Friendship and the Law: A Guest Post
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.
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.