Choice, consent, and cycling: the hidden limitations of consent.

• Author: Katz, Leo

TABLE OF CONTENTS INTRODUCTION I. QUASI-LIBERTARIANISM AND THE PROBLEM OF CONSENT II. A SPECIAL INSTANCE OF THE PROBLEM AND OF ITS SOLUTION A. A Case of Triage B. The Components of the Cycle Reconsidered C. A Closer Look at the Pareto Argument D. Implications for Consent E. The Essence of the Argument: More on Claims versus Desires III. THE ARGUMENT GENERALIZED A. Tradeable Pollution Licenses B. The Assumption of Risk and Victimless Crimes C. Implications for Specific Performance, Self-Enslavement, Organ Lotteries, and Draconian Penalties D. Provisional Summary IV. FURTHER RAMIFICATIONS: THE ROLE OF WELFARE ECONOMICS IN THE LAW A. Fairness versus Welfare: The Argument of Kaplow and Shavell B. Kaplow and Shavell's Precursor: Sen's Paradox C. The Other Side of the Debate: Chang and His Precursors 1. The Standard Critique of Sen 2. Chang's Critique of Kaplow and Shavell D. The Debate Reevaluated through the Lens of the Cycling Argument: Why Pareto Loses to Fairness 1. Kaplow and Shavell Yet Again 2. Sen Yet Again E. Why Giving Up on Pareto Is Less Costly Than It Seems, or, What Are Lawyers For? CONCLUSION INTRODUCTION

1. QUASI-LIBERTARIANISM AND THE PROBLEM OF CONSENT

   If there is consent, a rape is no longer a rape, but lovemaking; a theft is no longer a theft, but a gift; a battery is no longer a battery, but surgery, or sports, or massage. A wrong, it seems, is no longer a wrong if the victim consents to it. That at least is the generally accepted view.

   To be sure, there are some well-recognized exceptions. Consent does not count if coercion or deception is involved, if one of the consenting parties lacked competence, if there are good paternalistic reasons for overriding it (as there may be with drug use or euthanasia), or if what the parties are agreeing to would injure some third party (in which case we tend to call it a conspiracy). Consent might also be questioned if it involves selling something we think should not be commodified (like sex, bodily organs, or the services of a birth surrogate), or if it somehow arises out of an egregious inequality of bargaining power. But outside these by now fairly intuitive special circumstances, the generally accepted view is that consent should be honored. It is a view that is not fundamentally different from classic libertarianism, and so I will refer to it as Quasi-Libertarianism.

   The Quasi-Libertarian view seems hard to resist. Other than the listed exceptions, there seem no good reasons left for not giving effect to someone's consent. My aim will be to expose such reasons--to show that the Quasi-Libertarian picture of consent is highly inaccurate, that it misses an important cluster of reasons for invalidating consent, reasons that often move courts but have never yet been properly articulated. (1)

   There is, as it turns out, a wide range of circumstances in which none of the familiar reasons for invalidating consent applies but in which one is rightly suspicious of consent and may well want to disregard it. Indeed in some such cases, often remarkably mundane ones, the suspicion is so deep-seated that even the most dyed-in-the-wool libertarians will blithely disregard consent without ever realizing what they are doing. In yet others, judges and scholars have realized that something is amiss, that there is something problematic about consent that is elusive and hard to identify. Typically judges have dealt with their unease by straining to assimilate such cases to the familiar exceptions.

   The best example of such cases may be consent to risky activities--the "assumption of risk." Assumption of risk is frequently disregarded either because the risk-assuming party supposedly did not have a free choice, enough information, or the necessary competence, or because some vague and diffuse blend of concerns having to do with paternalism, commodification, or third-party effects supposedly requires it, although none of these in fact seems to really explain our discomfort with consent in such cases. (2) In addition, there are many other categories of cases in which a similarly hard-to-persuasively-explain discomfort with consent surfaces: it does so in our ambivalence toward victimless crimes (like drug use, prostitution, or assisted suicide even when engaged in by highly sophisticated, indisputably competent parties), (3) our unease with tradeable pollution permits, (4) our refusal to issue injunctions to enforce personal service contracts, and our bad conscience about the prevalence of plea bargains (and among some even about settlements). (5) It also manifests itself in a range of peculiar but little noticed ways in which some of the core doctrines of the criminal and tort law override the wishes of all concerned parties.

   How is one to explain these kinds of cases? How can one make sense of situations in which consent seems to fail but not on account of any of the usual suspects--coercion, deception, incompetence, etc.? That is the question this article seeks to answer. The gist of the answer I shall provide is that what lies behind our discomfort with consent in these cases has to do with cycling. More precisely, the argument is that without limitations on consent, familiar criminal law and tort law doctrines are going to get us entangled in inconsistency-producing cycles, and while there are various ways of breaking those cycles, one of the least bothersome ways of doing so will turn out to be limitations on consent. (6)

   One's first reaction on learning that combining certain legal doctrines with consent leads to cycling is to think, "Well, so much the worse for those doctrines! They must be too rigid. They should probably be changed." But as we will see, the doctrines in question rest on such basic and impossible-to-give-up ethical commitments (shared by nearly everyone whether they consider themselves libertarian, communitarian, Rawlins, welfare economists, democratic socialists, utilitarian, or whatever else) that this way out will look exceedingly unattractive--less attractive even than disregarding the unanimous consent of all concerned parties.

   My aim in this Article is explanatory, not normative. It is to show what it is about the criminal and tort law, and cognate doctrines elsewhere in the law, that leads them to limit the role of subjective preferences and consent, and how this in turn allows us to understand a variety of familiar and unfamiliar oddities not just in criminal and tort law but elsewhere. Even though my point is an analytical one, it does, however, have normative implications. After all, if one thinks that the ethical presuppositions on which an area of law is built are the right ones, then one is going to think the resulting limitations on consent a good thing. And since many other areas of law are built on similar presuppositions, similar limitations might commend themselves for those other areas as well. Indeed, I think what I have to say might shed some light on the longstanding controversy about unconscionable contracts and related conundrums of private law more generally. But that is not something I will pursue here.

   A normative subject that I will pursue here are the implications my analysis has for the debate currently raging over the proper role of welfare economics in legal policymaking, the debate sparked by Lewis Kaplan's and Stephen Shavell's recent book, Fairness versus Welfare. (7) Any analysis that casts doubt on the validity of consent, as mine does, also casts doubt on one of the welfare economist's most treasured assumptions--the Pareto principle. If we have reason to think that a transaction that all concerned parties would like to enter into should nevertheless be prohibited, then we are implicitly rejecting the Pareto principle, which says that anything that makes some people better off and no one worse off ought to be done. The authors of Fairness versus Welfare insist that the Pareto principle should be the lynchpin of al legal analysis and that all fairness-based legal theories should be cast aside because they one and all violate the Pareto principle. Later in this essay I will have occasion to tackle their thesis head on.

   The way in which I will try to demonstrate my solution to the problem of the "hidden limitations of consent" is somewhat roundabout. I will begin, in Part II of this essay, by examining the problem in a very special, highly artificial context, involving triage decisions in an emergency room. I will show how in this very unusual context cycling can account for an otherwise hard-to-explain disregard of the subjective preferences and the consent of the affected parties. I will then, in Part III of this Article, apply the lessons of Part II to explain why consent fails in four familiar legal situations--namely, some of the ones I already mentioned: the rejection of the assumption-of-risk defense, the creation of victimless crimes, the refusal to enforce personal service contracts by specific injunction, and the general wariness toward tradable pollution licenses and analogous means of environmental control. This list is obviously not exhaustive of all situations in which consent inexplicably fails, but it is a fair sample from which the reader may then extrapolate. Finally, in Part IV, I will look at the way my thesis affects the newly ignited debate about the relationship of welfare economics and the law.

2. A SPECIAL INSTANCE OF THE PROBLEM AND OF ITS SOLUTION

   1. A Case of Triage

      I will begin my exploration of the hidden limitations on consent by considering a case of triage in an emergency room. This must seem like a strange place to start. Although a wrong triage decision by a doctor might conceivably, under the right circumstances, qualify as a crime or a tort, it usually will not. My reason for considering it nevertheless is that it serves to bring out with exceptional clarity certain features that are buried well beneath the surface of more quintessentially "legal" cases. What I propose...