This Article examines the tendency of many legal scholars to overextend the scope of a previous scholar’s original idea—in this case, Professor Joseph Sax’s reconceptualization of the largely moribund common law public trust doctrine. Legal scholars are induced to write immoderately either to enhance their standing within the academic community or, more selflessly, to achieve law reform. These expansionist tendencies, however, are not without risk—a common law doctrine that becomes too unmoored from its historical shackles may lose the support of the courts that is required for its implementation. The Article examines whether a combination of academic norms and hortatory institutional standards might minimize that risk by encouraging derivative scholars to think critically about the impact of their writings on the original idea lest they unintentionally jeopardize the initial author’s objectives. The purpose of the Article is not to discourage derivative, even revisionist scholarship, but only to make second generation scholars more reflective about the potential real world consequences of their writings.
23 N.Y.U. Envtl. L.J. 390-433 (2015)
Scholarly Commons Citation
Babcock, Hope M., "What Can Be Done, If Anything, About the Dangerous Penchant of Public Trust Scholars to Overextend Joseph Sax’s Original Conception: Have We Produced a Bridge Too Far?" (2015). Georgetown Law Faculty Publications and Other Works. Paper 1656.