… 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 ‘consentabilit’y” 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? My book proposes a framework for evaluating consentability that recognizes the integrality of consent.
Kim, Nancy S, Author Response to Symposium (June 10, 2020). Loyola Law Review, New Orleans, volume 66, no 1, Spring 2020.