The Public Trust and the Chicago Lakefront: Review of Kearney & Merrill’s Lakefront: Public Trust and Private Rights in Chicago (Cornell U. Press, 2021)

Abstract

Joseph Kearney and Thomas Merrill’s brilliantly illustrated LAKEFRONT is sure to win American legal history awards for its riveting history of the machinations behind the preservation of the magnificent Chicago lakefront, now dominated by public spaces. The authors weave together a compelling account of how the law affected the development of the post-fire Chicago in the late 19th and 20th centuries—largely made by lawyers and courts and only ratified by legislatures. The book’s title suggests that the story is largely about the public trust doctrine (PTD). But the doctrine is hardly the centerpiece of the authors’ story. What they have to say about the doctrine is confined to the Illinois version of the PTD, and they do not endeavor to explain where it deviates from the modern direction of the PTD. The book’s history of Chicago and its lakefront is groundbreaking legal history, buttressed by twenty years of exhaustive research, colorful characters, and interesting legal developments, of which the PTD played only a supporting role until the 1970s. The principal lesson of their story, one the authors do not emphasize enough, is a persistent struggle between public and private rights along the lakefront. What is unusual is how long this struggle endured, beginning with Illinois Central Railroad’s dominance in the late 19th century and the so-called “Lake Front Steal” of 1869, in which the Illinois legislature conveyed roughly one thousand acres of submerged Lake Michigan land to the railroad. The legislature soon thought better of the giveaway, and its rescission in 1873 culminated in a famous 1892 Supreme Court decision on the PTD, Illinois Central Railroad v. Illinois, pronounced as the lodestar case of the doctrine by Professor Joe Sax a half-century ago. The authors discuss the controversy over the lakebed conveyance and the Court’s pathbreaking decision, but they view the effect of the PTD on the Chicago lakefront as less significant than other considerations like the public dedication doctrine, which nearby landowners invoked to restrict development of the lakefront and preserve their views of the lake. Still, the Illinois Central Court focused public attention on what was an attempt to create a monopoly of the lake’s outer harbor, and that attention has persisted for a century-and-a-quarter following the Court’s decision. Today, the Chicago lakefront is largely public, the consequence of several factors that LAKEFRONT explains. This struggle between public and private rights over the Chicago lakefront existed long before the dawn of the modern environmental movement a half-century ago, influenced not only by the Court’s surprising 1892 decision but also by the persistent oversight of neighboring landowners protecting their views of the lake. This public-private clash, in which private rights were subject to both public and neighboring landowner challenges, created the glorious Chicago waterfront of today. This review of the Kearney and Merrill book focuses on the public trust doctrine, as articulated in the Lake Front case that culminated in the Illinois Central Court’s decision. There is more to the book, mostly centering on local Chicago interest, so this review concentrates on the public trust. Though in the book’s title, the authors maintain that the PTD was not as central to the story of the lakefront’s preservation as other influences. They remain public trust skeptics.