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Law and Behavior

On Trust, Law, and Expecting the Worst

A man says he will marry a woman, while he’s secretly involved with someone else, just long enough to get her brother’s kidney.1×1. Complaint at 3–6, Dahl v. McNutt, No. C3-97-601906 (Minn. Dist. Ct. Sept. 26, 1997) (on file with the Harvard Law School Library). The couple sets a date, and the kidney transplant takes place. Riding home from the hospital, the groom-to-be announces the engagement is indefinitely postponed. A year later, he marries the other woman (p. 30).2×2. For additional information on this case, see Dahl v. McNutt, No. C3-97-601906, slip op. at 1–3, 12–13 (Minn. Dist. Ct. Jan. 21, 1998); Man Took a Kidney, Broke a Heart but Won’t Be Sued, Seattle Times (Jan. 22, 1998), http://community.seattletimes.nwsource.com/archive/?date=19980122&slug=2730146 [https://perma.cc/C9CA-2GWL].

An American woman meets a Soviet man on a cultural exchange program and, after he professes his love and proposes, she marries him.3×3. Gubin v. Lodisev, 494 N.W.2d 782, 783 (Mich. Ct. App. 1992). She spends the next three-and-a-half years working to help him immigrate to the United States, paying $15,000 in expenses and dedicating approximately twenty hours per week to his immigration admin, delaying the completion of her doctorate and thus diminishing her income.4×4. Although immigration admin can be time-consuming, twenty hours per week might sound excessive without these particulars: the Soviet government refused to grant him an exit visa, and she undertook a public advocacy campaign, becoming a spokeswoman for the Divided Spouses Coalition, an organization advocating for Soviets separated from their American spouses (pp. 80–81). See generally Isabel Wilkerson, Group Working to Reunify Americans with Soviet Spouses, N.Y. Times (July 26, 1987), https://nyti.ms/29zDXf4 [https://perma.cc/5MV4-D5ZG]. “Admin” is the office-type work of life. See Elizabeth F. Emens, Admin, 103 Geo. L.J. 1409, 1419–21 (2015). After her husband’s successful immigration, she learns that he lied about his feelings and intentions; he was merely using her as a conduit to legal immigration (pp. 80–81).5×5. Gubin, 494 N.W.2d at 784 (“The plaintiff . . . devoted years . . . to bring[] him to the United States . . . after which he promptly abandoned all pretense of having desired a marriage relationship based upon love and affection. There is no other conclusion that can be drawn from this record than that the defendant’s actions were a blatant and crass attempt to fraudulently induce the plaintiff to marry him for no other reason than to obtain . . . lawful entry into the United States.”).

Intimate Lies and the Law

By Jill Elaine Hasday. New York, N.Y.: Oxford University Press. 2019. Pp. 294. $34.95.

An eighteen-year-old girl is in a debilitating car accident and spends the next two years recuperating in her parents’ home.6×6. Hanna v. Sheflin, 275 S.W.3d 423, 425 (Tenn. Ct. App. 2008). During that time, she receives a $63,000 settlement check from the driver of the car, which she entrusts to her father. Contrary to her mother’s report that the money is “being held in an investment account for her benefit,”7×7. Id. at 428 n.5. Her mother denied ever saying this. Id. at 425, 428 n.5. the daughter learns later that her parents had spent $30,000 on themselves — which was the entire sum remaining after paying for her medical bills and car (p. 180).8×8. See id. at 425.

These plaintiffs’ accounts populate the pages of Professor Jill Hasday’s Intimate Lies and the Law (pp. 30, 80–81, 180–81).9×9. I have told the stories from the plaintiffs’ perspectives. For more on this choice, see infra note 63; for some aggregate information about the plaintiffs in the book, see infra note 30. And like most of the plaintiffs discussed by Hasday, they lose in court.10×10. In Dahl v. McNutt (the kidney case), the Minnesota District Court dismissed all the claims except the brother–kidney donor’s claim for lost wages and possible out-of-pocket costs of the surgery. No. C3-97-601906, slip op. at 22 (Minn. Dist. Ct. Jan. 21, 1998). In Gubin v. Lodisev (the Soviet immigration case), the Michigan Court of Appeals reversed the lower court, finding that the plaintiff couldn’t sustain a separate action for fraud apart from her divorce action, where all financial considerations should be dealt with. 494 N.W.2d at 784–85. The court reduced the damages award of $113,087 to $76,687, id. at 785–86, and remanded for the lower court to determine whether the remaining $76,687 could be “appropriately associated with a divorce action” instead of damages for fraud, id. at 787. And in Hanna v. Sheflin (the young woman whose parents spent her car accident settlement), the Tennessee Court of Appeals ruled that the three-year statute of limitations on a conversion suit could not be tolled to cover the subsequent ten-year delay because she failed to show that “her father took affirmative action to conceal her cause of action from her” and that “she could not have discovered her cause of action despite exercising reasonable diligence.” 275 S.W.3d at 428.

Not all of the book’s plaintiffs deserve to win. Some of the cases invite debate. Consider the young woman whose parents spent the settlement from her car accident. Even by her account, she waited nine years after moving out before asking her parents about the money; her mother denies ever saying the funds were being held in an investment account; and her father says he understood the remainder after paying for her car and medical expenses to cover the reasonable costs of her room and board.11×11. See Hanna, 275 S.W.3d at 425–27. Debating these cases could make for lively Thanksgiving dinner conversation — or exam hypos in Torts or Contracts.

Hasday argues that many of these plaintiffs should, however, be winning or at least have a chance of winning. Which they would, she contends, if courts were treating these claims the same way courts treat deception by non-intimates (pp. 200–10). Courts not only dismiss cases involving intimate deception, sometimes overturning substantial jury awards in a plaintiff’s favor, but also chide duped intimates for not being more savvy, for not being vigilant enough to detect the deception (pp. 49, 76, 181).12×12. For example, Hasday explains that “the Tennessee Court of Appeals blamed Hanna for not promptly investigating her father, faulting this trusting daughter for not devoting more ‘care and diligence’ to ‘discovering her father’s alleged conversion of the funds’” (p. 181) (quoting Hanna, 275 S.W.3d at 425). These courts seem to blame plaintiffs for trusting those they love. One woman, whose husband lied to her to hide his bigamy, financial misdeeds, and more, is quoted by Hasday as lamenting:

I trusted him, I believed in him, and yet I am branded ‘stupid’ for doing so. On top of losing everything I own and facing a future raising three children on my own, it is hard to know that society as a whole views me as some kind of fool. (p. 92)13×13. The author quotes Mary Turner Thomson, The Bigamist 234 (2008).

Trust emerges as a potent subtheme in the book, but one which is incomplete. In this Review, I turn squarely to the subject of trust, drawing on sources from psychology, philosophy, management theory, literature, and diverse areas of law. After exploring dimensions of trust, I build out a framework that combines affective trust (a feeling of safety) and cognitive distrust (a willingness to doubt and inquire), later reframed as epistemic curiosity (a drive to know14×14. “Drive” here is meant colloquially, not technically, so it is not an embrace of one side of the debate in the social science literature about whether curiosity is “drive.” See, e.g., Jordan Litman, Curiosity: Nature, Dimensionality, and Determinants, in The Cambridge Handbook of Motivation and Learning 418, 418–19 (K. Ann Renninger & Suzanne E. Hidi eds., 2019). ). Approaching intimate relationships with both affective trust and epistemic curiosity is no easy feat. An appreciation of this, I argue, helps us to understand better Hasday’s proposals for reform, as well as to spur further legal innovations.

This Review has three parts. Part I aims to convey something of the breadth and interest of Hasday’s fascinating new book, foregrounding the role of gender and beginning to touch the subject of trust. Part II delves briefly but widely into the theme of trust, which pervades the book and invites further examination. Part III presents a framework that combines affective trust and epistemic curiosity and applies this framework to illuminate and sort Hasday’s proposals for reform; to critique a recent, dramatic change in the evidentiary treatment of marital confidences; and to devise a novel approach to prenuptial agreements. Throughout, this Review aims to engage and inspire the reader’s own thinking. Together, we’ll make it worth your time. Trust me.

The full text of this Book Review may be found by clicking on the PDF link below.

*Isidor and Seville Sulzbacher Professor of Law, Columbia Law School. For helpful conversations and comments on earlier drafts, I thank Ian Ayres, Emily Benfer, Judson Brewer, Mathilde Cohen, Yaron Covo, Giuseppe Dari-Mattiacci, Amy DiBona, Jens Frankenreiter, Kellen Funk, Jill Hasday, Alexis J. Hoag, Bert Huang, Clare Huntington, Sarah Lawsky, Gillian Lester, Lev Menand, Brian Richardson, Daniel Richman, Russell Robinson, Elizabeth Scott, Joshua Sealy-Harrington, Rena Seltzer, Colleen Shanahan, Jane Spinak, Ilan Stein, Susan Sturm, Cass Sunstein, Kristen Underhill, Caroline Voldstad, Patricia Williams, and participants in the Columbia Law School Faculty Workshop and the American Philosophical Association Eastern Division Invited Symposium: Philosophy of Sex and Love. For excellent research assistance, I thank Kayla C. Butler, Brett Donaldson, James Gordon, Ian Harris, Stephen Hogan-Mitchell, Jennifer Katz, Zane Muller, Julia Oksasoglu, and Kathleen Stanaro, as well as the outstanding reference librarians at Columbia Law School, especially R. Martin Witt and Nam Jin Yoon. Lastly, my thanks also to the staff of the Harvard Law Review for their careful and thoughtful editing.