On the first day of its new Term next week, the Supreme Court will hear oral argument in Lozman v. City of Riviera Beach. The case presents the narrow question of whether a houseboat is a “vessel” within the meaning of federal maritime law. Yet, as I shall explain in this column, because the Lozman case calls to mind a famous example in the academic jurisprudence literature, it also sheds light on the relevance of longstanding debates in jurisprudence to the real world of litigation.
The Origin of the Debate Over “No Vehicles in the Park”
In 1958, the Harvard Law Review published an exchange of articles between two giants of jurisprudence. On one side was Oxford professor H.L.A. Hart, then the leading exponent of a view known as “positivism”—which contends that it is possible for a judge or citizen to ascertain the content of the law simply by examining the authoritative pronouncements of the lawmaker. Hart’s own brand of positivism contended that a typical statutory term will have a core of settled meaning, surrounded by a penumbra of uncertainty.
On the other side was Harvard professor Lon Fuller, then the leading exponent of the “natural law” view—which contends that to know the law’s content, it is not sufficient to trace the law to an authoritative source; considerations of policy and morality also inform legal interpretation.
In the course of their debate, Hart introduced an example aimed to illustrate his core/penumbra view. Suppose a local law forbids “vehicles in the park,” Hart said. “Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles?”
Fuller agreed with Hart that the hypothetical “no vehicles” law was unclear as to bicycles, roller skates and toy cars, but he also went further. According to Fuller, the law at issue is only clear as to most automobiles because the judge or citizen can see what the law aims to accomplish and can interpret it in light of that aim. Indeed, Fuller maintained that the law is not even clear as to all automobiles. To use an example that eventually entered the jurisprudential debate, what about an ambulance? Presumably, one of the legislature’s goals in barring vehicles from the park was to preserve public safety, and accordingly, the prohibition might be read to contain a tacit exception for emergency vehicles.
The Contemporary Significance of the No-Vehicles Debate
In the more than half-a-century since the Hart/Fuller exchange, jurisprudence scholars have repeatedly returned to the hypothetical no-vehicles-in-the-park law. To oversimplify the ensuing debate, we can say that at its heart, it pits two different views of the judge’s role against one another.
Those who follow in Hart’s path view the judge’s role as that of giving effect to the words the legislature used, but not to the legislature’s underlying purposes—except to the extent that those purposes find expression in the statutory language. Thus, modern “textualists” like Justice Antonin Scalia would say that because an ambulance is a vehicle within the common meaning of the term, the law bans ambulances in the park.
Indeed, Justice Scalia not only would say that; he did say exactly that in his recent book Reading Law. Justice Scalia and his co-author, Professor Bryan Garner, deny that judges should fashion non-textual exceptions to categorical rules like the no-vehicles prohibition. To do so, Justice Scalia and other textualists say, is for the judge to cross the line from interpreting the law the legislature wrote, to rewriting that law.
In a hard-hitting review of the Scalia/Garner book, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit accuses the authors of “incoherence” because, among other things, after declaring that an ambulance is a vehicle, “they later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation throughout their book.”
Some commentators have read Judge Posner to be expressing a kind of personal irritation with Justice Scalia, but I see Posner as instead playing Fuller to Scalia’s Hart. For Posner, the efforts to undo the harsh impact of the strict textual reading of the no-vehicles rule illustrates a characteristic flaw in the textualist position: Posner says that we want judges to think about the policy implications of their decisions, and that textualism gets in the way of their doing so.
Accordingly, Professor Garner misses Posner’s point when, in response, he says that he and Scalia do not retreat from their interpretation in the ambulance case. Garner quotes a passage from his and Scalia’s Reading Law that states that one could allow ambulances in the park if “the undeniable exclusion of ambulances by the text of the ordinance is countermanded by an ordinance or court-made rule exempting emergency vehicles from traffic rules.” Of course, Garner is right that there would be no problem with a textualist’s permitting ambulances if another law expressly exempts them from the no-vehicles rule. But textualism is supposed to restrain judges from usurping the legislative role, and it will fail in that mission if it allows judges to make up exceptions to statutes—regardless of whether the judges make up those exceptions one at a time, or wholesale via a “court-made rule.” Hence, Posner does appear to be right that the ambulance example ends up undermining the argument for textualism.
To be clear, I am not taking sides in the Posner/Scalia donnybrook or in the Hart/Fuller debate. I have raised this recent episode simply to illustrate the continuing prominence of the hypothetical no-vehicles law, and the way it may illuminate a case that the Court is about to hear.
How The Lozman Case Provides a Real-World Version of the No-Vehicles Rule
Hart, Fuller, and the scholars who followed in their footsteps used the hypothetical no-vehicles law because it encapsulated, in schematic fashion, an important set of questions in jurisprudence. But the Lozman case provides us with a real-world version of the no-vehicle law.
As noted above, the issue in Lozman is whether the petitioner’s houseboat—or “floating residential structure” as the petitioner calls it—is a “vessel” within the meaning of federal law. That question is important because if it is answered in the affirmative, then the federal courts will apply federal admiralty law to conflicts involving the houseboat, rather than leaving those disputes to state law.
A vessel, of course, may be thought to be a waterborne vehicle, and so, as in the Hart/Fuller debate, so too in Lozman, the core questions are these: What is a vehicle/vessel? And what methods should judges use to decide that substantive question?
Let us put aside the question that divided Hart and Fuller themselves. We can assume, following Hart, that the word “vessel” has a core of clear meaning. Thus, everyone agrees that a fully-operational yacht temporarily moored at the Riviera Beach, Florida marina, would count as a vessel. But what about petitioner’s “floating residential structure?” What factors are relevant to determining whether it, too, is a vessel?
Unlike the hypothetical legislature in the no-vehicles-in-the-park example, Congress provided at least a little bit of guidance. It wrote a definition: “The word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”
The respondent City of Riviera Beach says in its brief that the petitioner’s houseboat was clearly capable of being used as a means of water transportation because it, in fact, has been so used multiple times—as when it was moved over 200 miles via water.
The petitioner responds by noting that the floating home had no means of propulsion, and so was towed from place to place. The petitioner emphasizes that the floating home “was not designed for use in maritime transportation” and thus cannot be reasonably understood as having the purpose of serving as a means of transportation on water.
And that is where the Hart/Fuller debate appears to become highly relevant, for the City says that the statutory language does not require any inquiry into the object’s purpose. Like Hart, or like Justice Scalia objecting to Fuller’s successors adding an exception for emergency vehicles, so too the City can be understood to object to petitioner’s adding an exception for floating structures not designed to serve as maritime transportation devices. The City says that the Supreme Court should not go beyond the statutory language: If it floats, moves and carries, the City says, then it’s a vessel.
The Messiness of the Real World
But if the Lozman case looks like a real-world example of the hypothetical no-vehicles-in-the-park law, it also casts doubt on the utility of the jurisprudential debate. Although it is possible to put petitioner Lozman in the role of Fuller and respondent City of Riviera Beach in the role of Hart, in fact their positions are more complex.
For his part, Lozman denies that he is adding a purpose requirement to a statute that lacks one. Rather, he argues that the way to figure out whether a particular object is in fact “capable of being used as a means of transportation on water” is by looking at the object’s objective characteristics to determine whether a reasonable craftsman would have designed that object for the purpose of serving as a form of water transportation.
Meanwhile, the City does not simply rest on the plain language of the statute. The City argues that a purpose inquiry would be needlessly complicated. Vessel status is key to the substantive application of various rules of admiralty law, as well as to the establishment of admiralty jurisdiction in the first place. The Supreme Court has often said that jurisdictional rules should be clear, and so, the City argues, adding the complexity of a purpose test would undermine the important policy goal of jurisdictional simplicity. (Full disclosure: I filed an amicus brief in the case arguing that the City should win based on a distinct jurisdictional ground.)
In short, each side argues that both text and policy support the result it favors. And that will almost always be true. A good lawyer will make arguments that appeal to judges of a Hartian cast, as well as to those of a Fullerian cast. And most judges and Justices will write opinions that invoke a variety of supporting arguments.
Finally, there is another powerful reason why the sharp divisions that appear in the academic jurisprudence literature will often be difficult to detect in the real world of litigation: Judges rarely write on a blank slate. Lozman is hardly the first case to present the question of what is a vessel. For example, the Supreme Court has held that neither a drydock nor “a wharfboat secured by cables to the mainland” is a vessel, but that a dredge is. Thus, understandably, the parties’ briefs devote considerable attention to whether the houseboat (or floating home) at issue in Lozman is more like the objects that have been found by the Court to be vessels than it is like the objects that have been found by the Court not to be vessels. And, in the battle of analogies, it is difficult to detect any trace of the deep questions posed by Hart and Fuller.
Does that mean that academic jurisprudence is a waste of time? No. Justice Scalia and Professor Garner say the aim of Reading Law is normative—to tell us how to read laws. But that may be too ambitious a goal. More than fifty years after Hart invented the no-vehicles-in-the-park example, we continue to learn from it, even if it does not tell us how judges should, or even how they will, decide cases.
We cannot reasonably ask for more. After all, academic jurisprudence is philosophy applied to law, and as Ludwig Wittgenstein wrote, “philosophy leaves everything as it is.”