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Money can't buy you love but in Illinois it can compensate
Arthur Friedman asked his wife to have sex with other men. She said yes and fell in love with the third wheel. Art then sued the invitee and won $4,802 under Illinois's alienation of affection doctrine.
Aside from voyeurism the case raises some interesting issues. Friedman surely does not have a right to his wife's affection - he can't sue her if she doesn't love him - so if another man steals what Friedman does not own how can Friedman have a claim against the other man? It's cases like this that push me towards Murray Rothbard's position that you don't have a right to other people's thoughts. As a result, there can be no just laws against alienation of affection but also since you do not have a right to your reputation (it is in other people's heads) there can be no just laws against libel.
Thanks to Monique van Hoek for the pointer.
Posted by Alex Tabarrok on July 5, 2007 at 07:22 AM in Law | Permalink
Comments
I don’t think the issue is whether Friedman’s wife loved him or not. If they stayed married and she didn’t “love” him, then he wouldn’t have a case. The point is that she is exiting the “marriage contract” and he’s arguing that it’s the third wheel’s fault. So, Art sued for “damages”. I don’t know whether this was really a good argument or not, considering Art asked her to have sex with the guy. But I wouldn’t second guess the judge, who heard hours of debate and testimony, based on a 5 paragraph story I found on the intarweb.
Posted by: Student at Jul 5, 2007 7:56:04 AM
Vulgar fancies of capitalism
Posted by: ponmel at Jul 5, 2007 8:05:28 AM
Surely the case of libel is an extension of the "force or fraud" doctrine - if I have the right that you mustn't tell lies *to* me in a way that is damaging to me, then it's not difficult to extend that to a right that you mustn't tell lies *about* me in a way that is damaging to me.
Posted by: dsquared at Jul 5, 2007 8:13:37 AM
"Alienation of affection" is indeed a matter of contract law. It refers to the situation where a third party knowingly seeks to entice one of the parties of a contract to break the contract. I believe its use in relationship to marriage is a twentieth century novelty, first used by wives against secretaries and the like.
Posted by: Nathan Zook at Jul 5, 2007 8:19:50 AM
Friedman surely does not have a right to his wife's affection
Not sure why not. If she owns the thoughts in her head she can sell them to her husband, the implementation of which is a contract in which she promises to love him forever and he can claim damages if she stops. (In practice the consideration he offers for her love is his. Even the enormity of the evidential difficulty that raises shouldn't be an argument against the principle though, just its enforceability. )
Posted by: Seamus McCauley at Jul 5, 2007 8:27:46 AM
I would find a difference between love and reputation, as one's reputation can influence his or her success. If you take away someone's love, he will be heartbroken. Tarnish his reputation, however, you could get him fired, prevent him from getting that job, et al.
Posted by: Mickey at Jul 5, 2007 8:43:30 AM
With regard to the libel point, as is often the case talking about this in terms of "rights" (such as a "right" to your reputation) obscures the issue. The question is, do we want to live in a society where, for example, you can spread a rumor about another person (say, he is a child molester) and that person can lose his job because of it? I think most people would answer that saying things that harm a person's reputation in this way should be prohibited. Sometimes it's best to avoid the language of "rights" and just use common sense.
Posted by: The Emperor at Jul 5, 2007 9:34:30 AM
The libel argument confuses thought and action. I have no right to other people's thoughts about me, true, but I do have a right to be protected from their actions.
If someone sees me walking down the street and thinks I would make a good target for a robbery, he has done nothing illegal. When he tries to rob me that changes. Similarly you may think, or suspect, whatever you like of my character, but when you act by spreading false beliefs you have damaged me, and it certainly makes sense that I should be entitled to recourse.
Posted by: Bernard Yomtov at Jul 5, 2007 9:57:50 AM
In a fiat money system, money is merely information. Theft of money is falsification of that information.
A right to money is a right to people's belief in that information. Rejecting the right to people's thoughts
is rejecting their right to money (under a fiat system).
Posted by: Person at Jul 5, 2007 10:05:30 AM
Libel is like endangerment. I do not have a right to demand that others protect me from accidents. Yet if someone, through recklessness or ill intent, creates a situation in which I am likely to suffer an accident, I may have a claim against them.
Posted by: Cyrus at Jul 5, 2007 10:21:14 AM
I like this a whole lot.
Posted by: Yan Li at Jul 5, 2007 10:37:19 AM
By "this", I mean your discussion here on the boundary of law.
Posted by: Yan Li at Jul 5, 2007 10:41:28 AM
I do not quite understand why Professor Cowen thinks that it should be legal for someone to make up stories about how he molested her when she was 14, or for a colleague to falsely accuse him of plagiarism.
Perhaps he will explain that in a follow-up post.
Posted by: Anderson at Jul 5, 2007 12:06:35 PM
On the theme of "The Emperor's" comment, when deciding what rights we want to protect, unless one believes that we have no philosophical flexibility in how to allocate rights, then we ought to look at the effects of proposed rights. In doing that, the relevant question isn't just what do we gain from the right, but also what is being lost by those the right prevents from acting.
A right to not be libeled might force people to be a bit more careful in giving opinions about others, slightly reducing the amount of true information in the public domain (as those with marginal ability to defend their claims either in facts or ability to risk court decide not to make them out of fear they might be sued for libel). That's a negative, but probably a smaller one than the damage done by forcing people to treat most public information as having a non-trivial probability of being maliciously false.
A right to not have affection alienated by others in contrast, has much broader consequences. It has the effect of making marriage more binding on some people, but only slightly more inconvenient to dissolve for others. Those affected most by the change would those who are unhappy in their current marriages and would like a divorce, but lack the emotional or financial ability to live alone for a time to avoid having their new planned partners sued for alienation of affection.
That's a major change, so I think that we need to ask whether we want marriage to be more binding. If we do, it's still worth asking whether this is a good route to that end (as opposed to, say, making divorce more difficult).
Posted by: Telnar at Jul 5, 2007 12:37:01 PM
Didn't Friedman essentially void his marriage contract by having his wife have sex with other people?
Posted by: Ted Craig at Jul 5, 2007 1:21:35 PM
There's a distinction missing in Rothbard's analysis, and in most "alienation of affection" torts: the truth or faslity of the information on which other people make their decisions. If I deceive someone's wife, perhaps by telling her, falsely, that her husband is having an affair, and she leaves him, I have done damage to the husband, and an "alienation of affection" suit is as appropriate as a libel suit. Making it a separate tort is appropriate because the loss is different. They're both types of fraud, where one person induces another to act in a way they would not have, had they not been lied to.
On the other hand, if I tell a man's wife that I'm better in bed and richer than her husband, and both are true (from her perspective), then the husband's loss is not tortious, because the wife's actions aren't based on a lie.
Posted by: Anthony at Jul 5, 2007 3:32:43 PM
I (sort of) get the argument that in inducing the wife to breach her marriage contract, the husband has a claim against his ex's new husband.
But each party to a marriage contract is free to exercise his/her option to end the marriage by seeking a divorce.
Since when does my inducing someone to exercise his/her option make me liable to being sued by the other party to that contract?
Posted by: Auto at Jul 5, 2007 5:43:23 PM
The alienation of affecton doctrine is bizarre. Libel and slander laws should also be repealed. Let people have all the information at their disposal and they will draw their own conclusions.
Posted by: Chairman Mao at Jul 5, 2007 7:06:09 PM
Surely the case of libel is an extension of the "force or fraud" doctrine - if I have the right that you mustn't tell lies *to* me in a way that is damaging to me, then it's not difficult to extend that to a right that you mustn't tell lies *about* me in a way that is damaging to me.
You are not being defrauded when someone lies about you, the person being lied to is. It is their rights that have been violated (assuming contracts were involved rather than just shooting the breeze, where anything goes), not yours.
Posted by: TGGP at Jul 5, 2007 8:15:17 PM
"Didn't Friedman essentially void his marriage contract by having his wife have sex with other people?"
Any swingers out there can correct me on the social norms, but my impression is that their intent was not to void their marriage contract. Their contract would not (have meant to?) include sexual exclusivity, but it would retain the expectation of co-habitation, emotional bonds, financial support, etc. From the husband's perspective, the sex was a physical activity you could share with someone else, like tennis, or maybe swinging could be thought of as similar to playing bridge with another couple, with condoms instead of cards. You would be upset if your spouse ran off with his/her tennis partner.
As a polyamorous friend of mine might put it, they went out for tawdry, dirty, scandalous sex, and this other fellow ruined it by creating a romantic relationship. At least that would be his view; she apparently was not interested in tawdry, dirty, scandalous sex. And yeah, that's a dumb law.
Further reading: Dan Savage's Skipping Towards Gomorrah.
Posted by: Zubon at Jul 5, 2007 8:34:46 PM
You are not being defrauded when someone lies about you, the person being lied to is. It is their rights that have been violated (assuming contracts were involved
But contracts are mutually beneficial. So if X spreads a falsehood about me that causes Y to refuse to contract with me, I am damaged.
Suppose I go to a bank, seeking a loan for my business. I would normally be able to get the loan, except that the banker believes, based on misinformation, that I am a dishonest and unreliable borrower, and hence refuses the loan. Clearly I am damaged, whether you choose to call it fraud or something else.
Posted by: Bernard Yomtov at Jul 5, 2007 9:01:43 PM
Bernard Yomotov,
The banker would have morre than one source of information. As it is, we have 3+ credit bureaus. No one man or organization can do that much damage. Removing libel and slander laws would probably bring gossip into the open and may actually help many people. Sources/outlets that spread false information will quickly be labeled as unreliable.
Posted by: Chairman Mao at Jul 6, 2007 2:01:16 AM
Sorry I misspelled your name Mr. Yomtov.
Posted by: Chairman Mao at Jul 6, 2007 2:03:37 AM
Chairman Mao,
At the margin it would surley make a difference in some cases. And of course a bank loan is only one example of what I'm talking about. There are any number of situations where reputation matters - think of a homeowner deciding on a contractor to do remodelling work, for example - where credit reports are of minor importance.
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