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> 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

> 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
    - jdsully 7y ago
      If a case has been litigated in the past then you should get the same result if the facts are the same. It's the party with the case law on their side's responsibility to demonstrate past rulings that support them. If you spend time watching legal shows you'll see them use the word "precedent" a lot for this reason. Of course the facts being the same is the big "if". Jury verdicts are also not strictly bound to precedent the way judges are.
      - deleted 7y ago
        [deleted]
      - beerandt 7y ago
        What you're talking about is a feature of common-law. 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...
- tormeh 7y ago
  Not a lawyer, but counter-intuitively I think it ends up working the other way around. Because in civil law the law itself reigns supreme and can't be "fixed" in the courts, the law must be error-free, which is why you'd generally want to write it in a vague way with room for interpretation. In common law, interpretation is equal to the letter, so lawmakers can afford to be specific without breaking stuff.
beerandt 7y ago
Codification of everything does not lead to more consistent application, since it's impossible to code for every possible scenario, and every decision depends on the interpretation of the particular jurist reading the code. Which means in a "pure" codified legal framework, stare decisis is not a thing. 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.
usuehegdj 7y ago
So the real difference is that the US likes actual laws and the EU likes political tools? Seems about right considering their cash grab regulations aimed at American tech.
rayiner 7y ago
> 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. 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.
- specialist 7y ago
  Water tends to eventually cycle thru rivers and then oceans. Even if it's temporarily stuck in ponds, humans, snow globes and whatnot.
  - specialist 7y ago
    Oh. We're talking about the compound H2O which isn't considered "water" until it reaches a lake, river, sea. My bad.
bilbo0s 7y ago
>so in this case if California law mandates public beach access, Khosla needs to provide it somehow, and can't weasel out of it 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.
- CharlesColeman 7y ago
  > 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. 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.
  - bilbo0s 7y ago
    The issue is that even if you get the easement, it only has to be to the land below the high tide line. So either way, Khosla would be under no obligation to maintain, or even keep, the current road and parking. As all of the current infrastructure is above the high tide line. That's the essential problem. 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.

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
  - jdsully 7y ago
    If a case has been litigated in the past then you should get the same result if the facts are the same. It's the party with the case law on their side's responsibility to demonstrate past rulings that support them. If you spend time watching legal shows you'll see them use the word "precedent" a lot for this reason. Of course the facts being the same is the big "if". Jury verdicts are also not strictly bound to precedent the way judges are.
    - deleted 7y ago
      [deleted]
    - beerandt 7y ago
      What you're talking about is a feature of common-law. 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...
tormeh 7y ago
Not a lawyer, but counter-intuitively I think it ends up working the other way around. Because in civil law the law itself reigns supreme and can't be "fixed" in the courts, the law must be error-free, which is why you'd generally want to write it in a vague way with room for interpretation. In common law, interpretation is equal to the letter, so lawmakers can afford to be specific without breaking stuff.

beerandt 7y ago

Codification of everything does not lead to more consistent application, since it's impossible to code for every possible scenario, and every decision depends on the interpretation of the particular jurist reading the code. Which means in a "pure" codified legal framework, stare decisis is not a thing. 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.

usuehegdj 7y ago

So the real difference is that the US likes actual laws and the EU likes political tools? Seems about right considering their cash grab regulations aimed at American tech.

rayiner 7y ago

> 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. 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.

specialist 7y ago
Water tends to eventually cycle thru rivers and then oceans. Even if it's temporarily stuck in ponds, humans, snow globes and whatnot.
- specialist 7y ago
  Oh. We're talking about the compound H2O which isn't considered "water" until it reaches a lake, river, sea. My bad.

bilbo0s 7y ago

>so in this case if California law mandates public beach access, Khosla needs to provide it somehow, and can't weasel out of it 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.

CharlesColeman 7y ago
> 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. 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.
- bilbo0s 7y ago
  The issue is that even if you get the easement, it only has to be to the land below the high tide line. So either way, Khosla would be under no obligation to maintain, or even keep, the current road and parking. As all of the current infrastructure is above the high tide line. That's the essential problem. 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.