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.
Moving from individual to collective consent, our system of constitutional democracy depends on the “consent of the governed.”
And moving beyond the United States, most of international law is premised upon the consent of sovereign states.
In the ideal society of the classical liberal imagination, virtually every legal entitlement and obligation arises out of one or another form of consent.
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.
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.”
Scholars on the left and right agree that “consent enjoys talismanic—if not sacramental—status in modern life and thought,”
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.
Both the domestic and the global legal landscapes are at this point a veritable “empire of consent.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.