Deterrence Built into Litigation in Khosla v. Surfrider Foundation
LEGAL 206: Law and Society
5 March 2021
Individuals and organizations go to court in order to expand or narrow the implications of existing statutes or utilize constitutional litigation to change the constitutionality of laws.[1] Yet, legal parties’ ability to shape the law for their objectives is far from equal, as is illustrated in the case between nonprofit Surfrider Foundation and billionaire Vinod Khosla concerning “whether a permit is needed to block the road”[2] to a beach on Khosla’s property. If Khosla won his Supreme Court case, he “could reshape the laws that govern 1,100 miles of shore,” weakening California’s protection of public access to beaches—an outcome that Khosla himself did not even support, but continued to fight for on the principle that “property rights are even more important.” [3] The fact that Khosla’s case was appealed up to the Supreme Court reflects the high value that court precedents have placed on the protection of private property rights, which are explicitly acknowledged in the Fifth Amendment, thus demonstrating how courts are “limited to solutions compatible with the existing institutional framework.”[4] Further, in showing that some individuals and organizations can dedicate more resources to legal battles and thus exert higher influence over which laws are preserved or altered over time, I argue that this case raises questions about when it is pragmatic for an organization such as Surfrider Foundation to use litigation as a strategy to achieve their ends.
The case itself was simple: Khosla hoped to prevent the public from accessing the beach through his property, a beach village which contained “the only viable path to the sand.” [5] The Surfrider Foundation’s argument invoked the Coastal Act of 1976, which mandates public access to beaches while maximizing the constitutionally-protected rights of property owners, and simply required that Khosla “apply for a permit to change the hours of operation on a single gate.” [6] The crux of this case of legal pluralism lay in which rights to prioritize in a clash between the culturally-entrenched Fifth Amendment right to manage one’s private property as one chooses and a state mandate that, taken to the Supreme Court, could affect “every coastal management program in the United States.” [7] Intuitively, one individual’s unwillingness to obtain a permit should not have the potential consequence of weakening public access to beaches across the country—yet, such an outcome could be justified as a natural extension of the “existing institutional framework” built by preceding cases such as Nolan v. California Coastal Commission, which similarly shield beachfront property owners from obligations to maintain public walkways to the beach on their properties.[8] The limitations that precedents place upon “the scale and scope of changes” that courts can introduce in the law the law, even when the court is “favorably inclined” towards “a class of ‘have-nots,’” is further seen in Khosla’s invocation of precedents as far back in legal history as the 1848 Treaty of Guadalupe Hidalgo in defense of his modern-day property rights.[9] Whether or not Khosla was correct in his determination to preserve property rights, this case clearly demonstrates how courts operate in “insulation from the full play of political pressures,” and thus lead to outcomes that uphold an anachronistic corpus of rules.[10]
Precedent preserves decisions made in previous cases, which becomes increasingly concerning when recognizing that because powerful individuals and corporations have greater resources to argue their cases and can “select to adjudicate (or appeal) those cases they regard as most likely to produce favorable rules,” we should expect the body of precedents to favor their interests, which are unlikely to generate a just distribution of power in society.[11] Khosla himself may not have had a particular long-term interest in mind, but he employed the ‘repeat player’ Paul Clement, “who since 2000 ha[d] appeared before the Supreme Court in more cases than any other lawyer,” and therefore clearly possessed an unfair advantage over a nonprofit organization more sensitive to the “uncertainty and the cost—in time, energy, and money—of the litigation process itself.” [12] Unlike Khosla, the Surfrider Foundation could not have dedicated its resources to continuing this legal battle indefinitely without compromising the organization’s other projects and goals, despite being far more concerned than Khosla about the case’s outcome. While the Bowles’ article dryly pokes fun at Khosla’s ‘principled’ nature as he was willing to “keep litigating this for the rest of his life” despite wishing that he had never even purchased the property, Khosla’s ability to influence the law to such a great extent when disinterested only further emphasizes how the interests of powerful individuals and corporations are inevitably better represented in the legal process, as they have the resources to ‘wait out’ opponents in legal battles or to otherwise harness “the legal system to intimidate and silence them.” [13] This case thus highlights the disparity between the bargaining power of parties in litigation as an additional barrier to producing “more litigation with more favorable outcomes for ‘have-nots’” whose interests do not already “populate the legal process.” [14]
Khosla’s case, in bringing to light the limitations of litigation in navigating decisions where legal pluralism and power differences between ‘repeat players’ and ‘one-shotters’ unjustly confer an advantage to outdated precedents, also suggests that deterrence—of those who want to change the rules—is built into the process of litigation. While in October 2018, the Supreme Court finalized the Surfrider Foundation’s victory and thus solidified the beach access guarantees in California law, a court decision in favor of Khosla would have acted as a strong deterrent to other nonprofits in pursuing litigation due to the risk of losing and replacing existing uncertainty in the law with a clear statement promoting the opposite goals.[15] Nonprofit organizations and other ‘one-shot’ players in the legal system take on a greater amount of risk and “burden [...] to proceed with [their] case[s]” when challenging ‘repeat players,’ which is why test case litigation “designed to procure rule-change [...] is an unthinkable undertaking” for many of these organizations.[16] The idea of deterrence, where compliance to the law is motivated by cost-benefit analyses, strikes a chord when considering litigation: most simply cannot afford the cost of legal change, even when there are great potential benefits and even when the court itself favors the change in question.[17] Marc Galanter’s suggestion to “increase the quantity and quality of legal services to ‘have-nots’” such that the expertise advantage is reduced still requires time, resources, and cases to build new precedents.[18] Though the high stakes of the case between Khosla and the Surfrider Foundation ultimately supported the public good, the mere possibility that one individual’s appeal could redefine coastal management across the country reflects how the litigation process’ reliance on precedent, as well as the existence of differential legal power between parties, will continue to act as a deterrent to meaningful legal change.
Works Cited
[1] Lecture 4.5: How can you change the law through litigation?
[2] Nellie Bowles, “Every Generation Gets the Beach Villain It Deserves,” The New York Times, Aug. 30, 2018.
[3] Nellie Bowles, “Every Generation Gets the Beach Villain It Deserves.”
[4] Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law & Society Reader, 297-323, 315.
[5] Nellie Bowles, “Every Generation Gets the Beach Villain It Deserves.”
[6] Nellie Bowles, “Every Generation Gets the Beach Villain It Deserves.”
[7] Lecture 5.3: Why do people obey the law (or not)? Legal Pluralism; Nellie Bowles, “Every Generation Gets the Beach Villain It Deserves.”
[8] Marc Galanter, “Why the ‘Haves’ Come Out Ahead,” 315; “Nolan v. California Coastal Commission.” Oyez, , www.oyez.org/cases/1986/86-133.
[9] Marc Galanter, “Why the ‘Haves’ Come Out Ahead,” 314-5; Nellie Bowles, “Every Generation Gets the Beach Villain It Deserves.”
[10] Marc Galanter, “Why the ‘Haves’ Come Out Ahead,” 315.
[11] Marc Galanter, “Why the ‘Haves’ Come Out Ahead,” 300 & 322.
[12] Nellie Bowles, “Every Generation Gets the Beach Villain It Deserves”; Ian MacDougall, “Empty Suits.” Harper’s Magazine, March 2018.
[13] Nellie Bowles, “Every Generation Gets the Beach Villain It Deserves”; Ian MacDougall, “Empty Suits.”
[14] Marc Galanter, “Why the ‘Haves’ Come Out Ahead,” 317.
[15] “US Supreme Court Finalizes Win for Martin’s Beach Access!” Surfrider Foundation; Lecture 4.5: How can you change the law through litigation?
[16] Marc Galanter, “Why the ‘Haves’ Come Out Ahead,” 309 & 314.
[17] Lecture 5.4: Why do people obey the law (or not)? Deterrence.
[18] Marc Galanter, “Why the ‘Haves’ Come Out Ahead,” 317.
