We often speak of consent in binary terms, boiling it down to ‘yes’ or ‘no.’ In truth, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions, too. Those gradations of consent mark a deep structure of our social world, one especially evident in the contours of contract and tort law. This article draws on those and other sources to outline a theory of graduated consent, one that establishes a standard for measuring the justification of a wide variety of human relationships. Though its basic tenets comfortably agree with everyday common sense, graduated-consent theory offers surprising answers to such old problem as enforcing standardized agreements, justifying political coercion, and discerning the meaning of a constitution. In those and other applications, graduated-consent theory promises to enrich our understanding of contract and tort law, as well as other areas of legal, moral, and economic reasoning.
Bell, Tom W., Graduated Consent in Contract and Tort Law: Toward a Theory of Justification (September 1, 2011). Case Western Reserve Law Review, Vol. 61, No. 1, 2011.