Encounters of. Intimacy and Economy
In the parish of Catahoula, Louisiana, during the 1840s Samuel Miller lived on his plantation with Patsy, his mulatto slave and sexual partner. In 1843, as Miller fell ill with dropsy, he sold the land and his slaves to Hugh Lucas, settling for nine promissory notes of $3,000 each, to be paid yearly. In April 1844, Miller, who was in declining health, left Louisiana with Patsy for St. Louis, Missouri. Before leaving, Miller gave the promissory notes to William Kirk, asking him to “keep them for Patsy’s benefit” since “he intended to have her emancipated, and that he wanted the notes to enure to her benefit” (Cole v. Lucas, 2 La. Ann. 1946, 1948 (1847)).1 The previous year, Miller had granted Kirk power of attorney, authorizing him to emancipate Patsy.
Later in 1844, Kirk brought the promissory notes to Missouri and returned them to Miller. Patsy received her emancipation in Madison City, Indiana, in May 1844. Back in Missouri, Miller gave 
her the notes. He died a week or so later, on May 21. Patsy and Miller were apparently living in modest circumstances; the inventory of his possessions conducted in January 1845 listed these items: “One man slave and four children, and one woman who had run away in October previous, and not since been heard of, a book – account of $500 against William Kirk, one dinner table, two breakfast tables, one feather bed and bedstead, one small bedstead or lounge and one gun” (949-50). After Miller’s death, Cole, Miller’s former neighbor in Catahoula, traveled to Missouri and bought the promissory notes from Patsy.
We know of these events and people because the court in Catahoula heard a suit by Cole against Lucas, the debtor in the notes. Cole, as owner of the notes, demanded that Lucas pay him the annual installments. As the suit proceeded, however, a certain Griffin, representing Miller’s heirs, intervened, claiming ownership of the promissory notes. Yet the jury hearing this trial ruled against Griffin and in favor of Cole, confirming Cole as the notes’ rightful owner.
On what grounds could the heirs intervene? Up to this point, after all, the transactions seemed straightforward. While acknowledging that Miller gave Patsy the promissory notes and that she sold them to Cole, the family claimed that Patsy had no legal or moral right to the notes. If the family’s claim was correct, Cole himself therefore did not have legal ownership of the notes. The case pivoted on the relationship between Miller and Patsy: was she Miller’s slave? Was she his concubine? Or were they essentially man and wife? If a slave, under Louisiana law she could legally receive no gifts at all. As a concubine, she could only receive the equivalent of one-tenth of the value of her lover’s estate in movables, but no immovables. If his wife, she could receive any gift whatsoever. The Catahoula jury ruled that the gift was legal because Patsy was already free at the time she received the promissory notes. They also accepted Cole’s claim that the more liberal laws of Missouri applied to her legal status and to the transfer itself.
But the heirs did not give up; they appealed the Catahoula decision to the Supreme Court of Louisiana. The court accepted the heirs’ arguments that Miller’s move to Missouri had circumvented Louisiana law and that Miller’s friends had provided no evidence of Patsy’s having received the notes after her emancipation. Again, notice what is happening: except for some questions about dates, no one was disputing that Miller and Patsy had lived together or that Miller had given her the notes. The critical question was what relationship they had in the law’s eyes at the time of the gift. The appeals court that reversed the initial jury verdict was anxious to defend the Louisiana law: “We have already stated our opinions of the relations subsisting between the parties to this donation. The disabilities under which the law places persons who have lived in this condition, are created for the maintenance of good morals, of public order, and for the preservation of the best interests of society” (952). Thus, the court inserted a condemnation of interracial concubinage into a judgment concerning domicile.
To twenty-first-century eyes, the whole case is astonishing. Here is a court overturning the efforts of a dying man, who clearly knew what he was doing, to protect his long-term companion’s financial welfare. The couple had lived together for some time, and trusted friends knew of their connection. In fact, the court described their relationship as “open and notorious.” Yet the appeals court decided that the legal standing of the relationship invalidated Miller’s gift: Patsy had been his slave and his concubine. The court chose to interpret those relationships as applying to the moment of transfer. The issues raised by Patsy’s 1847 case did not disappear with the coming of the twentieth century. They remain with us today. Courts still judge bitter disputes about economic rights and obligations established by competing personal relationships. They often pit two different intimate relations against each other: competing claims of siblings on their parents’ estates, lovers versus estranged spouses, relatives against close friends, and more. Under the law, which relations imply what economic rights and obligations?
Settlements for victims of Al-Qaeda’s 2001 suicide attacks on the World Trade Center and the Pentagon raised a surprising range of
legal questions in exactly this vein. Seeking to head off the massive lawsuits against airlines and other organizations that survivors and families threatened to initiate, the U. S. Congress set up a Victim Compensation Fund for claimants who could prove their losses and who would forgo lawsuits. Experienced lawyer Kenneth Feinberg became the fund’s master, adjudicating thousands of compensation claims. Feinberg settled most claims with substantial payments based on formulas assessing present and future financial losses due to deaths, injuries, and property damage. Yet in numerous cases more than one person claimed compensation for the same person’s death. At times, spouses, parents, children, siblings, and lovers all claimed to be the fund’s rightful beneficiaries.
These claims became especially contentious in the cases of unmarried but cohabiting couples, estranged spouses, and same-sex households. Fifty-year-old Patricia McAneney, for example, worked at an insurance company on the 94th floor of 1 World Trade Center, where she also served as her floor’s fire marshal. She died in the 9/11 disaster. McAneney and her lesbian partner, Margaret Cruz, had lived together for almost twenty years. New York State, as a way of dealing with the 9/11 tragedy, recognized such domestic partnerships; along with New York’s Crime Victim Board, the Red Cross and other organizations awarded Cruz $80,000. The federal fund, in contrast, generally appointed a spouse or relative as the victim’s single official representative. In McAneney’s case, her brother James claimed and received compensation for his sister’s death. Cruz bitterly contested the Victim Compensation Fund’s award exclusively to James.
Cruz submitted her own statement to Feinberg, detailing the couple’s relationship. As a result, Feinberg doubled the original award on behalf of McAneney to about half a million dollars, basing his new estimate on a two-person household. But the fund still paid the additional money to James, as his sister’s official representative. James refused to release any of the money to Cruz. At that point, Cruz filed a lawsuit against James, claiming that at least $253,000 of the award belonged to her. James rejected that claim on the grounds that under New York State law, Cruz had no legal rights to
any of his sister’s property: the two women had no legally recognizable bond, they had never registered as domestic partners, and Patricia had died without leaving a will. Cruz replied, however, that
her status as the domestic partner of the victim is authenticated by the fact that they lived together since 1985; that they recently occupied the same house in Pomona, NY; that they both paid the mortgage and shared basic household expenses; that they shared joint credit cards and joint AAA membership; and they owned a joint mutual fund, naming each other as the beneficiaries of their respective life insurance policies. In addition,
Ms. Cruz notes that both the NYS World Trade Center Relief Fund and the NYS Crime Victims Board treated her as a surviving spouse, awarding her the same benefit that she would have received had she and Ms. McAneney been legally married. (New York Law Journal 2004: 2)
New York Supreme Court Justice Yvonne Lewis supported Cruz’s claim. She turned down James McAneney’s request to dismiss Cruz’s motion and ruled that Cruz was indeed entitled to at least a portion of the award. The justice explained that “in light of the plaintiff’s relationship with the deceased, it would seem equitable that she should receive a portion of any 9/11 fund” (Eaton 2004; Leonard 2004). Nevertheless, Justice Lewis deferred her final decision, pending further information from Feinberg concerning the basis for his increase of the award to McAneney. As recently as July 2004, American courts were still deciding bitter contests over the legal and economic rights attached to intimate relationships.
Cases argued before the Louisiana Supreme Court in 1847 and the New York State Supreme Court in 2004 set two major themes for this book. First, the mingling of economic transactions and intimate relations regularly perplexes participants and observers, and it does not perplex them because it happens rarely. On the contrary, people are constantly mixing their intimate relations with economic transactions. That mixing perplexes observers because of a common belief that economic rationality and intimate ties contradict each other, because each such intersection raises delicate questions about the nature of relationships between those involved, and because shared economic activities establish strong rights and obligations among the participants. Second, the legal interpretation of intimate economic relations causes further perplexity. American law has trouble with those relations because it harbors some of the same suspicions concerning the compatibility of economic calculations with interpersonal solidarity and because cases that come before the law usually spring from serious disputes among intimates over who owes what to whom.
This book takes up these issues by asking three sets of questions.
1. Under what conditions, how, and with what consequences do people combine economic transactions with intimate relations?
2. Why and how do they erect complicated stories and practices for different situations that mingle economic transactions and intimacy?
3. How does the American legal system—attorneys, courts, judges, juries, and legal theorists—negotiate the coexistence of economic claims and intimate relations?
The book pursues its three questions by looking both at a wide variety of actual social practices as well as an array of court cases and legal disputes concerning intimacy and economic transactions. It thus explores the purchase of intimacy. I mean purchase in two senses: first, the frequent supposition that people use money to buy intimate relations and, second, the grip—the purchase—of intimacy on the forms and meanings of economic transactions.
The evidence shows, on one side, that over a wide variety of circumstances people do in fact negotiate the coexistence of economic interchange and intimate social relations. On the other side, however, it shows that maintaining their coexistence calls up a series of distinctions, defenses, and beliefs exerting substantial social power. Confronted with the mingling of intimacy and economic activity, participants, observers, legal authorities, and social scientists introduce powerful stories concerning the mutual effects of economic transactions and intimate social relations. They also introduce crucial distinctions among different combinations of relations, transactions, and payment media; defend those distinctions with moral practices; and put pressure on participants to respect relevant moral and legal codes. These stories and distinctions shape both social behavior and legal decisions.
The Catahoula case depended heavily on the proper definition of Patsy and Miller’s relationship at the time of Miller’s handing of the promissory notes to Patsy. If the Louisiana appeals court had recognized them as man and wife, the heirs would have had no claims whatsoever on the disputed notes; under Louisiana law, married couples had every right to own and transfer such media as commercial paper. Instead, the appeals court chose to interpret the relationship as slave to master, with the heirs benefiting as a consequence. Thus, at issue were definitions of Patsy and Miller’s relationship, specification of the rights and duties belonging to that relationship, questions about the propriety of economic transfers within the relationship, plus a penumbra of concern about cohabitation between white men and black women (see Davis 1999; Pascoe 1999; Romano 2003; Van Tassel 1995).
For all its embedding in the histories of Louisiana, Missouri, slavery, race relations, and laws of property, the Catahoula legal dispute does not single out a rare, exceptional, now irrelevant set of circumstances. The mingling of economy and intimacy continues to pose challenges for social practices, judicial doctrines, and sociological explanation. As recently as 2004, 9/11 cases presented similar challenges, just as urgent for their participants. Within the range of American history since the 1840s, this book examines a wide variety of intersections between economic transactions and multiple forms of intimacy. Economic transactions include all social interactions involving consumption, production, and distribution of goods, services, or the means of acquiring them—for example, when one sibling buys a car from another, an immigrant father supervises his daughter’s work in the family’s store, a salesman spreads free samples among his close friends, or parents lend their children money for purchase of a home.
More often than not, the analyses that follow involve transfers of money. Money ultimately consists not of dollar bills but of accounting systems—those systems that produce equivalence among goods, services, and titles to them, plus the media used to represent value within the systems. For practical purposes, however, here we can call the media themselves money. Media range from very specific tokens, such as merchandise coupons, to extremely general devices, such as electronic currency transfers. The media used in the economic transactions that are the focus of this study most often consist of legal tender and its close equivalents, such as checks, credit cards, and commercial paper. I single out money-based transactions for three reasons: first, because they leave obvious traces in available records; second, because they dramatize questions of valuation that arise throughout this zone of mingled intimacy and economic transactions; and third, because many people (including social scientists) consider monetization an extreme and threatening form of economic rationalization (Zelizer 2001).
What about intimacy? Like most value-laden terms, intimacy scintillates with multiple meanings, ranging from cool, close observation to hot involvement. The Oxford English Dictionary offers these main definitions: “1. (a) the state of being personally intimate; intimate friendship or acquaintance; familiar intercourse; close familiarity. (b) euphemism for sexual intercourse. (c) closeness of observation, knowledge, or the like. 2. Intimate or close connection or union.”
Following the OED’s lead, let us think of relations as intimate to the extent that interactions within them depend on particularized knowledge received, and attention provided by, at least one person—knowledge and attention that are not widely available to third parties. The knowledge involved includes such elements as shared secrets, interpersonal rituals, bodily information, awareness of personal vulnerability, and shared memory of embarrassing situations. The attention involved includes such elements as terms of endearment, bodily services, private languages, emotional support, and correction of embarrassing defects. Intimate social relations thus defined depend on various degrees of trust. Positively, trust means that the parties willingly share such knowledge and attention in the face of risky situations and their possible outcomes. Negatively, trust gives one person knowledge of, or attention to, the other, which if made widely available would damage the second person’s social standing. Trust in either sense is often asymmetrical— for example, a young child trusts its parent more than the parent trusts the child—but fully intimate relations involve some degree of mutual trust.
This broad definition of intimacy covers a range of personal relations, including sexually tinged ties of the type illustrated by Patsy and Miller, but also those between parent-child, godparent-godchild, siblings, and close friends. It also extends to the varying degrees and types of intimacy involved in the relations between psychiatrist-patient, lawyer-client, priest-parishioner, servant-employer, prostitute-customer, spy-object of espionage, bodyguard-tycoon, child-care worker-parent, boss-secretary, janitor-tenant, personal trainer-trainee, and hairdresser-customer. In all these social relationships at least one person is committing trust, and at least one person has access to information or attention that, if made widely available, would damage the other. All these relations, moreover, generate their own forms of economic transfers.
Legal scholars have sometimes recognized these varieties of intimacy, including both wide-ranging personal relations and specialized aspects of professional services. Kenneth Karst, for example, introduces a distinction between two types of intimacy. The first involves transfer of possibly damaging private information from one party to the other, information not typically available to third parties. The second entails close enduring relations between two people. Karst points out that legally the second typically entails the first. He goes on to comment: “Personal information disclosed only to a counselor or doctor may be intimate facts; similarly, even a casual sexual relationship involves intimacy in the sense of selective disclo
sures of intimate information” (Karst 1980: 634n.48). This book deals with both kinds of intimacy—transfer of personal information and wide-ranging long-term relations—showing how they connect and overlap.
In fact, intimate relations come in many more than two varieties. They vary in kind and degree: the amount and quality of information available to spouses certainly differs from that of child-care worker and parent, or priest and parishioner. The extent of trust likewise varies accordingly. Because we are dealing with a continuum, exactly where we set the limit between intimate and impersonal relations remains arbitrary. But it is important to see that in some respects even the apartment janitor who knows what a household discards day after day gains access to information with some of the same properties as the information flowing in more obviously intimate relations. The variety of intimate relations could complicate this book without clarifying its arguments. I have simplified things through two steps. First, I have concentrated my attention on longer-term, wider-ranging, more intense relations in which at least one party gains access to intimate information. Second, within that range, I have deliberately included and compared different kinds of intimacy: physical, informational, and emotional. The comparison will serve us well, for it counters the widespread suspicion that some sorts of intimacy are necessarily deeper, more crucial, or more authentic than others.