8 ms·

It’s a shame to read about these legal arguments that hang on technicalities (whether previous access was tied to private parking or not) as opposed to what sur

It’s a shame to read about these legal arguments that hang on technicalities (whether previous access was tied to private parking or not) as opposed to what surely must be the actual issue: the public’s right of access to the scarce national resource of beaches.

ISL 7y ago
Technicalities are part have having a rule of law. The legislature (or at the formation of a governmental system) is where the issues get debated and the law determined.
- 3fe9a03ccd14ca5 7y ago
  And a local government that loves to create laws will always be inundated with lawsuits related to their technicalities.
- mikepurvis 7y ago
  Surely that's the role of the courts? The legislature is there to provide broad guidance in the form of laws; it's judges and juries who agonize over these details and enshrine them in case law.
  - CryptoBanker 7y ago
    Studies have shown time and time again that the courts treat the wealthy and the poor differently...
    - 0-9 7y ago
      The law, in its majestic equality, allows the poor as well as the rich to exclude the public from their private beach compounds.
    - mikepurvis 7y ago
      Not arguing that the arrangement is just or fair, only about what the intent of it is.
- rcMgD2BwE72F 7y ago
  What about information asymmetry that makes it easy for some to manage these technicalities? 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.
- CharlesColeman 7y ago
  > Technicalities are part have having a rule of law. The legislature (or at the formation of a governmental system) is where the issues get debated and the law determined. 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.
  - jdsully 7y ago
    The legal philosophy is actually the opposite. Common Law is heavily based upon precedent and what the norms of the community are to “fill in the gaps”. The vast majority of what goes into a decision is this historical case law. The actual legal text is more of a framework than exhaustive guide. 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.
    - basch 7y ago
      In theory, civil law can still be technical or principled. It's a set of instructions used to make a decision. The interpreter then decides, maybe based on law maybe based on precedent, or a mix.
      - beerandt 7y ago
        >>The US approach leads to more precise and consistent Technical and principled? Yes Precise? If that particular scenario has been anticipated and coded for, yes. Consistent? No
- seph-reed 7y ago
  In other words: 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.
  - gorgoiler 7y ago
    A high-quality, moral, independent, and often compassionate judiciary is certainly a requirement for anything like common law to work.
- outside1234 7y ago
  Technicalities are the part of the law that are exploited by the megarich.
- cryptica 7y ago
  But laws based on historical technicalities tend to lose sight of the big picture around which laws were originally designed. 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.
BurningFrog 7y ago
California's beach access law is fairly unique. Not some kind of universal human right. I'm not aware of it existing in any other jurisdiction. Managing access to scarce resources is the primary purpose of the system of private property.
- rjbwork 7y ago
  It's the purpose of the specific system of western capitalism's system of sole-ownership in perpetuity of private property.
- smachiz 7y ago
  I'm not sure that's true. I'm pretty sure almost every state with beaches (inland or ocean) has laws that provide for public access to the beaches. How far reaching they are - and how they're enforced - would require more research. http://www.beachapedia.org/Beach_Access http://www.beachapedia.org/Beach_Access
  - ghaff 7y ago
    It's often in the form of public right to use the coastline below mean high water or something along those lines. However, that often does not include an automatic right to land access. The details vary mostly at the state level.
- draugadrotten 7y ago
  There are many jurisdictions with public beach access. Spain - https://www.spanishpropertyinsight.com/legal/ley-de-costas-coastal-law/ https://www.spanishpropertyinsight.com/legal/ley-de-costas-c... Sweden - https://visitsweden.com/about-the-right-of-public-access/ https://visitsweden.com/about-the-right-of-public-access/ Australia - https://www.news.com.au/travel/travel-advice/travellers-stories/beach-access-rights-is-anyone-allowed-to-actually-own-the-beach/news-story/5f5378a43851170893dedc7eee8150c3 https://www.news.com.au/travel/travel-advice/travellers-stor... and so on... all but a search query away.
  - aboodman 7y ago
rayiner 7y ago
It only seems like a technicality if you don't know the tortured history of this case: https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2193&context=elq https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... 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=12271413444378083765&q=466+us+198&hl=en&as_sdt=20006 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.)
dingo_bat 7y ago
> public’s right of access to the scarce national resource of beaches I must have missed that part in the constitution. Mind pointing it out?

ISL 7y ago

Technicalities are part have having a rule of law. The legislature (or at the formation of a governmental system) is where the issues get debated and the law determined.

3fe9a03ccd14ca5 7y ago
And a local government that loves to create laws will always be inundated with lawsuits related to their technicalities.
mikepurvis 7y ago
Surely that's the role of the courts? The legislature is there to provide broad guidance in the form of laws; it's judges and juries who agonize over these details and enshrine them in case law.
- CryptoBanker 7y ago
  Studies have shown time and time again that the courts treat the wealthy and the poor differently...
  - 0-9 7y ago
    The law, in its majestic equality, allows the poor as well as the rich to exclude the public from their private beach compounds.
  - mikepurvis 7y ago
    Not arguing that the arrangement is just or fair, only about what the intent of it is.
rcMgD2BwE72F 7y ago
What about information asymmetry that makes it easy for some to manage these technicalities? 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.
CharlesColeman 7y ago
> Technicalities are part have having a rule of law. The legislature (or at the formation of a governmental system) is where the issues get debated and the law determined. 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.
- jdsully 7y ago
  The legal philosophy is actually the opposite. Common Law is heavily based upon precedent and what the norms of the community are to “fill in the gaps”. The vast majority of what goes into a decision is this historical case law. The actual legal text is more of a framework than exhaustive guide. 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.
  - basch 7y ago
    In theory, civil law can still be technical or principled. It's a set of instructions used to make a decision. The interpreter then decides, maybe based on law maybe based on precedent, or a mix.
    - beerandt 7y ago
      >>The US approach leads to more precise and consistent Technical and principled? Yes Precise? If that particular scenario has been anticipated and coded for, yes. Consistent? No
seph-reed 7y ago
In other words: 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.
- gorgoiler 7y ago
  A high-quality, moral, independent, and often compassionate judiciary is certainly a requirement for anything like common law to work.
outside1234 7y ago
Technicalities are the part of the law that are exploited by the megarich.
cryptica 7y ago
But laws based on historical technicalities tend to lose sight of the big picture around which laws were originally designed. 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.

BurningFrog 7y ago

California's beach access law is fairly unique. Not some kind of universal human right. I'm not aware of it existing in any other jurisdiction. Managing access to scarce resources is the primary purpose of the system of private property.

rjbwork 7y ago
It's the purpose of the specific system of western capitalism's system of sole-ownership in perpetuity of private property.
smachiz 7y ago
I'm not sure that's true. I'm pretty sure almost every state with beaches (inland or ocean) has laws that provide for public access to the beaches. How far reaching they are - and how they're enforced - would require more research. http://www.beachapedia.org/Beach_Access http://www.beachapedia.org/Beach_Access
- ghaff 7y ago
  It's often in the form of public right to use the coastline below mean high water or something along those lines. However, that often does not include an automatic right to land access. The details vary mostly at the state level.
draugadrotten 7y ago
There are many jurisdictions with public beach access. Spain - https://www.spanishpropertyinsight.com/legal/ley-de-costas-coastal-law/ https://www.spanishpropertyinsight.com/legal/ley-de-costas-c... Sweden - https://visitsweden.com/about-the-right-of-public-access/ https://visitsweden.com/about-the-right-of-public-access/ Australia - https://www.news.com.au/travel/travel-advice/travellers-stories/beach-access-rights-is-anyone-allowed-to-actually-own-the-beach/news-story/5f5378a43851170893dedc7eee8150c3 https://www.news.com.au/travel/travel-advice/travellers-stor... and so on... all but a search query away.
- aboodman 7y ago

rayiner 7y ago

It only seems like a technicality if you don't know the tortured history of this case: https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2193&context=elq https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art... 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=12271413444378083765&q=466+us+198&hl=en&as_sdt=20006 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.)

dingo_bat 7y ago

> public’s right of access to the scarce national resource of beaches I must have missed that part in the constitution. Mind pointing it out?