Cornell University Press

Chicago Lakefront: Visions of Public Rights

Return to Home

Most resources in the modern world are held as private property. There is one striking exception: some resources are said to be protected by a “public trust,” prohibiting the exclusive rights that are a hallmark of private property. The leading case recognizing this public trust, an 1892 decision of the US Supreme Court, arose out of an attempt to transfer, to the Illinois Central Railroad, 1,000 acres of submerged land under Lake Michigan, next to Chicago’s downtown. The Court’s landmark and unanticipated holding was that the area could not be alienated: the waters of the lake were said to be held “in trust for the people,” to ensure that everyone could boat and fish in the lake without interference from a private corporation.

Most resources in the modern world are held as private property.

Lakefront: Public Trust and Private Rights in Chicago explains the circumstances that gave rise to the grant to the railroad, the bitter fight over whether it could be constitutionally repealed, and the rationale and possible motivation of the Supreme Court’s decision. Yet the scope of the book is much broader: It seeks to determine what role the public trust doctrine—or the law more generally—has played in creating today’s spectacular and internationally famous Chicago lakefront.

It turns out that the public trust had little to do with the creation of the modern Chicago lakefront. To begin with Grant Park, along the lakefront in the center of the city: This 319-acre public space was largely saved from development by a different doctrine, which allows private property owners to sue to enforce a “public dedication” of land, in this instance one providing that the space would be free of buildings. The public trust was also ignored in constructing Lake Shore Drive and associated parks running along the lakefront, north and south. These public spaces were made possible because the park districts were able to acquire the rights of existing riparian owners in low-visibility “boundary-line agreements,” which allowed the private owners to claim and fill submerged land between the original shore and the new parkland. In fact, in the first seventy-five years or so after the 1892 decision, the public trust was interpreted to mean little more than that the state legislature, which was deemed to be “trustee” of the protected lands, had to authorize any landfilling in Lake Michigan.

It turns out that the public trust had little to do with the creation of the modern Chicago lakefront.

Starting in 1970, the public trust idea experienced a remarkable revival, coinciding with an upsurge in concern for protecting the environment. Urged on by an academic, Professor Joseph L. Sax, the courts held that the public trust was not limited to protecting the right of the public to boat and fish, but rather served much more broadly: to prevent critical public resources from being redirected for purely private purposes. The courts have been unclear about what resources are covered, and what standard of judicial review should apply to legislative acts authorizing a private use of such resources. Yet this revived public trust doctrine is now the primary legal doctrine used to adjudicate controversies about new uses of the Chicago lakefront. The results have been mixed, as some examples reflect: An expansion of the South Works steel mill was blocked, but a reconstruction of Soldier Field for the use of the Chicago Bears was approved. A museum to be underwritten by George Lucas, promoting the “narrative arts” (and housing his movie props), was delayed by litigation invoking the doctrine, whereupon Lucas took the project to Los Angeles. The Obama Presidential Center was delayed but appears to be going forward.

Yet this revived public trust doctrine is now the primary legal doctrine used to adjudicate controversies about new uses of the Chicago lakefront.

The book concludes that public ownership is the primary explanation for the glamorous Chicago lakefront, not the public trust doctrine. In particular, the parks and the drive are constructed on extensive landfills by park districts, which in unusually creative ways took control of the new land before private developers could get their hands on it. In fact, if the public trust doctrine had been enforced as advocated in its most rigorous contemporary form, which disapproves of any additional landfilling in the lake, this would not have been possible.

Advance praise for Lakefront, more than twenty years in the making, says that the authors “masterfully weave together this surprisingly contingent story” (Carol Rose, Yale/Arizona) by drawing on their “exhaustive research, clear prose, colorful cast of characters, exceptionally helpful maps, and enviable ability to illuminate complex concepts of private and public property” (Carl Smith, Northwestern). Well beyond Chicago, it is “a must-read for all interested in urban history, property law, and the preservation of public spaces” (Nicole Stelle Garnett, Notre Dame).

Cover image of Lakefront.
Read more about this book.

Joseph D. Kearney is Dean and Professor of Law at Marquette University. Thomas W. Merrill is the Charles Evans Hughes Professor of Law at Columbia University. Before entering academe, both authors clerked at the US Supreme Court and lived for many years in Chicago, where they practiced law and became captivated by the history of the city’s lakefront.

*Header image: Lake Front WalkShareInfo. Credit: Jonathan J. Castellon.

Book Finder