Ethan Leib is an associate professor of law at the University of California’s Hastings College of the Law; an affiliated faculty member at the Kadish Center for Morality, Law & Public Affairs at U.C.-Berkeley’s Boalt Hall; and author of Deliberative Democracy In America. In his paper “Friends as Fiduciaries” and on his blog, Leib asks a provocative question: should the law recognize friendship as it does other relationships? He has agreed to write some guest posts here on the subject; this is the first of three.
The Times has reported that the legal academy is out of touch with the legal profession. Courts don’t cite us law professors and we are hopelessly wrapped up in debates with ourselves that don’t matter to real lawyers.
This would seem to be especially true about my pet project these days: trying to understand the relationship between friendship and the law. I’ve been writing article after article trying to understand how friendship and law interact, how the law regulates our friendships on the sly, and whether the law should be at least trying to promote or protect our friendships when it finds itself in the middle of them. I even have some popular press paying attention: I did an article for Policy Review and helped a reporter at The Boston Globe publicize the work.
But it turns out, even if courts are ignoring this academic frolic for now, some legislators may start paying attention. The California Law Revision Commission has taken notice of my work on friendship and the law in a recent report — and has urged the California Legislature to protect friendships.
Here’s how:
In a recent California Supreme Court case (Bernard vs. Foley), the court decided that friends who care for their elderly or infirm counterparts cannot take gifts or bequests without some special proof that they didn’t unduly influence their friends into making the donation. Perversely, if you take care of your friends when they most need you, you may be disqualifying yourself from accepting their largess.
For a while, lower courts found a way around this awkward burden in the case of “pre-existing” friendships, creating a special exemption from the “custodial care provisions” that the Supreme Court recently interpreted. But the Supreme Court simply thought the pre-existing friendship exemption carved by the lower courts could not be justified by the statutory language.
In my work on friendship and the law, I took the modest position that the lower courts had the right instinct — and that it would be a good thing if friends didn’t have to worry about disqualifying themselves from accepting gifts and bequests merely by trying to care for their infirm counterpart. It is good to see that the Commission, after having read my case, is supportive of the Legislature changing the rules.
There’s a lot to say about why we don’t want the law getting too involved in our friendships. But this is a simple way to help protect friends and encourage the care they can provide for one another — and more cheaply than Medicare, to boot.
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There are too many outdated laws that try too hard to protect the rights of blood relatives. This is not just in financial matters but in child custody cases as well. Why should a blood relative of mine have more rights to my stuff or my children than my best friend or my adult foster child? Adoption law addressed this well by transfering to an adoptee *nearly* all of the same rights as a biological child, but this was only done fairly recently. With so many homes composed of step-parents, half-siblings, gay life-partners, and numerous other modern family concoctions, its past time for a re-writing of these laws.
The next step would be for a legislature to enact law that would “enhance” a penalty for someone who takes advantage of a friend. In an effort to get tough on crime law would state that if you steal from someone you know, you must receive a mandatory minimum sentence. Judges would further be stripped of their ability to make just sentences based on all of the facts. Further, such an enhancement would put a victim in a terrible position; i.e. lose the friendship forever or chose to drop charges entirely. As far as criminal law is concerned, a court should take the relationship of the victim and the defendant in account in passing sentence.
Mississippi Prosecutor:
I had your instinct in my first article on the subject. Here’s what I wrote:
“One also might imagine that an abuse of a friendship might figure into a criminal sentence by
subjecting a defendant to an enhancement for an “abuse of a position of trust.” See U.S.
SENTENCING GUIDELINES MANUAL § 3B1.3 (1992). For discussion of this possibility, compare
United States v. Pardo, 25 F.3d 1187, 1190–93 (3d Cir. 1994) (finding that no abuse of a position of trust enhancement was appropriate when a defendant took advantage of his friend in perpetrating his
fraud), with United States v. Zamarripa, 905 F.2d 337, 340 (10th Cir. 1990) (finding an abuse of a
position of trust when a friend sexually abused his friend’s daughter). The central idea is that an enhancement may be appropriate because those who take advantage of friendships may be more culpable than those who do not. See Pardo, 25 F.3d at 1191 (citing United States v. Craddock, 993 F.2d 338, 340 (3d Cir. 1993)).
With all due respect to my former professor, didn’t we due away with common law marriage because of evidentiary concerns? Wouldn’t the recognition of friendships discourage contracting, encourage fraud, and open the floodgates of litigation?
When a companian/custodian/friend receives a bequest, family always can argue undue influence. The only issue you highlight is whether courts will presume the bequest valid or invalid – who has the burden of proof. Problem is, people often don’t know the rules. That’s why people should consult a lawyer and make sure that their wishes will withstand challenge.
What does it mean that the law shold recognize friendship? I have thought about this question alot- having been involved in a legal case of this sort. My dad had a childhood friend with whom he had become engaged in several business ventures. They were friends (going back 80 years) and neither one felt the need to sign contracts or agreements between themselves. Then this friend of my dad’s died. My dad, from time to time, would ask his’ daughter about her intentions. He had asked that question to his friend when he was alive. My dad was ignored. But he never pursued the matter further. The friend’s daughter (whom I had grown up believing to be my friend as well)wanted things her way (or at least it seemed so). In the end, when my dad died and my mother was ignored as well, my mother decided to sue. I went along with it because I truly believed that it was my mom’s right and my dad’s to get out of the business when they wanted to. They went in freely with the idea of making an investment and hence of profiting and should have been let out in the same way. Even in friendship, there needs to be some freedom along the boundary line of the rights of the individual. My intention was not to hurt my friend. It was merely that I believed that every individual in a relationship has rights and deserves a certain level of respect (including my supposed friend and my mother). In the end, my mom did get what she wanted. I didn’t. I seem to have lost my friend. So what could the law do to protect the situation or me? Frankly, I don’t know. My first thought was that what I had learned from this is the principle of not mixing business and pleasure. But then I am reminded of how successful businesses operate. Successful ones seem to encourage and foster friendships (lasting relationships) among employees and within communities. I am reminded here of a large motor company that forgot about the community that they serve (Flynt, Mich.) Richard Sennett made this point in “Corrosion of Character.”
Evidentiary concerns are real but not insuperable (and common law marriage really is another story altogether — where evidence is actually even easier to come by). Relationships that are often hard to define serve as the bases for legal liabilities and privileges throughout the law. Try figuring out the test for when someone is an employee of someone else: you’ll find a multi-part test that produces only a few easy answers at the margins. Think about the tests for mental illness in the law. Tough stuff. But we don’t decide that there are no employers or mentally ill people just because of evidentiary difficulties. In the academic articles to which I link, I develop something like a test, if you are interested.
You’d have to say a lot more about the “fraud” you worry about, since part of the entire point of the enterprise is to avoid people pretending they are your friends only to screw you later. That happens a lot — with elderly people and others. If we don’t police false friends, friendship will be used to abuse people.
Far from discouraging contracting, actually, most people worry about the opposite: that this will lead to people defining their relationships in legal documents to avoid misunderstandings. That is a real danger, I think, though I’m far from sure that being honest with each other about how close we are is a bad thing.
“Floodgates” arguments don’t move me. They are always used to prevent any progress or reform — in the intimate context and the mass tort context. The real issue is how much you care about the wrong being repaired. In any case, the case reporters are already full with friends and ex-friends suing one another. And I’m sure the unreported cases in small claims court would reveal thousands more. The point is that this is already happening below the radar because of our squeamishness. It’s time to confront reality.
Science Minded:
You are just the open-minded and thoughtful audience for this project. These are very hard questions. The reality is that the law is stuck dealing with these problems all the time — and only pretends not to with subversion, subterfuge, and plasticity. My hope is to help move this conversation along so that the law, over time, might develop the tools to deal with these complex problems. For a long time, much of our private law has got along with pretending we’re all strangers. That just isn’t how the business world works — and it is high time we developed a new paradigm. The tricky part is that it is really hard to figure out what to do.