A Legal Theory of Fences

Robert Frost is famously quoted from his poem "Mending Wall" that good fences make good neighbors. I have also read that the statement is intended to be ironic, but maybe he was just right.

Listening to some of the argument over the Arizona law reminded me of a legal theory that I always found appalling, but more understandable as I grew older, the theory of "attractive nuisance."

Attractive nuisance is a defense to trespass by children used in tort law. The doctrine of attractive nuisance is premised on the belief that one who maintains a dangerous condition which is likely to attract children on their property is under a duty to post a warning or take affirmative action to protect children from the dangers of that attraction. It imposes a duty to be sensitive to potentially dangerous conditions which are likely to attract children. The attractive nuisance doctrine typically doesn't apply to adults. However, if a child is in danger due to an attractive nuisance and an adult attempts to rescue the child, the attractive nuisance doctrine may hold the landowner responsible for the rescuer's injuries in addition to the child's injuries.

Those who argue against the Arizona law often do so with an unconscious mental picture of attractive nuisance. Their argument says something like this. Since the U.S. did not enforce its borders and furthermore, and since some U.S. employers employed illegal aliens, we shouldn't punish them for coming here to work. After all its our own fault. You can see the similarity to the legal doctrine quoted above. The problem is that the theory applies to children. Which is exactly how the average lefty views the populace as a whole.

Regardless, those so arguing wouldn't object to building a real fence that ended the nuisance would they? Saving the lives of illegal immigrants crossing the desert is certainly the right thing to do? See how far that gets you with the left.

Programming note: Blogging will be light for the week.