Right around the time I graduated from law school my wife and I got a Border Collie puppy we named Tessa. At the time we lived in an apartment in Columbia, Missouri that didn’t allow pets. We got Tessa notwithstanding our apartment’s pet prohibition because we wanted to be able to train her while we had the time in the summer before we moved to St. Louis and both started jobs. She was a great dog.
Upon checking out of our apartment at the end of our lease, the manager charged us $500 for having a pet in violation of the lease. I said that $500 was ridiculous given that there was no damage to the apartment. Further, I noted that the clause in the lease, known as a “liquidated damages clause” was unenforceable due to various reasons I had learned in law school. The manager said “too bad – sue us – we’re keeping the your deposit to fund the $500.”
I was so pissed. It was clear to me that under the law, liquidated damages weren’t enforceable in this situation. So I went to see my contracts professor. Here’s what he said:
Professor Hemmings: “You have a good argument that liquidated damages aren’t enforceable — good job spotting that — but it doesn’t matter. You have run into something commonly known as the law of clerks.”
Me: “What’s the law of clerks? We didn’t learn about that in law school.”
Professor Hemmings: “The law of clerks states that with respect to day-to-day transactions, it doesn’t matter what the law really is — it only matters what the clerk you are dealing with is willing to do.”
The law of clerks has turned out to be one of the most important things I learned in law school (even though I learned it after I had graduated). Professor Hemmings was right and I’ve seen it in real life over and over and over again.
Here are some examples:
- If you go to your bank to cash a check and the teller says “please endorse the back” it is not helpful to say that Chapter 4 of the Uniform Commercial Code provides that banks can accept and cash checks without an endorsement (yes, I’ve really had this conversation and it embodies why so many people dislike lawyers). The only thing that matters is that you’re only going to get your money if you do what the teller says because she doesn’t care what the UCC says.
- When you go into your Schwab branch and submit a form to transfer money and the clerk tells you that you also need your wife to the sign the form, it’s futile to point out that even though she’s listed as a co-trustee on the account, paragraph 3 of Article VII of the trust document allows one co-trustee to take action without the other’s consent so long as they are married. The only thing that matters is that the person at the Schwab office isn’t going to transfer your funds without your wife’s signature.
- If you get a notice from from the State of Missouri saying that you owe tax because they are disallowing a credit you claimed on your return because they need Form INT-2 and you call them and say “I attached the INT-2 to my tax return, so it’s there and why don’t you just look at it?” — you are only going to get your credit if you fax another copy of form INT-2 to the person on the phone.
The lesson of the law of clerks is that the person on the other end of the phone at the cable company or the clerk at the DMV has great power. You are only going to get what you want if you follow their process. It doesn’t matter what the law actually is or what common sense might dictate — for low value transactions it’s best to just go with the flow of the system.
My mom is 88 and an identical twin- her birth certificate only says Kaplan Baby 2 (who really know for sure which of them was first?), 2 years ago her husband passed away and she had a death certificate, and a marriage license but not a marriage certificate (whatever that is)- this is all to say after moving back to St. Louis from Florida and living here for 3 years she didn’t change her driver’s license, but when it was going to expire (ha, for someone 86 years old) she went to DMV and the endless law of clerks and utterly ridiculous exhaustive documentation she needed, which never even included a requirement to take an actual drivers test again, it literally took her 2 years, updating her passport (also no small task when your birth certificate doesn’t have a name the clerks approve of) and a host of other complicated phone calls, about 25 trips back and forth to various government official offices (all the while driving herself to these various offices around stl), and finally she obtained her MO license – so, not only did the law of clerks band together on their insane red tape, they never once considered if she should be driving! You’d think they would be happy to have her money and be done with it. And that also goes for the state of Illinois who think it’s ok for my 90 year old dad who could blow over in a Chicago breeze (albeit he’s mentally sharp as can be) to have a drivers license too- after 3 failed attempts- at least IL makes people take the driver’s test every year starting at 85. Beware of the law of clerks and my parents driving! Haha
This also speaks to the value of being as nice as possible to everyone in the ‘food chain.’ Many a clerk will go the extra mile for you when you are especially nice and understanding 🙂
My wife and I are arranging for a new au pair to join our home in 1Q2021 as we say a happy goodbye to our current South African one. It doesn’t matter that Trump’s Visa ban is set to expire in December 2020, they won’t look at new visa approvals until Jan 2021.
The Law of Clerks is increasingly compounded by the tyranny of software…
even if you find a willing clerk sometimes the software just wont let the process get past step A or B without some piece of information so a box can be checked and the processes can move on.
At heart this is what assures we can never become too efficient — there is always something to gum the works.
That is so true susan!
The number of times that a customer service person says “sorry, my computer locked up” or “the system is running slow” is astounding!
Needed to read this today. Thank you!
Thanks, this is good. I am familiar with the notion, but it’s good to have a name for it. I talked with my brother in Belgium yesterday who has a residency application going through now, despite his having been told more than once by the clerks that he isn’t eligible because they live on a boat (technically a ship), and don’t have a resident address. But he pushed (on the basis that the law doesn’t say you must have a residency address, just that you are resident). He finally got his address (the winter marina address with a letter added after the street number to indicate their boat). That’s an exception that I think proves the rule. It was important enough he kept pushing. Meantime, other Brits he knows gave in to the clerks, sold their boats, and went back to the UK.
I hate the Law of Clerks. That law caused unnecessary legal fees fighting over our eloquently drafted beneficiary designation forms designed to stretch out distributions and delay taxation. Of course those forms themselves often were unnecessary as the kids just took the money.
I don’t miss IRS 401(a)(9).