ABSTRACT
Consent is an indispensable standard and organizing principle in any liberal legal order that prizes self-directed autonomy, self-identified preferences, and collective agreement. Yet consent’s capacity to advance those values has become increasingly uncertain in a society beset by power imbalances, information asymmetries, and multiple forms of polarization. In this paper, we document how the rise of neoliberalism has led to greater reliance on consent throughout US law, while at the same time leading to greater doubts about its moral efficacy and empirical feasibility. Connecting and generalizing pathologies of consent that have been identified within myriad domains, we identify a systemic crisis of consent that has unsettled not only regimes of private ordering but also constitutional democracy and global governance. We offer a typology of legal strategies available to those who wish to shore up specific types of consent or accommodate their failure. And we raise the question whether such strategies are enough to enable effective cooperation, protect vulnerable parties, and vindicate the values consent is meant to serve.
Levinson, Daryl J and Pozen, David E, Disconsents (January 27, 2025).
Leave a Reply