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Valparaiso Univ. Law School

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Monday, March 8, 2010

The Ethicist and the Lawyer

As I have previously confessed, I read Randy Cohen's "The Ethicist" column in the New York Times Sunday Magazine.  Mr. Cohen occasionally uses the law as a point of reference in explaining his grounds for thinking behavior is ethical or unethical.  I object, citing my conviction that the law sometimes reflects something like a collective ethic and sometimes reflects complex political processes that operate beyond good and evil.  On occasion, as indicated in this previous post, Mr. Cohen assumes positions consistent with mine, for which I heartily applaud him.  So, I've chided him for giving too much credence to the law as evidence of ethics and applauded him for recognizing that law and ethics can diverge.  Today, I return to congratulate him for recognizing some of the the subtleties of the dance between contracts law and ethics.

Ethics
In last week's column, Mr. Cohen responded to a reader seeking advice respecting a school-year length agreement with a baby sitter to look after his two children two days a week.  The reader learned that he would be laid off in April and would no longer need the baby sitter's services, but his wife felt bound by the agreement to employ the baby sitter through June.  Mr. Cohen sides with the wife, arguing that the reader is bound, both in ethics and in law by his commitment to the baby sitter.  However, a contract is not a suicide pact.  Mr. Cohen recognizes that there are legal as well as ethical solutions short of pretending to putter about the house two days a week while your two children pester the under-utilized baby sitter with questions about why Daddy is still in his bathrobe and hasn't shaved in a week.  Mr. Cohen does not consider the defense of frustration of purpose, which might have some applicability in this context.  That is too bad, as it would be interesting to consider the extent to which our ethical intuitions overlap with legal doctrine with respect to that affirmative defense.  

Mr. Cohen correctly notes that, while one can assist the baby sitter in finding alternative employment or can offer her a compromise of one month's severance, she has no legal obligation to accept such an offer.  In the real world, she might see the advantages of being accommodating.  But here again, in my view, ethics and law diverge.  As a matter of ethics, I agree with Mr. Cohen that it is the breaching party's obligation to seek to mitigate the harm to the non-breaching party.  In law, however, the baby-sitter has a duty to seek alternative employment or she would forfeit her entitlement to damages that would make her whole.  This divergence of law and ethics is one about which I have strong views, since I regard myself as a victim of past baby sitters who have cancelled without notice and considered it my problem to find a replacement or change my plans for the evening.

Mr. Cohen also offers a brief paean to written contracts and their advantages over oral agreements.  Mr. Cohen notes that written agreements lend clarity to the terms of an agreement -- although there seems to be no ambiguity as to the terms of the baby-sitter contract at issue -- and provide an opportunity to make those terms explicit.  If the parties had wanted to stipulate that the agreement was contingent on the employer's continued employment at his own job, they could have made such an assumption explicit.  

This seems a bit off to me.  Very few people would want their informal contracts solemnized in writings, and it is highly unlikely that such a writing would address unforeseen -- though not unforeseeable -- events such as those that befell Mr. Cohen's reader.  A good baby-sitter contract -- one that addressed all contingencies and rendered its terms explicit -- would have to be drafted by an attorney.  But the costs of the contract would be excessive in relation to the value of the contract to the employer, who could not reasonably expect that the baby sitter would share the costs of drafting the agreement.  Moreover, because it would contain terms that likely would be opaque to the baby-sitter, a written contract could exacerbate the already uncomfortable inequality in bargaining power between the parties.  

[Jeremy Telman]

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