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Exposing the Myth of Consent

42 Pages Posted: 3 Feb 2015 Last revised: 6 Feb 2015

Jennifer Ann Drobac

Indiana University Robert H. McKinney School of Law

Oliver R. Goodenough

Vermont Law School

Date Written: February 2, 2015

Abstract

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.

Keywords: consent, capacity, legal assent, neuroscience, psychosocial evidence, decision-making

Suggested Citation

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 No. 2015-3. Available at SSRN: https://ssrn.com/abstract=2559341

Jennifer Ann Drobac (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-278-4777 (Phone)
317-278-7563 (Fax)

HOME PAGE: http://www.indylaw.indiana.edu/people/profile.cfm?EmpNum=41

Oliver R. Goodenough

Vermont Law School ( email )

164 Chelsea Street
P.O. Box 96
South Royalton, VT 05068
United States
802 831 1231 (Phone)

HOME PAGE: http://www.vermontlaw.edu/Our_Faculty/Faculty_Directory/Oliver_R_Goodenough.htm

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