The Myth of 'Legal' Consent in a Consumer Culture

Abstract

This Essay challenges the legal default of unquestioned human capacity for consent. It posits that legal capacity for consent is not an “on/off” switch. It questions the notion that capacity – our rough filter for the ability to consent – flips on at some relatively arbitrary time that one might, as a matter of tradition, call “the age of consent,” and off again with early onset dementia or Alzheimer’s disease. A more nuanced view of consumer capacities rests, in part, on the understanding neuroscience and psychosocial evidence provide. This perspective suggests that we should match our rules and jurisprudential approaches to the variable capacities that we all show in different contexts and stages of life. By highlighting that most negotiating parties, in a given moment or context, may possess rather less than legally presumed capacity to consent, this Essay emphasizes the need for legal reform.

Keywords: consent, capacity, consumers, neuroscience, psychosocial science, contracts, negotiations