'I Think I Do': Another Perspective on Consent and the Law

Abstract

This contribution to a Festschrift in honor of Jay Katz takes up two areas that have long independently interested him: informed consent and family law.

The doctrine of informed consent, introduced by the courts in 1957, is but one of many legally imposed duties to disclose to arise over the last several decades. In myriad areas of everyday life, including medical decision-making, the law has come to require that a person or entity with presumptively superior information as to risks, contents, or consequences take affirmative steps to disclose that information at the time another individual is faced with a decision for which it might prove pertinent. One of the most common contexts in which we thus far have not required disclosure of information to the ordinary individual by the party presumed to possess superior knowledge is the legal formalizing of a decision to marry. In this brief essay, I offer some tentative thoughts on the question of why, as a matter of law, do we not impose similar requirements of disclosure and consent in the marital and medical decision-making contexts?

Keywords: informed consent, medical decision-making, marriage