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 legal regulation. We sometimes think that marriages are “outside” law. In fact, husbands and wives owe countless legal obligations to each other. They must provide care and support, and if the marriage falls apart, the state intervenes and arranges the most intimate details of their lives, such as how long each may spend with the children. In return, spouses get tax breaks (although sometimes they have a heavier tax burden) and they enjoy special legal privileges—to make life and death decisions when the other is in a coma, to refrain from testifying against each other at trial, to take leave from work when the other is sick. If husband and wife, why not friend and friend?

Faculty: 
Eric Posner