Thursday, December 6, 2012

"To be a dog indeed"

Dogs are a wonder. They can spark smiles or even conversation among perfect strangers. They encourage bonding and loyalty. They promote peace. They inspire all kinds of warm fuzzy feelings—or, at the very least, awe in the case of those with dog-related anxieties.
This term the Supreme Court of Texas heard a case about dogs. See Specifically, the case is about the long-standing concept of dogs as property. More specifically, the case is about whether, when a dog-qua-property is wrongfully destroyed, should the property owner, as a matter of law, be able to recover the value of that property measured in terms of something as mushy as “sentimental value.”
This semester at the law school, we used this particular case, still pending, as the basis for an intramural moot court competition. The interesting tension in the case is between: (1) the very notion of dog as “property,” as opposed to “companion,” in this day and age when dog loving has been taken to whole new heights; and (2) the fact that the only way a dog owner can recover anything in the face of someone’s negligent or even willful destruction of the family’s beloved pet is because dogs are still considered property as a matter of Texas law. And thus arises a second tension: since you can recover when someone commits a tort and damages this “property,” how do you measure that damage if the dog has no real market value? According to the dog owner in the case in question, you ought to be able to measure damages just as someone does with a family heirloom that was negligently destroyed where the heirloom has only sentiment value. But how does one measure “sentimental value”? What factors should courts consider?
Everyone who has ever loved a dog has no trouble imagining how this calculation could quickly get out of hand. And then we’d have the odd situation where a person could recover some considerable sum upon the death of a dog but not the death of most loved ones—since there is no right to recover for loss of companionship due to the wrongful death of most people in a person’s circle beyond parent-child and husband-wife.
The Bard understood about the peculiarities of dog love and the quandaries it can create. Here is an example of his having some fun at the expense of a true dog loyalist, Launce, the hapless servant who fears his dog “Crab” may “be the sourest-natured dog that lives.” Yet Launce is true blue. This scene-stealing character in the rather forgettable Two Gentleman of Verona has sacrificed a great deal for his dog—including taking the blame for his rather bad table manners and some ill-timed stinkiness. But when Crab has so little gratitude that he blithely lifts a leg at the most inopportune time---
LAUNCE (addressing his dog Crab)
When a man's servant shall play the cur with him,
look you, it goes hard: one that I brought up of a
puppy; one that I saved from drowning, when three or
four of his blind brothers and sisters went to it.
I have taught him, even as one would say precisely,
'thus I would teach a dog.' I was sent to deliver
him as a present to Mistress Silvia from my master;
and I came no sooner into the dining-chamber but he
steps me to her trencher and steals her capon's leg:
O, 'tis a foul thing when a cur cannot keep himself
in all companies! I would have, as one should say,
one that takes upon him to be a dog indeed, to be,
as it were, a dog at all things. If I had not had
more wit than he, to take a fault upon me that he did,
I think verily he had been hanged for't; sure as I
live, he had suffered for't; you shall judge. He
thrusts me himself into the company of three or four
gentlemanlike dogs under the duke's table: he had
not been there--bless the mark!--a pissing while, but
all the chamber smelt him. 'Out with the dog!' says
one: 'What cur is that?' says another: 'Whip him
out' says the third: 'Hang him up' says the duke.
I, having been acquainted with the smell before,
knew it was Crab, and goes me to the fellow that
whips the dogs: 'Friend,' quoth I, 'you mean to whip
the dog?' 'Ay, marry, do I,' quoth he. 'You do him
the more wrong,' quoth I; ''twas I did the thing you
wot of.' He makes me no more ado, but whips me out
of the chamber. How many masters would do this for
his servant? Nay, I'll be sworn, I have sat in the
stocks for puddings he hath stolen, otherwise he had
been executed; I have stood on the pillory for geese
he hath killed, otherwise he had suffered for't.
Thou thinkest not of this now. Nay, I remember the
trick you served me when I took my leave of Madam
Silvia: did not I bid thee still mark me and do as I
do? when didst thou see me heave up my leg and make
water against a gentlewoman's farthingale? didst
thou ever see me do such a trick?


Despite Crab’s cruel trick and Launce’s exasperation, Launce stands by his dog. How could the law possibly find a way to measure such devotion?

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