Wednesday, December 2, 2009

Stop the Beach analysis

So the oral arguments in perhaps the biggest property/land use case since Kelo were today.  Check out Will Cook's earlier post for some of the news articles about the case.

Ben Barros has a great post on the Property Prof Blog with some extensive early analysis.  I don't have much else to add at this point, so just go over there and check it out: Of Hotdog Stands and Beach Parties.

Also, Lyle Denniston at SCOTUSblog has a good analysis: An elusive constitutional issue.

The transcripts of today's oral argument are available at supremecourtus.gov.

Certainly there will be more to come!

Matt Festa

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Justice Scalia’s comment yesterday in the argument of the beachfront property case – in which he stated that a beachfront landowner would be “astounded” to learn that its property might not reach the water after beachfront widening – helps reveal the fundamental flaw in his thinking about property rights. He often presumes that, under a traditional and a supposedly fixed “common law” of property, rights were simple and straightforward and close to absolute, before big government and environmentalists started meddling and chiseling in the past half-century. Or, to borrow Ackerman’s concept, that traditional property rights were comprehensible to an “ordinary observer.”

But even the quickest review of traditional beachfront law reveals a blizzard of concepts – mean high tide lines, customary rights, prescriptive easements, accretion and avulsion – that are not simple, straightforward, or absolute, or readily comprehensible by an ordinary observer.

This is not to say that the beachfront renourishment programs are always justifiable, nor that they never implicate property rights. But a sensible law cannot be developed a reliance on simplicities.

Paul Boudreaux, Stetson University College of Law
editor, Land Use Prof Blog, 2006-2009

Posted by: Paul Boudreaux | Dec 3, 2009 7:25:43 AM

Hey Paul, welcome back to the Blog! The Supreme Court often astounds me with their lack of understanding about the fundamentals related to water. Even a non-hydrologist can be amazed at the court's misunderstanding about how wetlands work in the Rapanos case, for example. Thanks for checking in with us!

Posted by: Jamie Baker Roskie | Dec 4, 2009 10:56:10 AM

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