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 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
An American woman meets a Soviet man on a cultural exchange program and, after he professes his love and proposes, she marries him.3 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 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
An eighteen-year-old girl is in a debilitating car accident and spends the next two years recuperating in her parents’ home.6 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 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
These plaintiffs’ accounts populate the pages of Professor Jill Hasday’s Intimate Lies and the Law (pp. 30, 80–81, 180–81).9 And like most of the plaintiffs discussed by Hasday, they lose in court.10
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 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 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
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). 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.
*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.