I'm working on my faults and cracks
Filling in the blanks and gaps
And when I write them out, they don't make sense
I need you to pencil in the rest.
–Frightened Rabit, My Backwards Walk
Alicia is perfectly in control, until she isn't.
Whenever he thinks about the law and all of its dark, secret ambiguities and exceptions, he thinks about her. The rule is x, except when it's y. Civil cases require a preponderance of the evidence, except when clear and convincing evidence is necessary. Inequality of exchange is never grounds to invalidate a contract, except when it is. The law is about justice, except when its not. He thinks about the law a lot.
He thinks about the law when he's studying, of course. He can't not think about it when he's reading case after case, a rainbow of highlighters laid out like scalpels in front of him. Facts are yellow, forgettable. Issues are green, the color of dizziness, questions to be answered. Rules are blue, soothing and easy on the eyes. Holdings are purple because exceptions to the rules are red. It makes sense, in his mind. He makes it make sense. Alicia was wearing a red sundress the night they met. Red with tiny blue flowers.
The thing is, he's in law school, so he thinks about the law when he's not studying, too. He thinks about the law on the phone with his mom, tossing a baseball against the wall of his crappy studio apartment so he doesn't interrupt her, doesn't tell her when she's being illogical or hyperbolic. He doesn't say things like, "Congress doesn't have the authority to do that," or "you didn't intend it, intent requires that it be your conscious object." He says, "it depends," a lot more than he used to. In his second week, when she asked if he'd made any friends, he thought of a conversation with Alicia after civ pro, just a few words, a joke, and her laughter before she disappeared into the library. He thought about that and said, "it depends, Mom. How are we defining 'friend?'"
It's not just his mom, it's everyone. He feels like he's lost the ability to have a normal conversation, to say things definitively, unequivocally. There was a time when commitments were easily made. Of course he could meet for lunch at two; the next round was always on him. He doesn't make promises so easily now, knows too much and not enough about the weight given to reliance, the liability attached to promises. When Alicia asks if he can be ready to meet at 8:30 on a Saturday morning, he doesn't hesitate before he says, "absolutely."
"Do you think this is changing your thinking?" he asks her on a study break, walking down to the coffee shop on the corner. "Law school. Do you think you're different than you were before?"
Alicia's quiet for a moment, considering the question. Her cheeks are flushed pink in the cold, her breath comes out in gray-blue puffs. "I think— I think that I think more than I used to."
Will laughs at that, rubs his hands together against the November cold. "No, but do you think— The way you think, is it different?"
"I think you've got two perfectly good pockets but you like making a show of how cold your hands are," she says, grinning for a moment, then sobering. "I think everything feels less certain than it used to." He nods, watching her. It's such a simple statement, but it feels so, so profound. "I mean— I knew the law was ambiguous before I got here, but I don't think I knew what that really meant. I like rules, structure. I don't think I was prepared for how little guidance the rules provide."
"See, that makes me feel more certain," he says, shoving his hands into his pockets. "And maybe it's because I never really thought the rules meant much, off the field, but I- I like that we're learning what to do when the rules just don't apply anymore. It's like the rules are there for the easy cases, but in the easy cases you don't need the rules to know what's right. I feel better, knowing how to fill in the gaps."
Until junior year, his life was about the game. It was about training and preparation and pushing himself until he knew that he couldn't push himself any harder, then doing it anyway. His muscles used to sing when he moved, all of them working together in perfect harmony, a finely tuned machine. Then the machine broke, tendon tearing away from bone. The machine was made wrong, the doctors told him, was born wrong. It was anatomically defective, right out of the box, out of the womb.
They cut him open and removed the hook from his acromion, shaved away the spur until he wasn't defective anymore. They widened the the space between muscle and bone, but the machine never worked the same way again. When he was defective, his muscles sang. Remove the defect, and all that was left was a guy on the sidelines, watching the game instead of playing it. His whole life had been about the game, and then it was gone. "Time to grow up," his father told him. "Time to stop chasing foolish dreams." His body didn't sing the same song anymore, and even after the pain was gone it still hurt to look out at that field so he shut the curtains and read. He read Dickens and Donne and Austen and Shakespeare until he read a would-be revolutionary's call to kill all the lawyers and he thought, okay, I get it. Enough.
He arrived in Washington in August and by September he started hearing music again, reading by lamplight in the library, watching Alicia when he thought she wasn't looking. He came to law school to fill the gap running between muscle and bone with something other than foolish dreams and he found her, instead, the most foolish dream of all. He found the curve of her jaw, the curl of her hair, the red of her dress that night by the pool.
Now, with spring giving up its pretense of shyness and stepping, diva-like, onto the stage, now his body twitches and rebels against the idea of staying inside to study for one more final. He can't think about the law with the sun shining bright in a cloudless sky, can't organize cases into blue rules and green issues. He grabs the ball from its spot on the coffee table and runs, runs down the block and up the library stairs until he finds her. "Come on," he whispers. "Let's go." She starts to protest, but then she looks at him and he sees something in her eyes that he's never seen before. He sees something dark and bright, playful and concerned. She looks like a rebel, suddenly, and she nods, gathers up her books and notebooks and her stack of pink highlighters and nods until they're jogging side by side down to the Mall when he stops, grins, and tosses the ball in the air.
It's not a real game of catch, not really a game of anything. They don't have gloves and he's careful to go easy on his shoulder, so all he sends her way are slow, underhand throws that land so perfectly that she barely has to move to catch them. "Is that all you've got?" she asks, laughing and teasing so he points to a tree sixty feet away and pitches a four seam fastball, bark falling to the ground as the ball makes contact. She asks him to teach her, and he does, standing behind her and positioning her hands, her arms. The move together, perfectly in sync, in tune. They throw the ball together, over and over, each throw punctuating a new point about contract formation then they take turns running to retrieve the ball, expounding on the point until the sun goes down.
His body sings all the way back to his crappy studio apartment to study but she is still laughing. She is laughing and she asks him what brought on the impromptu afternoon off but he has no answer so he kisses her instead. He didn't mean to, didn't plan it, but he kisses her, can't stop kissing her. He kisses away the red of her lipstick and unzips her blue Georgetown hoodie and runs his hands over her skin, tracing the contours of muscle and bone until her breathing is fast and shallow, eyes bright with excitement and anticipation.
He doesn't think about Helena, back home. Doesn't think about the years she spent chasing him or the resignation he felt when he went home over spring break. He was trying to drink the law out of his mind and her dress was too tight, too short, too red but he was probably three sheets to the wind so he let her take him home. He doesn't think about the kiss at the airport or the phone calls over the past few weeks. He doesn't know what's going on with that, but he is so lost in the moment that it honestly doesn't occur to him to wonder.
He is lost in the pink highlighter stains on Alicia's fingers as she unbuttons his fly, in the flash of white teeth biting down on her lip as he slides into her. He wants so badly to make it last, bodies moving in harmony, like they were precisely machined, made to fit together just like this. He thinks he can do it, thinks he can keep this going forever. He believes it up until the moment when she abandons all of the rules and lets go, throws her head back against the blood red pillowcase that hasn't been washed in too many weeks and groans his name, body arching and shaking and squeezing him tight until his rhythm falters and she pulls him over the edge with her, sputtering and gasping as he still tries to hold on.
Later, after they've showered and dressed and she's sitting cross-legged on his bed in a pair of his boxers and a Cubs t-shirt, she looks up from her notebook to say that she's glad things are over between him and that girl he told her about. He thinks about all the ways to respond to that, tries to sort fact from speculation, holding from dicta. "Helena? It was only a casual thing," he says with a shrug. It's a lawyer's answer, neither a lie nor the full truth. It tastes bitter and metalic in his mouth.
She nods, watches him for a long moment before she nods again. Her eyes are cloudy, unreadable. "Is that what this is?" she asks him.
"This is whatever you want it to be," he says. He wraps a hand around her ankle, pulls it towards him so he can run his thumbs over her calf, leans down to kiss from shin to knee to thigh and she giggles, swats at his head with her notebook but he's got his thumbs hooked into the waistband of her shorts and there's nothing he wants more than to touch her most secret places, to taste her on his tongue. He's so sure, so sure that she feels it too, the way they complete each other, the way they make sense together. She is the exception to every rule he knows and for the first time since they cut him open he feels like his defects are cured, like his body is his own again. "So what do you want it to be?" he asks.
"We have an exam in 36 hours," she says, trying to nudge his hands away. "And I'm leaving for Chicago on Friday."
He's so sure that it takes him a moment to process her words, takes him another moment to realize that she's not saying yes, not saying now or please or I love you. "I don't- " he swallows. "Okay," he says, not sure what he's agreeing to, just needing to agree to something, to put his heart back inside his chest. "Sorry, it's just that I don't know what that means."
"Can we revisit this in the fall?" she asks him. "After finals and summer jobs are over? I just— I just really need to make sure I understand mutual and unilateral mistake right now." Her voice is controlled, measured, but he can hear the hitch in her breathing when his fingers brush against her belly as he releases his grip on her shorts. She's not nearly so in control as she wants him to think she is.
He nods. "Unilateral's easy," he says, head swimming with possibility, confusion. She's the one who likes certainty but things are suddenly so incredibly uncertain, a mess of color without any order to it. He feels like a fool, like he's walking through a dream. "Unilateral mistake is easy, because it's not an exception to the general rule that courts will enforce valid contracts. Except when it is."
A few general notes about law, medicine, and Shakespeare, but first, a disclaimer. None of this is legal advice, and if you have legal questions, you should consult a lawyer licensed to practice in your jurisdiction. Do not rely on fanfic for legal advice.
Preponderance v. clear and convincing evidentiary standards.The default burden of proof for civil cases is that the complaining party must prove his or her case by a preponderance of the evidence, meaning that they must convince the jury that it's more likely than not that they're telling the truth. Clear and convincing is a higher standard, it requires the party to demonstrate that the evidence is highly and substantially more probable to be true than not, and the jury must have a firm belief of its veracity. (This is still a lower than the beyond a reasonable doubt standard used in criminal trials.)
Inequality of the exchange refers to the things exchanged in a contract, called consideration. I pay you $500, you give me an iPad. I agree not to sue you, you give me $100,000. I agree to work for you, you agree to give me a paycheck. Typically, courts won't examine the adequacy of the consideration of a contract, unless it's so grossly disproportionate as to appear illusory or substantively unconscionable. Illusory means, effectively, a backdoor gift. Courts won't enforce gift promises, so if I contract to sell you my house in exchange for a penny, the odds are that a court will step in and prevent that contract from being enforced when you sue me for title to my house because it looks like I was trying to give you a gift, not complete a land sale. A contract is substantively unconscionable when the bargain is so one-sided as to shock the conscious. The house-for-a-penny contract would probably be unconscionable, but courts are less likely to invalidate a contract for purely substantial unconscionability. (There's also procedural unconscionability, but that's a whole other paragraph.)
Congressional Authority. The Constitution grants certain enumerated powers to Congress (See Article 1 § 8 of the US Constitution), and while those powers have been interpreted broadly, they are not limitless.
Intent. Will's version of "intent" is the Model Penal Code (MPC) version. It basically means that, if it's a crime to "intentionally" or "purposely" do/cause something, that if you do/cause that thing you're only guilty of the crime if you actively wanted to do/cause it, i.e., if it was your "conscious object." For example, suppose it's a crime to intentionally cause the death of another human being. If you want to blow up a house, but you're unaware that someone is inside the house and they die in the explosion, you're not guilty of intentionally causing the death of the victim. You're probably guilty of a lesser crime involving causing the death of another human being, because "intent" isn't the only mental state in criminal law, but you're not guilty of intentionally killing that person. (If you're really interested in this, Google "MPC 1.13 General Definitions" and "MPC 2.02 General Requirements of Culpability." Or just look at the wiki page on mens rea.)
Promises, Commitments, and Liability. Even if you haven't made a contract to do something, it's possible that a court will still require you to honor your promise. Under a thoery called promissory estoppel, if a person reasonably relies on a promise and does so to his detriment, he may recover from the person who made the promise. For example, if I promise to give you a ride home, and in reliance on my promise you decline a similar offer from someone else, then I don't show up and you have to take a taxi, you can sue me for cab fare.
Will's shoulder injury. The acromion is one of the bones in the shoulder that makes up the rotator cuff. Some people are born with "hooked" acromions, which means that there's less room for the muscles and tendons to move without rubbing against bone. It can cause impingement, which is chronically painful, but people with hooked acromions are more likely to develop a rotator cuff tear than people with flat acromions. Rotator cuff tears are common for baseball pitchers and many pitchers don't ever return to their full pitching skill after a tear.
"The first thing we do, let's kill all the lawyers," is a line from Henry VI, Part 2. Some people (many of them lawyers) point out that the character speaking the line is referring to a plan to overthrow the government and insist that the line is actually meant to be a compliment to lawyers; if you kill the lawyers, there's no one left protecting justice. (Not surprisingly, there is room for debate on the proper interpretation of the line. I make no attempt to weigh in on it.)
Unilateral mistake is not, generally, an excuse to get out of doing what you contracted to do. Unilateral mistake means that only one party is mistaken, so courts prefer to protect the innocent party is protected over the mistaken party. There are times when unilateral mistake may be grounds for contract recision, however. Specifically, when the mistake is clerical in nature (I wrote $10 when I meant to write $100) or when the other party had reason to know of the mistake. (You knew I was wrong, but you went ahead with the contract anyway. Courts don't want you taking advantage of me.)