Indelible Public Interests in Property: The Public Trust and the Public Forum

Abstract

In response to the ongoing debate over how much of the surface real estate reclaimed by the Big Dig should be devoted to open space, and how much to other uses, this Article examines two legal doctrines that are frequently implicated by plans for changes in use and disposition of publicly-owned property. While these doctrines stand on distinct historical and theoretical foundations and diverge from each other in many respects, there are important parallels between them in how they conceptualize the relationship between government’s power to regulate, control, and dispose of land it owns, and the rights belonging to what one scholar has called the “unorganized public” in that same property. On a more pragmatic level, commonality between these two doctrines arises from their applicability to the same physical spaces and their concern with the same types of governmental actions. Therefore, while both the courts and the academy have largely examined these doctrines separately, this Article employs a comparative analysis to better understand the relationship between government and the “unorganized public” with respect to publicly-owned property, and to more fully appreciate the limitations on the use of currently and formerly publicly-owned lands.