Understanding Waiver

64 Pages Posted: 3 Nov 2004 Last revised: 6 Apr 2008

See all articles by Jessica Wilen Berg

Jessica Wilen Berg

Case Western Reserve University School of Law


Waiver plays a role in numerous areas of law, yet no one has attempted to provide a unifying theory of waiver, explaining why some rights cannot be waived and why courts and legislatures have set different standards for the validity of waivers in different circumstances. This article proposes that maximization of autonomy functions as an underlying goal of our legal system generally, and thus the concept of autonomy provides a basis for understanding waivers. It analyzes autonomy in some detail and offers an evaluative framework that functions both descriptively and normatively across different legal areas. There are two senses of autonomy at issue - one an ascriptive sense that refers to an inherent characteristic that cannot be waived, and the other a descriptive sense that can be waived. Waivers of rights relating to descriptive autonomy depend on an analysis of the autonomy, specifically validity, of the waiver. The elements of a valid waiver are themselves drawn from the concept of autonomy. Moreover, there are system constraints that often function to limits waivers in particular circumstances. The final part of this article applies the framework to three examples, chosen because they represent current and important controversies: waivers of informed consent to medical care, waivers of Fourth Amendment rights, and contractual waivers of statutory rights.

Keywords: Waiver, Autonomy

JEL Classification: K12, K14, K32, K40

Suggested Citation

Berg, Jessica Wilen, Understanding Waiver. Houston Law Review, Vol. 40, No. 281, 2003; Case Legal Studies Research. Available at SSRN: https://ssrn.com/abstract=614522

Jessica Wilen Berg (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-6363 (Phone)
216-368-2086 (Fax)

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