Wednesday, September 30, 2020
In Part I of this series, I provided an overview of my reasons for thinking that courts ought not to be in the business of enforcing twenty-year-old oral promises between family members made at a family gathering. In Part II, I summarized Douglas Baird's work reconstructing alternative narratives of what might have been going on in Hamer v. Sidway. Today, I want to focus on my view that it would always be impossible to verify Willie's performance of his promise to refrain from swearing.
Douglas Baird's piece already notes that Willie was unable to provide witnesses who could verify his claim. Apparently he was unable to remember the names of or identify his college chums. To which I say,
But in this post, I am more concerned with Willie's promise not to swear. In my non-professional life, I swear like a sailor. When my daughter was born, I committed myself to checking my language when speaking in her presence. When she was 2 or 3, we started to notice that, when experiencing mild frustration, she would lower her head a bit and whisper, "Oh, shhh---." I have no idea where she got that from.
More recently, just as I was about to start a class, I realized that I left some papers that I needed for teaching in my office. I teach with a microphone for the benefit of my Zoomers, and I forgot to turn it off as I dragged my aging body down the stairs, into my office, and then up the stairs again. When I came back in, the students of Section 5, "The Fighting Fifth,"* was in hysterics. They were amused by the jangling keys that accompanied me on my journey, and, they informed me, "You may have dropped an f-bomb." I have no recollection of having cursed. But a room full of amused students will confirm that I did.
My takeaway from this is that Willie's unverifiable promise could not have been a serious one, and so he can never be rewarded for having "performed." It's just a very hard thing to monitor. Even the mild-mannered legal philosopher, Scott Shapiro, has been known to speak colorfully when inclusive legal positivists are his subject matter.
*Our first-year class is divided into seven sections. I teach four of them face-to-face. I have concluded that it is boring to call them sections two through five, so I want them to come up with nicknames for themselves. They have refused, so I am making up names for them.