NEWSLETTERS › Friendship and the Law

In this issue of the Mandel Bhandari newsletter, we interview Ethan Leib, who is a Professor of Law at U.C. Hastings and whose new book is called Friend v. Friend: The Transformation of Friendship—and What the Law Has to Do With It. He will be a Visiting Professor of Law at Fordham University School of Law this spring.

MB: What should the law do about friendships?

EL: We have a society that is very solicitous toward family relationships, with no similar solicitude for friendships. But friendships play at least as central a role in people’s lives, and the law ought to respect that.

When you ask people what the law should do about friendships, they will tell you: Nothing. But when you ask them about a specific case, the fact that the parties are friends plays a big role in what they think should happen. For instance, when Monica Lewinsky was in the news, Ken Starr made certain to force Monica’s best friend to testify about their conversations. People were disgusted at the idea that the government could force your best friend testify about the secrets you told her. Of course if your best friend happens to be your spouse, then the government cannot make her testify, because of the spousal privilege.

Or take the allegations that Bernie Madoff cheated his friends, in particular. This gives us a sense of a much more blameworthy figure. Or think of Mark Zuckerberg, the founder of Facebook, who was sued by former friends for having stolen their idea. The betrayal of friendship is part of the drama in many litigations—and we have not thought about this sufficiently.

MB: Do courts treat friendships differently if the friends also had a romantic relationship?

EL: I have not seen a single case in which a court explicitly said it was going to treat a friendship differently because the friends also had a romantic relationship. However, in some cases, it seems clear that the friends did, in fact, have a romantic or sexual relationship. Some people say that the parties in Meinhard v. Salmon had a romantic relationship. In that case, then-Judge Cardozo held that two friends who became partners in a real estate venture owed each other a fiduciary duty, one of the most sacred duties in the law. While the opinion does not explicitly state that the two partners had a romantic relationship, it uses the language of marriage to describe their relationship: they were in it “jointly, for better or worse.” The briefs to the New York Court of Appeals go into detail about how close the friends were, and how they often dined together and went to the opera together.

MB: Let’s say my friend doesn’t keep a secret I told her. Can I sue?

EL: In other countries, there is a tort for not keeping secrets, for disclosure of information obtained through friendship. Courts in the United States ought to consider that cause of action more seriously, especially in light of how much easier it has become to reveal people’s secrets—and anonymously, too, and with world-wide distribution at the touch of the keyboard.

MB: But if two people are suing each other, they usually aren’t really friends anymore.

EL: That’s true. Letting people sue over a broken friendship won’t foster that particular friendship. But there is a tension between the short-term and the long-term; if the law permits a person to sue his close friend when the friend reveals a secret that he promised he would keep, the law will be recognizing the importance of friendship in people’s lives. The law will support and defend the social and cultural importance of friendship. In that way, the law will be encouraging friendship in the long-term and encouraging people to be clearer about their relational intentions.

MB: In what other contexts could the law recognize friendship?

EL: In the tax context, we could provide a tax write-off for certain expenses we make in pursuit of friendship—for example, we could make a tax deduction for the expense of driving a friend with cancer to chemotherapy. On the flip side, we could have a deduction for entertaining friends—taking them to dinner or throwing a surprise birthday party for someone. Or in the civil liberties context, we could extend the concept of privacy to embrace the spaces where friendship occurs—we could extend the 4th Amendment and give ourselves the same privacy from government searches in the houses of our friends that we give ourselves in our family homes.

MB: But how would the IRS or the FBI know what counts as a legitimate friend?

EL: That’s what we might call the numerosity problem. There is never going to be a one-size-fits-all legal definition. In the case of the friendship tax deductions, we might not need a very restrictive definition of who your friends are, since people don’t generally entertain or take care of their enemies.

But let’s say that we wanted to create a privilege, so that friends would not have to testify against each other in court. In that case, we would need tighter limits—if every casual acquaintance counts as a friend, the ability of the courts to find out the truth is undercut.

One idea, proposed by Sandy Levinson, would be to give everyone twenty lifetime “privilege tickets.” You could give your twenty tickets to whomever you liked, take them back, swap them around over the course of your life—and no one who had one of your tickets would have to testify against you. Other people have proposed a friendship registry that could be overseen by the state. I’m pretty skeptical about such registries, I concede. I want the law to come to real friendship in its organic state, not turn it into something state-run.

MB: Like a government-run Facebook?

EL: There are actually cases where courts look to Facebook. In one case a court in Pennsylvania had to consider whether it mattered, for purposes of disclosures under the Exchange Act, that several shareholders were Facebook friends. I think the court got it just right that Facebook friends are not real friends.

For most people, at first, the idea of the government intervening in friendships, like by creating a friendship registry, is anathema. But then, when they think about particular examples—friends who cheat each other in transactions—they become very passionate that the law shouldn’t necessarily ignore the underlying relational context from which the issue emerges. Part of my book is an argument about what legal default rules would best foster friendship, and would lead to the most happiness in society overall. People aren’t lining up outside of courtrooms to sue their friends, most of the time. But that isn’t because there is no tort for a broken friendship. It’s because litigation cannot replace the happiness created by friendship.

MB: We’re definitely not quoting you on that.

EL: But when people sue each other over the breach of a contract or fiduciary duty, often those people are former friends. Courts should take a less formalistic and more relational approach; they should take friendships into account. When courts talk about friendship, they don’t cite each other. Each court deals with it anew. My hope is, by calling attention to it and collating the pervasive way regulating friendship is part and parcel of the fabric of our common law, courts will realize that they are all struggling with the same public policy issue whenever they encounter friends as litigants.

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