Kreder on the Public Trust

“The Gross Clinic”, Thomas Eakins, 1875. This work was sold by Thomas Jefferson University to the Philadelphia Museum of Art and the Pennsylvania Academy of Fine Arts in 2006, prompting discussion of whether this work had entered the “public trust”.

Prof. Jennifer Anglim Kreder has published an article examining the concept of the “Public Trust” in the Pennsylvania Journal of Constitutional Law. The doctrine has been used in environmental and museum law, but has a richer history:

It seems as if no one really knows the meaning of the term “public Trust” used in the Religious Test Clause of Article VI of the U.S. Constitution. This Article is the first scholarly attempt to define the term by exploring historical evidence pre-dating the nation’s founding through the Constitution’s adoption, including British and colonial trust law that influenced the Founders’ conception of the term. Today, one can find the term used only in the cases and scholarship concerning environmental law, tax law and museum law. After a thorough analysis of the old and new sources, this Article proposes the following original definition of term “public Trust”: “Any entity given special privilege by the government, beyond the simple grant of a state corporate charter often coupled with state or federal tax waivers, so long as that entity is legally obligated to engage in conduct that could traditionally have been performed by the government itself for the public’s benefit.”

 

Kreder, Jennifer Anglim, The ‘Public Trust’ (January 21, 2016). 18 University of Pennsylvania Journal of Constitutional Law 1425 (2016).

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