Document Type
Article
Publication Title
Law & Psychology Review
Volume
48
Publication Date
2024
Keywords
consent, contract, availability heuristic
Abstract
Contracts purport to settle rights and obligations between parties. The fact that parties have consented to a given set of terms seems to hold the promise of preempting conflict about those terms after the fact. But contract gives rise to disputes about consent itself. Many disputes about implied conditions, for example, are best understood as disagreements about the scope of consent.
This article identifies several moral ambiguities in the concept of concept. We not only disagree about the analytic merits of competing conceptions among ourselves but, even as individuals, we tend not to endorse and consistently apply a single version of the concept. Psychologists use the “availability heuristic” to describe how we rely on salient facts when making quick probabilistic judgments. Similarly, the availability of some facts but not others prompts us to default to the version of an ambiguous moral concept that we are in a position to operationalize. On the flip side, we discount understandings of consent that fail to guide us given the facts we know.
The distinct sets of facts available to the giver and receiver of consent, respectively, thus direct them to rely on different conceptions of consent, thereby driving a systematic wedge between how parties to exchange are likely to understand the bindingness of their agreement. Contract law privileges a single, potentially unifying conception of consent; but that conception must compete with the complex understanding of the concept that we each bring from our lives outside of contract. Without the benefit of clear legal rules, consent in other social contexts generates still more frequent and deeper disagreement.
Recommended Citation
Aditi Bagchi,
Consent and Disagreement, 48 L. & Psych. Rev. 1
(2024)
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/1341
