Major Questions Or Lax Parents?

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Would you let a babysitter take your kids on a two-day road trip to an amusement park without express authorization?

Josh Blackman |

In Biden v. Nebraska, Justice Barrett wrote a concurrence about the major question doctrine. Her analysis invoked an example that any parent could relate to:

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park. If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to “make sure the kids have fun.”

When I read this example, I thought, yeah, that makes sense. As a parent of two young children, if I gave a babysitter my credit card and said “make sure the kids have fun,” and she took them to an amusement park, I would be incensed, and would almost certainly fire the babysitter. I distinctly remember when I was about eight years old my parents hired a babysitter to watch me and my younger sister. They gave the babysitter some cash to buy food. The babysitter drove to a nearby convenience store and bought some food, including a small, single-serve container of ice cream. (If my memory serves, it was vanilla “Häagen-Dazs)”. When we got home, the baby sitter refused to share the ice cream with us. When our parents came back, we told them about the ice cream incident. They were not happy, and they did not hire that baby sitter again. I asked my dad what would happen if our babysitter had taken us on a road trip to Six Flags without express authorization. He said they probably would have called the police and accused her of kidnapping the kids. Indeed, since Six Flags was in New Jersey, there would have been an interstate crime!

I think parents generally leave their kids with babysitters with fairly specific instructions. Perhaps the example would be different with a full-time nanny, rather than an ad-hoc babysitter. A regular nanny may have more latitude, but I think a roadtrip, combined with a hotel, would require express authorization.

But maybe I’m an outlier? Kevin Tobia, Daniel Walters, Brian G. Slocum wrote a new paper, titled Major Questions, Common Sense? The authors respond to Justice Barrett on the major question doctrine. They conducted a survey of roughly 500 people to determine whether Justice Barrett’s hypothetical about the babysitter was actually “common sense.” They asked respondents a series of questions to determine whether a babysitter who took the kids to the amusement park acted “reasonably.” (I am grossly oversimplifying their methodology, and I urge you to read the entire paper.) The results? Only 8% of respondents thought that the amusement park hypothetical violated the parents’ instruction. That’s it!

Although people evaluate Barrett’s “major” action (taking the kids to an amusement park) as less reasonable than at least one alternative, they nevertheless understand it as consistent with the rule.

I couldn’t tell from the paper how many of the 500 respondents have children, or have ever actually hired a babysitter. A cynic might argue that people who have children probably lack the free time to earn $1 for a five-minute task. Or maybe the sort of people who take surveys for $1 would love a trip to an amusement park! Then again, maybe the respondents have so much free time because their kids on roadtrips with the babysitter.

When Justice Barrett referred to the “normal course,” she may be referring to people who are familiar with the process of hiring babysitters. Or maybe the authors would respond that language can’t be restricted to a specific category of people, including parents. Maybe the argument is that parents wouldn’t be ordinary people, to understand an example about parents hiring a babysitter.

Diversity of views is very important. One facet of diversity is having children. More than any other experience, my kids have fundamentally changed the way I view the world. Careful readers may have noticed a shift over the last five years.

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