Issue Spotting

 Our 1L Torts professor warned us: as soon as we went home for the holidays, mid-way through our first law school year, we would start to bore everyone in the family to tears by spotting legal issues everywhere. As she explained it, this was part of the oft-mentioned process of "learning to think like a lawyer." The people and setting you remember from holidays past would be the same; but you would now be scanning everything that happened for potential causes of action. 

I have noticed this to some extent; but where I experience the greatest warping of my brain in the aftermath of the first semester is when it comes to non-law-related reading. Even when one turns to a novel in the hope that it will provide one with relief from thinking about final exams, one finds one can't help but read each book with part of one's mind as simply an extended fact pattern on a test. One starts to perform mental "issue spotting" on every page.

Reading Witold Gombrowicz's Ferdydurke, for instance, one comes to one of the eccentric stories-within-the-story he has embedded in the text. Here, in one episode, a dashing aristocrat pulls out a revolver during a tennis match and obliterates the ball in mid-serve. His aim is impeccable—he bisects the ball in a puff of smoke. But unfortunately, the ball lacks sufficient substance to arrest the bullet in turn. The latter continues on its journey, and strikes a spectator seated across from the aristocrat in the opposing stands. 

The aristocrat has clearly committed a tort, I think. But which one? Is it a property tort, like conversion or trespass to chattels, because he intended—and succeeded—in striking the ball? Or was it negligence, because his unreasonable act of firing a loaded weapon during a tennis game ended up harming a fellow spectator (there was certainly an injury, a duty (foreseeable harm), a breach (the unreasonable act); and his bullet was both an actual and a proximate cause of the other spectator's injury).

But ultimately no; it's neither—I thought to myself. I plump instead for the theory that he committed an intentional battery, because his bullet was an instrumentality that caused a harmful contact with the other spectator. Intentional, though, you query? Even though he only meant to hit the ball, and not the person? Yes, I reply, because of the doctrine of transferred intent. According to this rule, an intentional tort that indirectly and unintentionally harms another can count as a different kind of intentional tort. 

Or take Knut Hamsun's gripping expressionist novel of the life of a literally-starving artist, Hunger. I read it during this, the first week of my post-exam break, hoping to take my mind off the immediate world of law school. But, once again, I find that the process of studying for exams and writing outlines has broken my brain for the time being. During a climactic scene of Hamsun's tale—when the protagonist reaches a pitch of degradation in this already excruciatingly vivid and heart-rending novel—I find myself applying contract law. 

In fairness, the protagonist himself invites the thought. The scene occurs as a result of a final act of desperation, after he has been evicted from his lodgings once again and spent his last ten kroner in an attempt to pay off his debts and save face. Up to this point, the protagonist has always made a point of trying to salvage some dignity through acts of generosity, even taking his open-handedness to the point of perversity and self-destruction—such as giving away his last penny for bread to someone else in need. 

In one of these previous acts of extreme munificence, he had pressed a ten-kroner note into the hands of a poor old cake vendor and then quickly rushed away before she could ask questions. He had only received the windfall in the first place through an accounting mistake by a grocer, and he was wracked by guilt at the thought of being unjustly benefited. So, he decided to make recompense for the oversight in the eyes of his conscience by giving the money away to someone else in need. 

When he is later forced by mad desperation to go back on his word, then, and returns to the old woman to demand the value of the gift back in cakes, it is therefore a moment of ultimate degradation and humiliation—showing the violence that poverty has done to his character and integrity, the moral injury it has inflicted, even beyond the physical suffering it has already forced him to endure. 

Instead of pleading and begging with her for relief, the protagonist—pushed to this final extremity—pretends to have a legal case against her. He even threatens to call the police. His unexpected gift of the ten-kroner note, he insists, was actually an implied contract. He's not in the habit, he tells the woman, of forcing people to make their commitments in writing. Rather, it is a custom among sophisticated people of other lands to simply pay in advance with no expectation of immediate delivery of the goods. 

I find myself—even as I am moved by the literary effect Hamsun in aiming for in this utterly convincing novel—trying to think through this as though it were presented on a 1L Contracts exam. Well, one thinks, there had clearly been no contract in the classic sense. If the characters were in a common law jurisdiction applying post-Holmesian understandings of contract law, we would say there had been no offer, acceptance, or consideration, hence no binding promise. A gratuity is not a contract. 

But then, we think, the protagonist might, at a stretch, have a case on alternative grounds. He could invoke the law of unjust enrichment. He could say that he had conferred a benefit upon the woman for which she owes restitution as a matter of equity. Of course, a truly free gift does not generate a legal obligation for repayment (how else then could it be a gift?) But, if it is the sort of thing that is ordinarily not given as a free gift, but only in expectation of repayment or tender of goods—such as handing money to a vendor—then it might be the sort of benefit that it is unjust to allow the other person to keep without repayment. So courts might actually side with the protagonist, impossible as it might seem.

But of course, the protagonist was himself unjustly enriched by receiving the money in the first place, through the grocer's mistake. And so he is liable for paying restitution in turn. The law would also insist that he pay it back to the grocer itself; it would not recognize his bestowal of the ill-gotten money on the poor cake vendor as a form of just recompense, even if it absolves him in the court of his own conscience. Just as the law might be so blind to ordinary matters of justice that it would actually force the poor cake vendor to give back the money, even though it had plainly been bestowed upon her in context as an intended gift. 

And so we find in all of this an illustration of why, even though it can be fun to come back from school suddenly "thinking like a lawyer," the law is not the only or the best means to think with. There is, after all, a rule of justice higher than the law, and would-be lawyers and law students forget it at their peril.