A Stitch in Haste

There were very few aspects of law school that I just plain hated.

This was one of them:

[H.L.A.] Hart insisted that “No vehicles in the park” has a core meaning conveyed by the conventional meaning of its terms (automobiles prohibited), although its application at the penumbra (to bicycles and roller skates, he suggested) is ambiguous and must be decided by the judge (often by reference to purpose). In response, [Lon] Fuller argued that the interpretation of rules unavoidably involves consideration of underlying purposes, even with respect to core meaning.

To illustrate his point, Fuller postulated the placement of a World War II truck in the park as a war memorial. He asked whether this is within the core or the penumbra of the “No vehicles in the park” rule, and what places it there. The standard riposte to Fuller’s argument is that a functional truck, even if intended as a memorial, is clearly prohibited by the rule because it is a “vehicle.”
…
A limitless number of possible conveyances come with the definition of “vehicle” (wheelchair, skateboard, child’s wagon), none distinguished by the literal terms of the rule. … Only by knowing what parks are for and by having in mind what this rule aims at achieving would one say that “No vehicles in the park” prohibits automobiles but not baby strollers, which easily fall within the definition of “vehicle.” … No member of the community, no park enforcement officer, no judge, would even conceive that this rule prohibits baby strollers, which are normal in parks.

I thought then, and know now, that the Hart-Fuller “no vehicles in the park” debate is one of the dumbest exercises in all of legal study.

The difference between then and now is that I’ve come to understand why, as I commented at Balkinization:

The reason this always got a yawn from me (including my agonizingly worthless 1L Legal Process class where I first encountered it) was that it totally ignores the dynamic nature of the law and the political inadequacies that create the uncertainty in the first place.

Some authority, somewhere, enacted the “no vehicles in the park” rule. That authority can, and should, revise it (or “promulgate rules and regulations subsequent to the statute,” etc.) to clarify the extent of the law as bicycles, mopeds, war memorials, baby strollers, etc., are encountered.

To pass a sloppy law and then express frustration that reasonable judges disagree on what to make of it says more about the sloppy politicians than about the reasonable judges. The conundrum derives not from any inherent contradiction in legal theory itself, but simply from dumb legislators.

Like I said: yawn.

Most recently, these thoughts crossed my mind in the Ledbetter decision. Who cares whether the Supreme Court “got it right” or “got it wrong”? It was a badly written statute which, if it’s so important, Congress could easily revise. No deep constitutional contemplation or legal theorizing required.

Lay this “conundrum” at the legislative doorstep, not the judicial.

Of course, this is all in the context of statutory interpretation, not constitutional law. There is a huge difference between, “no vehicles in the park” and “no unreasonable searches in the park” or “no cruel and unusual punishment in the park.” But constitutional questions should be resolved by an entirely different calculus anyway: that which maximizes individual rights and minimizes government power. And that’s true in or out of the park.

One more thing: If the park were privatized, we wouldn’t need to have this debate.

(For the non-lawyers: You too can have “fun” — ahem — with the Hart-Fuller debate here.)

Filed under: Law