Thursday, February 5, 2009
Some Real-World Pedagogy for Agency Law and Other Social Disabilities Arising Out of "Thinking Like a Lawyer"
Posted by Jeff Lipshaw
In an effort to demonstrate what "thinking like a lawyer" means (for better but, more likely, for far worse) to my agency, partnership, and LLC class, I sent the following e-mail today:
I don't usually obsess on matters of legal doctrine, but I noticed a couple of things this morning relevant to our class.
My dogs wake me up early (like 5:00 a.m.) so I'm up and out before a lot of people. I was in the car at 6:35 a.m. to drop my shirts off at the cleaners and to get a Starbucks. The Zoots at the Porter Square shopping mall opens at 7 a.m., but for registered customers like me it has a drop-off bin with a combination lock. When I pulled up this morning, the store was dark, but there was a young guy sitting on the bench outside the store smoking a cigarette. He was wearing the trademark purple Zoots jacket with a Zoots insignia on it. I thought he was an employee waiting for someone to show up with a key to let him in. I said, "Are you waiting for Zoots?" He replied, "I am Zoots." So instead of walking ten feet over to the drop-off bin, I handed him my purple bag. He said, "Is Sunday after 5 okay?" I said, "Yes." Then I got in the car and drove off.
As I was leaving, I thought to myself, "What a great scam! If you sit out here with a Zoots jacket, you can steal as much clothing as people are willing to leave with you." Let's assume he had not been a Zoots employee, but he stole my shirts. Under what circumstances would I have a claim against Zoots? Think about this doctrinally (apparent authority and inherent agency power) as well as from a policy standpoint. It may be one of those instances in which even the "least cost avoider" issue is puzzling. If it really was a Zoots jacket (and it looked like one), maybe Zoots is the least cost avoider because it can control who gets its jackets, and thereby avoid the deception. On the other hand, I could have, at some minimal cost of social embarrassment, said to the fellow, "I am a certified paranoid person (otherwise known as a law professor) who cannot confirm that you are indeed an agent of the principal Zoots, and therefore am questioning whether my assumption you are indeed an agent is reasonable. Since I can avoid any issue merely by walking over to the drop-off bin and putting the bag in it, I may be the least cost avoider in this situation. So pardon me if I seem to be a rude and untrusting doofus, but I'm throwing the bag in the bin."
This would be a variant on another clever scam I witnessed many years ago in Detroit. The old Tiger Stadium in Detroit (now razed) was in a neighborhood called Corktown. I think it was a lot like Fenway Park in that there was no official parking. The area, unlike the Kenmore Square area, however, was a mix of single-family homes and warehouses, and the warehouses all had large parking lots. So there were some private parking lots, and a lot of people made money parking cars in their yards. If you were willing to walk a little, however, you could park in one of the warehouse parking lots if it was unlocked. Some kids had the great idea of finding one of these lots, and painting a sign: "Parking Easy In and Out $2.00" which was far lower than the going rate. They hung out for about an hour before the game, collected $50 or $100 from the dupes, and then took off. Now, if something happened to your car and you made a claim against the warehouse company, would it stand up?
My intuition tells me there's a good agency claim in case #1 but not in case #2.
The litigation variant of the effect of being a lawyer on one's ability to act like a normal human being arose back when I was a litigator (through the 1980s). I'd come home after a day of taking depositions and at least through dinner and well into the evening my conversation consisted of a series of staccato questions to my wife along the following lines:
"So you went shopping today."
"What did you buy?"
"Is that all?"
"Now, let's go back to the first thing you bought. . . ."
(Clipart courtesy of clipart.com (c) 2009 www.clipart.com)