Consent

Introduction Liberal legal orders are built on a foundation of consent. Throughout the U.S. legal system, consent distinguishes enforceable contractual obligations from nonbinding promises, constitutionally protected intimacy from criminal sexual assault, neighborliness from trespass, lawful from unlawful.[footnote]See Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121, 123–24 (1996) (detailing how consent “alters the obligations and permissions that collectively determine the rightness of others’ actions”); Roseanna Sommers, Commonsense Consent, 129 Yale L.J. 2232, 2235 (2020) (“Consent is a pivotal concept in many areas of the law, from police searches, to contracts, to medical malpractice, to rape.”); Eric Martínez, Measuring Legal Concepts 63 (Feb. 4, 2024) (unpublished manuscript), https://ssrn.com/abstract=4715691 [https://perma.cc/JQ9K-V4CY] (finding empirically that “legal doctrine is largely built upon a small core of foundational legal concepts,” including consent (emphasis omitted)).[/footnote] Moving from individual to collective consent, our system of constitutional democracy depends on the “consent of the governed.”[footnote]The Declaration of Independence para. 2 (U.S. 1776); see also, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 846 (1995) (Thomas, J., dissenting) (“Our system of government rests on one overriding principle: All power stems from the consent of the people.”); The Federalist No. 22, at 152 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (“The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE.”).[/footnote] And moving beyond the United States, most of international law is premised upon the consent of sovereign states.[footnote]See Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791, 1793 (2009) (“Out of deference to state sovereignty, international law is a ‘voluntary’ system that obligates only states that have consented to be bound . . . .”); J.H.H. Weiler, The Geology of International Law—Governance, Democracy and Legitimacy, 64 Heidelberg J. Int’l L. 547, 548 (2004) (Ger.) (describing “the principle of Consent” as “so deeply rooted in the normative discourse of international law and its principal legitimating artifact”).[/footnote] In the ideal society of the classical liberal imagination, virtually every legal entitlement and obligation arises out of one or another form of consent.[footnote]See David Johnston, A History of Consent in Western Thought, in The Ethics of Consent: Theory and Practice 25, 45–51 (Franklin G. Miller & Alan Wertheimer eds., 2010) [hereinafter The Ethics of Consent] (tracing this ideal to early modern Europe). “Consent plays a central role in all liberal [political] theory,” Professor Benjamin Barber has explained, whether in the form of “original consent” that justifies the social contract, “periodic consent” that justifies representative government, or “perpetual consent” that justifies particular collective acts against claims of individual liberty. Benjamin R. Barber, Liberal Democracy and the Costs of Consent, in Liberalism and the Moral Life 54, 57–59 (Nancy L. Rosenblum ed., 1989).[/footnote]

Over the past half-century, the rise of what is now called “neoliberalism” has militated for market ordering across an ever-wider range of social spheres and, in the process, made consent all the more crucial as a functional building block and legitimating construct in American law.[footnote]See infra section II.A.[/footnote] At the center of the neoliberal portrait of political and economic life stands “the consenting individual” as “the author of the norms under which she will live.”[footnote]Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1814–15 (2020).[/footnote] Scholars on the left and right agree that “consent enjoys talismanic—if not sacramental—status in modern life and thought,”[footnote]Richard W. Garnett, Why Informed Consent? Human Experimentation and the Ethics of Autonomy, 36 Cath. Law. 455, 456 (1996); see also, e.g., Robin West, Consent, Legitimation, and Dysphoria, 83 Mod. L. Rev. 1, 3 (2020) [hereinafter West, Consent] (“Today, it is often the act of an individual proffering his or her consent, rather than the enactment of a law by a representative governmental body, which garners our respect and deference. Individual consent, rather than democratic law, in effect, is emerging as the main source of legitimate authority.”).[/footnote] perhaps nowhere more obviously than in modern law. As this Article will survey, consensual agreement underwrites legal regimes spanning private and public law, including consumer protection, criminal procedure, labor and employment, intellectual property, constitutional lawmaking, and international trade and finance.[footnote]See infra Part III.[/footnote] Both the domestic and the global legal landscapes are at this point a veritable “empire of consent.”[footnote]Neil Richards & Woodrow Hartzog, The Pathologies of Digital Consent, 96 Wash. U. L. Rev. 1461, 1467–76 (2019).[/footnote]

Yet even as the empire of consent has colonized legal field after legal field, the ability of consent to play its assigned roles has come under increasing strain. For many participants and observers in many fields, structural inequalities along racial, gender, and economic lines have degraded the normative force of consent, recasting it as exploitation or coercion.[footnote]See infra section II.B.1.[/footnote] The digital economy has magnified the salience and severity of information asymmetries that generate further imbalances of bargaining power, while also casting doubt on the coherence of consumer choices.[footnote]See infra sections II.A, III.A.[/footnote] Such doubts have been exacerbated by the behavioral revolution in psychology and economics, which has brought to light consistent patterns of cognitive failure and irrational decisionmaking.[footnote]See infra section II.B.2.[/footnote] Meanwhile, political polarization and other impediments to collective action have made it more difficult to achieve consent at the scale necessary to meet social demands, creating pressure to dilute or disregard the standards for legally valid consent.[footnote]See infra section II.B.3.[/footnote] On multiple overlapping levels, the United States and other liberal democracies have experienced an erosion of what we will call the conditions of meaningful and feasible consent .[footnote]See infra section I.A.[/footnote]

Some of the drivers of this erosion have been material, others epistemic or perspectival. For example, income inequality and political polarization have surged in measurable ways over the past couple of generations, and new international institutions have helped to reconfigure the global economic order.[footnote]See infra sections II.B.3, III.G.[/footnote] What has changed about human cognition or sex, by contrast, is not so much the underlying reality as the influence of social and academic movements, such as behavioral economics and #MeToo, which have generated or popularized new insights into how psychology and society really work.[footnote]See infra sections II.B.1–.2, III.B. As the #MeToo phenomenon reflects, not only has the world evolved in ways that make morally transformative consent harder to attain in many fields, but understandings of the world have also evolved in ways that call into question the moral adequacy of consent under long-standing arrangements. See, e.g., Anna E. Jaffe, Ian Cero & David DiLillo, The #MeToo Movement and Perceptions of Sexual Assault: College Students’ Recognition of Sexual Assault Experiences Over Time, 11 Psych. Violence 209, 214–16 (2021) (finding that college students were more likely to label past unwanted sexual experiences as “sexual assault” following #MeToo).[/footnote] Either way, power imbalances, constraints on choice, informational deficits, cognitive errors, and impediments to collective action have been increasingly recognized as not the exception but the rule of contemporary legal life. And the prospects for achieving meaningful consent in a wide range of contexts have accordingly dimmed.

In short, at the same time that neoliberal ideology has dialed up legal demand for consent, a series of contemporaneous social, economic, political, and intellectual developments have made it more difficult to meet the demand in any robust fashion. Some of these developments, moreover, have been a product of neoliberalism itself. The result is a contemporary crisis of consent that crosses the public law/private law divide and imperils the integrity of both. Radical skeptics have long questioned whether consent can carry the normative weight assigned to it.[footnote]See infra section I.B.[/footnote] As morally dubious forms of consent have proliferated, so has such skepticism.

In diagnosing a “contemporary” crisis, this Article refers to the past five decades or so, effectively adopting the mid-to-late twentieth century as a historical baseline. By focusing on this period, we do not mean to suggest that the quality or functionality of lawful consent is lower across the board now than it was in earlier eras. Although we highlight severe shortcomings of modern consent regimes, there is nothing in them that approximates, say, the treatment of Black workers under peonage or of married women under coverture.[footnote]See Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291, 320 (2007) (explaining that under coverture “married women surrendered most of their common law rights under the fiction that they consented upon marriage to the merger of their legal identity into their husband’s”); James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude”, 119 Yale L.J. 1474, 1485 (2010) (explaining that before it was held to violate the Thirteenth Amendment, peonage was “quite commonly” created “by contractual consent”).[/footnote] In describing the contemporary situation as one of “crisis,” the Article identifies what is at bottom a subjective phenomenon—a loss of faith in the social value of many forms of consent that are recognized as legally operative. In other words, the crisis of consent is a legitimation crisis , or a collapse of public confidence in the ability of consent to do the work that the law expects of it.[footnote]For this understanding of a legitimation crisis as involving both objectively identifiable “alterations in a social system” and the subjective “experience” of those alterations as a threat to the system’s normative foundations, see Jürgen Habermas, Legitimation Crisis 1–8 (Thomas McCarthy trans., Polity Press 1988) (1973); see also David O. Friedrichs, The Legitimacy Crisis in the United States: A Conceptual Analysis, 27 Soc. Probs. 540, 540, 550 (1980) (explaining that “crisis,” for Habermas, “is a relativistic term applicable to a societal situation in which dramatic changes, conflicts and tensions exist, and active responses are called for” and that a legitimation crisis “is essentially perceptual, but also has behavioral symptoms and structural roots”). In principle, our claim about consent’s legitimation crisis could be tested through polling or other quantitative measures of public attitudes on consent, as they have evolved over time. See Friedrichs, supra, at 542. Because such data do not exist, as far as we are aware, the Article supports this claim by pointing to a wide range of indicators and symptoms of rising discontent with consent.[/footnote]

Thus understood, the contemporary crisis of consent leaves reformers in a bind. On the one hand, consent remains an indispensable concept in any liberal legal order that prizes autonomy, choice, and self-determination.[footnote]See Deryck Beyleveld & Roger Brownsword, Consent in the Law 2 (2007) (arguing that in “ any ” legal system that “takes individuals and their choices seriously . . . the concept of consent will come to play a key role”); Don Herzog, Happy Slaves: A Critique of Consent Theory 179 (1989) (“A liberal world must be, in part, a world of consent theory . . . .”); Richards & Hartzog, supra note 9, at 1464 (“A legal system without consent would be so radically different from what we have that it would be almost unimaginable.”); see also United States v. Drayton, 536 U.S. 194, 207 (2002) (“In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own.”).[/footnote] From commercial contracts and romantic relationships to international treaties and cooperative federalism programs, vast swaths of private and public law could scarcely function without it. On the other hand, morally transformative consent has become an increasingly elusive ideal in myriad settings. What can today’s jurists and policymakers do to bolster consent or otherwise manage this dilemma? What should they do? Have the latent flaws in the consent paradigm been revealed to the point that we need to rethink its role in our legal system, or rethink the system more broadly?

These questions have assumed new urgency in recent years as neoliberalism has come under sustained political attack and as President Donald Trump’s second term has witnessed a revival of right-wing populism, economic protectionism, and national industrial policy.[footnote]Cf. Perry Anderson, Regime Change in the West?, Lond. Rev. Books (Apr. 3, 2025), https://www.lrb.co.uk/the-paper/v47/n06/perry-anderson/regime-change-in-the-west [https://perma.cc/MX6N-TRRJ] (discussing “populist revolts against neoliberalism” from the left and the right and reviewing the debate over whether and to what extent a post-neoliberal order is emerging); Melissa Naschek, Are We Still in Neoliberalism? An Interview With Vivek Chibber, Jacobin (June 17, 2025), https://jacobin.com/2025/06/neoliberalism-populism-trump-tariffs-economy [https://perma.cc/6U6E-5V6T] (discussing neoliberalism’s persistence in the face of rising “anger against” it since the early 2000s).[/footnote] The failures and frustrations of consent-based governance help to explain how the United States and other countries arrived at this crossroads, and where they might go from here. As this Article shows, the crisis of consent is bound up with—indeed co-constitutive of—the crisis of liberal democracy.

The Article proceeds as follows. After Part I provides necessary background, Part II explains how the rise of neoliberalism has led in turn to greater reliance on consent throughout the law and to greater doubts about its moral efficacy, so that some of the problems with consent that have been identified within particular domains generalize broadly.[footnote]Several legal scholars have identified an incipient “crisis of consent” in one or another field. See, e.g., James Grimmelmann, The Law and Ethics of Experiments on Social Media Users, 13 Colo. Tech. L.J. 219, 270 (2015) (noting “a national crisis of consent” over sex on college campuses); Orly Lobel, Boilerplate Collusion: Clause Aggregation, Antitrust Law & Contract Governance, 106 Minn. L. Rev. 877, 881 (2021) (asserting that “[c]ontract law is currently experiencing a crisis of consent” owing to the rise of boilerplate clauses); Bart W. Schermer, Bart Custers & Simone van der Hof, The Crisis of Consent: How Stronger Legal Protection May Lead to Weaker Consent in Data Protection, 16 Ethics & Info. Tech. 171, 172 (2014) (describing a “crisis of consent” in data privacy law). This Article pushes these claims further and shows that the crisis is systemic.[/footnote] Part III documents through case studies how this phenomenon and related ones have unsettled not only regimes of private ordering but also regimes of constitutional and global governance. Finally, Part IV offers a typology of strategies available to those who wish to shore up consent against these threats. Across legal domains, we suggest that reforms to the consent rules themselves will typically fail to protect vulnerable parties and vindicate the values consent is meant to serve. The crisis of consent is systemic; fully adequate responses must be as well.

DISCONSENTS

FAMILY REGULATION’S CONSENT PROBLEM