Legal Commentary

Katherine Franke has just published Longing for Loving in the Fordham Law Review.  Here's the abstract:

Post-Lawrence efforts to secure marriage equality for same sex couples must be undertaken, at a minimum, in a way that is compatible with efforts to dislodge marriage from its normatively superior status as compared with other forms of human attachment, commitment and desire. Resisting the normative and epistemic frame that values non-marital forms of life in direct proportion to their similarity to marriage, we must unseat marriage as the measure of all things. To this end, I'll suggest a thought experiment: substituting friendship for marriage at the center of the social field in which human connection takes place. No longer the sun around which all other relationships and relations orbit, our investments in marriage and marriage's investments in us are likely to yield in such a way that we can imagine making the argument for same sex couples' right to marry while imagining and cultivating different longings than that for Loving.

I am broadly sympathetic to this agenda of de-centering marriage -- and some of my co-authored work (with Dan Markel and Jennifer Collins) and some of my current work (on dislodging marriage's centrality in relational contract theory and putting friendship in its place) are in general agreement with Franke's hopes in this piece.

However, in the course of her argument, Franke gratutiously attacks me -- for a position I do not hold.  She writes: "Some of the recent scholarship urging the legal regulation of friendship strikes me as radically wrongheaded. Unfortunately, this work indulges the misplaced view that, if something important is at stake, law should regulate it.  Other attempts to engage the relationship of friendship to law are more thoughtful."  I am cited as the "radically wrongheaded" one, though in a previous draft I was lumped together with person now cited as having the "more thoughtful" attempt, which was unacknowledged in the previous draft.  Here is how I responded to the original draft in February:

I understand people's visceral reaction to the very idea that the law should regulate and promote friendship.  But at least part of my claim in the first article . . . is that the law is already doing it without any sophistication or understanding of the concept of friendship; and it would be better if we acknowledged how much this is already happening -- and helped the law come to friendship in more sensitive ways.  The law is already there, in ways you want to deny to make your argument work.  It is, of course, available for us to try to immunize our private lives from the law completely (though even that is a choice that regulates friendship).  That didn't work out too well for women, actually, when the private sphere was deemed safe from the law.  Still, I perfectly well understand the urge to purify friendship and our private lives from the dirtiness of the law.  And I am attracted to your use of friendship in the Loving piece . . ..  But I remain of the view that if you like what friendship is and want to enjoy its quite central benefits to our identities and our social lives, it has to be supported through the institutions that control our lives; sociological evidence seems to bear out the claim that friendship isn't doing all that well when left to its own devices.  Whatever one's views of the merits, in any case, I don't think my argument emerges from the simple-minded idea that the law should try to promote or regulate all "important" things.  I devote pages and pages of the article to responding to this way of thinking about what I'm doing.  Certainly, Laura Rosenbury doesn't take that simple-minded view either.

I was disappointed that my comments seemed only to dislodge Laura's article from the category of the "radically wrongheaded" in the published draft.  But at least one of us was vindicated.

I used to believe that all publicity is good publicity.  In the world where my citation counts matter, this is just one more cite.  But I confess that because so much of my intellectual labor and indentity as a scholar is bound up with my work on friendship, it is especially frustrating to have it mischaracterized by others.  The blog is one way to set the record straight efficiently.  You can, of course, read the work for yourself and make your own judgment about my radical wrongheadedness here, here, and here.