ContractsProf Blog

Editor: Jeremy Telman
Valparaiso University Law School

Thursday, July 23, 2020

Loyola Law Review Symposium on Consentability

The Loyola Law Review (Vol. 66, Spring 2020) recently published a symposium issue on my book, Consentability:  Consent and Its Limits with a foreword by Brian Bix and contributions by Lori Andrews, Philip Cook and Kimberly Krawiec, Evan Selinger and Woodrow Hartzog, Sharon Thompson, Jonathan Witmer-Rich, R. George Wright, Eric Zacks, and Deborah Zalesne.  It was really an honor to be able to engage with these incredible scholars on a wide range of subjects involving questions of consent and consentability, and I am thankful to Danni Hart for organizing this symposium. Although the symposium issue is not yet available on the law school's website,  here is a link to Evan Selinger and Woody Hartzog's article, and a link to my Author's Response.  An excerpt of my Author's Response is below:

This book project first started as a way for me to understand why the law permits individuals to consent to some activities but not others. This captures one of the two meanings of the term “consentability.” The first meaning refers to legality. Certain acts are simply not permitted and so one is not allowed to consent to them. These activities include paid sex work and selling one’s organs. But the question of legality or legal permissibility is tied to the second meaning of consentability, that of possibility. Some acts are not legal because it seems unlikely that anyone could or would actually want to consent to them. The nature of the act itself makes us question the validity of the consent. We believe that something went awry in the decision-making process—that there was some type of coercion involved, a lack of information about what the activity entailed, or some other defect in the decision- making process. We suspect, in other words, that given what the activity entails, nobody would really want to participate. This, however, raises the question—what does it mean to consent? 

Consent plays a unique and critical role in a society which is premised upon individual liberties.  Guilt or innocence often hinges upon consent, as do violations of rules and regulations.  Yet, the meaning of consent is amorphous and what the law and society deem to constitute consent in one context, would not suffice to constitute consent in another.

My book proposes a framework for evaluating consentabilty that recognizes the integrality and essence of consent.  Consent requires three conditions:  a manifestation (a word or act) of consent, knowledge, and voluntariness.  The amount required of each condition (what I refer to as “robustness”) depends upon the activity.  In my book, I introduced a hierarchy of threats to the autonomy interest based upon a number of factors.  This hierarchy ranges from the "highest level" (death) to lower levels (temporary restrictions on the use of one's property).  The greater the threat to the autonomy interest, the more robust the consent conditions must be in order to constitute “valid” consent.  Consent is invalid where the threat to autonomy outweighs the conditions of consent.  Consent is valid where the conditions of consent outweigh the threat to autonomy.

My definition of autonomy used within the context of the framework is not meant to assess the worth or value of an activity, but to assess whether the act might constrain the future self in such a way that it justifies greater caution (i.e. more robust consent conditions) before proceeding.  The potential harm that someone might suffer from clicking “Agree” to a website’s terms and conditions before making a purchase generally poses less of a threat to the autonomy interest than signing a form to have a kidney removed, and so requires less robust consent conditions.  Consenting to a kiss requires less robust conditions than consenting to sex.  The greater the risk associated with the activity, the more certain we want to be that consent was given—and so the more robust must be the conditions of consent.

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