Intimacy, Law, and Economic Activity
The following chapters draw extensively on American legal disputes. Scrutiny of such disputes shows, among other things, that relational work takes distinctive forms in the legal arena. The law, for example, defines spouses’ mutual rights and obligations somewhat differently from spouses’ own definitions of those relations. This book’s treatment of American law cases may, however, strike professional legal scholars as odd, or even dangerous. Nowhere does the book offer a general description for American law’s treatment of intimacy, much less an explanation of how intimacy came to occupy its peculiar position in the law. Sometimes it offers historical sketches of significant changes in the legal treatment of issues bearing on intimacy, such as women’s compensation for loss of their husbands’ caring attention. But those sketches never reconstruct in detail the legal process that produced the changes or deal systematically with their implications for legal procedures.
Overall, I have chosen the most general legal doctrines and practices as I understand them. Two features of the American system make my approach risky and perhaps even offensive to legal specialists. The first is the considerable variation among courts and areas of law—especially of state courts—with regard to the precise doctrines and practices employed when it comes to intimacy and economic transactions. We have already seen how discrepancies between the laws of Louisiana and Missouri shaped the 1840s Cole v. Lucas case. The second feature is the constantly changing and contested character of existing laws. American law operates through adversary proceedings and competition among arguments. The laws that deprived Patsy of her inheritance in 1847 have disappeared, but the laws that govern claims of 9/11 survivors for compensation live despite intense contestation today. Legal contestation means that at any given point in time, contradictory doctrines, practices, and rulings prevail in one segment or another of the American legal system. Instead of noting these variations and discrepancies each time they come up I have opted for points of convergence.
Specific legal cases often appear in the book to make points concerning how lawyers, judges, and legal scholars handle the delicate distinctions that almost always arise in disputes over the intersection of economic transactions and intimate personal relations. After an extensive search of law review articles, treatises, and casebooks, complemented by consultation with specialists in the field, I located several hundred cases. From those I selected a set of exceptionally well-documented cases that illustrate the range of variation in disputes conjoining contested economic transactions and intimate relations. I make no claim whatsoever to have assembled a representative sample of all such cases.
While respecting the best legal scholarship on the subject, furthermore, I do not offer my own survey, synthesis, or critique of the present state of the relevant law, much less lay out or endorse programs of legal reform. Readers will find me taking normative positions from time to time, notably when it comes to inequalities in the legal treatment of intimacy by gender, class, or race. Still, the book’s value does not pivot on its evaluations, implicit or explicit, of American law’s present condition. Instead, The Purchase of Intimacy concentrates on demonstrating parallels and contrasts between the treatment of intimate economies in everyday life and in the legal arena. Each serves to illuminate the other, as we witness how regularly participants on both sides must deal with the incessant mingling of economic and intimate relations, yet try repeatedly to treat economic and intimate relations as though they were independent, even antagonistic, essences.
The following chapter examines how legal doctrine and practice approach the conjunction of intimacy and economic transactions. When, why, and how does the American legal system contemplate the economic valuation of intimacy? I then turn to three chapters dealing with different arenas of intimacy—coupling, caring, and household life—in each one comparing and connecting routine social practices and legal approaches. The book concludes by returning to the general issues of this chapter.