On the Legal Life-History of Beaches

Climate change is, among other things, making it more and more difficult to get to the beach. Recent studies show that rising sea levels have been shrinking America’s beaches through erosion and inundation. This trend is unlikely to slow down anytime soon, and some scientists predict that we will see feet of additional sea-level rise within our lifetimes. While beaches are shrinking, reducing the availability of recreational opportunities for locals and tourists alike, the number of people who want to visit the beach has grown dramatically. The growth in demand is due to a variety of factors, including the very low cost of going to the beach, its prominent place in American culture, and—of course—the fact that the combination of oceans, waves, and sand makes for an irreplaceable outdoor experience.

In his classic paper, Toward a Theory of Property Rights, the economist Harold Demsetz hypothesized that, as the availability of a resource declines or as demand increases, people will have a greater incentive to convert the resource from a commons into pieces of private property. Demsetz’s hypothesis has proven correct with respect to beaches: many landowners have responded to the era of less beach and more visitors by expending resources on beach privatization. The attempted privatization of America’s beaches does not evince a coordinated attempt to establish a market. Instead, what landowners and their lawyers have done is to convince the courts to recast the beach, which for centuries had been a blurry mix of public and private rights, as a fundamentally private holding that might occasionally be burdened with the odd public right-of-way.

Beach privatization exacerbates the effects of unequal wealth by converting a place of outstanding, low-cost recreational opportunities into a string of exclusive backyards that enhance the value of already-expensive beachfront homes. In addition to the fact that landowners have convinced courts of law to facilitate wrong-way wealth transfers, they have also made a substantial dent into the social justice supplied by low-cost, high-quality recreation.

This Article explains how the current privatization movement is contrary to almost a millennium’s worth of common law meant to ensure that beaches would continue to supply the ecosystem service of “connectivity”—a low-cost connection between land and sea—not just to the wealthy, but to the working person and the wanderer as well. After explicating the conflict between privatization and tradition, the Article goes on to provide a number of theories that history-conscious courts can use to strike a blow for equality and to restore a healthy balance between public and private rights.

a. Solomon Blatt Professor of Law and Founder, The Coastal Law Field Lab, University of South Carolina School of Law. Thanks to Michael Heller, Nathan Richardson, and Buzz Thompson for providing valuable feedback on this project. I am also grateful for questions and suggestions I received from colleagues at Washington and Lee University School of Law, a meeting of the Southern Environmental Law Scholars, and the Colorado-Duke-UCLA environmental colloquium series. Finally, I greatly benefited from the input provided by the students in my Beach Law Seminar, who wrote legal life-histories of beaches across America.

The full text of this Article is available to download as a PDF.