Analogy in the Supreme Court: Lozman v City of Riviera Beach, Florida
Is a houseboat a house or a boat? This was the central question in the Supreme Court’s admiralty decision in Lozman v. city of Riviera Beach. But although it may appear that the case is of little interest except to admiralty specialists, it turns out not only to provide an excellent example of analogical reasoning in law, but also to offer a valuable window into the debates about the nature or even very existence of legal analogical reasoning. Against the celebrants of analogical reasoning in law such as Edward Levi, Cass Sunstein, and Lloyd Weinreb, contemporary skeptics such as Larry Alexander, Richard Posner, and Peter Westen see reliance on analogy in legal reasoning as based substantially on unarticulated rules of relevance whose lack of articulation serves to mask the extent to which judges relying on analogy are making new law and making what are essentially policy decisions. Lozman enables us to examine the nature of this debate, and also, in the contrast between the majority opinion of Justice Breyer and the dissent of Justice Sotomayor, illustrates the difference, central to the cognitive science literature on analogy, between analogies based on surface features and those based on deeper structural or functional features.