The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central

Merrill, Thomas W.; Kearney, Joseph D.

Great cases have the power to shape attitudes about the law in a way that goes far beyond the particular legal propositions for which they stand. Witness the power of Marbury v Madison in supporting an expansive power of judicial review, or of Brown v Board of Education in undermining the legitimacy of invidious racial classifications. Illinois Central Railroad Company v Illinois plays a similar role in the public trust doctrine. The force of Illinois Central, however, derives not so much from its fine phrases or the courage that it took for the Court to reach the decision it did. Rather, Illinois Central is a compelling precedent largely because of its facts, or at least what are presumed to be its facts. The Illinois legislature granted the entire Chicago lake-front, over one thousand acres, to a private railroad corporation! Small wonder that the legislature quickly repented of this deed, or that the Court was compelled to say that this valuable resource is impressed with a public trust that means it can never be sold to a private entity.

We have tried to show how the Lake Front Act of 1869 came to be passed, why the railroad's motives were not as pernicious as they are usually portrayed to have been, and how a conscientious legislator might have decided to vote in favor of the Act. We have also concluded that most probably the railroad used corrupt means to procure the legislation. So the reality is more complex than the standard story even begins to intimate. None of this is to suggest that the public trust doctrine is necessarily a bad idea or a good one. But it does suggest that the doctrine should be assessed using arguments more probing than a retelling of the standard narrative of the Illinois Central case. That story is a fable, and can justify the doctrine only if we already believe in it for reasons independent of the lesson the case supposedly teaches.

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University of Chicago Law Review
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November 4, 2015