Article | State Law
Walling Out: Rules and Standards in the Beach Access Context
by Timothy M. Mulvaney*
From Vol. 94, No. 1
93 S. Cal. L. Rev. 1 (2020)
Keywords: State Law, Beach Access, Public Policy
The overwhelming majority of U.S. states facially allocate exclusionary rights and access privileges to beaches by categorically deciding whom to wall in and whom to wall out. In the conventional terms of the longstanding debate surrounding the design of legal directives, such “rules” are considered substantively determinant ex ante and, in application, analogically transparent across similarly situated cases. Only a small number of jurisdictions have adopted “standards” in the beach access context, which—again, on the conventional account—sacrifice both determinacy and transparency for the ability to accommodate ex post the complexities of individual cases. This Article contends that beach access policy illustrates the familiar limitations of this conventional rules-versus- standards account in two elucidating ways. First, the implementation of contemporary beach access law suggests that the gap between rules and standards with respect to the virtue of determinacy is not nearly as wide as the conventional account allows. In short, beach access rules are not and cannot in actuality be divorced from context, while beach access standards take shape through applications that reveal core archetypes. Second, while beach access rules reflect the virtue of transparency in the sense that they minimize some forms of arbitrariness, standards offer their own, robust version of transparency, which is grounded in promoting dialogue and demanding accountability. The Article offers these contentions not to press the view that standards are necessarily superior to rules en masse, but, instead, to prompt reflection on the nearly uniform and seemingly impulsive rule fetishism that has held sway in the beach access context.
*. Professor of Law and Associate Dean for Faculty Research, Texas A&M University School of Law. Thank you to Gregory Alexander, Vanessa Casado Pérez, Hanoch Dagan, Nestor Davidson, Eric Freyfogle, John Lovett, Nadav Shoked, Joseph Singer, Laura Underkuffler, Brian Weeks, and Katrina Wyman for commenting on earlier drafts of this Article, and to Cole Watson for diligent research assistance. Thanks, too, to Donna, Eugene, Patrick, Jacob, and Blake Mulvaney, Ashley, Tristan, and Ryan Hedrick, Christopher, Arthur, and Amy McCann, Kevin Tray, Michael and Robert Lowe, Paul D’Elia, Edward, Mary, and Allison Norcia, Andrew Martin, Bryan Wallach, Mark Lindquist, Doug Forken, Ryan Morra, Eleanor Hish, David Manzo, James Courtney, Christopher Lilien, Robert Leichte, Chris Seiler, Marc Buttacovoli, Mary Spanburgh, Anthony Casale, Matthew Smith, Maria Dunlap, Benjamin Greer, Craig Irrgang, Maikel O’Hanlon, Matthew Duffy, John Bramlette, Richard Billings, Kevin Gregory, Matthew Popowsky, Michael Newshell, Ashley Reichelman, Michael Hazlet, and Brian Gardner, and the many others along the way who participated in and contributed to the Habitat Paddle to Build project that served as inspiration for this Article. I benefitted from the opportunity to present various iterations and components of this manuscript at Cornell Law School, Harvard Law School, Maastricht University, the University of Cambridge, the University of Edinburgh, and the University of Michigan Law School.