Choice, Consent, and Cycling: The Hidden Limitations of Consent
Most legal scholars assume that if V consents to allow D to do something to him, such consent makes D’s actions legally and morally acceptable. To be sure, they are willing to make an exception when consent is given under a specified list of conditions: Force, fraud, incompetence, third-party effects, unequal bargaining power, commodification, paternalism – all of these may be grounds for rejecting the validity of V’s consent. We might call scholars who take this view of consent quasi-libertarians. In this Article, I argue against the quasi-libertarian view of consent. My central claim is that the validity of consent must be significantly more restricted than the quasi-libertarians assume, if the law is to avoid inconsistency in a number of domains. In particular, I claim that the law will encounter problems of cycling with respect to its core values if consent is allowed the relatively unrestricted scope quasi-libertarians assume for it. The law has avoided such cycles because courts and legislatures in fact restrict consent far more widely than the familiar list of exceptions suggests, although usually without realizing what they are doing. The law is actually not quasi-libertarian. I explore several examples of this: our wariness of tradable pollution permits, our restriction on the assumption of risk defense, the ubiquity of so-called victimless crimes, and the impossibility of enforcing a personal service contract by specific injunction. These examples are far from exhaustive. Further, I argue that the additional restrictions on consent I identify have implications for the recent debate concerning the proper role of welfare economics in law. They suggest that the Pareto principle (which says that policies which benefit some and hurt no one are to be pursued) is an unreliable guide for public policy.