Friend v. Friend

Friend v. Friend: The Transformation of Friendship And What the Law Has to Do With It
by Ethan K. Leib

Reviewed by Joe Mathews

Ethan J. Leib’s brilliant new book, Friend v. Friend, is a small volume (fewer than 200 pages) that poses a big unexplored question: what is the best way for the law and public policy to treat friendship?

The issue couldn’t be more relevant today. In the era of Facebook, friendship has become like water in Coleridge’s Rime of the Ancient Mariner. Friends, friends are everywhere, but we have few intimates to sustain us. Social scientists have charted a decline in the number of close friends with whom we can discuss important matters.

Leib, a professor at the University of California Hastings College of the Law, argues convincingly that reversing the decline of friendship should be a priority. People with close friends are better at avoiding depression, more innovative in their thinking, and more productive at work. Friendship, as a private institution, provides a crucial bulwark against intrusive government while also binding us together in ways that encourage social integration and political cohesion.

On the face of it, Leib’s ideas might seem strange. After all, none of us wants to sign a contract with our drinking buddy or our best man. Leib’s point, however, isn’t that we should introduce contract law into our closest relationships. Rather, he’s saying that lawmakers and judges should recognize the importance of friendship and pay it more official heed in their decision-making.

Leib points out that public policy could protect time off for work for a close friend who is driving you to a surgery. Laws regarding healthcare decisions might grant a larger role to close friends, who often know our intentions better than our families. Local laws and planning might create incentives for design of public spaces as natural meeting places for people who aren’t yet friends, but might be.

Unfortunately, Leib notes, public policy and the law have been neglectful at best, and haphazard at worst, in addressing friendship. “Lawyers and public policy designers have had an unfortunate tendency to discount benefits and overestimate costs because of a misguided desire to keep law and friendship in separate worlds and a misguided sense than the law can do no good,” Leib writes. What people forget is that friendship is a factor in legal disputes of virtually every kind. The law also plays a huge role in intimate, vital relationships within the traditional family, in matters such as marriage, divorce, child custody, and inheritance. So why shouldn’t public policy respect friendship in the same way?

One possible way forward, says Leib, would be to treat intimate friendship as another form of fiduciary relationship (like attorney-client or doctor-patient). The accompanying duties of fiduciaries – of loyalty, care, candor, confidentiality and good faith – make a good fit with friendship.

For all his boldness in ideas, Leib is also cautious. He spends much of the book answering, in painstaking fashion, possible objections to a public policy that values friendship. And he is careful to point out that he doesn’t want a rigid regime for friendship. Instead, the law should be “a consideration, a thumb on the scales, embedded within an already existing legal edifice of recognizing the importance of relational variables.”

Constructing the pieces of a friendship edifice is a project for all of us – and, one suspects, for future Leib writings. One hopes so. Leib’s writing is clear and fast. The book has a brief and useful survey of the best thinking about friendship, from Aristotle to Mark Zuckerberg. And in its best moments, Friend v. Friend offers something that few academic books about law and policy ever do: a reminder of just how much your friends mean to you.

Joe Mathews, a senior fellow at the New America Foundation, is California editor of Zócalo Public Square.

Buy the book: Skylight Books, Powell’s, Amazon

*Photo courtesy of lanier67.


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