Elizabeth Emens, ‘On Trust, Law, and Expecting the Worst’

This Review examines the theme of trust in response to Jill Hasday’s Intimate Lies and the Law, which won the Scribes Award for the best work of legal scholarship published in 2019.

I distinguish two forms of trust: affective and cognitive. Affective trust is emotional trust – a feeling of safety. Cognitive trust is belief in the facts or statements presented. The feeling of trust is foundational to loving relationships, yet trusting can also be dangerous, as Hasday shows, with significant consequences for those who are duped by their intimates. In an ideal world, I therefore argue that individuals in intimate relationships could develop a combination of affective trust and cognitive distrust. In other words, they would have an ability to feel safe while suspending cognitive trust long enough to test the facts as presented – for instance, to find out whether a new partner is already married. Holding trust and distrust simultaneously may be too difficult, so I turn to the growing literature on curiosity – especially epistemic curiosity, the drive to know – to serve similar goals of supporting inquiry alongside affective trust. I then consider several ways that law could help to enable this combination in intimate relationships. First, the framework of affective trust and epistemic curiosity builds a firmer foundation for some of Hasday’s proposals, while offering a basis for improving upon others. For instance, she argues for greater parity in legal treatment of intimate and non-intimate lies, which would create a stronger financial safety net for those whose trust in their intimates is disappointed (supporting emotional trust); and she argues for multistate registries of public marriage records (supporting the drive to know). Moreover, the framework I offer exposes an overlooked dimension of a recent development in the law of evidence: New Mexico’s elimination of the marital confidences privilege in 2019, which made it the only state with no form of spousal privilege. This privilege scaffolds the feeling of safety, by permitting spouses to rely on one another not to betray crucial confidences, and thus enables curiosity, by creating a condition for it to be satisfied. Finally, my framework supports a novel approach to prenuptial agreements that I term prenup wrappers – non-enforceable documents in which parties can set out expectations and intentions, to learn about one another and build emotional safety at a critical juncture in formalizing their intimate relationship.

Emens, Elizabeth F, On Trust, Law, and Expecting the Worst (April 14, 2020). Harvard Law Review, volume 133, no 1963, 2020.

First posted 2021-07-29 09:00:21

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