More generally, the two cases illustrate important points concerning the law’s intervention in intersections of intimacy and economic life. Intimate relations only become legal cases in rare circumstances;
most of the time intimately connected people work out their differences without litigation. However, when such private disputes turn into legal suits, courts regularly adopt hostile worlds language. Furthermore, they often pretend to judge intentions. So do people who bring cases to court. Trimmer argued, for example, that Van Bomel intended to provide for him after their breakup. This produces interesting, complex efforts at translation and mystification on both sides.
Courts and people actually do relational work. They both match appropriate relations, transactions, and media. Disputes, therefore, concern how those three elements are defined and matched. A divorcing couple contest, for example, whether an earlier purchase of an automobile from their pooled funds was a gift from spouse to spouse, a common investment in the household, or a business deal. Appropriate media and transactions vary systematically with relations. As relations change over time and vary across places, so do media and transactions. As long as slavery survived in the United States, the case of Patsy and Miller showed us in chapter 1, American law barred most transfers of wealth to an enslaved concubine regardless of the couple’s domestic arrangements. That distinctive legal category and its attendant matchings of relations, transactions, and media disappeared with slavery’s abolition.
Different branches of law treat relations and intentions differently. Contract law, as we have already seen, distinguishes a somewhat different array of relations from the laws of torts, testaments, and taxation. Judgments concerning which intimate relations actually exist and confer legally enforceable rights arise in a number of areas this book does not much discuss, including eligibility of partners and dependents for veterans’ benefits or pensions, qualification for welfare payments, rights of children to enroll in local schools, and granting of legal immigration or work permits to spouses of citizens. These various branches of law, therefore, pose different problems of translation and application. The language of intention, for example, figures centrally in disputes over testaments and contracts, but more peripherally in disputes over taxation; tax courts
care less about what the taxpayer (or tax evader) was trying to do than about whether that act conformed to the law.
Legal practice also creates embeddedness; the legal arena has a certain coherence and inertia, which means that legal practice commonly lags behind routine social practice and constitutes a realm of expertise requiring translation in both directions. Moreover, big changes in relations within routine social life affect legal definitions and practices. Thus, as unmarried cohabitation becomes more common, lawyers and courts begin creating new categories and doctrines (or modifying old ones) to regulate disputes concerning unmarried partners.
The idea that relations have legal standing recurred in nineteenth — century treatment of parent-child and husband-wife relations, and relational issues continued to concern legal scholars during the twentieth century. In 1934, legal theorist Leon Green clarified and codified one aspect of this process by defining what he called a “relational” interest. For Green, relational interests are “interests in relations with other persons… . They extend beyond the personality, and are not symbolized by any tangible thing which can legitimately be called property” (Green 1934: 462). He defines relational interests broadly, including family relations, trade relations, professional relations, and political relations. Green distinguishes a relational interest from interests of personality (persons’ claims to their own individual integrity) and property interests (persons’ claims to goods and services). “While in hurts to personality or property only two parties, plaintiff and defendant, are involved,” Green notes, “in hurts to relational interests, three parties must always be involved” (462). He points out that courts had been uneasily granting relief for certain relational interests in tort and defamation cases. At the same time, they typically resisted making awards for such harms— treating them instead as property interests. Since Green’s codification, legal theorists and courts have used the doctrine more widely.1 [9]
In current legal practice, relational interests extend far beyond the zone of intimacy into commercial contracts; in that zone the related doctrine of “reliance interest” often comes into play. What then distinguishes relationships in which intimacy and economic transactions intersect? Any such relation involves four elements: first, ties between persons; second, sets of transactions; third, media for those transactions; and fourth, a boundary separating this relationship from others that resemble it in some regards. In the relationship between Trimmer and Van Bomel, we observe a (later disputed) tie of companionship, a series of purchases and exchanges of personal attention on the couple’s part, and media ranging from cash to services to expensive durable goods. We also witness negotiation over the boundary separating close companionship from a paid escort service. Intimate ties characteristically include attention, information, trust, exclusiveness, and particularity. More concretely, they involve a set of intimate practices: personal care, sex, affection, housework, health care, advice, conversation, companionship. As a matter of fact, courts inspect relations for precisely these practices. Trimmer’s services, the judge noted, included the “time and attention [devoted] to the defendant, to allow her wishes to prevail concerning his deportment, habits and associations,” as well as being her confidante and companion.
When does the law engage intimacy? Parties to intimate relations typically resort to the law only when they cannot settle disputes over rights and obligations with the means available in their own personal settings (Ewick and Silbey 1998, 2003). Courts step in to enforce obligations or settle disputes in three rather different circumstances. The first involves abuse of intimacy, as when a psychotherapist seduces a patient. The second concerns deprivation of intimacy, as when an automobile accident kills a loving spouse. The third centers on illegitimate intimacy, as when the heirs of a deceased lover contest his bequest to his mistress. The law thus certainly intervenes directly in disputes among the participants in a contested intimate relation. But it also gets involved with third parties having direct connection to, and interest in, the disputed relationship, as well as with authorities interested in the whole category of relations. Mary Ann Blackledge, for instance, did not sue John Schwegmann alone, but also his two children and his firms. In class-action suits, courts often engage authorities; cases concerning the rights of same-sex couples, for instance, typically involve heads of corporations, public agencies, and advocacy groups. Again, after the devastating attacks on New York’s World Trade Center in September 2001, survivors threatened to sue a wide range of organizations, including airlines, that they held responsible for the wrongful death of their loved ones.