During my blogging days at Dissemination I became somewhat familiar with friend and fellow blogger Ethan Leib’s views on "friendship." Ethan argued that friendship should be looked upon as more than a fuzzy and feel-good relationship. In fact he thinks that it can and often does become an important social safety net in time of physical and mental distress for those who may either lack or cannot reliably depend on family support. As such, he feels that the legal recognition of non-sexual friendships based on trust, affection and emotional solidarity can expand the definition our formal human alliances.
Friends are at the center of most of our lives. Yet public policymakers and lawyers rarely spend any time thinking about how the structure of our public policies and our law can help sustain and promote our friendships with our nearest and dearest. Few realize that choices we make in the design of our public institutions structure and sometimes regulate our friendship networks. Decision-makers and legislators spend an awful lot of time focusing on the family and designing our public law to account for and promote the family unit. More, special professional relationships of trust and confidence, like our interactions with our lawyers, doctors, and psychotherapists, are heavily structured and regulated by law; even informal intimacies such as those that are produced through cohabitation and co-ownership have a set of rules that structure those relationships. Our friends are no less important than our families, our households, and our professional relationships, and friendships deserve some of the same protection and recognition under the law. (see the full article here)
Not everyone agrees. Many feel that the nature and scope of friendship should be left to the mutual comfort of friends and not regulated by law like so many of our personal and professional interactions are. Sunday’s Boston Globe has an interesting article that presents the pro and contra voices in this debate.
IN THE AMERICAN hierarchy of relationships, friendship often seems distinctly second-class. We obsess about the "work-family balance," but the leisurely conversation with an old friend is a quick casualty when it conflicts with either one. Just in the last generation, the number of real confidants we have outside the family has dropped substantially, according to one 2006 study.
Now, a number of scholars are seeking to shore up friendship in a surprising way: by granting it legal recognition. Some of the rights and privileges restricted to family, they argue, should be given to friends. These could be invoked on a case-by-case basis – eligibility to take time off to care for a sick friend under an equivalent of the Family and Medical Leave Act, for example. Or they could take the form of an official legal arrangement between two friends, designating a bundle of mutual rights and privileges – literally "friends with benefits," as Laura Rosenbury, a law professor at Washington University, puts it. One scholar even suggests giving friends standing in the tax code, allowing taxpayers to write off certain "friend expenditures."
Such changes, proponents say, could contribute to a shift in how our society values personal relationships. In part, they say, the point is to acknowledge that society has already changed: as more people are living outside of marriage, friendships have become the primary relationships on which many Americans rely. But a broader aim is to recognize the universal social and psychological benefits of friendship, which rival those of other relationships, notably marriage, that receive active state support. New laws could elevate friendship’s status, recasting it as an essential part of our lives, rather than a luxury often sacrificed to other priorities.
Ethan’s support for the legalization of friendship is cited in the article (see page 4). Some however, find that onerous …
Robert Vischer, a law professor at the University of St. Thomas, is skeptical of expanding the Family and Medical Leave Act to include friends, which would place a burden on employers. At a minimum, he says, the employee should have to prove that there is no other caregiver for the friend. Tax deductions for "friend expenditures" (proposed by Ethan Leib at UC Hastings) could have related drawbacks. "It’s hard enough for me when I do my taxes to figure out what a work-related expense is," says Rebecca Adams, a sociology professor at the University of North Carolina at Greensboro and editor of the journal Personal Relationships. "That doesn’t seem terribly practical to me, although I would love to be able to deduct these."
… and unnecessary.
Some of his colleagues are appalled by the idea of defining and governing friendship. "There is a danger that the state could go from recognizing to regulating friendship," says Rosenbury. Her ideal is support without constraints, a tricky balance in any context. Indeed, it sounds a lot like what people find elusive in most relationships – and uniquely valuable in friendship.
I don’t find anything terribly objectionable about states awarding friends certain rights under the law by mutual agreement. But how formal and broad should those rights be? Can they be like the power of attorney when needed, covering a narrow area of duties, rights and obligations? Or does the legal declaration of friendship amount to a quasi-marriage? In the latter case, can it be rescinded? What if one friend doesn’t agree to the dissolution of the contract? Does the other then have to "buy" his/ her way out of the defunct friendship?
Accidental Blogger 
10 responses to “Friends-In-Law”
On the face of it it sounds like a good idea. The family as the fundamental social unit has been promoted for too long. However putting friendship in a legal framework would invite the government into yet another facet of our lives…. and we have them in way too many personal spaces in modern societies( yes, personal freedom is a modern idea; but so is the increased effectiveness of government today and better enforceability of laws)…… friendship remains one of the avenues where we can be individuals(human?), love, learn, hurt and be hurt. Society tells us to love our families, law to support spouses, kids and aged parents; with friendship we are free(er) to engage or disengage at will.
It’s also the fear of the government(and our boss, clients etc) having even more information about us than it does now. I know it’s rare even today, but if it had to be “official” could an entry level guy in an oil company( straight out of college and not evil yet :P ) be friends with a Greenpeace activist?
Giving friendship legal sanction should probably also be put in the context of legal sanction for same sex unions as both demand recognition for a “non traditional” social contract, as some of the ideas (taking time off to care for a sick friend/family member)are similar. Maybe for some purposes at least( employee provided insurance? taxation?), we could usher in a brave new world where the family has been done away with and the individual gets to decide with whom he shares what benefits.
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Laws regulating friendship benefits- doesn’t seem right to me. It should be free unfettered and not tied to any laws mandating that friends should have certain rights because it is primarily an emotional and social construct which derives its strength purely from mutual regard.
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Leib isn’t arguing for legal acknowledgment of friendship. He notes throughout that the law already acknowledges friendship in manifold ways. He thinks, rather, that “we could be doing much more for friendship,” or at least “that we do need to give more attention to the ways friendship matters in the law.” This lackluster conclusion notwithstanding, the argument seems not yet ready for prime time.
Although, as I mentioned, Leib provides ample evidence that friendship already matters in the law, he’s mistaken that friendship doesn’t trigger fiduciary duties. See the 1928 California appeal of Thompson against Thompson, which held “Fiduciary relations are not found solely in those legal relationships, such as guardian and ward, husband and wife, trustee and beneficiary, but are also found where in fact the relation of trust and confidence exists between trusting friends.”
Another problem is the “family model.” There is no question that the legal determination of family is strong. Leib argues that if we are willing to promote certain values by dispensing rights and privileges to the family, then we ought to be willing to extend those values to relationships among friends. He fails to consider, however, that the family is a singularly bizarre arrangement, replete with heightened irrationalities and dysfunctions, an institution that answers ultimately to a fiercer Freudian law. I would not, like Leib, hold up the family as a successful consequence of legal promotion.
Friends are at the center of our lives, but so are strangers. Much of the law regulates our relationships with strangers, perfect and imperfect. Does this mean the law should therefore acknowledge our relationships to strangers qua strangers? Strangers as potential friends or family? The odd ring, I suspect, of these rhetorical questions resonates with what I hear in Leib’s notion that friendship’s importance, its bonds nurtured mostly outside a legal regime, warrants further legal “incentives.”
Finally, Leib misses a point emphasized by, among others, the Critical Legal Scholars of the ’80s. In Passion: An Essay on Personality, for example, Roberto Mangabeira Unger wrote, “[W]e must deal with the unlimited quality of both our mutual dependence and the jeopardy with which we place one another and with the tendency of these two features of our experience to push us in opposite directions.” Friendship, in other words, can be both a benefit and a burden. Leib depicts it as a source, exclusively, of “dignity, integrity, and well-being.”
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Dean,
You might check out my “Friends as Fiduciaries” (Art III.A: The Law’s Ambivalence About Friends as Fiduciaries) where I do much more than cite a single case to jump to any conclusion about how the law treats friends in connection with fiduciary law (though Thompson is discussed at p.36). The law is all over the place, as careful study would reveal.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1115668.
I agree that the family model is a bad one. Much of my work with Dan Markel and Jennifer Collins establishes just that:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=933427;
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=933427.
We have a forthcoming book from Oxford on the subject. I use the family model only to highlight just how pervasive the regulation of intimacy is in our culture — and though we may not like it, it hasn’t done much to debase love or marriage. So too, legal entanglement with friendship would be very unlikely to debase it.
Of course we have a law of strangers. It is contracts, generally speaking. And strangerhood is an underlying premise of classical contract law, as relational contract law has been showing for decades.
I don’t think I ignore Unger — he is part of my argument in the academic papers. He presents a real challenge, what he calls “the despotism of vitrue.” I make efforts in all my work to deal with Unger’s very important insight on these questions. In short, of course friendship provides benefits and burdens. I only suggest that the law also seeks to protect the especially vulnerable in all sorts of way; when friends’ vulnerabilities are exploited, some legal recourse shouldn’t be off the table.
In any case, you seem to have read at least some of the work — and for that I’m grateful.
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I don’t know whether I should be encouraged that I haven’t entirely misread Ethan’s article (the one linked to Ruchira’s post, which appears in the Hoover Institution Policy Review), or embarrassed that I didn’t do my homework and note where he had already given Unger his due. I’ll have it both ways. I responded solely to the post and the Policy Review piece, where there is no mention of Unger. A more diligent researcher would have probed further to discover the references to Unger and the more nuanced views of family. Anyway, thank you, Ethan, for the straightforward and informative reply. Let me add a few more remarks, accordingly.
Even though I was responding only to the Hoover piece, I nevertheless too bluntly represented you as stating there that “friendship doesn’t trigger fiduciary duties.” Indeed, you provide an example in the case of the old lady who was swindled out of her property by friends and neighbors, and who recovered accordingly. I confess I simply didn’t take the example into account after I read your suggestion that “perhaps friends ought to be considered fiduciaries for one another, and their nondisclosures and failures to deal fairly should be deemed fraudulent by the law.” The suggestion implies that friends are not considered fiduciaries. So I quickly identified a case to the contrary, without intending to examine the full extent of the law in the area. The point here, I guess, is that while you have argued that “friends ought to be considered fiduciaries,” you really mean that the law should expand and toughen where it already does so, or something to that effect.
I remain troubled by your characterization of family. I think the example of family as an institution embodying intimacy is inapt if by “intimacy” you mean close friendly familiarity (a telling word, I admit), rather than merely close objective knowledge. The references to love and marriage suggest the former. Unger’s remarks hold as well for families as for friendships. These relationships entail both mutual dependence and jeopardy, and I don’t believe the law aims to secure the one and alleviate the other for families.
Tort law, too, anticipates circumstances among strangers, but I don’t regard either it or contracts as a “law of strangers,” since what each regulates is not determined by that feature of the relationship. Strangers who contract together may or may not remain strangers. For that matter, friends who contract together may or may not remain friends. (I realize these are tidy aphorisms, but then I also know almost nothing about relational contract law, where I imagine finer points are elucidated.) My point is that a call for legal recognition of friendship as a category coherent enough to warrant its own stable legal status seems either misguided or superfluous. It isn’t the relationship we want to protect, but those core characteristics you enumerate. We want to protect them not because friendship will thereby be secured, but because they help to assure smooth, efficient, reliable, productive dealings among parties of all sorts: friends, enemies, firms, states… I guess I’m arriving at a conclusion that, in addition to promoting more and stronger legal regulation of behavior among friends, you are also simply using your “composite sketch” of friendship as a proxy for some of the values we want to promote. In any given case, the intermediate step of determining whether, in the presence of some or all of the characteristics, a true legal “friendship” exists, seems needless.
I’m looking forward to the OUP title, and I’ll attend to the SSRN articles you’ve noted. Thank you for the engaging ideas and conversation.
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Smart reply. I think some of what you say is right, though it is a bit like saying we shouldn’t have fiduciary law because all we care about is trust and vulnerability: We should protect that directly rather than indirectly through complicated fiduciary law. Maybe. But I think the “rich classificatory apparatus” (in the words of the relational contract theorists) is actually useful.
I also think there is a bias to “keep the law out of friendship!” (some of it evidenced here), such that it is very important to explain to people why that isn’t possible or truly just. A “lackluster” conclusion, maybe, but one that I think many people miss in their quick dismissal of friendship as a potential legal category.
The paper I’m writing this summer is “Friendship as Relational Contract.” Relational contract theory is a very rich area (which you’d like, I suspect), though my thesis is still not fully worked out. Of course you are right that contracts can be b/w friends or non-friends. Relational theory highlights, however, that as a practical matter the law is written presuming strangerhood. That was my point. In the paper for this summer, I’m toying with what a contract law for friends would look like. Should we have different rules for contracting parties when they have an underlying
friendship? The relationalists would probably say yes. I’m trying to decide what I think. The bulk of my work suggests yes too — but I’m still on the fence for now.
Thanks for the very thoughtful conversation.
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I’ll openly admit that I haven’t read Ethan’s work, though I’m basically supportive of his endeavors as a decent person I know from the past, and would therefore be somewhat more inclined to assist him, or to read his work, than I would be to assist or to read something called “Friendship as Relational Contract” written by a total stranger. Does your legal schema include a formal category for “well-wishing acquaintance,” Ethan? “Friend-ish-ship”? Maybe the law should establish Dungeons and Dragons style levels of friendship obligation a la “lawful evil” and “chaotic neutral.” No, I’m not such a big geek that I ever played role playing games, but I count such people among my friendships (and through my legally formalized romantic partnership).
There is a point of sorts in this glib riffing. I was disappointed in the Globe article, which I did read, not to see a discussion of the administrative benefits of exclusivity weighed against the benefits of a broader circle. That discussion itself begs the much older question of whether marriage needs to be exclusive to have social benefits. A discussion of exclusivity or its opposite also seems necessary to get at what value we’re looking to promote by promoting friendships. I’m generally supportive of un-bundling marriage, and encouraging wider circles of relationships. But formal agreements between people are necessarily, in each individual case, exclusive, right?
In citing the benefits of friendship, the Globe article attributes increased life expectancy among women to women’s friendships. In my experience, the broad range and diversity of friendships, in particular, seems to be what women are better at than men. I know many men who have a tight circle of very close friends from concrete points in their lives such as high school, university, or military service. Women seem far more likely to form friendships (or “friend-ish-ships”) in different settings for different purposes: friends related to a particular shared interest (art, music, gardening), work friends, neighborhood friends, etc. I know far fewer men who are “social” in that same, fluid way (of course there are exceptions, but then such men are often teased with the gendered term, “social butterfly”). Is the value only in close friendship, or in the wide circle? Quality or quantity? Formalizing friendship might enforce the former, but might even serve to inhibit the latter.
Some of the specific legal distinctions cited in the article also raised questions for me:
Spouses get income tax breaks
As an indictment (or argument in favor of such tax breaks for friends), this is a head-scratcher for me, given the questions about whether legal-friends would be exclusive formal relationships versus non-exclusive ones. In an alternate universe, could one file taxes with all or any portion of one’s friends? Only with one other friend? If we want to increase the quantity of “friends with benefits,” would the tax break be based on the number of friends? Or would it only be for friends who live together? In the last case, it seems like we could accomplish this by allowing income tax breaks to domestic partnerships for those who co-habitate, and simply remove the sexual connotations of “domestic partnership.”
They are eligible to take leave from work to provide care under the Family and Medical Leave Act
The benefit of allowing one person to volunteer time and resources to caring for another doesn’t depend on the volunteer or recipient considering the volunteer a “friend.” In terms of the public good, its value would be determined based on the need (i.e. lack of other resources) of the person being helped. Maybe we should just allow everyone to take such leave time; the qualification should be the existence of a person who needs it and that person’s acceptance of the assistance.
To make medical decisions on each other’s behalf in the event of incapacitation
The already existing mechanism of advance directives seems like a better public policy way to pursue this, since it reduces the existing problem of competing claims (see, e.g., Terry Schiavo– husband vs. parents), which might be exacerbated by introducing the claims of friends as further formal entities. Advance directives also increase autonomy by forcing people to be explicit about their expectations regarding substitute decision making. Tangential policy thought: perhaps advance directives, like HIPAA authorizations for release of information, should among the paperwork one must sign when accepting health insurance? Surely someone’s thought about other ways of encouraging their use by making them a default position.
to bring suits for wrongful death on each other’s behalf
Again, assuming that one could have more than one formal friendship, this might lead to incredibly messy and conflicting claims.
There’s definitely an ick-factor that’s triggered by combining law and friendship. For me (and for Andrew), the idea of combining law and romantic relationships triggered the same ick-factor for many years, which is one reason Andrew and I waited nine years to get married. I think the stronger reluctance– one to which romantic relationships are also susceptible– is the feeling that life is simpler without legal formalities. Having gotten over that, I am sympathetic to the argument that legal formality can create simplicity rather than the opposite.
I’m also sympathetic, since the problem created by the need to create legal heft for relationships that the law does not already recognize comes up all the time in my work. My clients with psychiatric disabilities have not infrequently been ditched by (or, burned their bridges with, depending on who’s asked) natural families, and created “families” of friends instead. I once struggled to assist someone retrieve a well-loved, formerly homeless friend who’d been murdered, and who had no known family, from the coroner’s office. The answer: there was no good legal hook; just the opportunity to learn from the lesson by strenuously encouraging clients and service providers on the importance of advance directives (also important in the case of psychiatric disability since many people would far rather have a friend than a family member in control of their mental health care).
Still, as a legal matter, why is it the condition of friendship that we’d celebrate rather than the functions? Why continue to bundle everything together under one rubric, repeating the problem we’ve created through marriage? I have friends I’d rely on to provide me a padded attic should I ever totally lose it (purple velvet, I hope); friends I’d rely on for sage substitute decision-making regarding my finances in the case of incapacitation; friends I wouldn’t rely on but would want to write my biography, should the occasion ever arise; friends I’d rely on for none of the above but who are incredibly important to me, nonetheless. Without, again, having read Ethan’s work, rather than choose special legal friends from among these, I’d rather celebrate them all, and separately contract (through advance directives, a will, contracts) for any individual arrangements.
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Anna’s point about women having large number of friends in concentric circles of intimacy is a very valid one.
I cannot put my own perspective in the crisp legalese that Anna, Dean and Ethan have done so well in their arguments. But I tend to side with what Anna has encapsulated in her comments. My problem with “legal” friendship with one (or a few) of my friends is the exclusivity it confers on that friend(s). That “choosing” is what begins to make it look too much like marriage with its accompanying complications. Prior directives to friends (and even dependable neighbors with whom I may not socialize much but have a trustful relationship) for narrow tasks in case of emergencies and incapacitation, assigned according to a friend’s expertise, willingness and ability is what I find a simpler solution – more efficient and less hurtful to other friends.
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Anna’s and Ruchira’s comments highlight an important point about law, particularly in situations involving contract- or tort-like behavior, namely, law often serves best as a backstop, not as referee (Hmmm, Justice Roberts?) or team member. (All the talk of women’s fluid circles of friends compels me to resort to a masculine metaphor, despite my distaste for sports.)
Anna exactly expresses my less well articulated point when she asks, “[A]s a legal matter, why is it the condition of friendship that we’d celebrate rather than the functions?” Ethan correctly suggests that my take “is a bit like saying we shouldn’t have fiduciary law because all we care about is trust and vulnerability.” It is like that, a bit. The distinction is that only lawyers seek fiduciaries with the same determination as they do friends. Most folks wouldn’t know a fiduciary if it bit ’em on the butt.
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Much to argue about — not enough time. But a few points:
1. I too worry about the exclusivity problem, so I argue against approaches that look too much like marriage. I certainly do this in the academic work and can’t remember what I did in the popular piece in Policy Review.
2. I also worry about the contract approach. There are several problems with the contract approach. If one took the ick factor very seriously, one could refuse to enforce any contracts between friends (Aristotle embraced a form of this proposal). There is a doctrine within contract that keeps courts suspicious of contracts between intimates — and there is a danger that courts might not enforce them. Another problem with contract is that contracts will often be enforced as if parties were mere strangers; part of my argument is that friends rely on one another in special ways that may cousel for different legal treatment. Also, it is easy for lawyers to talk about the ease of contracts. In reality, they create all sorts of transaction costs (and may harm a friendship if reduced to contract) and may not be the only way people develop reasonable expectations of one another. I can expect friends to keep secrets and not to profit from my secrets without entering contracts for confidentiality. Some matter might be better dealt with through contracts. But we always need to remember that contracts are costly — for friendships and for our pockets.
3. Several state statutes do recognize close friends for medical decision-making — and have clear hierarchies about which person’s decision should prevail.
4. Sad that so much attention was give to the “friendship expenditure” idea, which really isn’t one of the stronger proposals I’ve got. It doesn’t appear in the academic work (neither does the suing for wrongful death) — but I thought those would at least be easy for the lay public to understand (fiduciary duty law is a bit more esoteric). I think the final version of the tax idea allowed for a very modest deduction, hardly worth getting too exercised about; it was more symbolic than anything else. I agree that administrability is hard — but I don’t think insuperable for several of the better thought-out proposals in the academic work.
5. Again, much comes down to people’s ick factor. And I’m trying to convince people that the ick factor shouldn’t prevent us from pursuing friendship recognition and friendship promotion in the areas where it already appears (whether we like it or not) and where it could be further developed without too many costs to the justice system. In any given area, there may be multiple ways to pursue the agenda (e.g., Family and Medical Leave Acts should have nothing to do with family and should be rewritten the way Anna suggests). I don’t object to those creative ways of getting the results; the point is only to orient the policy agenda to see the issue in salient relief.
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