Eric Posner Reviews Ethan J. Leib's "Friend V. Friend"

Huck and Jim and Law
Eric A. Posner
The New Republic
February 21, 2011

There is a story about the University of Chicago economist who complained in a seminar that he did not have any friends. “Buy one!" came a call from the back. A similar response will greet Ethan J. Leib’s new book, which argues that friendship should be promoted as a matter of public policy and subjected to legal regulation. If you think that friendship should be legally regulated, you just don’t understand friendship.

Leib anticipates this reaction and spends a great deal of time trying to refute it. Courts already do regulate friendships, he observes, and no one seems to have a problem with this. In many states, friends owe fiduciary duties to each other. This means that if you sell your old car to a friend, you have an obligation to mention the leaky carburetor and perhaps to charge a fair price—obligations that one does not owe to strangers. Friends who form business ventures and then fall out may discover that courts hold them to a higher standard of conduct. Since friends trust each other, they are vulnerable to being taken advantage of, and some courts take this factor into account when resolving cases. A stranger who breaches a contract is not as odious as a friend who betrays his trust: although their behavior may be identical, a court might come down harder on the friend than on the stranger.

Leib also points out that the most intimate relationships are shot through with