Tuesday, March 11, 2014

In Memoriam: Joseph Sax

Earlier this week the great environmental law scholar Joseph Sax passed away, at age 78. Read the appreciation by Holly Doremus at Legal Planet.

As noted by the New York Times, Professor Sax was perhaps best known for his advancing the concept of "public trust doctrine" as an organizing concept of environmental law. Before Sax "revived and re-invented" (as Carol Rose put it) this now-widespread idea in his seminal article, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, few had heard of the doctrine. Since then, thousands of articles, briefs, and court decisions in the US and other countries have cited as a matter of course to Justinian and Matthew Hale and argued for the relevance of the doctrine to various environmental issues (Fred Shapiro counts 856 citing legal articles).

As Rose explained in her 1998 symposium article, Sax's 1970 article can be understood as his response to ascendant theories of agency capture of the regulatory process and then-new public choice theory, which provided an explanation of the ability of small but cohesive groups to dominate the policy-making process to the detriment of the wider public interest. The public trust doctrine as advanced by Sax was less about property (as was the original doctrine) than about administrative law: Sax wanted courts to be wary of the regulatory process that often sacrificed public good to private interest.

Sax's passing is an opportunity to reflect on the fact that even ubiquitous and seemingly timeless legal ideas have a history, and that history includes not just formal sources of law, but also scholars and others who mold it and change it to fit changing times. It is also an opportunity to be grateful for the deep and wide body of public-minded scholarship (see Doremus's post) left for us by this giant of the law.

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