One billionaire can easily have a full-time team working for him to defend his case, and also buy politicians to do the same. In an oligarchy, technicalities can easily become tools of power.
I think there are valid philosophical differences that significantly affect how the system interprets technicalities. I understand the US takes an approach that's much like code: specify everything precisely in great detail, and technicalities and loopholes can be exploited to subvert the original intent of the law. I may be mistaken on this, but understand the EU tends to laws that specify broader principles, so technicalities and loopholes aren't as useful.
The US approach leads to more precise and consistent application, at the expense of flexibility and achieving the original purpose of the law easier to subvert or avoid. The EU approach leads to less consistent application in corner cases, but is more flexible and harder to subvert the original purpose.
Apologies if I got the EU case wrong, please correct me if I did.
Personally I wish the US tended more towards the EU approach: so in this case if California law mandates public beach access, Khosla needs to provide it somehow, and can't weasel out of it on a technicality.
Much of Europe works with civil law where everything is expected to be codified beforehand. Past cases have little bearing on how a new one will be decided.
Technical and principled? Yes
Precise? If that particular scenario has been anticipated and coded for, yes.
Consistent? No
Of course the facts being the same is the big "if". Jury verdicts are also not strictly bound to precedent the way judges are.
I'm talking about civil law or codified jurisdictions. The ancestor comment confused the US for being a (mostly) codified system, which is why I quoted that, but it was really about describing civil law as being "precise and consistent".
In hindsight I see that it's confusing...
The US has certainly leaned more towards codification since it's inception, but it is still primarily and very much a common law jurisdiction at heart.
What you're overlooking is that laws are often compromises, and governments routinely invoke "the spirit of the law" to end-run around previously made compromises.[1] That's why the US approach is such a stickler for things like textualism (which is associated with conservatives, but is in reality the default interpretive style on both the left and right). "I'm only going to give you as much as I agreed on paper to give you and not an inch more."
[1] A great example of this is the Clean Water Act. There is a ton of fighting over what the phrase "waters of the united states" means. A bi-partisan coalition passed the CWA, intending it to allow the federal government to clean up the country's lakes and rivers. Lately, however, the same law has been interpreted to give the government authority to basically engage in building permitting involving "wetlands" that may be far from the sorts of lakes and rivers that Congress originally sought to address.
We're talking about the compound H2O which isn't considered "water" until it reaches a lake, river, sea.
My bad.
I think people may be misunderstanding here a bit. This case is regarding access above the high tide line. Access below the high tide line is not in question. I'm just thinking from a lot of the comments I'm reading on both sides of this issue that people really aren't quite grasping the question being settled.
In essence, the only thing being debated, is whether or not Khosla has to provide a road and convenient parking above the beach. Predictably, the courts are saying the obvious, "No he doesn't." Why? Because he is obliged by law to make the beach below the high tide line accessible.
FOMB will likely lose their case because, as a series of judges are now making more clear, the public is only entitled to keep the beach proper public. (ie-below the high tide line.)
Also, the courts are not being paid off here by the wealthy in an attempt to disenfranchise the public. The base issue is one of definitions. Obviously, globally speaking, high tide line has served as a fairly convenient, and somewhat obvious definition of "beach". The question you have to answer if you change that is, if the property line is not at the high tide line, then where is it? That's the point at which you start to run into problems, with some saying it's high tide plus maybe 100m? Others might say high tide plus 400m, while still others could claim high tide plus 800m and on, and on, and on.
It seems perfectly sensible to me to require a public access easement to reach the beach below the high tide line. It's a mockery of public access if the only access is by sea.
> FOMB will likely lose their case because, as a series of judges are now making more clear, the public is only entitled to keep the beach proper public. (ie-below the high tide line.)
If you're correct, the law should be amended to require a public access easement.
Also:
>It's a mockery of public access if the only access is by sea
It's the high tide line that is the marker, not the low tide line. So access is always by land.
The issue is that the current custom is to access via the road and parking above the high tide line. That's what locals are accustomed to, that's what is being taken away by Khosla, and that's what the suit is about.
It's the public version of squatters rights, and you can't claim squatters rights if you've been paying rent the whole time.
Justice depends on poorly written, easily hacked code with almost no amount of security team or patching, and also the security team is paid off.
Initially, access was completely free, then the government allowed one owner to collect parking fees from visitors, and now they try to ban all public access outright... Then before you know it, in line with historical technical trends, they will put us all in cages and force us to work for free.
The law is not about technicalities at all, that's BS. The law is irrational; it's all about feelings. It should reflect how the average person feels about things. That's why criminal court cases have a jury instead of a computer to decide on the verdict.
The "public's right of access" to the beach is not at issue in this case. (See pp. 429-430 of the above.) Private ownership of the land in question dates back to before California was a state. When the Mexican-American war ended, the United States entered into the Treat of Guadalupe-Hidalgo, which among other things promised the protection of private property rights that had been granted by the Spanish and Mexican governments in the land that was being ceded to the United States. The California Lands Act of 1851 set up proceedings wherein Mexican and Spanish land titles were turned into U.S. federal patents (land titles).
More than a century later, California added Article X, sec. 4 to its constitution, which declared a public easement over tidal lands to be held for the benefit of the public. In a series of cases, the Supreme Court held that the federal Treaty obligation to protect the scope of private property rights that had been granted by the Spanish and Mexican governments could not be impaired by California's later assertion of a sovereign right of the public to access tidal waters: https://scholar.google.com/scholar_case?case=122714134443780...
Because California had not asserted any public easement in the proceedings under the 1851 act, Khosla's beach is not subject to the general right of the public to access beaches. (See pp. 430 of the above.)
This whole litigation is therefore about a different issue entirely: the public dedication doctrine, which says that private land can become subject to a public easement if "dedicated" to public use. That's where the whole "private parking" thing comes in. Martin's beach was operated as a beach accessible to the public, but where a fee was charged for access. That doesn't count as dedication to the public.
So this case is really about two things that aren't technicalities at all: (1) the relatively small number of California property titles granted by the Mexican and Spanish governments are protected under Treaty against later State assertions of authority; and (2) the difference between dedicating private property to public use, and selling access to property to members of the public.
More generally, technicalities matter. Anglo legal systems like ours are not only about governing society, but protecting individuals and their property from the government. That's why the Magna Carta is a long list of things the King can't do, many of which are the foundation for our Bill of Rights. Protections of private property from seizure by the government for "public purposes" is right there in the Constitution, in the Takings Clause. The United States has thus been fastidious in protecting private property rights inherited from England, Spain, France, etc.
This is also about not changing the rules after the fact. There's lots of fair ways to structure a society. But it undermines notions of rule of law for the government to change the terms of the bargain after-the-fact. A state could be entirely justified in declaring that all oil fields in the state belongs to the state to lease for the benefit of the public. But the state should not be able to sell oil fields to private parties, and then come back later and declare that "in the public interest" the state should get half of all the oil production.
Many governmental abuses result from ignoring "technicalities" in favor of some vaguely-defined (and usually opportunistic) view of the "public's right[s]." The government gives out a property right, because it doesn't have the capital to develop the property itself, and then tries to get more than it bargained for once someone has taken the time to develop that property. One of the things that has made America so successful is that we don't do that. (And instances where we have done that, such as with treaty obligations to Native Americans, are rightfully a source of national shame.)
Surely that happens all the time, though?
I mean, if I brought a car factory in 1950 is it unjust that the government changed the deal by forcing me to start supplying seatbelts in the 1960s?
In this case, a California court of appeals found that there was no "public trust" right to access the beach years ago. So what did the state do? It pursued a frivolous theory based on the idea that just because someone has been operating a public beach, they and all their successors must keep operating a public beach. That's not a law of general application "requiring everyone to put seatbelts in cars." That's abuse targeting a single individual and his property.
http://www.daviddfriedman.com/Academic/Metarules/Metarules.h...
It discusses some of the problems with both horns of the dilemma about changing rules.
At some point doesn't the past have to become the past?
I think Khosla should be allowed to shut down the parking lot, but be required to maintain some sort of minimal road/path easement.
I should really read the full SCOTUS decision though before feeling confident in this POV.
Because part of the terms of the Treaty of Guadalupe Hidalgo were that Mexicans residing in land ceded to the US at the time would retain certain rights.
Also maybe how CA could end this situation: pass a law that all current property rights are guaranteed, but only rights recognized under current CA law are conveyed at sale. Or maybe it needs to be a US law--or a treaty amendment with Mexico.
It's the least we could do for Khosla.
Part of a right of ownership is to be able sell or otherwise dispose of property (or the rights thereof).
Saying you can own it, but not sell it isn't ownership. At best, it's usufruct.
Just wanted to point out that this kind of arrangement exists already for things like embassies.
> Also maybe how CA could end this situation: pass a law that all current property rights are guaranteed, but only rights recognized under current CA law are conveyed at sale. Or maybe it needs to be a US law--or a treaty amendment with Mexico.
I don't sympathize with Khosla and admit that I haven't fully researched the impacts of the treaty but it does seem like something most easily resolved by the federal government.
Managing access to scarce resources is the primary purpose of the system of private property.
Spain - https://www.spanishpropertyinsight.com/legal/ley-de-costas-c... Sweden - https://visitsweden.com/about-the-right-of-public-access/ Australia - https://www.news.com.au/travel/travel-advice/travellers-stor...
and so on... all but a search query away.
You're allowed to move freely on most land, and even camp there. But that right ends when you're within sight of the owners home.
https://visitsweden.com/about-the-right-of-public-access/
California law has no such exceptions. You're allowed on the beach up to the high tide level, regardless of if somebody's home is right there.
[1] https://en.wikipedia.org/wiki/Freedom_to_roam#Nordic_countri...
Even if we limit it to "just" restrictions on public access, I don't think there are many jurisdictions that don't have carve-outs that provides protections for public access of some sort to some private land.
The reason, of course, being that most countries have traditions of access that long pre-dates modern property law, and that had to be accommodated.
In Norway, the freedom to roam was considered so intrinsic to Norwegian culture that is was not even mentioned in law until the 1960's, because it was considered "obvious", despite the fact that the Norwegian legal system is based on codified laws with very limited use of precedents, and certainly no "common law" element. In a completely opposite way of seeing it, Sweden embedded it in their constitution, because it was considered such an innate right.
While the expansive freedom to roam of the Nordic countries, is relatively rare, ensuring public access to the shore has been considered not just an issue of leisure access, but an issue of guaranteeing economic interests and food safety for centuries in a large proportion of countries with shore lines, and so has been very widespread - countries that don't guarantee access to the "dry" part of the beach have often still guaranteed access to the tidal zone, for example, to allow for fishing, or gathering mussels etc.
The idea that some people have of property rights as something exclusive just does not match reality - there's been a very acute recognition in most legal systems that property rights restricts the freedoms of the general public, and that as a consequence some trade-off must be made. The question is generally not if one needs to be made, but how extensive the right of public access should be.
I don't think the Swedish "Allemansrätten" would allow the public to a beach in front of someone's home, as the California rule does, and as this fight is about.
I don't know how close this specific billionaire housing unit is to the beach, so I can't speak to this case, but the Swedish rule is less permissive than the California one.
I would also observe that these "right to roam" rules work well in sparsely populated places like Scandinavia, but you won't see much of them in more dense jurisdictions.
California is pretty much the size of Sweden, but with 4x the population.
> Managing access to scarce resources is the primary purpose of the system of private property.
The purpose of private property is economic. Locke's theory of private property was that because a laborer improves nature through their labor, they are thus entitled to the fruits of said labor, with the intention that they will keep up the land better than common land. In other words, they worked hard to develop their garden, so they get exclusive management of it. The result of this work on the land was intended to result in improved economic output.
But the quality of the land, or the result of the labor of its management, is a separate concern from access. We're talking about wanting the public to have access, not for it to be kept better, or to be used as an economic tool. According to (at least one) theory of private property, an individual owner could still maintain it properly while allowing public access to it. And that's probably why a UK law allows the public to roam on private property (well, that and traditional rights).