“If it were not assize-time, I would not take such language from you.”
The Serena Williams outburst naturally brought to mind Tuberville v. Savage, (1669) 1 Mod Rep 3, 86 ER 684, in which it was held that the statement above, coupled with the gesture of putting a hand on the sword as though to draw it, did not constitute assault, as the statement was an expression of intent to not do any harm.
So to it seems with Ms. Williams’ oath, “If I could, I would take this ******* ball and shove it down your ******* throat.” The qualifier “if I could” seems to recognize that she cannot, and will not, shove the cursed ball down anyone’s cursed throat.
Not polite, and not very sporting, but not assault, even if coupled with a threatening gesture with the ball.
Don't make me come over there and teach you something about the common law tort of assault.
Vader
September 14, 2009
I love it when there is a posting that offers practical tips for better carrying out my vocation.
“If I could, I would choke the living sin out of you.”
Oh, wait. I *can*…
GST
September 14, 2009
There appears to be some dispute about what she actually said. CNN has it as “I swear I [expletive] want to take this ball and shove it down your [expletive] throat.” Which might take this case out of the Tuberville fact pattern.
http://amfix.blogs.cnn.com/2009/09/14/serena-williams-tennis-outburst-under-review/
Adam Greenwood
September 14, 2009
Dang the assizes, anyway.
GST
September 14, 2009
Serena should have said, “If it were not Andre Ag-assize time, I would not take such language from you.”
Dr. Fine
September 14, 2009
Tuberville v. Savage was wrongly decided. I’ve always felt the courts during Charles II’s reign were too formalist in their reasoning. See also Richard A. Epstein, Torts 16 (1999) (“[W]ords and actions often give opposite signals … Errors will be made both ways, but usually D may respond to serious threats before it is too late).
Adam Greenwood
September 14, 2009
Disagree, manny. I love me some formalism.
cantinflas
September 14, 2009
Congrats to Jr. Ganymede on being linked from ATL!
Steve Evans
September 14, 2009
“I’ve always felt the courts during Charles II’s reign were too formalist in their reasoning.”
Truer words ne’er were spoken!
supremecourtjester
September 14, 2009
Few have an assize larger than Serena !
Adam Greenwood
September 15, 2009
I presume Richard Epstein is talking about self-defense in the passage above. If so, I think it would be too formalist (hah!) to think that the same level of threat that would sustain self-defense would necessarily sustain assault and vice versa. We want people to be able to defend themselves and do not want to constrain their judgment in the heat of the moment, but in determining whether something is an assault we need not give so much latitude. No harm, no foul.