Wednesday, May 23, 2007

The Scale of Consent

To someone steeped in the study of law, economics seems to focus monomanically on expressly consensual transactions. The supply/demand curves that pepper microeconomics texts chart where buyers and sellers plainly agree to exchange quid for quo.

Legal texts discuss those same sorts of transactions under the heading, "contract law." But contract law represents only one of many jurisprudential concerns. Students of the law also spend a great deal of time studying other sorts of transactions—transactions marked by implied consent, hypothetical consent, or varieties of non-consent.

Perhaps the law takes too dark a view of human nature. Or perhaps economics takes too bright of one. Non-expressly consensual transactions do happen, after all. Even if rare, they can powerfully affect—or even end—our lives. But non-expressly consensual transactions are, in fact, not rare. They pervade our world.

Consider government, a service supplied and demanded subject to varying levels of consent. A consumer might demand government services expressly, impliedly, hypothetically, or in some mixture thereof. An immigrant might, for instance, swear allegiance to the U.S (showing express consent) after having taken up residence in it (showing implied consent).

Consumers can object to government services in similar fashion, denying consent expressly, impliedly, or hypothetically, in measures unique or in combination. Thus, for instance, an emigrant might disavow allegiance (expressly not consenting) to and flee (signaling implied non-consent) from a tyrannical (and therefore hypothetically non-consensual) regime.

Combine these observations, and you can picture consent and non-consent on a scale running from most to least:

c + express
o + implied
n + hypothetical
s ---------------------
e - hypothetical
n - implied
t - express

As that scale of consent indicates, different types of consent have different probative values. Express consent conveys more information about a transaction than implied consent does. Thus, for instance, an agreement's written terms trump those merely assumed to apply by dint of customary practices. (See, R. (2d) Contracts § 203(b).) Implied consent, in turn, says more than hypothetical consent does. What people actually do says more about their preferences than mere theory does. Non-consent, too, comes in different strengths, running from weak (hypothetical non-consent) to strong (express non-consent). "No!" thus tells us more about whether you agree to a proposition than if you silently turn away, and both signal your views more reliably than our musing on what you would agree to.

Many interesting results follow from this model of consent. I explored some of them in a paper I wrote under the tutelage of Judge Richard Posner, The Jurisprudence Of Polycentric Law (unpublished manuscript, 1992). In particular, I there describe express consent "as an ideal standard for ranking surrogates such as implied and hypothetical consent. The nearer these substitutes come to obtaining a person's express consent, the better they justify the legal obligations they serve to defend."

Whether and to what extent that approach to justification jibes with Randy Barnett's poses an interesting question, one that I plan to address later and at length. First, though, I plan to tackle another application of the scalar consent model: I plan to use it to describe the supply and demand of government services. More on that project, anon.


Ran said...

I'm clueless, sorry, but can you explain what is meant by "hypothetical consent"? The top Google hits for it are confusing the heck out of me.

Tom W. Bell said...

Ran: Hypothetical consent is consent premised on what someone *would* agree. Courts have thus afforded recovery to doctors who operate on unconscious accident victims on grounds that the victims "would have agreed" to pay for such care. But, of course, if the patient wakes up and tells the doctor to lay off, no claim for recovery will stand.

Glen Whitman said...

I'm curious about the cases where (some form of) consent conflicts with (some form of) lack of consent. The most obvious is the case of a child or pre-teen who seemingly consents to sex, but who we presume would not consent if she possessed all relevant knowledge about the consequences.

Tom W. Bell said...

Glen: I generally find those cases interesting, too, though I would skip cases involving non-adults. Why? Simply because parties not accorded full agency (kids, the mentally infirm, intelligent animals, etc.) mess matters up too much.

But we needn't talk of non-adults to get to some interesting hypos. Take, for instance, an adult who expressly consents to sex without realizing her partner has herpes, a factor that would hypothetically have changed her mind.

In such a case, depending on what the bearer of herpes knew or should have known of his condition, the contract law doctrines of mutual mistake or misrepresentation might apply. Either doctrine would obviate the putative consent, rendering the "contract" unenforceable. Or, to put it more generally, we would say that express consent was not, in fact, given.

Ran said...

Prof. Bell: Thanks for explaining. Oddly, when I was training to be an emergency medical technician (EMT), we used "implied consent" for exactly the situation you're describing. (Maybe "inferred consent" would have been more accurate: an unconscious patient couldn't really imply anything, but that didn't stop us from inferring.) More generally, we used "implied consent" in reference to circumstances wherein an EMT is legally expected to act without a patient's informed consent; it could also apply in a case where a patient was known not to be competent to decide whether to receive a treatment. (Of course, since EMTs can't make diagnoses, and aren't qualified to judge a patient's competence, that's a much less uncommon occurrence than patients' being unconscious.)

Ran said...

"[...] much less common [...]", rather.