Let me first thank Christine Hurt for selecting my paper for inclusion in the Fourth Annual Conglomerate Junior Scholars Workshop and for organizing this event. I have certainly found the corporate law community very responsive as I’ve been working on this paper (even though fiduciary law is well outside my usual areas of concentration), but I am very appreciative for the opportunity to have this forum focus upon and publicize my recent work on fiduciary law.

I'll follow Brian's lead and comment individually on all the replies below throughout the day.

Well, having seen now that the comments to the other posts are closed, I guess I'll put some responses here.

Let’s start with Brett McDonnell’s generous and helpful comments. I was quite delighted to learn through his commentary that I may have yet another title in my series already locked up: Once I finish Friends as Fiduciaries and Friendship as Relational Contract (currently in progress), I might get cracking on Friendship as Partnership! Of course, there has to be some limit to how many analogies with friendship I can mine in business law; but I don’t think I’m done just yet. In any event, as I suggest in the next piece of this project (Friendship as Relational Contract), I might actually have some reservations about the analogy with partnership precisely because it is generally not true of friendships that we share equally within them. So to the extent that Professor McDonnell pushes the analogy with partnership because of its presumption of egalitarian sharing, I’m not actually sure I think that is a plausible model for friendship. But I have to think some more about that.

Professor McDonnell is most worried about how any reorientation of fiduciary law to protect used friends can possibly deter the particular form of advantage-taking that I argue ought to be policed through fiduciary law. This may be a completely plausible reason to remain unconvinced by my argument: Professor McDonnell is certainly right that we don’t go to lawyers or do Westlaw research when we engage in friendship as such, so it would be hard to learn that there is a law that controls our behavior. If we don’t learn that the law controls our behavior, it is hard to see how law can shape it. So what can I hope to achieve?

I think several things can be said in reply. In the first place, I doubt it is true that people only learn that the law controls their conduct (and, accordingly, conform their conduct to the legal norms) through lawyers or legal research. Maybe it is easier to control director behavior on corporate boards because they may routinely consult the law and the hortatory moral rhetoric of judicial decisions (though something about even this simple story smells fishy). But many of us still generally hope the criminal law deters crime even though an “average” criminal probably doesn’t consult with a lawyer or law books before committing a crime. Something about the justice system’s coercive enforcement mechanisms is supposed to penetrate into society to help members control their conduct. There is nothing very mysterious about this either: information about coercion trickles down somewhat easily. If the law stopped being so ambivalent and duplicitous about its control of conduct within friendships, we wouldn’t need lawyers to tell us not to swindle our friends.

There is a deeper response, perhaps, but I’m not actually sure what I think about the merits of this strategy of reply – or if it is ultimately consistent with the general gist of my argument as it stands now. Maybe Professor McDonnell is a deterrence theorist but the case for treating friends as fiduciaries is a moral or retributive one. That is, maybe it doesn’t matter if friends would learn to abstain from their wrongdoing in advance under my regime; that they engage in the wrongdoing of taking advantage of their close friends is reason enough to “punish” them civilly, through the sanctions available under fiduciary law. If that is the right way to think about it (and I am far from sure it is), it would alleviate the concern that I’m not accomplishing anything in enforcing the fiduciary duties of friendship. What I’m accomplishing is giving vulnerable people who get taken advantage of a compensatory remedy commensurable with the wrong they suffer. This actually might have ramifications for the sort of remedy I recommend because as I’ve written the paper, I do credit the deterrence potential of fiduciary remedies. But that may not be a necessary part of the picture, mutatis mutandis.

Finally, one might concede both Professor McDonnell’s deterrence orientation and his view that we have to consult lawyers to conform our conduct with the law but still think that friends do consult lawyers in many of the sorts of cases to which fiduciary duties would apply. When we sell our business or our home to our friends, we may very well get lawyers involved. Many of the cases I cite as examples of the friendship-fiduciary contexts the law has encountered actually seem like ones in which parties would traditionally be represented by counsel. In the hypo with which I begin, when David P sells out John D to Dan L for a million dollar consulting agreement, David P may very well choose to get representation. In these sorts of cases, lawyers would better know how to instruct their clients to behave if only courts would get consistent about the role of friendship in fiduciary law.

Ah, perhaps I should post my comment to Eric Goldman's take here:

I'm right there with you [Eric] on the "why legalize this?" import of the post. One of the basic aspects of friendship is that it evolves over time - and some friendships end. Fiduciary relationships don't evolve. I guess this could be solved with good evidence: "are these people really still friends?" But I am not sure it would be worth the candle.

Professor Goldman’s comments were also helpful for me to think through, though I confess that his are the more typical reactions I have tended to field in my attempts to execute this research agenda in friendship & the law. I realize I am up against a pretty big taboo: people like the idea that the law just leaves friends well enough alone. But people also shudder at the thought that we have to put a price on human life, on human limbs, and on human relationships – even though we do put a price on human life, on human limbs, and on human relationships all the time in our legal institutions. As I have tried to show in previous work and here, the law doesn’t leave our friendships untouched. This isn’t an argument that it shouldn’t get out of our friendships, of course, but it is a reminder that some people’s pristine view of friendship needs some muddying. You may think friendships are law-free but that doesn’t seem to be the reality, as case reporters reveal time and again. The question isn’t really, in the first place, whether the law should intervene but how the law should intervene, since it is already there. If Professor Goldman is right that I can’t win no matter how persuasive I am because people just know I must be wrong, that would be frustrating. It may be my station here – but I’m going to keep trying to get people to get past their feelings of taboo.

Professor Goldman may be right that a bunch of other doctrines might overlap with the friends as fiduciary doctrine from time to time (or even, heaven forbid, in my little hypothetical to motivate the paper). But it is hard for me to worry too much about that; I’ve found dozens of cases where courts are quite confused about how to handle the charge that friends’ owe one another fiduciary duties in certain commercial contexts. I’m not making up a cause of action out of whole cloth and it didn’t take me long to find that there were a class of cases about friendship and fiduciary duties that weren’t being resolved through other doctrinal avenues (which may ultimately be a cover for what people are really litigating about anyway: a betrayed friendship). If I can help courts get clear that they keep revisiting this problem, that will be some contribution to helping resolve a repeating fact pattern that most commentators and judges have simply not seen before. I have no doubt that even if I get courts comfortable with the idea of treating friends as fiduciaries, much will turn on context and idiosyncratic facts of any particular case. That doesn’t bother me either: telling courts that they can use friendship predicates to find a breach of a fiduciary duty is enough for my purposes. Fact sensitive inquiries about trust and vulnerability are part and parcel of fiduciary law anyway. Many courts already agree with the proposition that friendship can be a predicate for fiduciary obligation but some remain of the view that friendship cannot serve as the relevant predicate to establish a fiduciary duty. I’d like courts to feel free to follow the former cases and reject the latter. Will this “add much” to current doctrine? I can’t really speculate as to the quantum but it strikes me as an advance in the current muddle of fiduciary law.

It is probably true that Professor Goldman and I will remain at loggerheads on the ultimate substance. He doesn’t want remediation for certain kinds of breaches of trust and loyalty to close friends and I do. Will that remediation improve friendship? I’m not sure. I suspect fewer people will pretend to be our friends only to screw us later. I suspect more people will be clear about their intentions when engaging in potentially conflicted transactions. And honesty and disclosure are goods within friendships. I confess that in light of my experience of close friendship, I find it very difficult to believe that friendship will really be deterred on account of a body of law that gets triggered when they enter into certain transactional contexts and violate basic norms of conduct. I am also somewhat confused by Professor Goldman’s confidence both that law can’t make a difference (in that it can’t be strong enough to help friendship) and that it will make a big difference (in that it will destroy friendship).

Maybe Professor Goldman will shun me at Bay Area parties or reject an invite on Facebook (of which I’m not a member, in any event) to avoid legal duties. But I think his worry is misplaced: First, I clearly reserve fiduciary treatment only for close friends, in which there is vulnerability. Your Friendsters and acquaintances are safe, I think. Second, only real betrayals with clear monetary damages are worth suing over – so we’re unlikely to see much litigation outside the commercial context with something substantial at stake (Remember the “floodgates” argument in Balfour? Who could really take that seriously?). There is also a stigma – and psychic costs, as Professor Goldman mentions – to suing, so I would expect to see few friends really litigating these cases to death, unless there was a major violation. Finally, trading the opportunity to be friends with me only to avoid the legal duty not to screw me over in a serious way is pretty much your loss!

I admit that I’d like to believe that my small efforts to get the law to be more sensitive to the vulnerability within friendship can improve the institution. I admit that I actually believe it will do the institution some good to have some kinds of legal recognition (that are not just smuggled through bastardizing other doctrines to do stealth remediation). I think it will enhance the law’s resonance to the citizenry more generally and induce compliance throughout the legal system. I also think, as I suggested in response to Professor McDonnell, that some behavior can be deterred.

But even if one is skeptical about that causal relationship, so long as law doesn’t really disrupt the practice (and I’m pretty underwhelmed with the idea that I’m going to sully friendships by giving the seriously screwed a cause of action in a small class of cases), I can’t see why we shouldn’t use the law to remediate some extreme sorts of wrongdoing. As I suggested in response to Professor McDonnell, there may be a retributive case for the “friends as fiduciaries” doctrine that I need to explore further.

I share Professor Goldman’s intuition that we need to tread carefully here: the doctrine must have limits. But the contexts upon which I’ve concentrated in this paper shouldn’t be all that alarming. It isn’t like I’m suggesting causes of action for “friendship heart balm” torts like “alienation of affections,” “breach of a promise to be friends,” “criminal conversations” and “seductions” – nor am I arguing for a cause of action for “jactitation of friendship.” That some fiduciary obligations should attach to friends (and fiduciary law itself underwrites these obligations anyway) just doesn’t seem all that threatening to the institution, nor is it likely to support much expansion into the territory that really seems to worry Professor Goldman. As I suggested when I first embarked on my friendship & the law project, there are a hundred ways friendships have been and could be relevant in the law. I don’t support all of them and don’t think this one will be a “gateway” doctrine that will facilitate the law’s intervention in every aspect of our intimate affairs.

One final point on the worry about the costs of letting parties and courts waste time on evidence supporting a “friends as fiduciaries” claim. That is a real cost to parties and the system. Best think about it before you go and violate your duty of loyalty or sell out or out from under your close friends.

I’ve gone on too long. The point of this workshop (for me anyway) is for me to rethink and rework some of these ideas, not to defend them. For that opportunity, I thank Professor Goldman’s engaging reply. To be fair, I’m busy at work on a new paper called Friendship as Relational Contract – which will address some of the gaps Friends as Fiduciaries leaves wide open. For example, there is much more to say about the interaction of legal and social norms; the new paper focuses on that issue much more clearly than this one. Stay tuned.

Ethan,

Nice responses. You have come a long way in thinking about this topic, and your paper is very provocative.

Can I ask about "Friendship as Relational Contract," even though that is not the paper before us? As you undoubtedly have discovered, economists think of "relational contracts" as "self-enforcing" agreements, meaning (in the words of a leading book on contract theory) that "some credible future punishment threat [other than judicial enforcement] in the event of noncompliance induces each party to stick to agreed terms." Is that your understanding of "relational contracts"? If it were, I wonder what law has to do with it.

Actually, this isn't completely about that next paper, but rather about the Fiduciaries paper. If friendship is relational contract in the sense described above, then it is self-enforcing and fiduciary duty is, at best, superfluous. Right?

David--

I don't quite understand the import of stasis to the fiduciary obligation and remedy. Surely other relationships "evolve" over time. And friendships end like relationships with lawyers and family. But those endings don't always discharge the fiduciary's obligations (of, say, confidentiality). Of course, deciding when a friendship starts and ends is a tricky business -- and surely some obligations turn on negligence or malfeasance during the actual relationship. But I can't see why the fact that a friendship can end should produce a conclusion that you can't have fiduciary obligations during them.

I've devoted quite a number of pages to the "why legalize this" issue and can't reproduce them here. As I said in response to Eric, there are resonance gains, protection of trust and the vulnerable gains (which is what fiduciary law is there for in the first place), and there is the speculation that it might actually help an institution in decline. The internet isn't going to solve all our problems.

It's indeed a provocative thesis, and I had given Ethan some comments, as I recall, on the UCLA Law Review Friendship and the Law article that preceded this one.

The opening hypothetical is effective in drawing out what of this relationship is business and what is friendship. My reaction on first read was that nothing in the hypothetical invoked issues of friendship - it's all business - but my later reaction was, indeed, that's the point. Can you leverage the mere friendship into some the state has an interest in enforcing?

At the risk of being trite, this feels like a hammer in search of a nail, the hammer being law's model. And I apologize in advance for interjecting my stuff shamelessly. I want to express more generally a theme that comes through in the commenters' posts, namely, that this (following on the equally good UCLA article) is a well-done depiction of a world viewed through the cognitive faculties of a lawyer, exposing the upsides, but also the significant downsides of doing so.

My basic thesis is that law, at least for the last 125 years of so, is, doctrinally and otherwise, a reductive model, and one that by its nature requires one to objectify - that is, look at from the outside and reduce to "elements" (either doctrinal or social scientific) - relationships whose essence was previously subjective and interpersonal. I explored the implications of this most recent in an short thought-piece essay, Law's Illusion, about the process of judgment, (which cites Ethan's UCLA piece) and before that on the more general question of thinking like a lawyer in Models & Games. (Brett McDonnell heard an early version of this at MLEA last year.)

I will also have a piece dealing with the objective-subjective issue in contract theory coming out in the Canadian Journal of Law and Jurisprudence very shortly (I'll post it on SSRN - it is a response to Seana Shiffrin's Harvard Law Review article on the divergence of promise and contract).

The great thing about Ethan's piece is the courage and the rigor. Like many of the commenters, I think encouraging law's colonization of the non-legal, combined with what Linda Ross Meyer at Quinnipiac called the "technical colonization" of the law, is a worrisome thing. Law's Illusion suggests it's a worrisome thing as between lawyers and their clients (and all non-lawyers) and as between law professors and their students. And it helps that somebody is willing to stretch the limits to demonstrate what makes it worrisome! So I second the commenters' praise on that score as well.

Gordon--

I'm happy to send you the new paper offline; I'm hoping to finish it for this cycle. The short of it is that I'm not using the economists' definition of relational contracting but the definition and concept used by most relational contract theorists in law schools (like Macneil, Macauley, Gordon, Feinman, Speidel, etc). That actually puts in salient relief that relational contracting always relies on both legal and social norms for enforcement. I realize the economist want a neater division. But in the real world, I think relational contracting does rely on both. You'll see how I manage the issue in the new paper!

Alright people. Have to deal with some family obligations for a bit -- but I'll be back to alleviate all your concerns about colonization in no time.

On colonization. I think I'll have to read Jeff Lipshaw's stuff more carefully to understand what he really thinks about this, but my instinct is that it is the group of folks who are eager to purify the legal sphere and the social sphere that contribute to the very pathology Jeff is eager to avoid. I don't worry too much about colonization (in the very modest policy proposals I offer -- at the extreme, of course, I see the problem) because the law and the social sphere simply aren't pure: the law relies on affect and relational characteristics -- and our relationships involve transactions. I think the "debasement" thesis (a version of this colonization thesis I treat in Friendship as Relational Contract) just depends for its vitality on a vision of economics and social life that is unrealistic. I think Viviana Zelizer's book, The Purchase of Intimacy, is a nice introduction to this idea: that the separate spheres notion is misleading. And yet one really needs it to get the debasement thesis off the ground in its strong form.

Let me now say something about Doug's useful comments.

Before I get to substance, there is a style issue, about which more feedback would be welcome. Let's talk about the punt. What is one supposed to do? I find it sort of cheap to keep repeating material from earlier work, especially when the early work was meant to lay the groundwork for the later work. It is necessary from time to time -- but I really do try to avoid it. In this paper, the way I tried to manage it was really to focus the paper on fiduciary law in the first instance to see if friendship was a good match. The normative question -- which Doug rightly notes lurks in the background -- isn't addressed in a very head-on way. Since I imagine all these friendship papers coming together as a book, I don't worry about this so much. The book will have it all on display.

Of course, that isn't a sufficient rejoinder because I do want this piece to stand alone. I tend to think it does in large measure because, as Gordon notes in the comments to Doug's post, courts are confused and this paper should help guide them, whatever they choose to do. That is some accomplishment, even if you have to read my work as a whole -- largely theoretical work -- to understand fully why I think it is attractive to use the law to support friendship in some cases.

Admittedly, there is something circular about this whole enterprise, once I set upon the task of answering some of Doug's questions. Which kinds of friends should trigger fiduciary duties? Well, the ones in which there is trust and vulnerability, of course. So what extra work is friendship doing here, if articulating the KINDS of friends that qualify leave us with the same standards we had within fiduciary law anyway?

Gordon helps me here a little: courts don't like getting too refined about these concepts so use relational proxies. Showing that the relational proxy of close friendship should count might help courts further apply the vague standards of trust and vulnerability.

But I think there is more to say too. Some courts discount friendship and almost use it as a disqualification for fiduciary treatment. If my article convinces those courts that that is a hasty conclusion, I think that will be useful to courts too.

Some of Doug's other points are really juicy foods for thought. Conflicts in multiple friendships does seem like a cool little wrinkle. Not one that couldn't be ironed out (after all, the paper makes clear that I don't actually think the whole of fiduciary law applies neatly). Other comments (about deterring friendships) I've addressed at least somewhat in comments to others and don't want to belabor the point. I do think reasonable people can differ about this -- and have different instincts about how disruptive to the practice of friendship finding some fiduciary duties in the law would be.

Ethan, I have two comments on your very interesting paper, which of course is part of a very interesting body of work. First, I think the other commentators have touched on the definitional problem: who is my friend? You seem to answer this by saying "only your close friend," but who is my close friend? What is the criteria for that? I don't think the criteria can be "someone with whom you have a relationship of trust and vulnerability." That seems too vague, even in a squishy area like fiduciary law where vagueness is rampant. Generally, whenever fiduciary duties arise out of a relationship, the threshhold question becomes whether the relationship exists. Was this person an agent of the other person? Was this person a client of this attorney? Were these people partners? The hard work then becomes defining the relationship. If your wish came true, then the focus of litigation would be on whether someone is a close friend.

We know when people are married, when people have a parent-child relationship. We have documents for this. We don't have documentation for friendships. In general, we try not to police the boundaries of friendship. I tell my children to be friends with everyone. If you asked me if "X" was a friend of mine, I would probably answer in the affirmative as long as I knew that person and had some sort of communication with that person. If someone referred to me as a close friend, I would never set that person straight and say "no, we're just friends."

In documented relationships, parties often disclaim fiduciary relations. In franchise agreements or other contracts, parties may disclaim agency relationships or partnership relationships. Many legal blogs disclaim lawyer-client relationships with readers. You can find many examples of fiduciary disclaimers, which have some persuasive effect on courts, which may look past form into substance. Do we want people to disclaim friendships? If you co-author with someone, would you sign a disclaimer that you were close friends? Should the Glommers have a document that disclaims close friendships? Just some thoughts.

Secondly, I was very impressed with the depth of your research into fields that are not your research fields. That being said, I wanted to also offer up the field of negligence torts. In torts, negligence is related to the duty that one person owes to another. For example, I generally have no duty to rescue someone, although I may have such a duty because of a particular relationship (as a mother I should take my child to the emergency room, etc.). These types of duties have a much lower bar than fiduciary duties in fact. Would friends have duties to each other, the breach of which would sound in negligence? In our casebook, we have a very strange case in which two friends go out carousing and brawling, and one friend is found liable in negligence for not taking his injured friend to the emergency room but instead dropping him off, unconscious, at his home, where he died. The court claimed that the partier had a duty to his "co-adventurer." (The same result could probably be reached differently given the facts -- probably by saying that the friend assumed a duty by continuing to drive his unconscious friend around.) This case is met with shock from my students who want no part in duties to friends they go carousing with. What do you think? (Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976).

Finally, let me say a word or two about Curtis Bridgeman's reply. Unfairly, I'll have to burden him with reading the next piece -- Friendship as Relational Contract -- which is more or less about Kimel (and others who follow him). Maybe it isn't legitimate to keep refering to the new paper to defend the old -- but I think these central concerns deserve their own paper and can't be folded into this one. I don't discuss these fundamental issues here (because of space constraints and) precisely because this paper's ambitions are actually quite modest. As Doug recognized, what is perhaps most odd about the thesis here is that it isn't all that radical at all. Plenty of courts see that there is a pretty good fit here -- and it isn't much of a departure from current law.

There is, again, in Curtis's comments the fear of colonization, the fear of liabilities sneaking up everywhere, the fear of what else I might be willing to argue. But all those fears are about positions I do not hold in this paper. They are fun "what ifs" but not ones that I think undermine the basic point that fiduciary law is a comfortable and quite limited way of policing major defections from friendship's norms.

Again, reasonable people differ on the crowding thesis. I take it up more extensively in my next paper; the point here was only to provide a feel for a way around the problem. Curtis is right that it implicates the larger structure of the paper but I don't think saying that friendship can survive an occasional legal incursion actually undermines the idea that overall legal protection can usefully help friendship as an institution too. Of course, it is hard to prove any of this -- and it relies on one's intuitions. The family and marriage does strike me as a useful analogy though: burding family members with special duties does not, as a general matter, make us think that trust is being crowded out. Rather, the idea of burdening families is about protecting them -- and the special vulnerability within them. Is it inconsistent to argue that the law should engage in this protection through an occasional burden? I see the tension, of course, but it doesn't seem all that hard to see how to resolve it. The burden won't crowd out the trust and may serve to protect vulnerability within. Same idea within friendship.

Anyway, these are all great comments -- and I am very grateful for them.

Just when I finish struggling with one person's devastating comments (or just give up because I need to walk the dog), I see that another set have popped up!

Christine, I realize the definitional issues are very difficult. I started the first paper with an elaborate effort to define the subject of inquiry -- though I actually can't incorporate it by reference because I imagine fiduciary law as applying only to the close friends, not all friends. So I just have to bite the bullet on this one and concede the point, though I think if we are honest we actually don't have all that much difficulty knowing who our real close friends are. In prior responses, I hope I have made clear why this paper can be a contribution to courts even if I can't answer the question of who a close friend is without a substantial amount of vagueness.

I also should say that I don't think it would be an altogether bad thing if we started being clearer with one another how we really felt in our relationships. If a side-benefit of my proposed regime is that people stopped being false friends, I think that wouldn't necessarily be a bad thing. As Aristotle understood, most tension in friendships results from a lack of clarity about how people really feel about one another.

On Farwell, here's what I say in the UCLA article (54 UCLA 631, 684-85 (2007)) on the subject:

"As everyone who has gone to law school in this country knows, Americans do not have a general duty to rescue strangers. This fact has been a matter of debate among scholars and legislators, some of whom reject the rule and aim to create a more general duty of helping our fellow citizens avoid trou¬ble. To be sure, there are a number of exceptions to the rule, most of which draw upon some status of one of the parties: A special duty tends to emanate from a special relationship. Special relationships could include that of employer-employee, school-student, and business-cus¬tomer, but the list is open ended. It is plausible to imagine that a duty to rescue friends could and should be recognized by the law. This may, of course, be one of the areas where legal protection is least needed—after all, it is a pitiful friend that would not undertake a rescue. But for just that reason there would be little cost to recognizing such a duty in law.
The case most on point—and one where such a duty was arguably recognized—is Farwell v. Keaton. In this case, a defendant watched his friend undergo a beating, resulting in substantial head injuries. He then drove his friend around for a few hours and noticed that the friend passed out in the back of his car. Ultimately, the defendant parked the car in the driveway of his friend’s grandparents’ house and left him there after failing to awaken him. The friend died as a result of his injuries and as a result of failing to get medical attention on time. The friend’s estate sued for wrongful death and the court upheld a jury verdict against the defendant.
The court made it clear that a variety of factors were relevant in reaching its conclusion and did not make explicit that its judgment was based on the duties of friendship in particular (although the friendship is mentioned more than once). The parties were, the court says, “companions” on a “social venture.” Indeed, the court aims to reason by analogy and fit the social relationship between the parties into an already-recognized “special-relationship” exception.
Other courts, such as the one in Webstad v. Stortini, limit the Farwell case to its facts—highlighting both the fact that the plaintiff was an invitee in the defendant’s car (because the status of invitee rather than friend tends to trigger special duties of rescue upon hosts) and the fact that the defendant’s leaving his friend in his car disabled the friend from getting the help he otherwise might have gotten elsewhere (another traditional factor in duty-to-rescue cases that tends to trigger liability).
Notwithstanding the limited holding of Farwell (as further circumscribed by Webstad) . . . one could recommend that more courts adopt the approach of the Farwell court and be clear that we have a duty to rescue our close friends. Perhaps we do not need the law to tell us to save our friends. But why shouldn’t the law confirm what we already know to be true? It is perfectly sensible for the law to reinforce our well-accepted duties; it contributes to the law’s affective resonance, and may have broader effects in facilitating compliance with the law’s commands more generally."

There is much more to be said -- and much more has been said here about why we don't want the law to colonize our friendships. But I don't feel remotely shy about admitting that I'm comfortable with the law encouraging us to rescue our friends through tort law.

Ethan, I wasn't familiar with the "debasement thesis" or Zelizer's work, but even after listening to just ten minutes of a podcast of her discussing The Purchase of Intimacy, I pretty much agree with her. (By the way, thanks for the reference - very interesting. Here's a link to the podcast: http://www.econtalk.org/archives/2007/02/viviana_zelizer.html)

It's been my consistent position that indeed we are capable of simultaneously maintaining "rational/economic" relationships and "moral/intimate" relationships. I've made that argument about boards of directors and contracting parties. What I refer to as "colonization" is the belief that the "rational/economic" (of which law's model is an example) is wholly constitutive of our relationships, something both Zelizer and I would appear to reject. I do not believe, for example, that Sarbanes-Oxley or anything else can legislate "good governance" by setting up a system of rules (maybe principles, but at that point, why bother?)

I like Austin Sarat's characterization of legal institutions, at least in private law: they are backup mechanisms. We write contracts, not necessarily because we expect they constitute the whole of a commercial relationship, but they are, as it were, a safety net if the relationship breaks down. (Indeed, in the CJLJ piece, I suggest that there's really no such thing as a relational contract; there's either a contract or a relational relationship.) We are fully capable, as Zelizer observes, of being friends with our lawyers, doctors, contractors, accountants, partners, at the same time we engage them as economic actors, without "debasing" either. On the commercial side of things, law is a backup mechanism. I think your argument is that law should equally serve as a backup mechanism in matters of friendship, and that's where I depart. Placing law's model on friendship, in my view, doesn't work, but it took me 60 pages in Models & Games to explain why!

Well, Jeff, I'll have to check out your work then, since it is hard to see where we disagree. If you agree that law can be a backup without debasing friendship, then the debasement idea isn't a real objection to using law as a backup. Bellia made this point a while back in addressing Kimel.

Of course, one can still recoil from the idea of using law as a backup. But it can't be because of the debasement thesis, which is where the strongest opposition comes from. It may still be a bad idea (whether because it won't do any good or because it is too unworkable or because it is a waste of energy, just not "worth the candle"). But it is not a bad idea because of some pristine idea of what law is and what friendship requires (freedom from law to survive).