marquette University now uses emeritus more broadly, its origin (well, its modern usage, anyway) is in academe, and Mike’s position here has been much in the nature of a faculty member. He has not taught students in law courses, but his initiative, creativity, and leadership have dramatically expanded the Law School’s role in civic education, as the creation of the Lubar Center dramatically attests.

Going forward, Mike will serve the Law School as senior advisor in law and public policy. It seems worth noting that the theory underlying Mike’s affiliation with the Law School will not change. In my initial correspondence with him years ago, I encouraged Mike to consider making Marquette Law School “the platform” for journalism and policy work that he might pursue. Since he joined us in January 2007, he has done this brilliantly—whether the particular form has been the “On the Issues with Mike Gousha” series; his crucial role in imagining the possibility, and persuading us as to the value, of the Marquette Law School Poll; introducing us to Alan Borsuk, senior fellow in law and public policy since 2009, and Charles Franklin, professor of law and public policy and director of the poll since 2012, among many other people; establishing the Law School as the go-to place for debates for important political office in this region; organizing conferences on K–12 education, national security, and Milwaukee’s regional water initiative, among many other topics; or, most recently, fashioning with John D. Johnson, our Lubar Center Research Fellow, an important series of articles in the Milwaukee Journal Sentinel as part of the Lubar Center’s Milwaukee Area Project.

That list is scarcely exhaustive, but my point, as noted, rather involves Mike Gousha’s work going forward. Like a faculty member assuming emeritus status, Mike is not likely to take up full-time work at the Law School and will surely partner with others than the Law School for aspects of his possible activities (e.g., work on a documentary such as this project last year with his wife, Lynn Sprangers, and others). But, as senior advisor in law and public policy, Mike will remain part of our Marquette University Law School community and engage in projects with us here as they appeal to him. Meanwhile, the work of the Lubar Center for Public Policy Research and Civic Education will continue on a daily basis. That can be the subject of separate communications or announcements as we plan and realize that future.

More immediately, please join me in extending good wishes to Mike in this next (Marquette Law School) chapter.

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Collecting Posts on the Public Trust Doctrine in Its American Birthplace

Thank you to my colleague, Professor David A. Strifling, director of Marquette Law School’s Water Law and Policy Initiative, for his generous post a few weeks ago concerning Tom Merrill’s and my new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press). The book ranges over almost two centuries and the different stories that led to the Chicago lakefront’s varied but largely integrated and altogether splendid whole. Given these temporal and geographic variations, “the core insight that shapes Kearney and Merrill’s Lakefront”—that “[t]he making of Chicago’s extraordinary landscape along Lake Michigan required law, lots and lots of law” (Professor Hendrik Hartog of Princeton University)—made intuitive sense to us from the beginning. Or at least it did to my coauthor, a noted scholar of property law.

Major areas along the Chicago lakefront (map by Chicago CartoGraphics): Figure 0.2 from Lakefront: Public Trust and Private Rights in Chicago (Cornell, 2021)

Yet as our book’s title suggests, however much other law has been involved, the public trust doctrine has been at the forefront of lakefront controversies, at least since the Supreme Court of the United States used the Lake Front Case (more formally known as Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892)) to announce the American experiment with the doctrine. So Professor Merrill and I took a guest-blogging opportunity at the Volokh Conspiracy this past week to focus on the public trust doctrine. Here are links to our series of posts:

You can find us a month or so from now guest-blogging at The Faculty Lounge, where we expect to consider the rules that govern—or might govern—who has standing to raise the different sorts of legal claims whose disposition has helped shape the Chicago lakefront. Each of these rules is in some way problematic, and differences among them have had notable effects on what a resident or tourist today finds on the lakefront—and what he or she does not. “[L]ots and lots of law,” it has been said.

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