Jill Elaine Hasday is a Professor of Law at the University of Minnesota Law School. She teaches and writes about anti-discrimination law, constitutional law, family law, and legal history. Hasday is the author of three books and her articles have appeared in many leading law reviews. She spoke with SSRN about her work as an anti-discrimination scholar and how her new book encourages the fight for gender equality by remembering women’s place in the history of law.
Q: Tell me a little bit about your career path: why did you choose to study, teach, and write about subjects like anti-discrimination law, constitutional law, family law, and legal history specifically?
A: I knew I wanted to be a law professor from the first time I learned that job existed. I love how teaching law gives me an opportunity to combine theory and practice. Law professors have the freedom to pursue questions without the pressure of representing clients who have immediate problems to address. But at the same time, teaching and writing about law requires you to be grounded in the reality of what is happening in the world.
My specific interest in focusing on law and inequality emerged out of my own life experiences as a woman. I consider myself an anti-discrimination scholar and write from that perspective, whether I am discussing constitutional law, family law, legal history, or something else.
Q: You have a new book coming next month (March 2025) called We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality, the introduction for which is posted on SSRN. This book looks at the history of women’s struggle for equality and emphasizes the importance of remembering women’s stories more often and more accurately in order to encourage the work we still have left to do. What served as the catalyst for you writing this book? In other words, why now?
A: With the 250th anniversary of the United States approaching in 2026, I felt that now was an especially good time to write a book that includes women at the center of American law and history. We the Men argues that excluding women from America’s dominant stories about itself is not only inaccurate but helps perpetuate inequality.
I first began thinking about some of the ideas in the book when I was in law school. I was struck by how often the stories I heard in class treated men’s lives as the ordinary baseline and women’s lives as exceptions to either skip over or mention as footnotes. I thought: women are not an exception. We are half the population. Our experiences within and outside of the law are just as important as men’s experiences.
Q: For such a wide-reaching topic like this, I’m sure there are many avenues you could’ve taken when writing this book. How did the direction and structure of the book really take shape?
A: After considering many possible alternatives, I decided that organizing the book into four parts would present my argument most crisply. The first two parts—Erasure and Distortion—highlight ways in which America’s dominant stories forget about women, whether by ignoring women’s struggles for equality or by wildly exaggerating American progress. The third part—Consequences—examines how forgetting about women helps perpetuate women’s inequality. The final part—Hope—explores how Americans can learn from the past to change the future.
Each part of the book alternates between a chapter on the courts and a chapter focused outside the courts. Although judges commonly present themselves as operating above the fray of politics and popular opinion, America’s dominant stories about women ricochet back and forth between judges, politicians, journalists, and other powerful Americans.
Q: One of the things you argue for in the book is the need for more conflict over women’s status, rather than less: this importance of conflict and agency rather than waiting around for “spontaneous enlightenment” on the part of men. What do you feel is the most productive form of this conflict, and at what level do you believe it is most effective?
A: I wish there was one strategy that would work every time. In reality, the long history of women’s struggles for equality makes clear that progress has always been difficult and always required multiple strategies, often sustained across generations. We are currently in an anti-feminist moment in American history. But this is not the first time that opponents of women’s rights have blocked women’s advances or reversed earlier victories. The key is to persist nonetheless.
Q: That isn’t the only book you’ve written. In 2019, you released Intimate Lies and the Law, which analyzes deception in intimate relationships and the hidden body of law that governs it. In this book, you suggest that one way the law could change to better protect those deceived is to afford them the same rights as people deceived in situations outside of intimacy: how difficult would it be to reform the law in such a way that this is possible? What are some of the current barriers to making this a reality?
A: Intimate Lies and the Law argues that the legal system should treat deception in dating, sex, marriage, and family life more like deception outside of intimacy. Today, courts routinely tell deceived intimates that they cannot pursue suits for fraud or misrepresentation, even if they can establish all the ordinary elements of those claims. Under my approach, courts would begin with a rebuttable presumption that intimacy is not a bar to seeking ordinary legal remedies.
Convincing courts to alter entrenched patterns is always difficult, but my book explains why I find the arguments defending the status quo unconvincing. For example, courts sometimes contend that providing redress for intimate deception would encourage deceived intimates to feel aggrieved when otherwise they would accept their lot. I have read hundreds of memoirs and interviews in addition to every case I could find. I can assure you that deceived intimates already know they are injured and already feel aggrieved. Moreover, to the extent that having the law take these injuries more seriously helps some people conclude that they deserve better than to be duped, I consider that an advance rather than a cause for concern.
Q: In other talks you’ve given about this book, you’ve mentioned that at this point, nothing really surprises you anymore when it comes to deception… but at the same time, you say that the point of your book isn’t for us to believe deception is everywhere, all the time. How do you suggest that people balance the desire to believe people are completely trustworthy, while still protecting themselves from deception?
A: No form of intimate deception surprises me anymore, and some deceit I have even come to expect. On any given Saturday night, there are probably more male bar patrons falsely claiming to be Navy SEALs than have ever served in the SEALs in all of American history. An internet search to confirm someone’s background can sometimes save you a lot of heartache. That said, I would never recommend going through life assuming the worst. How can you form intimate bonds if your first thought when someone declares their love is to suspect a scam? One reason I want the law to provide more remedies for intimate deception is that it is unrealistic, unfair, and often counterproductive to expect people to protect themselves.
Q: Are there any papers of yours on SSRN that you are particularly interested in or encourage people to check out?
A: I would like to highlight one of my articles, “Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change.” When the Supreme Court in Rostker v. Goldberg (1981) upheld the constitutionality of male-only military registration, the Court’s reasoning relied on the military’s longstanding policy of excluding women from combat. My 2008 article argued that Rostker’s foundations were increasingly shaky as the military was opening more combat positions to women. That has become even more true since January 2016, when the military ended all sex-based combat exclusions. Congress convened a commission to study the issue, and I testified in 2019 to explain why excluding women from military registration is unconstitutional. But male-only military registration persists.
Equal responsibilities and equal rights are inextricably intertwined. The absence of one makes the other less likely.
Q: How do you see SSRN as fitting into the broader legal research and scholarship landscape?
A: I am grateful that SSRN provides an opportunity to distribute papers and receive feedback before work is officially published. In addition, I appreciate SSRN’s reach. SSRN is free and open to the public, and it crosses disciplinary boundaries. One of the reasons I began writing books is because I am eager to connect with audiences outside of the law. SSRN also helps me reach that wider audience.
More About Jill Hasday
Jill Elaine Hasday is a Distinguished McKnight University Professor and the Centennial Professor of Law at the University of Minnesota Law School. She teaches and writes about anti-discrimination law, constitutional law, family law, and legal history. After graduating from Yale Law School, she clerked for Judge Patricia M. Wald of the United States Court of Appeals for the D.C. Circuit. Hasday is the author of three books: Family Law Reimagined, Intimate Lies and the Law, and We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality. Intimate Lies and the Law won the Scribes Book Award for “the best work of legal scholarship published during the previous year” and the Foreword INDIES Book of the Year Award for Family and Relationships. Hasday’s articles have appeared in many leading law reviews.
You can see more work by Jill Hasday on her SSRN Author page here