Document Type

Article

Publication Date

2026

Publication Information

29 Virginia Journal of Law & Technology 153 (2026)

Abstract

In the sixth century, the Roman Emperor Justinian declared that certain resources should be for the benefit of all of mankind, thereby planting the seeds of what is referred to as the public trust doctrine. Two core ideas behind the doctrine, which have evolved and expanded over time, are: (1) there are certain critical resources that should be available for all to use; and (2) governments that own or control those resources should preserve and manage them for the public good.

As insightful as Justinian was, his vision was naturally constrained by the times in which he lived, which was centuries before the invention of Gutenberg’s printing press in 1440, the Age of Enlightenment of the eighteenth century, and the creation of trade secret law in the nineteenth and twentieth centuries. Thus, the focus of his pronouncement was on the critical resources of his time: air, water, the sea, and the shores of the sea. The idea that a public trust would also apply to information and knowledge could not have been contemplated by himbecause the human and commercial value of information was not yet appreciated. Also, because the public trust doctrine was initially conceived of as a right of the sovereign, it was not until much later that the doctrine evolved to recognize that the public has “inalienable rights” in things related to the public good. Thus, as the doctrine evolved, it is the nature of the public good, and not its ownership, that often determines if a public trust attaches.

In this essay, I argue that the time has come to recognize that the public trust doctrine should apply to information and knowledge because they are critical public goods. I also demonstrate how and why application of the doctrine to government information will make it easier to resolve disputes concerning such information.

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