Drobac and Goodenough, ‘Exposing the Myth of Consent’

Consent, a critical concept for law, often rests upon the ability of people to create binding changes of legal status, rights, and obligations. The law typically presumes complete and un-buffered adult capacity for binding legal consent. However, the realities of flawed information, inexperience, a lack of attention, and evidence of human limitation frequently refute notions of complete capacity. This Article posits that the law should reserve the presumption of complete and unfettered adult capacity for special cases. A more nuanced view of our actual capacities rests, in part, on the understanding that neuroscience and psychosocial evidence provides. This perspective suggests that jurists should match rules and jurisprudential approaches to the variable capacities that people exhibit in different contexts and stages of life. The strategic recognition and use of neurojuridical tools identifies at-risk parties and circumstances and sheds light on the problematic nature of consent offered on some occasions. Such a view helps jurists to develop and deploy effective enhancers and buffers around consent that reflect a more realistic treatment of capacity. This Article examines the myth of consent to add some of the tools and insights of cognitive neuroscience and social psychology to the traditional staples of psychology, economics, politics, and philosophy. It proffers innovative approaches, such as the framework of legal assent, explored in prior work and summarized in this Article. Legal reforms prompted by new defaults will facilitate optimum consensual relations and ultimately foster the Pareto enhancing goals, now mistakenly linked to a more radical vision of consent.

Drobac, Jennifer Ann and Goodenough, Oliver R, Exposing the Myth of Consent (February 2, 2015). Indiana Health Law Review, 2015, forthcoming; Indiana University Robert H McKinney School of Law Research Paper.

First posted 2015-02-04 07:25:11

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