Politics


“…We must forevermore do honor to our heroic dead. We must forevermore cherish the sacred memories of those four terrible but glorious years of unequal strife. We must forevermore consecrate in our hearts our old battle flag of the Southern Cross – not now as a political symbol, but as the consecrated emblem of an heroic epoch. The people that forgets its heroic dead is already dying at the heart, and we believe we shall be truer and better citizens of the United States if we are true to our past.”

Confederate Veteran Rev. Randolph Harrison McKim

Not all Confederate soldiers fought under the blue St. Andrew’s cross (more accurately, the saltire).  And apart from its use during veterans events, the flag’s visibility was minimal during the decades following the war. [. . .]

However, the flag’s most lasting legacy — and the source of much of the controversy today — can be traced to its use as a symbol of “Massive Resistance” by the Dixiecrats beginning in 1948 and continuing through the Civil Rights movement of the 1950s and 60s. During that period, the flag became the standard for those committed to defending classrooms, bus depots, and other public spaces (now battlefields themselves) from black encroachment.

In fact, the flag’s use throughout the 20th century covered a time span significantly longer than its presence on Civil War battlefields. Its placement atop southern statehouses like South Carolina ultimately reinforced the flag’s connection to segregation and racism.

Kevin M. Levin, America’s Simple-Minded Obsession with the Confederate Flag, The Atlantic, Aug. 16, 2012

Candice HardwickCandice Hardwick wore shirts bearing various images of the Confederate flag to her elementary and middle schools in Latta, South Carolina on several occasions and was made to change her clothes or, on one occasion, disciplined.  Latta, South Carolina was formerly a part of the Jim Crow South, and in fact was holding segregated school proms until the 1980’s.  Significant racial tensions remain.  The Latta School District enforces a dress code policy that forbids clothing that would “distract others, interfere with the instructional programs, or otherwise cause disruption.”  Examples would include “clothing that displays profane language, drugs, tobacco, or alcohol advertisements. sexual innuendos or anything else deemed to be offensive.”

I’ll cut to the chase here and tell you that the Fourth Circuit, in Hardwick v. Heywood, 711 F.3d 426 (Mar. 25, 2013), held that the First Amendment did not require the school district to allow Hardwick to wear the shirts, and that the dress code was not unconstitutionally overbroad or vague.  The Court also held that Hardwick’s equal protection rights were not violated based upon evidence that the school district has also prohibited students from wearing Malcolm X and similar apparel.  Relying on Tinker v. Des Moines Independent Community School District, a Supreme Court opinion that law students recall as the “black armband case” because a group of students wore armbands in protest of the Vietnam war, the Fourth Circuit simply concluded that the Confederate Flag could be reasonably expected to cause disruption at the school.  (And there was some evidence that it in fact had caused disruptions, although the school’s evidence involved racial tension generally.)  Therefore, the Court held, the school district was justified in banning its display.  Many other circuits have so held.  See, e.g. Defoe ex. rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010); A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th Cir. 2009); Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Scott v. School Bd. of Alachua Co., 324 F.2d 1246 (11th Cir. 2003); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000); Melton v. Young, 465 F.2d 1332 (6th Cir. 1972).

I suppose that what bothers me about the Court’s reasoning in Hardwick, though, is that there was evidence that Hardwick wore shirts with the flag on several occasions at school (i.e., before she “got caught”), and that not only were there no disturbances, but there was apparently some positive reaction. Some of the examples of racial disturbances offered by the school district, on the other hand, were more than thirty years old.

Please understand, this is not an argument for display of the Confederate flag. If you’ve read this blog, you know where I fall on the political spectrum; as to the assertion that the flag represents positive or neutral “heritage,” I am skeptical at best.

But I am also skeptical whenever one form of speech is subjected to a different standard than others. I wonder if that’s going on here, between the lines.

According to the Court in Tinker:

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09, 89 S. Ct. 733, 737-38, 21 L. Ed. 2d 731 (1969).

The students in Tinker wore armbands to protest a war, the politics of which were also extraordinarily divisive. The Supreme Court was satisfied that no disruption resulted in the classrooms, although “hostile remarks” were made outside the classroom. That was enough.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.

Id. at 509, 89 S. Ct. at 738, 21 L. Ed. 2d 731.

Was there really evidence that the flag shirts worn by Hardwick would “materially and substantially interfere with the requirements of appropriate discipline” at her schools? I’m not sure; perhaps something has been lost along the way from trial transcript to reported opinion. I do know, though, that there can be a good deal of flexibility in determining when an “apprehension of disturbance” is reasonable, and that we must be cautious of exercising that flexibility in favor of the viewpoints that we prefer.

I am almost speechless.  Not so speechless that I can’t put this post together, but really, really close to speechless.

Today at Above the Law, lawyer-turned-novelist Allison Leotta gives us an extended, apparently serious post comparing female lawyers to hookers.

No, I’m not kidding.

Ms. Leotta is supposedly a graduate of Harvard Law School and a former assistant United States attorney, in which capacity she supposedly prosecuted sex crimes.  I say supposedly because after reading this post I seriously question her professional credentials.

Oh, I get it, it’s supposed to be amusing, this comparison that gets off the ground by pointing out that the D.C. Madam was a law school dropout.  Lawyers already only care about the causes they’re paid to care about, according to Leotta.  Why not make the big money that comes with being an escort?

Several ridiculous paragraphs follow.  Escorts make more money but have to sleep with people they don’t care about.  Prostitution isn’t good for “gender balance” because there aren’t many jobs for men.  (What?)  Lawyers are less likely to go to jail for their work.  Then some sort of argument about how it’s difficult to enforce covenants not to compete in the sex trade.

This spectacularly tone-deaf piece of ridiculopathy concludes with advice to women who might actually be trying to decide which field to choose.  Yes, it does.  Leotta advises women to stick with law because it’s safer.  Safer!  That is why we should go on practicing, ladies!  Because even though prostitution is “tempting” (her words, not mine), law is safer!  Yay!

I don’t read pulp fiction trash like Leotta’s “book,” Discretion.  I imagine that it may be found on the shelf in the grocery store check-out line, next to the 2013 horoscope guide and the latest Gooseberry Patch cookbook.  I can only wish Leotta had taken the title of her book to heart before she undertook to post this morning.

There are many reasons women practice law.  But if being a lawyer made Leotta feel like a hooker, it’s probably best she has turned her talents to fiction.  I hope she keeps them there, because the rest of us have work to do.

I am supposed to be on vacation. I am supposed to be humming along contentedly with the guy singing “Boat Drinks” poolside and fending off my children’s demands for junk food. Actually I am doing both of those things. It’s just that I am doing them while furtively typing on my iPad. Furtively because my husband disapproves of my working when I am supposed to be “recharging,” whatever that means. I have yet to discover a low battery indicator anywhere on my person.

A review in this Sunday’s NYT Book Review has been bugging me. It was written by one Richard A. Posner, whose vaunted status in the world of law and economics is only mildly alluded to in a one line bio that says that he is a judge on the Seventh Circuit Court of Appeals. This is a bit like saying that Ayn Rand was a writer; it gives, shall we say, an incomplete picture. But that isn’t what’s been bothering me about the review.

The review, itself entitled “Working 9 to 12,” concerns “How Much is Enough? Money and the Good Life,” by Robert Skidelsky and Edward Skidelsky. Judge Posner opens his review by remarking that Robert Skidelsky is best known for writing a multi-volume biography of John Maynard Keynes, and later, with the faintest trace of snark, suggests that Skidelsky’s views (more on them in a moment) are to be expected given his Keynesian “preoccupation.” (When I read that I was immediately put in mind of Potter Stewart’s declaration of pornography, just a tiny bit sneeringly, that he knows it when he sees it; but it’s possible I’m reading too much into what is, most likely, literary dicta.)

The Skidelskys argue, based on a 1930 essay by Keynes, that because labor costs have decreased so significantly since the First World War, workers in the United States and Britain should be enjoying more of “the good life” and working fewer hours, in the range of twenty hours a week or so. Posner responds – convincingly – that most people would quickly run out of money to fill so much resulting free time, that militaries would struggle to staff the borders, and that essential public services like police and fire departments would be gutted. All of these points make sense and are sufficient, in my mind, to render the Skidelskys’ proposal unworkable. Judge Posner could have left it at that.

But he goes on, and this is where he loses me:

The Skidelskys have an exalted conception of leisure. They say that the true sense of the word is ‘activity without extrinsic end’: ‘The sculptor engrossed in cutting marble, the teacher struggling with a score, a scientist exploring the mysteries of space and time – such people have no other aim than to do what they are doing well.’ That isn’t true. Most of these people are ambitious achievers who seek recognition. And it is ridiculous to think that if people worked just 15 or 20 hours a week, they would use their leisure to cut marble or or struggle with a musical score. If they lacked consumer products and services to fill up their time they would brawl, steal, overeat, drink and sleep late. English aristocrats in their heyday didn’t work, but neither did they cut marble or explore the mysteries of space and time. Hunting, gambling and seduction were their preferred leisure activities.

It’s interesting to me that Judge Posner takes the English aristocracy here as his example, since his thinking is more reminiscent of the French. As in, give the dullards some cake. (Also for what it’s worth, Byron and Raleigh were both English aristocrats.) There is a real strain of snobbery in this line of thinking, which is disappointing, since everything I’ve read by or about Judge Posner suggests that he is in fact the opposite.

I suspect Judge Posner would not include me in the class of folks who would brawl, booze and steal with their free time, but my extended family, maybe. I come from thoroughly blue collar stock. My uncles drank (horrors) National Bohemian and wore cut off jean shorts in the summer. They worked very hard for two local utilities and a candy factory. And no, they would not have taken up sculpting with twenty extra hours a week, but as far as I can tell neither has anyone on the Seventh Circuit.

Two of my uncles died very shortly after they retired, both of cancer, and they had very little time to enjoy the free time they had earned through years of work that included many many hours of overtime. Judge Posner would no doubt respond that they were paid for the time they worked, including a premium for overtime, and that is true. It was the overtime that permitted them to maintain a good standard of living while keeping them too busy to enjoy it much. But I also have no doubt whatsoever that my uncles would not have transformed into thieving hooligans had they lived. Not because they were too old to make trouble, because the history books are full of old men who made trouble, and many of them kings. They wouldn’t have done because they were good people, as are most of the people who make up the working class in this country and elsewhere. And who deserve a little better than to be written off by Judge Posner as Henry Potter’s lazy rabble.

Of course I recognize the irony in the fact that I am posting this from a lounge chair by the pool (about eight pools actually, and a grill and a pool bar nestled amongst palms). You could look at it this way: here I am, a product of Northeast Bawlmer, no less, enjoying my leisure time, and doing nothing much useful other than thinking about economics. Luckily I return to work next week, so the shop keepers and dram shop proprietors of the world need have no fear of me.

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Today the American Bar Association’s online news site brings us a hard-hitting piece of journalism on . . . . women’s hair.

Well, not just any women’s hair, thank goodness. The ABA has not transformed overnight into an In Style knock off.

Yet.

In an article entitled, “Is Long Hair a Bad Choice for Older Career Women,” Debra Cassens Weiss suggests that women over forty who wear their hair long “are making a mistake.”

Admittedly Weiss is quoting from a post at The Careerist, an American Lawyer Media site featuring today, directly beneath the hair post, an article called “Corporate Lawyer Pens Cookbook About Weeds.” Weiss goes on to quote the author of The Careerist hair piece, writing that Hillary Clinton’s hair has been “growing like an unruly potted plant” and that she looks “haggard and rumpled.” According to Weiss, The Careerist spoke with “a California entertainment lawyer and a law firm consultant” for further information. The lawyer – who, for the love of God, should be outed and immediately shunned – said that for older women, “[e]ven if the hair is long, glossy, and well-maintained, the juxtaposition of aging or—to be politically correct—’mature’ facial features and youthful hairstyle doesn’t work[.]”

Yes, Weiss is only highlighting a post featured in another online publication. But Weiss is also writing for the American Bar Association. And she should know better.

I’d be less thoroughly pissed off if Weiss offered some response to this ludicrously vapid piece of reporting. Surely there is someone out there capable of offering a more reasoned commentary on the current Secretary of State for the United States than that her hair has gone vegetative. But if there is, the ABA is not interested in finding him or her. He or she will remain, alas, forever unquoted.

And I point this out because it follows rather closely on the heels of another, admittedly more local, journalistic gaffe here in Maryland. Last week, the local legal paper, The Maryland Daily Record, published a piece on its online blog, On The Record, which discussed opportunities for women on the bench. I can’t link to the article itself because it has been summarily pulled from the site in response to a wave of criticism from women lawyers and judges, and to the paper’s credit it has since apologized. The objectionable material included the use of a photo of the Spice Girls. I am fairly certain – but correct me if I’m wrong, certainly – that if United States Magistrate Judge Paul W. Grimm is formally elevated to the bench of the United States District Court for Maryland, the Daily Record will not illustrate its coverage of the event with a photograph of Justin Beiber.

I attended a bar association meeting recently and the Spice Girls conundrum was the topic of conversation in a way it really hasn’t been since Posh became Victoria Beckham. And one of the points I heard made repeatedly was that there is a real disconnect between older women lawyers and their younger, Gen Y counterparts when it comes to issues like these. The author of the Spice Girls post appears to be a member of the Gen Y camp. And she is not a lawyer, although she wrote her article under the Maryland Daily Record masthead, so presumably she had some oversight. I have heard some calling for “sensitivity training” for younger women, as if to be a woman demanding respectful treatment is to have a disability. Sensitivity isn’t really the issue. Real world experience, and familiarity with history, is.

Perhaps these younger women have never experienced the pleasure of appearing at opposing counsel’s office for a deposition, only to be invited to set up their court reporting equipment in the conference room. Or of being called “sweetheart” or “hon” (an old Baltimore favorite) or “babe.” But I worry that in fact they have, and that instead of being taken aback they take it in stride. As if being condescended to is a cost of doing business as a female.

Is it? Should it be?

Is there a point at which the members of a traditionally disadvantaged class are expected to put down their weapons – assuming they ever wielded any to begin with – and make nice? Is that what is happening here?

I contemplated closing this post with a reference to the Lady Gaga song, “Hair,” in which she chants repeatedly that she is “as free as [her] hair.” And that would be cute, possibly, and would give me the opportunity to include a Lady Gaga picture, which might just drive some traffic to this page. And screw that, because the willingness to do and say anything in the name of driving traffic is quite possibly a major part of the heretofore described disconnect. Attention is not self-justifying.

I sincerely hope that in the race to appear on the first page of Google, we are not sacrificing what we learned in other, older, and less virtual contexts.

Lots of calls to end anonymity on the Internet lately. A bill introduced in New York – a so-called Internet Protection Act – would require bloggers to remove posts not made under a real name. A couple of well-known legal bloggers don’t permit anonymous commenting on their blogs.

(Also, many comments – and publications – aren’t technically anonymous, but are pseudonymous, meaning published under a false name. In both cases, the true identity of the author is concealed. There is a potential for greater mischief when postings are made under another individual’s name, with the purpose of attributing the statements to that individual.  I find the second possibility more troubling, although an argument can be made that the First Amendment permits this kind  of satire, at least as to public officials.)

I am sympathetic to the arguments against web anonymity. Legal gossip site Above the Law‘s commentariat can be a little scary. Read a post on something as innocuous as spring bonuses and the comments will run the gamut from actively, hatefully racist to homophobic to possibly defamatory to definitely creepy and deranged. And I make it a point never, ever to read the comments on national news sites. Just, eww.

But there is a long, even treasured, tradition of anonymous commentary in free (or semi-free) nations. Benjamin Franklin, unable to convince his brother to publish his articles, became “Silence Dogood,” a widow with an exceedingly sharp edge. In one letter, “she” wrote:

Now I bethought my self in my Sleep, that it was Time to be at Home, and as I fancy’d I was travelling back thither, I reflected in my Mind on the extream Folly of those Parents, who, blind to their Childrens Dulness, and insensible of the Solidity of their Skulls, because they think their Purses can afford it, will needs send them to the Temple of Learning, where, for want of a suitable Genius, they learn little more than how to carry themselves handsomely, and enter a Room genteely, (which might as well be acquir’d at a Dancing-School,) and from whence they return, after Abundance of Trouble and Charge, as great Blockheads as ever, only more proud and self-conceited.

While I was in the midst of these unpleasant Reflections, Clericus (who with a Book in his Hand was walking under the Trees) accidentally awak’d me; to him I related my Dream with all its Particulars, and he, without much Study, presently interpreted it, assuring me, That it was a lively Representation of Harvard College, Etcetera. I remain, Sir, Your Humble Servant,

SILENCE DOGOOD.

Common Sense was originally published anonymously, and apparently with good reason: England eventually tried Thomas Paine in absentia for sedition (albeit for other things he had written). Anonymity gave us Pope and Swift. Daniel Defoe would likely have been crucified for Moll Flanders. George Eliot (Mary Ann Evans) might not have been published at all. More recently, publishing anonymously or under a pseudonym has permitted authors to write on subjects considered taboo or controversial: Go Ask Alice (drugs and teen sex); Primary Colors (the ugly truth of political campaigns). Also, have you seen a little magazine called The Economist?

I recognize that a comment calling another’s personal sexual proclivities into question does not rise to the level of Common Sense in the marketplace of ideas. But neither did Franklin’s Silence Dogood letters, or another pseudonymous Franklin publication, Poor Richard’s Almanac. Many writers begin anonymously or pseudonymously and eventually reveal themselves. It may be that there is something nurturing and worthwhile about anonymity for some, that permitting them to participate in the conversation on their own terms allows them, in time, to display their ideas more openly. This growth comes at the cost of weeds, and we may have tolerate them, or risk losing the garden altogether.

Yesterday my Facebook feed was full of posts like this:

For those of you that do not understand this posting, Facebook is now a publicly traded entity. Anyone can infringe on your right to privacy once you post on this site. It is recommended that you and other members post a similar notice to this or you may copy and paste this one. Protect yourself, this is now a publicly traded site.

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PRIVACY NOTICE: Warning – any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated websites, you do NOT have my permission to utilize any of my profile information nor any of the content contained herein including, but not limited to my photos, and/or the comments made about my photos or any other “picture” art posted on my profile. You are hereby notified that you are strictly prohibited from disclosing, copying, distributing, disseminating, or taking any other action against me with regard to this profile and the contents herein. The foregoing prohibitions also apply to your employee, agent, student or any personnel under your direction or control.

The contents of this profile are private and legally privileged and confidential information, and the violation of my personal privacy is punishable by law.

UCC 1-103 1-308 ALL RIGHTS RESERVED WITHOUT PREJUDICE.

In typical Jennifer fashion I posted my own status update, something along the lines of “that Facebook privacy thing is stupid and meaningless so stop.” It is stupid, after all. The enforceability of the UCC – which is a model code, and therefore only law insofar as it’s been enacted in any given state – against the federal government for privacy violations is questionable, to put it mildly. There is this thing called sovereign immunity. The fact that this dumb little statement claims to be necessary because Facebook is now publicly traded is laughable. And, of course, there’s the fact that if you post something and people can see it, you have no privacy rights in it anyway.

Oh, and if it’s privacy you’re concerned about, you can’t go wrong with the Fourth Amendment to the United States Constitution. That’s going to get you a bit more bang for the buck than the UCC and you don’t have to post anything to invoke it. As an American you’re born into its protective cradle of privacy-ness. Sure, the Patriot Act is eroding that, but do you honestly think that your Facebook post will successfully go mano a mano with an anti-terrorism statute? You haven’t thought this thing through.

But while putting these comments together is cathartic – really, America, are you this gullible now? – it’s not my point. I have been noticing a trend towards this sort of silly language on social media and elsewhere for a while now.

A few months ago I had the distinct pleasure of dealing with a real, honest-to-God Freeman on the Land. If you haven’t heard of this organization, my friend, you are in for a Google-ific treat.  Go ahead, I’ll wait.

Well? Laugh much? Freemen on the Land believe for some reason that certain statements, words and phrases carry not just significance, but magical significance. Maybe this derives from their belief that they can opt out of complying with statutes. (Freemen think that statutory law only applies to people who consent to be governed, and that they need only comply with common law, which they seem to confuse with what philosophers call natural law. It’s a slightly more sophisticated twist on anarchy and the notion of the social contract.) My particular Freeman kept filing pleadings in which his name appeared in all capitals, which I have come to understand has something to do with a weird notion that every person is simultaneously an individual and a corporation, and that certain laws affect only the corporation/person. It’s all very nonsensical, although I suspect I’ll be getting emails from crackpots for a while after I post this attempting to explain why it all makes perfect sense to anyone who doesn’t drink the Big Government Kool Aid. Sigh.

Freemen seem to be gaining popularity in the United Kingdom, home of Thomas Hobbes and John Locke, who must be turning cartwheels in their graves. There the movement has become a basis for the disgruntled to refuse to pay taxes or civil fines, or to comply with family court orders. The notion is sad, since if these people actually understood the history of the common law they claim to prefer, they’d recognize that they have far more freedom now than when the King would travel from place to place, dispensing justice according to the law which was held “in common” by those villages. The common law has always recognized the power of the government to rule. Those who attempted to withdraw their consent to Tudor governance were quickly and efficiently beheaded.

I do wonder at the talismanic quality of all this language. To me it reflects a very basic naïveté about how law and government work. The idea that writing “no contract” on a legal paper somehow renders the underlying law ineffective seems Harry Potter-esque, doesn’t it? Wave your wand, mutter some Latinate phrase, and voila! No obligation to pay your taxes.

But the law doesn’t work that way, and neither does the social contract. And if you’re not willing to learn how the law actually works, at least check out Snopes.com before you post any more of this silliness.

** WARNING; GRAPHIC PHOTO FOLLOWS.  TURN BACK NOW IF YOU’RE SQUEAMISH**

A couple of weekends ago I attended a multi-day meeting of a bar association.  Said meeting kicked off, as so many do, with a cocktail party.  (Note to self: is there an etymological reason why we call a group of lawyers a “bar”?  Investigate this further.)

The party was to be held at an off-site location, and I shared a ride there with a group of other lawyers.  None of us knew each other from Adam, so we tread lightly around the usual conversational topics: the weather (chilly); the way to the party (as the crow flies); Jimmy Buffett (don’t ask).  Then, like a small bomb dropped during vespers, someone brought up politics.  There was some fairly awkward discussion along these lines for about a minute and a half.  Then one of us, with the best of intentions, I’m sure, suggested we change the subject.

“Let’s talk about puppies,” she said. 

Oy.

You would think puppies would make for fairly uncontroversial conversation.  And, almost anywhere else, at any other time, you would be correct.

Just not here, in Maryland.  And not now.

The reason for this impugning of ordinarily adorable canines is that our highest court, the Court of Appeals, recently issued a decision in a dog bite case.  A dog bite case is exactly what you think it is: somebody’s dog bites somebody else and litigation ensues.

Traditionally, these cases were decided under a negligence standard.  In legal terms, “negligence” is doing something – or not doing something – that a reasonable person would do – or wouldn’t do.  In doggie litigation terms, applying a negligence standard means that, practically speaking, if you own a dog, you get one “free bite” before someone can hold you liable in tort.  In other words, your dog had to have bitten someone before a court could hold that you’d been somehow negligent in letting your dog bite somebody else.   Otherwise, the thinking goes, you’d have no reason to believe your dog might hurt somebody.

That’s how negligence works.  There is another standard, however: the strict liability standard.  “Strict liability” also means exactly what it sounds like: if something goes wrong, you’re on the hook, whether you did something wrong or not.  This is not as draconian as you might think, though, because under the law strict liability only applies in certain circumstances.  If you, say, dynamite a hole into the Earth, or play around with uranium in your basement, you will be held strictly liable for any injury you cause, even if you are just as careful as can be.  Why is this?  Because, the law says, some activities are just so dangerous that if you are going to do them, you are going to have to accept the risks that go with them.

There is, in some states and in Maryland in particular, a defense to tort liability called “assumption of the risk.”  It means that in certain cases, a plaintiff won’t be permitted to recover for an injury he or she sustains because he or she voluntarily decided to do something, knowing that there was a risk of injury.  If that injury then follows, they’re stuck with it.  So if you decide to become a professional boxer, you won’t be able to sue the guy who punches you in the ring and breaks your jaw.  Any reasonable person entering a boxing match knows, or should know, that he might wind up with a broken jaw.

Strict liability is the converse of the assumption of the risk doctrine.  Strict liability is the means by which claimants who get hurt can hold others responsible, regardless, just because those who engage in certain activities should understand the risks associated with those activities and should be prepared to make good if somebody gets hurt.  This standard has now been applied, in Maryland, to owners of the American Staffordshire Terrier.  You might know this breed of dog better by its nickname: the pit bull. 

(No, the other kind of pit bull.  And no, that’s not the graphic photo either.)

Hence the awkward puppy dog conversation.  There is a definite segment of the population – with lawyers among them – who are really, really mad about this case.  Let’s see, what were the themes that dominated the fairly heated spewing of invective in our little car on the way to our little cocktail party?  You can guess, really.  Lots of talk about how the decision is unfair to this particular breed of dog coupled with what we law folk call ad hominem and everybody else calls trash talk.

I tend to agree that the decision is imperfect, but in a limited sense only.  Here’s the thing: pit bulls – and I know that’s not the correct breed name for this dog, but it’s the name we all use in discourse, so let’s be honest and not get bogged down in semantics – were bred, historically, for two things: fighting and small prey hunting.  Yes, it is sad, but true, that these dogs have been genetically abused by humans for centuries.  They have been selectively bred for genes that will make them powerful biters and aggressive fighters.  And they are terriers.  I own a terrier, albeit a Wheaten Terrier, whose most serious injuries inflicted have been, to date, oodles of dog goo following major face-licking episodes.  But terriers are really smart.  And they are really stubborn.  They were bred to be that way, because they were bred to hunt small vermin on farms, and only a dog who could think for itself could be trusted to decide whether to pursue a rat down any particular hole.  They don’t wait for instructions.

When you pair a certain stubbornness with intelligence and brute strength, you have the makings of a potential disaster.  Which is why a 2000 study by the Centers for Disease Control concluded that roughly half of all dog-related fatalities involved either a pit bull or a Rottweiler.

So here’s where I believe, in my own humble opinion, the weakness in this recent decision lies.  The Court of Appeals decided that pit bulls, and their owners (and potentially, landlords who lease to owners of pit bulls) should be held to a strict liability standard, as if there is something unique to pit bulls that is not to be found in other breeds of dog.  But certainly, many other kinds of dogs are dangerous in the same ways: mastiffs; Rotties; German Shepherds (there’s a reason they’ve become synonymous with military and police dogs); Dobermans; Huskies and Malamutes; Chows.  If you want to know which dogs are responsible for the most bites, seriously, ask an insurance company.  They’re the ones keeping the statistics, because they’re paying the claims.

But the common law – which is judge-made law, rather than law issued by the legislature – develops in increments.  Judges, despite what many would have you believe about the “activist” judiciary, are generally loathe to go too far beyond the facts presented by any particular case.  They hesitate because, as all of us know, just when you think you know how something works, along comes an exception.  Judges don’t want to lay down rules only to have an exception appear and make them seem shortsighted, or worse, get them reversed.  So what we have seen, in this particular case, is a decision by the Court of Appeals that pit bulls are dangerous dogs, and that the people who own them must be held responsible for them.  This doesn’t mean that other dogs won’t or shouldn’t be treated similarly.  Additional court decisions may be forthcoming which will address that.   But as of right now, the Court hasn’t heard those cases yet.  I think when they do – and rest assured, the plaintiff’s bar is right now searching for the right Rottweiler case, the right Doberman case, and so on – I suspect, and I even hope, that the Court will expand the reach of the decision to other dogs with similar characteristics.

Do I think we are on a slippery slope, one on which eventually all dogs will be considered potentially dangerous?  No.  Have you ever seen a Yorkie?  (Honestly, I’d rather be bitten by a pit bull.  I firmly believe that dogs should be dog-sized.)  The fact that a toy breed might be prone to biting doesn’t make it dangerous if, realistically, the dog is too small to cause much harm.  Nor is size the determining factor, although it is certainly one factor.  The point is, when the Court of Appeals decided to apply strict liability to pit bulls, it made a policy determination based upon the breed’s history, size, temperament, and jaw strength.  Like it or not, a pit bull is more likely to bite than a Bichon, and when it does, its jaw clamps down like a vise.  There are anecdotes about pit bulls who simply WOULD NOT LET GO.  So if you are going to voluntarily own such a dog, great, good for you: but be prepared to pay the medical bills if your dog bites somebody.  That’s all this decision does.  It holds you responsible for your decision to own a dog that can cause an enormous amount of hurt when it bites.  And yes, before you can be held responsible, some proof that you knew or should have known that your dog was a pit bull, or part pit bull, is necessary.  Just like, before you could be held liable for vaporising your neighborhood, some proof that you knew you were playing with ammonium nitrate would be necessary.  Courts deal with fact issues like these every day.  We can handle them.

I’ve seen a lot of people posting cute little photos of pit bulls since this decision came out, with snarky captions like, “Look how scary we are!” or “I Love My Pit Bull!”  That’s nice.  And I love dogs too.  But this was a person:

Does the picture bother you?  I’m sorry.  I suspect he wasn’t real happy about it either.  And if you are going to choose to own a dog as powerful as a pit bull, you’d better be prepared to pay for his stitches and God knows what else he’s going to wind up needing, because that is how responsibility works in society.  Deal with that.

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