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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Recalling (and Rehearing) Howard Eisenberg

Howard B. Eisenberg

Howard B. Eisenberg, dean of Marquette Law School from 1995 to 2002, died nineteen years ago today. That number may not have independent significance or resonance (unlike, say, 18, in Jewish tradition as I understand it, or 20, for a round number), but we may agree that it is now some time ago. Yet no one will doubt that Howard’s spirit—indeed, legacy—lives on here at the Law School, even in Eckstein Hall, opened more than eight years after his death.

Our Office of Public Service, which we created in 2006 and now house in the Howard B. Eisenberg Suite, has been our most significant institutional effort to ensure his legacy of “doing good,” as Alan Borsuk noted as recently as a week ago, in this Marquette Lawyer article. In light of this evidence surrounding us all, there seems no need to post at length on his yahrzeit. “Si monumentum requiris, circumspice,” one is tempted to say (well, I am, anyway).

Yet I wanted to use this blog to mark the anniversary, pointing anyone interested to two previous posts: one by me, twelve years ago today, whose virtue is that it contains a link to the wonderful 2002 special issue of the Marquette Law Review, remembering Howard in so many different ways (and through so many different eyes); and the other a decade ago, by our longtime colleague, now-retired Professor (and Justice) Janine P. Geske, whose welcome advantage is that it enables you to hear Howard’s very voice on a special topic: “What’s a Nice Jewish Boy Like Me Doing in a Place Like This?”

May his memory be for a blessing.

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Public Views of the U.S. Supreme Court: A Marquette Law School Poll and Conference

US Supreme Court

On October 21, the Marquette Law School Poll will release the results of a nationwide survey of public opinion about the Supreme Court of the United States. How much do citizens know about the Court? How informed are they about the Constitution? What, if anything, do they think of the justices? With respect to recent decisions of the Court, how much of the public supports or opposes the Court’s rulings? How much is opinion of the Court and its decisions based in partisan or ideological affiliations of voters? Do opinions of the Court influence presidential-vote choices? Does the public see the Court as legitimate? The Marquette Law School Poll Director, Professor Charles Franklin, will present the results of a unique national survey devoted entirely to knowledge and opinion of the U.S. Supreme Court.

We will then present three panels of reaction or reflection about the survey or the general topics that it implicates. Panelists will include the following:

  • from the bench and bar, Judge Diane S. Sykes of the U.S. Court of Appeals for the Seventh Circuit; Peter D. Keisler, co-leader of Supreme Court and Appellate practice, Sidley Austin, Washington D.C.; and Thomas L. Shriner, Jr., partner in Foley & Lardner and adjunct professor of law at Marquette University
  • from the academy, Professor Lawrence Baum (political science), The Ohio State University, and author (with Neal Devins) of The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford 2019), and Tara Leigh Grove (law), William & Mary, author of The Supreme Court’s Legitimacy Dilemma, 132 Harv. L. Rev. 2240 (2019)
  • from the press with deep experience with respect to the Court, Robert Barnes (Washington Post) and Carl Hulse (New York Times and author of Confirmation Bias: Inside Washington’s War over the Supreme Court, From Scalia’s Death to Justice Kavanaugh (Harper & Collins 2019))

Other participants will include my Marquette colleagues, Chad M. Oldfather, professor of law, and Mike Gousha, distinguished fellow in law and public policy. We regard this survey as an opportunity to offer not just opinion from the public but also a variety of explanations to the public about how the judiciary, or the Supreme Court in particular, comes to decisions.

Since its establishment almost eight years ago, the Marquette Law School Poll has developed a substantial national reputation. This latest survey, too, will be a public good, and it should be of considerable lasting interest.

Please join us at Marquette Law School, in Eckstein Hall’s Lubar Center, for the conference (Monday, October 21, 8 a.m.–1:30 p.m.). Registration is required and available here. Questions may be directed to Rita Aleman, program manager of the Law School’s Lubar Center for Public Policy Research and Civic Education.

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