Stephen L. Carter: What leash laws for dogs tell us about humans

Pity the poor dog owners! As warm weather descends, communities from California to Arizona to Michigan have announced stricter enforcement of leash laws.

I don’t have a dog in this particular fight, but I do have an interest in bits of social history that tend to be overlooked. And a glance at the history of leash laws tells us why they’re likely to stick around: Because someone always comes up with a new reason why they’re important.

Leashes have been known since ancient times, but requiring them is a more recent development. A leash was traditionally a sign distinguishing wild from domesticated dogs. George Vest’s 1870 “Eulogy of the Dog” — often cited, inaccurately, as the origin of the cliché that dog is man’s best friend — was actually delivered in court, where Vest was arguing on behalf of a farmer whose unleashed hunter, Old Drum, had been shot dead by a neighbor who feared the animal was a stray about to prey on his livestock. (Attacks on livestock by stray dogs still happen.)

Leash laws became common in the US not to protect animals but to protect people. An 1891 article in The Lancet urged that unleashed dogs be captured and, if not claimed, killed to reduce the spread of rabies, which at the time was rampant. A 1903 report from Colorado Agricultural College noted despairingly that the disease had been “positively proven” in about half the states “and probably exists in all.”

Reformers demanded mandates, but while town councils dithered, judges found ways to encourage leashes. In 1904, for instance, a New York court ruled that taking an unleashed dog home and treating it as your own was not larceny; the fault rested upon the owner, who should not have let Fido roam. And even in the absence of formal requirements, the courts routinely took the side of people injured by dogs running free of their owners.

Though I’ve found no data on the precise prevalence of leash laws, it’s clear that during the first third of the 20th century, the rabies panic caused them to spread rapidly. As fear of the disease faded, many of communities began to consider repeal. But government decrees take on lives of their own, and supporters began developing new arguments to keep the mandates on the books.

Letters to the editor warned of canine threats to backyard gardens and other household pets. The July 1946 issue of Safety Bulletin (a federal newsletter) defended leash laws on the ground that they protected “over 100,000 mail men daily subjected to this hazard” — the hazard in question being bites. A classic 1956 letter to the San Francisco Chronicle argued that leashes were necessary to shield the dogs themselves against “stupid” owners who let them run free to be struck by cars.

That era being more like ours than we care to remember, there were also challenges to the constitutionality of the leash laws. (They failed.)

In recent decades, support has come from environmentalists, who argue that unleashed dogs disrupt the habitats of wildlife, introduce canine-spread diseases, and kill other animals — particularly their young. Is this argument correct? There’s some evidence that leash laws make little difference in the degree of biodiversity, but most studies find quite the opposite.

Perhaps the difficulty in pinning down a clearer answer is because the laws are widely ignored. A 2017 study of a lakeside recreation area found a compliance rate of just 16%. A 2019 study of a regulated beach (in Australia) concluded from the area dogs covered and the speeds at which they moved that few were under the control of their owners.

Support for leash laws may depend on just whose territory is being fouled. A 2023 study of an Oregon recreation area found that visitors who lived nearby were much more supportive of leash laws than visitors from further away.

And a lot of people just don’t like dogs. Judge Richard Posner, in a famous example of how easy it is to tell a lie, imagines a chance encounter with an acquaintance whom he then compliments on his new dog, even though it’s “a little yappy thing” that he secretly finds “hideous.” Many a dog owner, on the other hand, prefers what an anti-leash Canadian legislator back in 1916 called “the privilege of taking a stroll and have his dog with him if he likes without any other formality.”

As for the annual spring crackdown, it’s generally a bad idea to have laws that are all bark and no bite. But whether you love leash laws or hate them, I wonder whether we're fighting over the environment or the dogs themselves. Depending on the answer, one might just say that the contretemps is a case of the tail wagging the ... well, you know.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”