Gregory Crespi, Thinking About Consent

Today, we are happy to share with you a guest post by Gregory Crespi (right), who holds the Homer R. Mitchell Endowed Professorship in Commercial and Insurance Law and Professor of Law at SMU’s Dedman School of Law

Thinking about Consent
Gregory Crespi

Daryl Levison (below left) and David Pozen (below right) have recently posted on SSRN a draft of their excellent new article “Disconsents.” (January 27, 2025). 

As noted on this ContractsProf Blog website this article had already been downloaded 532 times by March 25, and surely will receive many more viewings and downloads.  Those of us who teach and do research in the area of contract law are well aware of the dramatic erosion of actual, meaningful consent in a world of standardized consumer contracts, and of increasingly online contracting where offers are generally accepted by the offeree simply clicking on an “I Accept” button without understanding of or often even awareness of the many one-sided “Terms and Conditions” of such offers, such as mandatory arbitration clauses, class action waivers, unilateral modification clauses, various liability waivers and attorney’s fees provisions, etc., etc.  We are also aware of the difficulties both courts and legislatures are having in trying to properly balance the need to require  mutual consent to enforce contractual terms with the business realities of standardized contracting and especially of online contracting.

Levinson and Pozen do a fine job in drawing upon the literature to discuss this contract law problem.  However, their real contribution in this article is in broadening the discussion of the erosion of consent beyond its more obvious contract law implications to its wider significance in numerous other crucially important legal and social contexts. These other contexts they discuss include the need to better define and protect the role of consent with regard to: data privacy rights, unwanted sexual advances, employment contracts, intellectual property rights, and criminal law procedures (especially plea bargaining).  They also reflect broadly upon the importance of and erosion of consent with regard to maintaining the proper Constitutional balance between the several branches of government, a matter of some immediate concern, and in the context of global governance arrangements. 

They conclude their article by posing several potential alternative or overlapping solutions to the problem of the erosion of meaningful consent, specifically either defining consent more permissively, abandoning the use of consent altogether as a legal principle, strengthening consent-protecting rules, or, most ambitiously, creating the background conditions that would allow for meaningful consent in more social contexts.  They are not, however, overly optimistic than any of these approaches are likely to be adopted anytime soon.   

I have assigned this fine article to all of my current Advanced Contracts students at Southern Methodist University, and I recommend that other faculty read it and then do the same.