In United States v. Windsor, Justice Antonin Scalia filed a passionate dissent to the Court’s holding that Section 3 of the Defense of Marriage Act is unconstitutional. Justice Scalia criticized the “scatter-shot rationales” of Justice Kennedy’s majority opinion, and the “disappearing trail of its legalistic argle-bargle.” Nothwithstanding the criticism that Justice Scalia’s use of “argle-bargle” has received, the Argle-Bargle Doctrine has deep roots in both the English common law and in American jurisprudence.
Webster’s defines “argle-bargle” as “argy-bargy.” (Well, that doesn’t help). Other sources define it as “a noisy discussion or dispute.” As previously discussed by the Atlantic Wire, the term “argle” means “argument” in the Scottish dialect and dates back to the 16th Century. The phrase “argle bargle” appeared in Jamieson’s Etymological Dictionary of the Scottish Tongue in 1808, but a variant on the term, argle-bargain, appeared in a Scottish poem in 1720. In light of the vaguely contemporaneous Acts of Union of 1707 and the English common law tradition that the United States continues to follow to this day, the relevance of this colorful Scottish phrase to U.S. law should be clear.
The pioneer of the Argle-Bargle Doctrine in the United States was Judge Edward O. Weant, Jr. of the Maryland Court of Special Appeals. In the seminal case of Antonelli v. Antonelli, 408 A. 2d 773 (Md. App. 1979), Judge Weant referred to a child visitation dispute resulting from a divorce as an “argle-bargle.” Later in Mech v. Hearst Corporation, 496 A. 2d 1099 (Md. App. 1985), a dispute involving a woman who was injured by a guard dog after inadvertently entering a newspaper’s fenced-in parking area in Baltimore, Judge Weant again used “argle-bargle” to characterize the dispute. By 1994, the Argle-Bargle Doctrine was well established in Maryland when Judge John Bishop, Jr. used “argle-bargle” to refer to a parking space dispute among members of a homeowners’ association and further explained that the term came “from the Scotch argy-bargy, to argue, wrangle, haggle.” See Oakhampton Association, Inc. v. Reeve, 637 A. 2d 879 (Md. App. 1994). (These are real cases that really used “argle-bargle.” You can look them up.) Sadly, it appears that no other state had the foresight to adopt the Argle-Bargle Doctrine, and when Judges Weant and Bishop died, the Doctrine seemed to die with them.
Justice Scalia had other ideas. The motivation for Justice Scalia’s decision to revive the Argle-Bargle Doctrine in U.S. v. Windsor is unclear, but its impact should not be underestimated. Merely referring to an opponent’s “legalistic argument” does not sufficiently reflect the disdain with which the writer regards their opponent’s argument, a void that has long needed filling. The potential benefits of the Argle-Bargle Doctrine to plaintiffs and defendants alike should be readily apparent. For instance, a defendant can now make an argument like the following: “The Plaintiff claims that the doctrine of res ipsa loquitur is relevant to the shrapnel injuries sustained by golfers at Roger’s Mini Golf and Hand Grenade Test Range. The citation of this allegedly Latin phrase is little more than legalistic argle-bargle.” Shrewd plaintiffs can also benefit from the doctrine. To wit: “The Defendant claims that the Plaintiff needs to prove things like “causation” and “damages” to recover in this case. The Defendant’s repeated references to “elements” and “causes of action” are little more than legalistic argle-bargle.”
The newly-revived Argle Bargle Doctrine is likely to have a significant impact on U.S. jurisprudence. But litigants seeking to take advantage of the doctrine should approach it like week-old haggis — with caution — lest they be viewed as hoity-toity purveyors of a helter skelter hodge podge of mumbo jumbo and flim-flammery.
(For those who may dismiss this article as merely internet argle-bargle, I have but one response: Liar, liar, pants on fire, I am rubber and you are glue, whatever you say bounces off me and sticks to you.)