Walling Out: Rules and Standards in the Beach Access Context

Abstract

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 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.

Keywords: rules, standards, rules versus standards, property, beach access, exclusion, right to exclude, access, determinacy, transparency