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  #861  
Old Posted Sep 21, 2018, 1:03 PM
Laife Fulk Laife Fulk is offline
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Originally Posted by Mr Downtown View Post
Yeah, you'll probably want to do further research before filing your amicus brief.

The Public Trust Doctrine is federal common law. It's doubtful that even Congress could change it.
By definition of it being common law, any new statue passed by Congress and signed by the President immediately supersedes common law. The courts have the right to judicial review and could find the law to be unconstitutional, but common law exists only in the absence of statutory law. Since The Public Trust Doctrine comes from Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892) and was ratified in Martin v. Waddell’s Lessee years later, Congress absolutely has the ability to enact new legislation to create new, superseding federal law.
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  #862  
Old Posted Sep 21, 2018, 2:39 PM
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Originally Posted by Laife Fulk View Post
By definition of it being common law, any new statue passed by Congress and signed by the President immediately supersedes common law. The courts have the right to judicial review and could find the law to be unconstitutional, but common law exists only in the absence of statutory law. Since The Public Trust Doctrine comes from Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892) and was ratified in Martin v. Waddell’s Lessee years later, Congress absolutely has the ability to enact new legislation to create new, superseding federal law.
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  #863  
Old Posted Sep 21, 2018, 2:41 PM
Notyrview Notyrview is offline
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Originally Posted by Laife Fulk View Post
By definition of it being common law, any new statue passed by Congress and signed by the President immediately supersedes common law. The courts have the right to judicial review and could find the law to be unconstitutional, but common law exists only in the absence of statutory law. Since The Public Trust Doctrine comes from Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892) and was ratified in Martin v. Waddell’s Lessee years later, Congress absolutely has the ability to enact new legislation to create new, superseding federal law.
Exactly. Mr Downtown, you're wrong again and once again draw an erroneous and hyperbolic conclusion to make your point bc you can't really articulate why you support the turds of the park, other than some transparent forum grudge.

The judges don't even have to find the law unconstitutional. They can make an exception based on the circumstances, and use a test to weigh the harm done to the friends of the park against the overwhelming good done to the public by having the Obama Foundation there. Judges do that all the time, especially with the common law.

Last edited by Notyrview; Sep 21, 2018 at 2:54 PM.
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  #864  
Old Posted Sep 21, 2018, 3:01 PM
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Originally Posted by Laife Fulk View Post
Congress absolutely has the ability to enact new legislation to create new, superseding federal law.
Not if Congress lacks that power because the right is an inherent limit on all sovereigns, a limit that is "pre-Constitutional" in its origins. See "Underpinnings of the Public Trust Doctrine: Lessons from Illinois Central Railroad," 33 Ariz. St. L.J. 849 (2001); Michael C. Blumm and Lynn S. Schaffer, “The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois Central Railroad,” 45 Environmental Law No. 2, Symposium: Public Trust Doctrine (Spring 2015), pp. 399-430; and Richard Hurlburt, "The Public Trust Doctrine - A Twenty-First Century Concept," 16 Hastings West Northwest J. of Envtl. L. & Pol'y 105 (2018).

As Justice Field wrote in Illinois Central:
The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties .... than it can abdicate its police powers in the administration of government and the preservation of the peace.
Obviously, if a state is powerless to abdicate its trust, it cannot convey that [lack of] power to the Congress.

Notyrview, you may have some difficulty with your Civil Procedure exam, given your misunderstanding of fundamental rights. They are not subject to balancing tests. I regret that I can't recommend you as a source of civics lessons.

Last edited by Mr Downtown; Sep 21, 2018 at 3:24 PM.
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  #865  
Old Posted Sep 21, 2018, 3:04 PM
Notyrview Notyrview is offline
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Not if Congress lacks that power because the right is an inherent limit on all sovereigns, a limit that is "pre-Constitutional" in its origins. See "Underpinnings of the Public Trust Doctrine: Lessons from Illinois Central Railroad," 33 *Ariz. St. L.J.* 849 (2001), and Michael C. Blumm and Lynn S. Schaffer, “The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and *Illinois Central Railroad,*” 45 *Environmental Law* No. 2, Symposium: Public Trust Doctrine (Spring 2015), pp. 399-430.

As Justice Field wrote in *Illinois Central:*
The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties .... than it can abdicate its police powers in the administration of government and the preservation of the 13 peace.
Obviously, if a state is powerless to abdicate its trust, it cannot convey that [lack of] power to the Congress.

Lolol omg pre-consitutional??? You're really going to appeal to "natural law"? Say hi to all your militia friends for me
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  #866  
Old Posted Sep 21, 2018, 3:10 PM
Laife Fulk Laife Fulk is offline
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Originally Posted by Mr Downtown View Post
Not if Congress lacks that power because the right is an inherent limit on all sovereigns, a limit that is "pre-Constitutional" in its origins. See "Underpinnings of the Public Trust Doctrine: Lessons from Illinois Central Railroad," 33 Ariz. St. L.J. 849 (2001), and Michael C. Blumm and Lynn S. Schaffer, “The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois Central Railroad,” 45 Environmental Law No. 2, Symposium: Public Trust Doctrine (Spring 2015), pp. 399-430.

As Justice Field wrote in Illinois Central:
The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties .... than it can abdicate its police powers in the administration of government and the preservation of the 13 peace.
Obviously, if a state is powerless to abdicate its trust, it cannot convey that [lack of] power to the Congress.
Even if this was the case (and I strongly disagree that it is... more than happy to DM back and forth on this as to not hijack the thread), all that would need to happen is a Constitutional Amendment (which, yes, would be difficult and I highly doubt would happen for this as it's just not that important of an issue in today's political environment). However, the underlying fact is that Congress can supersede common law by enacting statutes. It's one of the most basic principles of the checks and balances.
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  #867  
Old Posted Sep 21, 2018, 4:05 PM
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Originally Posted by Laife Fulk View Post
all that would need to happen is a Constitutional Amendment
Yes, I suppose that could override Illinois Central to allow the Lucas Museum. I wonder why Mayor Emanuel didn't try that?

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Lolol omg pre-consitutional??? You're really going to appeal to "natural law"? Say hi to all your militia friends for me
Then what do you view as the underpinning of Illinois Central? I suggest you reread pp. 138-141 of the Hurlburt note cited above.
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  #868  
Old Posted Sep 21, 2018, 9:15 PM
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Yes, I suppose that could override Illinois Central to allow the Lucas Museum. I wonder why Mayor Emanuel didn't try that?

Then what do you view as the underpinning of Illinois Central? I suggest you reread pp. 138-141 of the Hurlburt note cited above.
No, my issue is with your statement that "The Public Trust Doctrine is federal common law. It's doubtful that even Congress could change it." That is completely false as Congress could enact statutory law that would supersede any federal common law. States could then challenge the new statutory law as being unconstitutional and the Supreme Court could agree, in which Congress could amend the constitution.

Laws are made all the time that replace common law. Common law does not supersede act of Congress. And it is possible that any law can be changed in the future, and changed multiple times (see 18th and 21st Amendments as an example of this) That's all I'm saying.
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  #869  
Old Posted Sep 21, 2018, 9:42 PM
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But Congress only has the powers granted to it by the several states. If the states didn't have that power (to alienate their navigable waters) to begin with, they cannot pass that power on to Congress. This is not an ordinary bit of criminal or tort common law that can be overcome by positive law in statute, nor is it the kind of common law that was rendered inoperative by Erie R.R. v. Tompkins. Read the Hurlburt note cited above.
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  #870  
Old Posted Sep 21, 2018, 10:32 PM
Laife Fulk Laife Fulk is offline
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Originally Posted by Mr Downtown View Post
But Congress only has the powers granted to it by the several states. If the states didn't have that power (to alienate their navigable waters) to begin with, they cannot pass that power on to Congress. This is not an ordinary bit of criminal or tort common law that can be overcome by positive law in statute, nor is it the kind of common law that was rendered inoperative by Erie R.R. v. Tompkins. Read the Hurlburt note cited above.
Moving this to DM as to not highjack the thread.
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  #871  
Old Posted Sep 22, 2018, 1:22 PM
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Originally Posted by Laife Fulk View Post
Moving this to DM as to not highjack the thread.
Do not apologize, its not hijacking in fact it is germaine to the case.(drop lawyer word). Counsel proceed.
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  #872  
Old Posted Sep 22, 2018, 1:59 PM
Notyrview Notyrview is offline
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But Congress only has the powers granted to it by the several states. If the states didn't have that power (to alienate their navigable waters) to begin with, they cannot pass that power on to Congress. This is not an ordinary bit of criminal or tort common law that can be overcome by positive law in statute, nor is it the kind of common law that was rendered inoperative by Erie R.R. v. Tompkins. Read the Hurlburt note cited above.
If this were 1797, your natural law claim might find some support from Alexander Hamilton? but we now have nearly a hundred years of jurisprudence interpreting the Commerce Clause to give Congress the right to regulate basically everything, which is a good thing, otherwise we'd still have segregation. Even when a the Court has limited those powers, as was the case in 2012, when the Court rejected the government's claim that Obamacare's individual mandate was protected under the Commerce Clause, it still upheld the mandate under Congress' taxing power. The point is, even a conservative Court interprets Congress' authority very broadly and your views are way way way outside the mainstream.
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  #873  
Old Posted Sep 22, 2018, 6:53 PM
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Don't get blinded by the term natural law used in the cited law review article. Illinois Central is still good law, and I know of no Supreme Court cases questioning it. I find myself wondering if you've ever even read it.

Congress has only the specific powers enumerated in Article 1 Section 8. The Commerce Clause has been stretched quite a bit, but as noted in U.S. v. Lopez, 514 U.S. 549 (1995), that power is not infinitely elastic. But as a bedrock principle of federalism, Congress is irrelevant here. Since the State of Illinois lacks the authority to alienate the waters of Lake Michigan, it cannot delegate that authority to the City of Chicago; nor can it grant that authority to Congress.
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  #874  
Old Posted Sep 23, 2018, 5:04 PM
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But then what uses, exactly, are permitted by public trust doctrine? Most of the uses in the Obama Center are akin to those uses already common in our public parks. Museum, field house, underground parking, archives. Many of those improvements in our parks are also owned and/or operated by private entities.

Just as with the Lucas Museum, I fail to see how the Obama Center is materially different from the many other public institutions that exist in Chicago’s parks and, apparently, are entirely legal. How is it any different from the Peggy Notebaert Museum, to use a recent example?
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  #875  
Old Posted Sep 24, 2018, 12:18 AM
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One of the frustrations of our common-law system is that there's no list you can consult showing exactly what is and isn't allowed. Instead, common law evolves as society confronts new challenges, and we have to decide which precedents offer the proper analogy. As for the public-trust doctrine in Illinois, we know that lakebed can be sold to adjacent landowners to finance and allow for the construction of Lake Shore Drive, but can't be sold to the Illinois Central Railroad for a mere locomotive shop. It can't be sold to U.S. Steel for expansion of South Works, and can’t be sold to Loyola University for a college campus, even one with a public park along the lakeshore. (A similar sale to Northwestern in 1961 was never challenged). It can be leased for McCormick Place, and can be used for Soldier Field. The other museums in Burnham Park were built prior to the expansion of the doctrine in the 1960s, and so far as I know were never challenged.

The decision denying Loyola University public trust property suggests that a mere public purpose or generous public use policy isn’t enough to overcome the doctrine, and that control is as important as purpose. See Lake Mich. Fed. v. US Army Corps of Engineers, 742 F. Supp. 441 (N.D. Ill. 1990). The 297-year Lucas lease might have passed muster, but the city called the whole thing off rather than show the documents to the federal court.

Now none of this is relevant to the Obama Center, which (like Notebaert, DuSable, or Science & Industry) is not going on public trust land. We know from Paepcke v. Public Building Comm., 46 Ill. 2d 330 (1970) that there's no problem with a local park district turning over parkland for other public purposes, including schools, and that the determination is generally one for the legislature, not the courts. The Museums Act amendments passed in 2016 would seem to cover the matter. The Protect Our Parks lawsuit is apparently based on due process claims (I have not read the pleadings). As I've said before, I'm not optimistic about POP's chances.
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  #876  
Old Posted Sep 24, 2018, 2:41 PM
Notyrview Notyrview is offline
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Don't get blinded by the term natural law used in the cited law review article. Illinois Central is still good law, and I know of no Supreme Court cases questioning it. I find myself wondering if you've ever even read it.

Congress has only the specific powers enumerated in Article 1 Section 8. The Commerce Clause has been stretched quite a bit, but as noted in U.S. v. Lopez, 514 U.S. 549 (1995), that power is not infinitely elastic. But as a bedrock principle of federalism, Congress is irrelevant here. Since the State of Illinois lacks the authority to alienate the waters of Lake Michigan, it cannot delegate that authority to the City of Chicago; nor can it grant that authority to Congress.
Federalism is a bedrock principle until it's not. For the last 100 years, the Court has reversed the flow of powers as a necessity bc you can't have a weak federal government in a global economy; but more so than that, too often the states just get it wrong, e.g., segregation, pollution, anti-gay legislation, and even those things are tied to the reputation of the U.S. in a global economy.

If Congress really needed to alienate the waters of Lake Michigan, it could do so, and the Court would uphold it based on Commerce or some other powers. Because just like you say, the law is fluid, and these precedents are subject to changing circumstances. That part I really agree with you on. The law is only rational when interpreted vis-a-vis a specific set of facts/context.
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  #877  
Old Posted Sep 24, 2018, 5:43 PM
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^You seem determined to see this through the lens of the 20th century's expansion of the Commerce Clause when it's an entirely different question. It's not a matter of whether something is properly done by the states or by the feds; Illinois Central stands for the proposition that there are some things that even the sovereign may not do.

Illinois Central is settled law, relied on by decades of important environmental decisions. The only thing that could change that would be a constitutional amendment or a Supreme Court decision reversing Illinois Central.
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  #878  
Old Posted Sep 25, 2018, 4:23 AM
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IMO the Loyola decision was a mistake, the public benefit there was significant. But I also think Lake Shore Drive should be extended to the city limit in conjunction with more parkland, so apparently I’m crazy.

But anyway, sounds like you’re saying the Obama Center stands on firm legal footing, regardless of whether you agree with it in principle. So why are we arguing again?
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  #879  
Old Posted Sep 25, 2018, 1:40 PM
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I'm not arguing with you; I'm explaining why LouisVanDerWright is wrong when he says

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the State and City could have just changed the law to correct the loophole the parking lot fiends used
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  #880  
Old Posted Sep 25, 2018, 11:36 PM
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I'm confused, is there a legit chance that this project will get blocked, or is this thing a done deal for all intents and purposes?
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