Semester 2, Week 2: Eye on the Ball

We did an exercise in class last week that was intended to illustrate the gray area surrounding the application of any rule.

In it, we divided into small groups and talked about a family vacationing with a 15-year-old babysitter. Parents agree to pay Babysitter $150 for the week, in exchange for which Babysitter will watch the children when Parents want/need her to. While on the trip, Babysitter is invited to family dinners, at which Parents pay for her meal. One day, Parents invite Babysitter to go horseback riding, which Babysitter accepts. Afterward, Parents say that the cost of the ride was $20, which they will deduct from Babysitter’s pay.

Is that OK? The answer is that of course it isn’t OK. Contract law may not obtain (because the babysitter is underage), but the principle of promissory estoppel probably does: Babysitter relied on the promise of her full $150 wage, and did so to her detriment. If she had known Parents intended to reduce her promised pay, Babysitter may not have gone horseback riding. The larger point is that one party should not be allowed to unilaterally alter an agreement once it’s been made (remember how unfair it was when Darth Vader was being a dick to Lando Calrissian and changed the terms of their agreement (“Pray I don’t alter it further.” Dick.)? No court would let Vader get away with that shit. This is why we need rule of law; to stop Vader).

Reasonable, right?

OK, now imagine we have a different family, with new parents who have a longstanding weekly babysitting arrangement with their 25-year-old babysitter. Now, Parents want Babysitter to watch the house and children while they’re away for the weekend, and they’ll pay him $100 to stay at the house from Friday afternoon to Sunday evening and care for the kids. In the past, Parents have told Babysitter that he is “welcome to anything in the fridge.” He has taken them up on that, making sandwiches and other snacks during previous adventures in babysitting their children. This weekend, Babysitter says he’d like to help, but he has a study group for his Torts class. Parents say it’s fine if he invites the group to do their studying at Parents’ house this weekend. Cool cool cool. We've got an agreement. But! When parents return home on Sunday, they find that an $80 bottle of scotch has gone missing. They tell Babysitter they’ll deduct that amount from his pay for the weekend.

Is that OK? Again, the answer is that it is obviously not OK. Same issue regarding estoppel, and now there’s a contract between the parties, too. 

But here’s the weird thing: most of my classmates thought that it was OK for the parents to deduct the cost of the scotch from Babysitter’s pay. They said variations of “Babysitter was hired to watch the kids and the house, not to drink scotch.” Which doesn’t matter: either party should (and likely will) be enjoined from a unilateral alteration of their agreement. If Parents want Babysitter to pay for the scotch, they can bill him. They can sue him. They can’t withhold the pay they promised him if there was no provision in their agreement that covers missing scotch.

And here’s the weirder thing. Most of the class was ready to dip their hands into this babysitter’s pockets to pay for the scotch, without ever having shown that Babysitter was even the one who took the bottle! Most of us (mofos!) totally threw overboard the notion—the idea that is perhaps the foundational principle of American law—that the babysitter is innocent. It’s an absolute. He’s innocent, and he stays that way until a court proves that he’s not. And in a hurry to apply our best interpretations of contract law and theory, we neatly and effortlessly disposed of this fundamental principle, never looking back as we hastened to slap our decisions on the matter.

We took our eyes off the ball.

It’s really easy to do, when the whole experience of law school feels like being told to eat everything at the buffet all at once without spilling so much as a crumb.

It is super extra not difficult to lose sight of what’s important when there are a thousand urgencies and emergencies piling themselves on your doorstep every minute.

But here’s the thing. If we lose our perspective this early, with nearly five full sixths of our time in school yet remaining, and then entire lifetimes of practice waiting beyond that, how do we get it back?

If most of us—all of us except one, maybe? (wasn’t me! I didn’t want to rob Babysitter to pay for the scotch, but still I also lost track of his innocence as I plunged into my analysis. Only Harris (not his real name) didn’t, and I hope he’s proud of himself. That was important work—and just good lawyering—there)—can miss the whole point of the whole thing that easily, how do things get better?

And the answer, I think, is that we need more Harris in our schools and in our practices. Harris brought it up in our group. All I did was say it out loud. So this week, I’m thinking hard about how to be more like Harris. I mean, we can do it. We just have to keep our eyes on the ball.

[Hours: Class/Study/Other 7 / 7.25 / 9  Weird totals, because it was a short week because of MLK Day and some other class cancellations, but I also had a paper due]

Questions? Comments? Complaints? Post them below, or shoot me an email.

Be good to one another, for we need it now more than maybe ever,

d

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