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.
The law must learn to take notice of friendship because friendship matters to our lives, our law, our public institutions.
The arguments in this essay support two main claims. First, the law must learn to take notice of friendship because friendship matters — to our lives, our law, and the viability of our public institutions. This is not a terribly controversial thesis, perhaps, but it is counterintuitive enough. It turns out that without being terribly self-conscious about regulating friendship, the law does occasionally find a way to make friendship relevant. We need to realize this is happening so we can intervene well when the law must and does get involved in our friendships. Second, and more controversially, our laws, legal institutions, and public policy agendas should be oriented toward promoting and facilitating friendships. The end of the essay gestures at how that might be done.
These two claims are somewhat different and can be disentangled. One could agree with the first — that we need to know what we are doing when we regulate friendships and when the law interposes itself within a friendship — but disagree with the second, that the law should promote or facilitate friendship. One could sensibly think that the law should be designed to be sensitive to friendships so as not to trammel them unnecessarily, but that we go too far if we seek a general policy orientation of friendship-promotion. Still, the essay defends both theses.
Who is a friend?
Perhaps the biggest challenge to either aspect of this project is coming up with a useful definition of the friend. The vast majority of us know who our parents, children, brothers, and sisters are. But figuring out who constitutes a friend — and when friendship starts and ends — may be a harder task. A casual definition is usually ready to hand, but it is more challenging to settle on a working definition for more careful analysis. Indeed, if you asked everyone in the country to list his or her friends, it would be reasonable to suspect that those lists would not always line up: Some people would list friends who would not reciprocate. Even friends who would list one another in this thought experiment perhaps cannot be relied upon to be “true” friends at the core, for we all likely operate with varying thresholds, tolerances, and expectations for friendship. We sometimes feel social pressure to call someone a friend. Yet, perhaps, if pressed, we all know who our “real” friends are. We think we know when we have reliable ones, but that does not give satisfactory guidance for any form of codification or sustained thinking for public policy.
This is certainly an inauspicious beginning. If legal duties and privileges should flow from friendship, vague standards are troublesome. If my working definition is not much better than “I know it when I see it,” it will be hard to convince lawmakers to assign duties and privileges to an amorphous class of citizens. Everyone may see friendship slightly differently.
Still, the definitional challenges are not insurmountable. Most concretely, New York and Florida, to take two examples, have legally codified definitions of the friend in the health-care proxy decision-making context. Here’s Florida’s definition:
“Close personal friend” means any person18 years of age or older who has exhibited special care and concern for the patient, and who presents an affidavit to the health care facility or to the attending or treating physician stating that he or she is a friend of the patient; is willing and able to become involved in the patient’s health care; and has maintained such regular contact with the patient so as to be familiar with the patient’s activities, health, and religious or moral beliefs.
This isn’t perfect, of course, but it certainly shows that definitions can be codified in certain contexts.
Another way around the definitional problem, perhaps, is to allow people to contract into the friendship relation for the purposes of law and leave the definition of the relation solely in the hands of those who choose to adopt the term. One could, as David Chambers of the University of Michigan once suggested, set up a friendship “registry,” so people could sign up to have their friendships recognized. Or we could develop civil ceremonies to concretize the relation. Some Germans engage in a social drinking practice —Brüderschaft trinken — that helps signal to the friends and the world that a real friendship has formed.
Yet, although these solutions might help solve the definitional problem, this method of substituting living in a real friendship with formal contracts or simple external markers cannot be said to respect or promote friendship itself, as we know it in our daily lives. These methods of “solving” the problem tend to replace friendship with contracts or with a newfangled institution we don’t quite know. Friendship is a social institution that will always need to develop organically. The law needs to come to friendship in its organic and fuzzy state, not force it into something else that the state can track more easily. If the only friends who were to count for the purposes of public policy were friends who signed up with the state, we’d certainly be undercounting friends. Even states that have enacted something like a friendship registry — Hawaii and Vermont have “reciprocal beneficiary” statutes which enable people to confer certain duties and privileges on one another that might resemble the burdens and benefits of friendship — find it used more as a marriage substitute than anything else, hardly the only sort of meaningful friendship on the planet.
Our intimacy with our friends creates some vulnerability, which trust nurtures and from which it draws to sustain itself.
The idea that special duties and privileges should flow to a class of persons that is fuzzy at the edges is hardly revolutionary. MultipleLaw & Order episodes aren’t fictionalizing the law when they present case after case in which courts try to figure out who is, say, a spiritual advisor for the purposes of a penitent-priest confidentiality privilege. Some states and commentators are trying to figure out how broadly to grant intra-familial testimonial privileges to make sure family members don’t have to testify against one another; even the term “family member” is fuzzy at the edges. Fuzziness is part of the law, and not being able to define a class perfectly is not an argument against protection for the paradigmatic cases.
In any case, there is an empirical, conceptual, and theoretical approach to the subject that will help delineate who “counts” as a friend. The list of attributes here is not meant to be exhaustive, and the categories are not mutually exclusive. More important, the list is both descriptive and normative. It is descriptive insofar as it is based on studies of the social phenomenon from a multitude of different disciplinary approaches and on a long tradition of thinking about friendship in our cultural tradition. But it is also normative: This set of characteristics could be an excellent starting point for a definition that the law and public policymakers could draw upon should the status of the friend command more organized treatment within the design of our public institutions. Nonexclusive multifactor tests are common to the law and public policy, such as when courts try to figure out whether a worker is a “servant” or an “independent contractor” for the purposes of agency law. For what it is worth, they are also common to diagnosing medical and mental disease.The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (dsm-iv) is packed with such multifactor, nonexclusive diagnostic criteria.
To be sure, differential normative considerations presented by varying areas of law and public policy would counsel for a differentiated conception of friendship, depending on the area of public institutional life affected. But we nevertheless need a starting point to guide the discussion. Consider the following core characteristics.
Voluntariness: Friends voluntarily associate with one another with regularity, voluntarily seek the company of one another, are voluntarily interdependent, and voluntarily seek proximity to one another, all without strong social pressures to do so. Of course, friendships ultimately come with a set of very real ethical obligations, but the association in the first instance is rarely an enforced one. Friendship is fragile because one may more or less freely disavow a friend; but the bonds are special, in part, precisely because we may walk away at any time. The freedom we all have to draw our own circle of affection does something to help explain why our friends are so precious: They are the chosen ones.
Intimacy: Friends seek intimacy with one another through time spent together developing their relationship. They pursue mutual discovery of one another through conversation and joint activities. There is often something confessional about conversations with friends — or, at least, friends are those to whom we can relatively easily confess. As Andrew Sullivan once wrote in his beautiful book on friendship, “friendship draws strength from the past, from myriad shared jokes and understandings, from the remembrance of moments endured or celebrated together, especially the small ones.” Intimacy is a product of conversations shared, memories created together, and inside jokes, a private language.
As C.S. Lewis understood, to claim “these are my friends” importantly implies that “those are not.”
Trust: Friends tend to be trusting of one another and develop trust through private disclosures, sincerity, loyalty, openness of self, and authenticity. Our intimacy with our friends creates some vulnerability, which trust nurtures and from which it draws to sustain itself. No one can always be fully honest and open all the time; but we betray friends when we are duplicitous and fail to contribute to mutual trust. Although Kant, an Enlightenment philosopher enamored of reason, calls for “reserve” between friends as a protective measure in hisLectures on Ethics — he thought we should all conceal our human frailties out of “decency,” even with our best friends — most moderns would concede that too much reserve impedes friendship. Trust is risky but essential.
Solidarity: Friends identify with one another and consider one another aligned on some dimensions central to their identity. One routinely sees this dimension of friendship described as “concord” (in Aristotle) or “agreement about all things divine and human” (in Cicero). Montaigne, a great sixteenth-century theorist of friendship, saw friends as “second selves,” having “one soul in two bodies.” Of course, not all friends are bound through such tight bonds of solidarity, but friends usually share some important values in common.
Exclusivity: Friends — even when they come in small groups rather than in pairs — are essentially exclusive. As C.S. Lewis understood, to claim “these are my friends” importantly implies that “those are not.” Friendship must be, as Lewis thought, “selective” and an “affair of the few.” We tolerate exclusivity in friendships because it helps makes them special; when friendships somehow transition into cliques, however, they can try our patience.
Reciprocity: Friends tend to engage in mutual regard and make an effort to reciprocate with one another in the realms of caring, emotional support, and goodwill. Friends tend to wish their counterparts well for their own sake, rather than for any benefit that might accrue. Each party to a friendship must self-consciously engage in reciprocity and be aware of her counterpart’s goodwill. Unlike a romantic interest that can be unrequited, friendship must be shared with an awareness of the mutual regard.
Friends help one another by offering advice, comfort, networks and connections, material aid (in the form of loans or gifts), and favors of various kinds.
Warmth: Friends feel warmly and tenderly toward one another much of the time. This warmth and tenderness frequently manifests itself as a form of acceptance, flaws notwithstanding. Friendship is as much an emotional affectation as it is an activity or “art.” We can’t be too cool with our friends for too long without threatening the friendship itself.
Mutual assistance: Friends help one another practically by offering advice, comfort, networks and connections, material aid (in the form of loans or gifts), and favors of various kinds. “In-kind” transfers or gifts help reinforce the solidarity of friendships and help symbolize to parties that they are not mere commercial partners. It is only idealism of a misguided form to presume that friendship cannot be instrumental in part. After all, how could reciprocity truly obtain if exchange weren’t part of the equation? Although, of course, friendship is something more than a mere relationship of exchange, certainly some exchange must be part of the give-and-take of friendship. Yet there is probably a norm within friendship that prevents parties from being too explicit about keeping tabs. Or, better, we only really become aware of the exchange relationship embedded in a friendship when one person is giving too much or one person is taking too much.
Equality: As between friends, no feelings of superiority are appropriate and social prestige should be irrelevant. Although friends will rarely be equal in all ways, true friends treat one another as equals. Friends should give and take equally or risk rupturing the bond of friendship. We cannot assume a sense of superiority over a friend without undermining a core attribute of friendship.
Duration over time: Friendships wax and wane, dissolve, intensify, and become attenuated over time. Nevertheless, the relation of friendship must involve some durability. As Joseph Epstein has recently written, “A relationship with an acquaintance doesn’t postulate a future.” Although friendships undoubtedly go through some phases of dormancy, friends usually imagine a future spent sharing life experiences together. And the presumed duration of friendship helps individuals believe that equality in giving and taking, in mutual assistance, and goodwill can be effected over time, preventing a relationship from devolving into tit-for-tat calculations.
Conflict — and modes of conflict resolution: Friendships of substantial duration will undoubtedly enter phases of tension and conflict. Indeed, Montaigne thought some discord is at the very heart of frank conversation: Friendship “delights in the sharpness and vigor [of verbal] intercourse. . . . It is not vigorous and generous enough if it is not quarrelsome, if it is civilized and artful, if it fears knocks and moves with constraint.” Yet most friendships have resources to mediate even more substantial conflict. Friends must be willing to try to manage conflict because they are invested in the relational enterprise and its future.
We cannot assume a sense of superiority over a friend without undermining a core attribute of friendship.
To be sure, listing a bunch of attributes, some of which obtain in a given friendship and some of which don’t, is a somewhat clinical method of getting at a social relation of great importance. There are more romantic depictions of friendship in our cultural heritage, and they undoubtedly shed some truth on the relation at issue, perhaps better than a list can. Yet, this composite sketch of the friend delineates the concept rather well descriptively and, in turn, could be the basis of the law’s identification of the friendship relation or the basis of a public policy agenda that seeks to promote friendship.
One controversial proviso is necessary here, however, before proceeding more directly to the normative agenda: If two people are actively lovers or family, they should be excluded from the category of friendship for legal and public institutional purposes. Not that our spouses, sisters, or lovers can’t be our friends in a colloquial sense. Of course they can. But for this public policy project, for the descriptive and normative agenda set forth here, they must be carved out.
Why? This exclusion is necessary because our laws and public policies are obsessive and aggressive in regulating sex and the family. Those regulatory concerns would tend to trump any agenda of acknowledging and respecting friendship — and friendship would remain out of focus if we allow sex and the family into the equation. If our regulation of friendship always had to weigh the details of the same-sex marriage debate, for example, it might break under the pressure. Thus, it is important to maintain a clean separation between friends and family and try to discuss each on its own terms from the perspective of public policy. For now, anyway. Down the road, once we have an organized and healthy approach to friendship within our public institutions, we can figure out how to balance those public policies against those that protect and coddle the family.
Why should friendship matter?
To vindicate a general normative claim that we should promote friendship through legal rules, whether in judicial analysis or through legislative initiative, requires an affirmative argument that highlights friendship’s role in our lives and its need for legal protection.
Obviously, we shouldn’t promote friendship at any cost: judges who are friends with defendants should recuse themselves;1 boards of directors must worry about shareholder interests and not the financial interests of their friends. But I believe lawyers and policymakers pay insufficient attention to the basic good of friendship, which contributes to our integrity and dignity as people. Many other things do besides — like family, of course — but just as family gets special protection in law (as I explore in the next section), so, perhaps, should friendships.
So why is friendship good, such that it needs the support of our public institutions? Quality cosmetics can be important goods, too, but it would be more than passing odd to argue for a public policy agenda to promote nice shaving cream. Friendship, unlike like good soap, is an indispensable component to the good life. It renders our lives meaningful and is central in identity formation, development, and maintenance. Friendships help us learn who we are and who we want to become. They help us develop our moral sensibilities. Friendlessness causes depression and friends help us avoid sadness. Friends are good for our health (despite one recent study that finds that friends might make us fat if they are fat themselves); indeed, studies show they keep us alive better than our kin networks. They care for us when we are sick and nurse us back to physical and emotional health. We simply couldn’t quite be ourselves without our friends and we couldn’t flourish without the happiness and love friends provide.
More, friends stimulate creativity and help anchor new modalities of thought. Friendship is generative as well as supportive. In this vein, C.S. Lewis noted that the Romantic movement, communism, abolitionism, the Reformation, and the Renaissance were all pioneered within friend groups before they surfaced on the world stage. Whatever one thinks of these contributions to cultural and political life, it is an interesting lens into them to see them as sustained by, nurtured by, and made possible by friendship. Friendship ultimately needs public support because it supports so much of our selves and our lives.
These personal benefits translate into public benefits, too. There are public health implications as well as ramifications for our economy. Friend networks help sustain the Red Cross and volunteer services that help us survive disasters. People who had friends during Hurricane Katrina, for example, were probably, all things considered, more likely to live through it. Friendship networks save the public money because friends can step in and serve care functions that the state might otherwise need to provide. And the market arguably operates more smoothly when trust pervades society and depression is not rampant; friendship helps promote trust and helps alleviate depression and anomie. Alienation and disconnection are clearly a drain on the economy (though also perhaps generative of some great books and pieces of art!), and promoting friendship may help ameliorate some of our isolation.
The law could also benefit itself if it afforded greater respect to friendship. It would do so through saving enforcement costs. Internal norms within friendship have the resources to monitor transactions. The law needn’t interpose its own norms if it can piggyback on friendship’s internal ethical structure, especially when the trust, reliance, equality, and reciprocity that friendships demand are the very same desiderata the law pursues. This is not dissimilar from the law’s strategy to accommodate customs in commerce (commercial norms and practices) and culture (religion), so long as the customs can be shown to be well-entrenched and inoffensive to public policy more generally. The law does this to protect our right to have personal values and codes that exist in our private lives and to save itself enforcement costs, building atop the strong edifice of custom and practice.
Finally, substantial friendships may also mitigate the atomizing effects of certain of our cultural habits like watchingtv, shopping online, and communicating through screen names, avatars, and virtual identities. Of course, some online friendships are very real and deserve as much protection and respect as our face-to-face friendships. But many of our “Friendsters” and the people who hang out on our MySpace pages have not quite earned the moniker of real friend. “Social networking” platforms on the internet are just as likely to help us stay in touch with our old friends and develop new friendships as they are likely to spread us too thin. Whatever the cause, sociologists have recently reported that we have stunningly few friends with whom we discuss important matters; the institution of friendship is on the decline and needs a boost. We might be able to accomplish that boost through some public forms of support.
The family model
It is beyond cavil both that the family can provide many of the same benefits to state and society that friendship does, and that our public policy orientation is one that goes out of its way to accommodate and promote the family unit in multifarious ways. The law and the state respond to these kinds of advantages with great solicitude in the context of the family. And despite the fact that friendship furnishes many of the same benefits as family does, the law is much less sensitive about its regulation of the friendship relation and is much less protective of friends.
One doesn’t need to be a lawyer or public policymaker to be aware of the many ways the law regulates and promotes (a certain traditional conception of) the family. Marriage is, after all, a legally recognized union with obvious perquisites and responsibilities. Parenthood confers both discretion and support obligations. Familial ties can trigger all sorts of testimonial privileges, and financial benefits through inheritance. In short, the family gets special privileges and the members of families often have special duties of care to one another, precisely the sort of status-based public policies that could be appropriate and are usually lacking in the case of friendship.
The trust, equality, and reciprocity that friendships demand are the very same desiderata the law pursues.
The criminal lawyer especially would be able to find a plethora of subsidies for families in the criminal justice system. In14 states, for example, the state cannot prosecute family members for harboring fugitives. These states tend to exempt spouses, parents, children, grandparents, grandchildren, and siblings. Four other states mitigate liability for immediate family members without fully immunizing them.
Many states also make life easier on criminals whose victims remain within the family. Parents sometimes get reduced liability for or immunity from assaulting their own children when they invoke a “parental discipline defense.” Spouses can sometimes more easily avoid rape charges when wives allege “marital rape.” Domestic violence is notoriously difficult to prosecute. Sexual assaults within the family are often subject to certain sentencing loopholes in statutory regimes and fall outside the ambit of sex offender registration laws. Sexual misconduct within the family is often prosecuted as “incest,” rather than assault or rape, a strategy that carries substantial discounts in penalties.
Families also benefit when courts must decide whether a particular defendant is to be released on bail or remanded to custody to await trial. Family ties are explicitly considered during the bail hearing to assess whether someone should get the benefit of returning home before being proven guilty of a crime. Federal law requires courts to consider family ties, and many states do as well.
Families are promoted through the criminal justice system during plea negotiations. Prosecutors routinely extract pleas from defendants through promises of leniency to other family members. Jonathan Pollard’s pleading guilty to spying for Israel and Andrew Fastow’s plea agreement in connection with his crimes at Enron are two high-profile examples in which spouses were given leniency.
At trials, family members often get the benefit of not having to testify against one another. Spouses are generally protected from having to testify against one another, and in certain states, the privilege has been extended to a broader class of family members.
Even at the sentencing phase, despite the fact that the federal Sentencing Guidelines discourage the consideration of family ties when issuing punishment, courts at both the state and federal levels have given certain privileges and discounts to family members that nonmembers do not receive. “Downward departures” from otherwise applicable sentences are not rare. For example, in a1999 caseUnited States v. Johnson, two defendants were convicted of participating in the same crime, and the court found that they warranted the same offense level. But Johnson, the defendant with care-taking responsibility for four children, received a significant departure from the Guidelines based on his family responsibilities: He didn’t get any jail time, just home detention. His co-defendant Purvis, who had no children and who was also found to have played a more minor role in the scheme, was sentenced to more than two years in jail. Now that the Supreme Court has effectively found the federal Sentencing Guidelines merely advisory, there is evidence that family circumstances are more likely to be considered by sentencing courts in lessening punishment.
There are, of course, many other areas within and outside the criminal justice system to which one can point to substantiate the claim that the state promotes and supports the family through the law and public institutions. And whatever one may think of many of these policies (some of which seem more offensive to fair play than others), one must take note that friendship receives substantially less attention and respect in the law. So how might we imagine a polity more attuned to the needs of friendships?
A pro-friendship policy agenda
No one should be left with the impression that the law completely ignores friendship. It matters in a variety of contexts and is certainly a public policy concern, though its importance is rarely noticed. For example, as noted above, some states allow statutorily defined “close friends” to make health care decisions for us when we are incapacitated. The Bureau of Prisons gives most criminals a right to see their “friends” when they are incarcerated. Prosecutors lean on best friends to inculpate each other in criminal activity. Sentencing guidelines often contain enhancements for abusing a position of trust like friendship, and sometimes friendship is used as a mitigating factor if it is part of the motive for a crime. In corporate law, director “independence” — central to all sorts of prerogatives available to management on corporate boards — can be affected by the friendships in which directors are engaged. The Martha Stewart case is a recent example, though there the court was ultimately unimpressed with the degree of friendships among the directors and found the directors to be independent. This led to the dismissal of a shareholder lawsuit against Martha Stewart Living Omnimedia.
There are still other examples of courts and decision-makers seeing friendship as a relevant consideration in adjudication and public policy formation. But even in these instances of the law’s modest protection of friendship, courts and policy makers are notoriously unable to settle upon a usable definition of friendship and unself-conscious in recognizing how friendship is deployed within our public institutions. Without such recognition and without more sustained attention to friendship and the law’s interaction with it, it is hard to intervene in friendships well.
So it is undeniable that the law is sometimes willing to consider friendship an important form of intimacy that deserves protection. The value is, admittedly, a largely latent one that needs to be made more salient. But even the fact that the latent value exists helps reveal that friendship-promotion may actually be consistent with our current legal regime.
But we could be doing much more for friendship. There are many important ways that we could more comprehensively seek to promote friendship through our public policies. Here are a few examples of more systemic reform efforts that we might consider:
- We could provide for some tax deductions for “friendship expenditures.” Our tax law is solicitous of marriage, home ownership, and business expenses, so why shouldn’t our friendship activities be tax deductible in part? To be sure, the deduction would be useless if it were available for all sorts of expenditures like nachos and beer on Super Bowl Sunday. But such deductions could be limited to expenses in connection with providing care — driving a friend to and from a colonoscopy, serving as a custodian during a serious illness, and the like — and could be subject to a cap.
- We allow spouses to sue for loss of society and companionship when a defendant wrongfully kills a spouse. Why shouldn’t we enable friends to collect for loss of companionship as well? Our friends are often our most important companions, especially for those of us without spouses.
- We force employers to treat employees without reprisal when they need to leave the workplace to care for close family members through a federal Family and Medical Leave Act. Many states have generous programs in place to enable caregiving within families as well. Why not allow friends to care for one another through similar programs? Those without families need their friends urgently during serious illnesses.
- We could design our cities and towns with friendship in mind. We might use well-placed public spaces to allow people to gather and converse and we might incentivize foot traffic rather than car traffic to encourage people to interact face-to-face. Suburban sprawl might also be targeted for reform to help promote friendship.
- Finally, we might take a cue from the city of Port Phillip in Australia and post signs to encourage people to smile at one another to create a safer environment for friendship-formation.
Well, that last option sounds a bit like Elaine’s idea from theSeinfeld episode in which she tried to get Mayor David Dinkins to have everyone in New York City wear name tags to make it easier to say hello to fellow citizens. Only George’s father thought it was a good idea; the show had theNew York Times opine that the idea would cost then-Mayor Dinkins the mayoral election to Rudolph Giuliani.
We have no duty to rescue strangers, but couldn’t a duty to rescue friends be recognized by the law?
To be sure, these last ideas seem aimed more at reinforcing civility than at promoting friendship, but there is at least a loose connection between the two, and it is useful to consider very cheap ways to achieve our policy ends. Just as fixing something as small as broken windows in a blighted neighborhood can lead to decreased crime and a friendlier atmosphere, small inducements to friendship might have dramatic effects.
Nevertheless, the more general approach to friendship-promotion evidenced in these suggestions is intended to be wholly serious: There are relatively small and unobtrusive ways we could design our public policies to give more respect and help to the very important institution of friendship.
Many of these proposals for reform, however, would likely require substantial mobilization and legislation. Common law lawyers, by contrast, can also help shape the fabric of the law to focus attention on friendship-promotion without the same effort at broad-scale mobilization. Consider these options, which are much more modest steps toward friendship-promotion but, all the same, are well within the capability of lawyers and judges to try to pursue. These potentially less ambitious ideas can be divided into duties and privileges that could attach to friendship, just as I highlighted that the law confers upon family members special privileges as well as extracts from them special duties.
The duty to rescue: As everyone who has gone to law school in this country knows, Americans do not have a general duty to rescue strangers. To be sure, there are a number of exceptions to the rule, most of which draw upon somestatus of one of the parties. It is plausible to imagine that a duty to rescue friends could and should be recognized by the law.
This may, of course, be one of the areas where legal protection is least needed — after all, it is a pitiful friend that would not undertake a rescue. But for just that reason there would be little cost to recognizing such a duty in law. Once recognized, the duty could helpfully signal the sort of care friends are expected to provide for one another. And it could helpfully protect people from being lured into false friendships because false friends will find themselves required to perform the basic duties of friendship if they wish to enjoy its benefits.
The duty of disclosure and fair dealing: There are traditional fiduciary duties that are often imposed upon parties that share special relationships, including the duty to disclose certain information prior to a transaction and the duty to deal fairly. For example, my bankruptcy trustee or my lawyer must transact only in my best interest for the most part; some of my fiduciaries will need to make special disclosures to me prior to engaging in certain transactions. None of these special duties applies to the general population; the general rule the law recognizes is “buyer beware.” But the law exacts special requirements from parties who stand in special relations of reliance and trust to one another.
We could force friends to show “utmost good faith” in their transactions, as we do in partnerships.
It cannot be denied that friends easily, freely, and reasonably rely upon and trust one another. Accordingly, 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 law could impose these duties by imposing a “fair price” requirement in sales transactions, as one court did for an old lady who was taken advantage of when her friends and neighbors convinced her to sell her property to them well below market value. We could impose such duties by forcing friends to show “utmost good faith” in their transactions with their friends as we do in partnership transactions. And we could consider excusing a friend for not reading exculpatory clauses in form contracts, in reliance on a friend’s invocation of friendship. We might also exact punitive damages from parties who misuse friendship (as some courts have done in calculating awards). All of these creative ways of respecting and promoting friendship have been recognized (unsystematically and irregularly) by our legal system, and lawyers could do more to develop these areas of friendship-protection.
Of course, these sorts of fiduciary duties seem to get imposed only in friendship breakdown. But these duties can help protect friendshipex ante and protect those who have good reason to think they are in them. They can also incentivize those that aren’t true friends to make themselves clear about their relational intent with an individual who seems to be relying on them. As Aristotle understood some time ago, much of the tension in friendships emerges from parties not being clear on precisely what sort of friendship the parties have. Clarification of relational intent could be helpful in minimizing and mediating conflict.
The duty of confidentiality: One is guilty of securities fraud if she trades upon or misappropriates information received within a relationship of confidence or trust. That is one of the core violations of the Securities Act, as implemented by the Securities and Exchange Commission’s well-known Rule10b5. A famous case in the Second Circuit (the old chestnut known asChestman) held that family was not considered such a relationship and that trading on information received within such a relationship would not necessarily be considered a misappropriation that would leave one subject to civil and criminal insider trading penalties. However, thesec recently promulgated Rule10b5–2 to make clear that a broader group of interpersonal relationships should qualify for this form of liability under the Securities Act. Although the Rule doesn’t list friendship as one of the liability-triggering relationships, it is clear that friendship can now come within the rule’s prohibitions. In short, friendships trigger a duty of confidentiality that can be protected through our securities laws.
One could also make sure that friends aren’t accused of “undue influence” when they care for their counterparts.
The privilege to deal informally: The law often likes formalities and forces parties to use them. In contract law, for example, courts generally need to see something called “consideration” to find a contract enforceable; it is a formality that helps identify that a real bargain of some sort has been made because the law doesn’t usually want to enforce gift promises. But there is a well-known exception to the consideration requirement when a party can prove it has reasonably relied on a promise. Perhaps friends should be more easily able to fit into the exception to consideration because they easily and properly rely on one another’s promises. Certainly, there have been cases in which courts have used informality itself to find that a friendship exists; these courts then conclude that the friends had a right to rely on each other, a conclusion that triggers certain equitable remedies against the betraying friend.
The privilege of giving care: Passing a “Friends and Medical Leave Act” is not the only way to support friends who are serving as caregivers. One could also make sure that friends aren’t accused of “undue influence” when they care for their counterparts. A finding of “undue influence” in the law would disqualify them from becoming testamentary beneficiaries under custodial care statutory provisions in the states that quite reasonably seek to prevent caretakers from taking advantage of the vulnerable and the infirm. Some California cases, for example, once held that there was a “friendship” exemption to the state custodial care provision. A case in2006, however, cut off that exemption because the court simply thought the statute couldn’t bear an interpretation that allowed for a friendship exemption. But an important concurrence (written by Chief Justice George in a case in which he gave the majority its decisive vote in the4–3 decision) called for the legislature to create a friendship exemption and tried to limit the case to the facts before it to enable future courts to consider whether a “friendship” exemption is appropriate. Other states with potentially more flexible statutory frameworks might more easily admit a friendship exemption within their custodial care laws to incentivize friends to care for one another without concern about a potential disqualification under a will.
The privilege of privacy: Perhaps friends shouldn’t need to testify against one another — a privilege spouses routinely enjoy in our legal system. Even our lawyers, doctors, and clergymen cannot reveal confidential communications we share with them. But our best friends can be forced to reveal our secrets in open court. Extending a testimonial privilege to friends would, admittedly, require legislation and be relatively difficult to administer.
But there are other ways to protect the privacy within our friendships. First, perhaps friends’ shared privacy counsels for Fourth Amendment protection from police searches. When I share intimate space with my friend, perhaps I have a reasonable expectation of privacy that the law should respect. Or maybe false friends — government informants who pretend to be our friends — should be a prohibited law enforcement technique. Evidence produced from such relationships should be deemed inadmissible. And greater sensitivity to actions motivated by friendship could be considered in the entrapment context, where government actors routinely use friendship to get people to do illegal things “voluntarily.” There are plenty of cases where government actors induce defendants to buy drugs for them, invoking an ethics of friendship. That practice is offensive to the institution of friendship and should not be tolerated.
Unlike the slightly more ambitious reform agenda with which I began, these latter ideas are smaller and more “lawyerly” ways to engage in friendship-promotion and orient our public policy landscape toward greater recognition and respect for friendship. But there is no guarantee that pursuing any of these strategies would, in fact, lead to more numerous, better, or stronger friendships. Reason suggests that these measures would produce some change in our friendship networks for the better, but, as with all efforts at social engineering, we can’t be perfectly sure about the results these policies would produce. These are small, cautious measures, I think, but I welcome and encourage further debate and study about how best to accomplish friendship-promotion.
Indeed, one could argue that imposing more formal duties on friends may ultimately chill friends’ intimacy rather than create a safe space to pursue it. But I think we should conclude that the risk created by these duties is minuscule: People don’t, by and large, refuse to enter marriage or families just because those forms of intimacy carry with them a broad set of duties. And if the duties seem counterproductive, we can pursue the privileges as a first priority or as a balancing counterforce to incentivize friendships. In any case, as with fiduciaries more generally, the idea that special relationships trigger special duties is one with which our public and private law is quite comfortable.
In conclusion, I think one must agree with Peter Singer’s recent claim that “promoting friendship is often easy, cheap, and can have big payoffs in making people happier.” I hope I have been able to show how this can be done without great disruption to our current institutional arrangements. Even if one ultimately disagrees that the law should promote friendship for one reason or another, it seems incontrovertible that we do need to give more attention to the ways friendship matters in the law, the ways it gets regulated by our public institutions, and the effects the law has on this most important social institution and social resource. Friendship helps us all function and furnishes us with dignity, integrity, and well-being, and those of us interested in public policy must stop ignoring it.
1 Perhaps this is not always true. Associate Justice Antonin Scalia, for example, did not recuse himself from a case involving his friend, Vice President Dick Cheney. But he justified this refusal to recuse himself with a lengthy and unusual in-chambers opinion, highlighting that Vice President Cheney was not being sued in his personal capacity. See Cheney v. United States District Court, 541 U.S. 913 (2004). Still, Scalia felt that some justification is required when a judge is called upon to adjudicate a case in which his or her friend is involved.