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Monday, June 27, 2011

The HOV lane and personhood

Apologies for not blogging last week.  I went on vacation with my family and took my Ipad with me, but found myself with little access to the Internet.  To make up for my silence, I plan to blog up a storm this week.

I thought I would start the week off with an interesting exchange between my 9 year old daughter and me as we drove out to Long Island.  My daughter noticed that I was driving in the left lane, but not the High Occupancy Vehicle (HOV) lane.  The HOV lane is intended to encourage drivers to carpool and/or give up driving and take buses.  Carpools and buses are then rewarded with a lane that moves more quickly and has fewer cars.  At least, that's the general idea. I have been stuck several times behind ridiculously slow drivers in the HOV lane, and in some ways, it is worse because you have to wait for the next official "opening" in the lane to pass them.  For that reason, I sometimes purposely drive in the left lane that is next to the HOV lane, but not hampered by the no-passing rules.   

In any event, on this day, the HOV lane was moving at a nice clip.  And since the HOV lane was moving more quickly than our lane, my daughter very reasonably suggested that I move into that lane.  

Now, I usually drive in the HOV lane when my husband is also in the car, but on this day, it was just me and the two kids.  The highway signs state that the HOV lane is reserved for "carpools" and buses, and further state that a "carpool" consists of two or more "persons".  At least so far as the highway signs are concerned, no other adjective modifies the word "persons."   The signs do not say "adult person" for example, or "licensed person."  Despite this fact, and the fact that the HOV lane was moving more quickly than my own lane, it felt "wrong" to me to enter the HOV lane with just me (the one person who could drive) and two children far below the legal driving age.

The funny thing is that I have never hesitated to enter the HOV lane when my husband is in my car.  My husband, however, grew up in NYC and only received his license in the last few years.  If the HOV lane is intended to encourage two drivers to carpool in one car, then I have no business entering the HOV lane even when my husband is in the car.  Either New York State has defined carpool too broadly (in which case I never have had reason to drive in that lane), or I have employed an inconsistent definition of the word person.  The latter seems likley. What explains the sudden pang of guilt that arose when I was driving with my children but has not surfaced with my husband?

As my nine-year old indignantly pointed out, she most certainly is a "person" (as is my five year old, but he didn't really care which lane I drove).  Yet, she seems less like the idealized "person" that the lawmakers had in mind than my husband.  After all, in a pinch, my husband could  rent a separate car and drive himself out to Long Island.  My daughter, on the other hand, is pretty much stuck with me.  (Sorry kid).  It is interesting to see, then, how my own mind bounced from intuition  ("no, I can't drive the HOV with just my kids in the car - that wouldn't feel right"), to a more reasoned analysis of the statute ("the sign says "person" and Brandon is a person so surely we can enter the HOV").  It nicely demonstrates the way in which we often move - perhaps without even knowing it -- between intuition and logic when we encounter legal rules. 

By the way, it didn't really matter at the end what lane I drove.  When we got to the end of the Sunrise Highway, a massive accident nearly closed off the (now) two-lane highway for 45 minutes while officers were tending to a flipped SUV.  


Posted by Miriam Baer on June 27, 2011 at 10:34 AM | Permalink


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Perhaps, post-Citizens United, so long as you carried a copy of a corporate charter or two with you in your car, your vehicle would carry sufficient "persons" to qualify for the HOV lanes.

Posted by: Notorious DAG | Jun 29, 2011 1:05:44 PM

A couple of thoughts for the commenters, mostly Bean Counter and Jon:

Yes, if the purpose of the carpool lane is to eliminate cars (and not just drivers), then it probably does not matter so much if my husband has a license or drives often. On the other hand, I find it quite unlikely that he would go and charter a car himself if I were already driving out to LI (I am a pretty decent driver, after all, and it cost a lot of money to pay someone else to do it). So the fact that he does not drive was a proxy for your underlying rule, which is, "would the passenger have been driven separately [by himself or others] if not with you?" The probability of my husband being driven separately is low; the probability of my daughter being driven separately is nearly zero.

What I found interesting about my admitted inconsistency was the following: I had some idealized definition of "carpool" in my head, whereby I imagined two or more drivers getting together and eliminating one or more cars from the road. Neither my husband nor my daughter met that ideal. Yet, I seemed willing to put up with that divergence when my husband was in the car, yet caved to my conscience when it was just my daughter. My guess is that one (the husband) seemed less different from the ideal than the other (my daughter). However, my daughter was understandably offended that I effectively treated her as less of a "person" than my husband. I think she's right.

Meanwhile, as to your thought about carpooling kids to school, of course that ought to meet the definition of carpool in any state. On the other hand, as someone who grew up in Long Island, I can't imagine too many parents willingly drive their kids to school via the LIE!

Posted by: miriam baer | Jun 28, 2011 2:34:23 PM

I'm with Jon. If you want to go with the "purpose" reading, then you are still eliminating a would-be car if your kids would be driven in another car, whether by dad, nanny, neoghbor, whatever.

In my experience, the most common "carpools" -- using that term -- are in fact those pooling kids, not several adults. One parent drives several kids to school or to sports game/practice or other activity. If you drove 4 kids from 4 families to soccer, keeping 3 cars of the road, would that count?

If you go in the other direction, and count only occupants who are licensed drivers who own their own cars, that would eliminate many classic HOVs that are the highest-occupancy vehicles around, such as a school bus of non-driving kids, a van or bus of senior citizens who don't drive anymore, a van of disabled non-drivers, and so on.

So the rule we derive is not "could they drive," but "would they be riven separately," and all is well. After all, you are taking them somewhere, and if you didn't take them, who would?

At most, one would quibble about kids being dragged along not because they "need" to reaach the destination, but solely to avoid babysitting at home, e.g., shopping or other errands.

Posted by: bean counter | Jun 28, 2011 12:02:42 PM

On the opposite end of the spectrum there was local news coverage when a pregnant woman got a ticket when she was driving alone in the HOV lane. She argued that her fetus was a person with legal rights and therefore she was complying w/ the 2 or more person rule. Unsurprisingly she wasn't able to get out of the ticket.

Posted by: Anon | Jun 27, 2011 11:17:12 AM

When the HOV lane was first proposed, it was viewed as an absurd waste of money and time (lost to drivers during the years of construction) as few outside of politicians and traffic engineers believed that anyone on Long Island, the land of selfishness, would ever carpool. And so it's played out.

It's a fourth lane reserved for multiperson and hybrid cars. That it's considered by some as a reward for carpooling is a matter of some humor. No one carpools on Long Island. No one. We are much too busy and important. Rather, it's a punishment to those who sit in their Porsche Carrera alone and have to watch us whiz by in the Prius.

The problem you raise, the person inclined to drive 55 in the carpool lane while the rest of the LIE putters along at a calm 77, reflects a similar problem, since the driver has decided she is driving fast enough and feels no compulsion to speed up for the benefit of the 12,573 cars bumper to bumper behind her. How could she be so insensitive? Because she too is very important, and the people in all those cars behind her don't matter a whit. That's the nature of living on Long Island.

Posted by: shg | Jun 27, 2011 11:14:57 AM

How would you feel about driving in the HOV lane to take your kids and their friends to school? I think your interest in the meaning of "person" is misplaced, or, rather, that your feelings about the law do not depend on the word at all. The point is that the legislature *intended* to encourage sharing rides rather than driving alone. Whether the others in your car can drive or not isn't the right question. You should be asking whether, if you didn't take them along, another car would have to be on the road to take them where they're going.

Posted by: Jon | Jun 27, 2011 11:12:52 AM

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