The Inconsistencies of Consent

Catholic University Law Review Catholic University Law Review

Volume 71

Issue 4

Fall 2022

Article 7

12-2-2022

The Inconsistencies of Consent The Inconsistencies of Consent

Chunlin Leonhard

Loyola University New Orleans College of Law

, [email protected]

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Part of the Contracts Commons, Criminal Law Commons, and the Torts Commons

Recommended Citation Recommended Citation

Chunlin Leonhard,

The Inconsistencies of Consent

, 71 Cath. U. L. Rev. 669 (2022).

Available at: https://scholarship.law.edu/lawreview/vol71/iss4/7

This Article is brought to you for free and open access by Catholic Law Scholarship Repository. It has been

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The Inconsistencies of Consent The Inconsistencies of Consent

Cover Page Footnote Cover Page Footnote

Chunlin Leonhard is the Leon Sarpy Distinguished Professor of Law at Loyola University New Orleans

College of Law. I would like to thank Loyola University New Orleans College of Law and Leon Sarpy

Professorship for their support of this research project. I am especially grateful to my research assistant

Ms. Brooke Hathaway for her competent and timely research assistance. The opinions expressed herein

are mine alone.

This article is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol71/iss4/7

699

THE INCONSISTENCIES OF CONSENT

Chunlin Leonhard

U.S. legal scholars have devoted a lot of attention to the role that consent has

played in laws and judicial consent jurisprudence. This essay contributes to the

discussion on consent by examining judicial approaches to determining the

existence of consent in three selected areas--contracts, tort claims involving

medical treatment, and criminal cases involving admissibility of confessions,

from the late nineteenth century until the present. This article examines how

courts have approached the basic factual question of finding consent and how

judicial approaches in those areas have evolved over time. The review shows

that the late 19th century saw courts adopting a similar approach for finding

consent across the three areas. Courts focused on observable signs of consent,

verbal or nonverbal communications, to determine existence of consent. They

found consent unless circumstances suggested that the consenting party lacked

the power to use their will. However, courts began to diverge in the early and

mid-twentieth century in their approaches to ascertaining consent. In contract

disputes, courts’ consent approach has remained static, focusing on observable

signs of consent or, in contract law parlance, “manifestations of assent.” In tort

cases involving medical treatment, courts began requiring more than observable

signs of consent; instead, courts focused on the consenting party’s access to

information and comprehension, described by scholars as the informed consent

doctrine. The judicial consent approach undertook the most dramatic change in

criminal cases involving admissibility of confessions with judicial adoption of

presumption of non-consent in custodial interrogation without the required

warnings.

This article suggests that multiple factors appear to have contributed to

divergent consent approaches across the three areas. Consent plays a different

role in contract disputes from that in medical treatment and criminal confession

cases. Courts have adopted a heightened consent inquiry in medical treatment

and criminal confession cases as responses to significant social changes and

increased public awareness of individual rights and the need to protect

individuals from potential abuses and arbitrary government power. In addition,

human cognitive biases—our flawed decision-making process, may have also

contributed to the divergence.

Chunlin Leonhard is the Leon Sarpy Distinguished Professor of Law at Loyola University New

Orleans College of Law. I would like to thank Loyola University New Orleans College of Law and

Leon Sarpy Professorship for their support of this research project. I am especially grateful to my

research assistant Ms. Brooke Hathaway for her competent and timely research assistance. The

opinions expressed herein are mine alone.

700 Catholic University Law Review [Vol. 71:699

INTRODUCTION ............................................................................................... 700

I. THE SEARCH FOR CONSENT AND ITS CHALLENGE ...................................... 703

A. Observable Signs of an Internal Mental Status .................................. 704

B. The Challenge to the Courts ............................................................... 705

C. Individual Autonomy and its Role in Judicial Consent Jurisprudence

.......................................................................................................... 706

II. CONSENT IN CONTRACT, MEDICAL TREATMENT, AND CRIMINAL

CONFESSION CASES .............................................................................. 707

A. Consent in Contract Law.................................................................... 707

1. Verbal Signs of Consent ............................................................... 708

2. Nonverbal Signs of Consent ......................................................... 709

B. Consent in Medical Treatment Cases ................................................. 711

1. Voluntary Act of Seeking Medical Treatment as Consent ............ 712

2. Requirement of Verbal Communication of Consent..................... 713

3. The Informed Consent Doctrine in Medical Treatment Cases ..... 714

C. Consent in Criminal Cases Involving Admissibility of Confessions .. 716

1. The Common Law Presumption of Consent ................................. 717

2. The Adoption of the Totality of the Circumstances Standard ...... 718

3. Miranda’s Presumption of Non-Consent in a Custodial

Interrogation ............................................................................ 719

III. SAME QUESTION, BUT DIFFERENT APPROACHES—POSSIBLE

EXPLANATIONS FOR THE DIVERGENCE ................................................ 721

A. Different Contexts, Different Interests, and Different Approaches ..... 721

1. Consent’s Role in Contractual Relationships .............................. 722

2. Role of Consent in Protecting the Rights to Self-Determination and

Bodily Integrity ......................................................................... 723

3. Role of Consent in Protection of Liberty and Against Arbitrary

Government Power ................................................................... 723

B. Judicial Preference of Protection of Liberty Interests Over That of

Economic Interests ............................................................................ 724

C. Significant Social Events Coincided with the Heightened Consent

Inquiry............................................................................................... 726

D. Human Cognitive Biases and Consent Jurisprudence ........................ 727

CONCLUSION ................................................................................................... 728

INTRODUCTION

Consent permeates many different areas of U.S. laws. It has been described

as a concept with “moral magic” powers.

Consent has been used as justification

. Heidi M. Hurd, The Moral Magic of Consent, 2 LEGAL THEORY 121, 121 (1996).

Fall 2022] The Inconsistencies of Consent 701

for imposing civil liability in contract law.

It has shielded people from tort

liability when used, for example, as a defense in assault and battery cases.

Consent has also been used as the basis for using one’s own words against

oneself in criminal prosecutions.

U.S. legal scholars have devoted a lot of attention to the role that consent has

played in laws and judicial consent jurisprudence.

Some have criticized judicial

approaches to ascertaining consent.

Some have been searching for solutions to

the perceived problems.

This essay contributes to the discussion on consent by examining judicial

approaches to determining the existence of consent in three selected areas—

contracts, tort claims involving medical treatment, and criminal cases involving

admissibility of confessions, from the late nineteenth century until the present.

. Chunlin Leonhard, The Unbearable Lightness of Consent in Contract Law, 63 CASE W.

RSRV. L. REV. 57, 59 (2012) [hereinafter Leonhard, Unbearable Lightness of Consent] (“Consent

has morally justified and legitimized government intervention in private contractual

relationships.”).

. Heidi M. Hurd, Blaming the Victim: A Response to the Proposal That Criminal Law

Recognize a General Defense of Contributory Responsibility, 8 BUFF. CRIM. L. REV. 503, 504

(2005) (“[C]onsent turns a rape into love-making, a kidnapping into a Sunday drive, a battery into

a football tackle, a theft into a gift, and a trespass into a dinner party.”).

. See, e.g., United States v. Magness, 69 F.3d 872, 873 (8th Cir. 1995).

. Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning

Analysis, 132 HARV. L. REV. 1135, 1140–42, 1155 (2019) (describing the courts’ treatment of

consent or assent as a “paradigm slip” and the modern contracts as “pseudo-contracts”); Nancy S.

Kim, Relative Consent and Contract Law, 18 NEV. L.J. 165 (2017); Marcy Strauss, Reconstructing

Consent, 92 J. CRIM. L. & CRIMINOLOGY 211, 213 (2001) (arguing that “caselaw fails to consider

the reality that most people will feel compelled to allow the police to search” and “the current

doctrine of consent inherently fosters distrust of police officers as well as the judicial system”).

Social and political scientists have also examined consent from social and political perspectives.

See, e.g., DON HERZOG, HAPPY SLAVES: A CRITIQUE OF CONSENT THEORY 1 (1989).

. Strauss, supra note 5, at 221 (criticizing the Supreme Court’s test for evaluating

voluntariness in consent searches); see also Brandon L. Garrett, The Substance of False

Confessions, 62 STAN. L. REV. 1051 (2010) (examining false confessions in forty cases).

. The American Law Institute’s current effort at drafting the Restatement of Consumer

Contracts is one of the efforts to respond to criticism of the consent doctrine in contracts.

Restatement of the Law, Consumer Contracts, AM. L. INST., https://www.ali.org/projects/show

/consumer-contracts/#_status (last visited March 13, 2022). See also Mark E. Budnitz, The

Restatement of the Law of Consumer Contracts: The American Law Institute’s Impossible Dream,

32 LOY. CONSUMER L. REV. 369, 375 (2020); Kar & Radin, supra note 5, at 1142−43 (proposing

the shared meaning analysis “to bring contract law back into coherence with its core concepts,

principles, and justifications”); Leonhard, Unbearable Lightness of Consent, supra note 2, at 85

(proposing the application of the totality of the circumstances standard to determine consent in

contract disputes).

. This article limits its examination to the three representative areas because of

manageability issues. This article also does not intend to engage in a debate as to whether consent

is sufficient to justify imposition of liability or to excuse certain actions. For a discussion related

702 Catholic University Law Review [Vol. 71:699

This article examines how courts have approached the basic factual question of

finding consent and how judicial approaches in those areas have evolved over

time.

The review shows that the late 19th century saw courts adopting a similar

approach for finding consent across the three areas.

Courts focused on

observable signs of consent, verbal or nonverbal communications, to determine

existence of consent.

They found consent unless circumstances suggested that

the consenting party lacked the power to use their will.

However, courts began to diverge in the early and mid-twentieth century in

their approaches to ascertaining consent. In contract disputes, courts’ consent

approach has remained static, focusing on observable signs of consent or, in

contract law parlance, “manifestations of assent.”

In tort cases involving

medical treatment, courts began requiring more than observable signs of

consent; instead, courts focused on the consenting party’s access to information

and comprehension, described by scholars as the informed consent doctrine.

The judicial consent approach undertook the most dramatic change in criminal

cases involving admissibility of confessions with judicial adoption of

presumption of non-consent in custodial interrogation without the required

warnings.

This essay begins with a discussion of types of verbal and non-verbal

expressions of consent, drawing from social science studies on human

communications. Part II examines judicial approaches to finding consent in the

three selected areas. Part III offers some possible explanations for the divergent

approaches.

This article suggests that multiple factors appear to have contributed to

divergent consent approaches across the three areas. Consent plays a different

to the scope of consent, see a series of articles written by Professor Vera Bergelson. Vera

Bergelson, The 2008 David J. Stoffer Lecture: Autonomy, Dignity, and Consent to Harm, 60

RUTGERS L. REV. 723 (2008); Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of

Consent, 75 GEO. WASH. L. REV. 165 (2007).

. This article continues my previous research related to the consent doctrine in contract law.

See Leonhard, Unbearable Lightness of Consent, supra note 2 (questioning the contract law’s

reliance on consent as justification for use of government power in favor of one contractual party);

Chunlin Leonhard, Dangerous or Benign Legal Fictions, Cognitive Biases, and Consent in

Contract Law, 91 ST. JOHN’S L. REV. 385, 395–400 (2017) [hereinafter Leonhard, Dangerous or

Benign Legal Fictions] (identifying consent in contract law as a dangerous legal fiction).

. See discussion infra Section II.

. See discussion infra Section II(A). Tole v. Hardy, 6 Cow. 333, 339 (N.Y. Sup. Ct. 1826)

(finding “manifestation of assent”); Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 561, 565 (9th

Cir. 2014) (discussing whether failure to cancel a trial subscription constituted a manifestation of

assent to an arbitration provision).

. See discussion infra Section II (B).

. Miranda v. Arizona, 384 U.S. 436, 444 (1966). See discussion infra Section II(C)(3).

Fall 2022] The Inconsistencies of Consent 703

role in contract disputes from that in medical treatment and criminal confession

cases. Courts have adopted a heightened consent inquiry in medical treatment

and criminal confession cases as responses to significant social changes and

increased public awareness of individual rights and the need to protect

individuals from potential abuses and arbitrary government power. In addition,

human cognitive biases—our flawed decision-making process, may have also

contributed to the divergent approaches.

I. THE SEARCH FOR CONSENT AND ITS CHALLENGE

Let us start with the most basic question: how does a court determine when

someone has consented? Because consent is an internal mental status, the

question is easy and difficult to answer. It is easy because as human beings we

have learned how to communicate with each other through verbal and nonverbal

means.

Courts can answer the question by examining observable verbal and

nonverbal signs to determine if someone has consented.

The question can be difficult at the same time, however, because consent is

an internal state of mind.

Scientific studies have shown that observable signs

sometimes may not be a true reflection of an inner mental status.

Unable to

read people’s minds, courts must rely on observable signs, verbal and non-verbal

communications, to ascertain whether a person has consented.

These verbal

and non-verbal communications are essentially reification of consent.

. Lisa Slattery Rashotte, What Does That Smile Mean? The Meaning of Nonverbal

Behaviors in Social Interaction, 65 SOC. PSYCH. Q. 92, 99 (2002).

. Heritage Roofing, LLC v. Fischer, 164 S.W.3d 128, 133 (Mo. Ct. App. 2005) (holding

that party orally accepted terms of written proposal when he stated, “I approve it, I want you to go

ahead and do the work”); Great Am. Fed. Sav. & Loan Ass’n v. Grivas, 484 N.E.2d 429, 434 (Ill.

App. Ct. 1985) (denying reformation of lease where lessee signed lease and court found no mistake

of fact, fraud, or misrepresentation despite the lessee’s contention that he did not read the terms of

the lease).

. Hurd, supra note 1, at 124–25.

. Alan M. White, Behavior and Contract, 27 L. & INEQ. 135, 150 (2009) (“People’s

preferences are highly contingent on situational factors, such as the framing of choices and the

channels by which choices are offered, and are thus readily subject to seller manipulation.”).

. Grivas, 484 N.E.2d at 434 (denying reformation of lease where lessee signed lease and

court found no mistake of fact, fraud, or misrepresentation despite the lessee’s contention that he

did not read the terms of the lease); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1165 (7th Cir. 1996)

(holding defendant accepted terms of license after purchasing and keeping the product after having

a chance to read the terms of the license).

704 Catholic University Law Review [Vol. 71:699

A. Observable Signs of an Internal Mental Status

How do courts determine whether someone has consented when there is a

dispute about it?

That task is made easier because of the human ability to think

and communicate in using speech.

A unique feature of human language is its

ability to transmit information about abstract concepts.

Human beings can thus

communicate with each other through verbal as well as nonverbal means even

though no one can observe internal mental processes.

When human beings communicate through words, either oral or written, it is

referred to as verbal communication.

Verbal communication allows humans

to express their internal mental processes with each other because human beings

have learned to associate meaning with oral or written words.

For example,

we have learned to associate the word “yes” to denote the abstract concept of

consent or agreement.

It is also commonly understood that someone agrees to

the terms of an agreement when the person signs on the signature line of a

document.

Humans can also communicate their internal mental processes through non-

verbal means.

Nonverbal communication is defined as “a process of

generating meaning using behavior other than words.”

Nonverbal

communication includes vocal elements, which is referred to as paralanguage

and includes pitch, volume, and rate.

Nonverbal communications also include

non-vocal elements such as body language, gestures such as raising hands,

shaking another person’s hand, pushing a button, facial expressions, and eye

. Courts have generally treated the existence of consent as a question of fact. Highland

Cap. Mgmt., L.P. v. Bank of Am., 698 F.3d 202, 206 (5th Cir. 2012) (“With respect to oral

contracts, whether a contracting party intends to be bound is a question of fact for the factfinder to

resolve.”); United States v. Janis, 387 F.3d 682, 686 (8th Cir. 2004) (“Voluntariness of consent is

a question of fact determined by viewing the totality of relevant circumstances.”).

. YUVAL NOAH HARARI, SAPIENS: A BRIEF HISTORY OF HUMANKIND 21 (2015).

. Id. at 24.

. DAVID CRYSTAL, HOW LANGUAGE WORKS: HOW BABIES BABBLE, WORDS CHANGE

MEANING, AND LANGUAGES LIVE OR DIE (2005).

. COMMUNICATION IN THE REAL WORLD: AN INTRODUCTION TO COMMUNICATION

STUDIES 2 (Univ. of Minn. Librs. Publ’g 2d. ed. 2016) [hereinafter COMMUNICATION IN THE REAL

WORLD].

. Tom W. Bell, Graduated Consent in Contract and Tort Law: Toward a Theory of

Justification, 61 CASE W. RES. L. REV. 17, 19 (2010) (“We often speak of consent in binary terms,

boiling it down to ‘yes’ or ‘no.’ That reflects one of the most fundamental features of social life, a

phenomenon so widely observed as almost to escape mention: we generally smile on consensual

transactions but frown on unconsensual ones.”).

. Orit Gan, The Many Faces of Contractual Consent, 65 DRAKE L. REV. 615, 637 (“Consent

can be oral, such as a stated agreement, or behavioral, such as the click of a mouse or signature of

a document.”).

. COMMUNICATION IN THE REAL WORLD, supra note 25, at 164.

. Id.

. Id. at 165.

Fall 2022] The Inconsistencies of Consent 705

contact, among others.

For example, in most cultures, one can indicate consent

by nodding one’s head or by making certain hand gestures. At times, one can

also infer consent from another’s silence, action or inaction depending on the

circumstances.

Verbal and nonverbal communications work as part of a larger language

system, but they have notable differences.

First, verbal communication and

nonverbal communication are processed by different hemispheres of the brain.

Next, nonverbal communication “conveys more emotional and affective

meaning” and “typically conveys more meaning than verbal communication.”

Nonverbal communication is more involuntary and more ambiguous than verbal

communication.

Finally, nonverbal communication can be more credible than

verbal communication.

When there is a dispute about the existence of consent, courts have to rely on

evidence to resolve the dispute because of their inability to read the parties’

minds. Evidence of verbal and nonverbal communications, observable signs of

a person’s mental processes, thus allows courts to determine whether a party

consented.

B. The Challenge to the Courts

Reliance on observable signs of consent raises multiple questions. One

problem is that the observable signs may not reflect the mental status

accurately.

In other words, we may not say what we mean. Another problem

is that even when observable signs (such as signing a contract) accurately reflect

mental status, the mental status itself may be manipulated by some external

factor.

In other words, we may say what we mean, but we may not know what

we are saying.

These possible discrepancies between observable signs of

consent and mental status have created the challenge with which courts have had

to wrestle.

. Id.

. See Peter Tiersma, The Language of Silence, 48 RUTGERS L. REV. 1, 3 (1995) ( “[M]ost

of us would acknowledge that silence can at times be fraught with meaning. Indeed, there are a

surprising number of legal contexts where a person’s failure to act may be quite significant.”).

. COMMUNICATION IN THE REAL WORLD, supra note 25, at 174.

. Id.

. Grivas, 484 N.E.2d at 434 (denying reformation of lease where lessee signed lease and

court found no mistake of fact, fraud, or misrepresentation despite the lessee’s contention that he

did not read the terms of the lease); Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997).

. DANIEL KAHNEMAN, THINKING, FAST AND SLOW 8–10 (2011).

. Id.; see also Chunlin Leonhard, Subprime Mortgages and the Case for Broadening the

Duty of Good Faith, 45 U.S.F. L. REV. 621 (2011); White, supra note 19 at 150.

. White, supra note 19 at 149–50.

706 Catholic University Law Review [Vol. 71:699

Psychological and behavioral research over the last four decades has shed

more light on how human beings think.

These studies show that humans suffer

from predictable cognitive biases which consistently lead to decisional errors.

The predictability of our human biases also makes human beings easy target of

manipulation.

This means that human will itself can be manipulated.

Scientific findings show that determining when someone has consented is not

easy.

If human will itself is manipulated, courts are faced with some difficult

questions. Should the court only concern itself with observable signs of

consent? Or should the law concern itself with honoring human will? The

challenge courts are facing is this discrepancy between observable signs of

consent and the internal state of human will free of outside influence.

C. Individual Autonomy and its Role in Judicial Consent Jurisprudence

The desire to honor a person’s consent is rooted in our belief in individual

autonomy and freedom.

Consent understandably serves as justification for

imposing or avoiding legal liability or waiving certain rights.

The question is

what type of consent actually optimizes and protects individual autonomy.

Legal scholars generally agree that, in order for consent to reflect individual

autonomy which the law is trying to promote, certain conditions have to be

met.

Autonomy-promoting consent exists where a person’s consent is

voluntary (voluntariness) and the person has access to necessary information,

and the ability to comprehend that information.

Therefore, in order to truly

. Kahneman, supra note 39.

. Id. at 10; White, supra note 19 at 149–50.

. Dan Ariely, PREDICTABLY IRRATIONAL, REVISED AND EXPANDED EDITION: THE

HIDDEN FORCES THAT SHAPE OUR DECISIONS 321 (2009).

. Id.

. RUTH R. FADEN & TOM L. BEAUCHAMP, A HISTORY AND THEORY OF INFORMED

CONSENT 7–8 (1986); Robin West, Authority, Autonomy, and Choice: The Role of Consent in the

Moral and Political Visions of Franz Kafka and Richard Posner, 99 HARV. L. REV. 384, 384

(1985).

. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996) (enforcing shrink wrap

license); Leonhard, Unbearable Lightness of Consent, supra note 2, at 59 (“Consent has morally

justified and legitimized government intervention in private contractual relationships.”); Strauss,

supra note 5, at 257 (“Consent is a personal waiver of Fourth Amendment rights, a personal

relinquishment of rights of privacy.”).

. Scholars have formulated the conditions for a valid consent slightly differently. Professor

Nancy S. Kim described the different formulations of the conditions in her article. See Kim, supra

note 5, at 169–173 (describing the conditions promoting autonomy as intentionality, understanding,

and voluntariness and focusing her analyses on her own formulation of conditions as an intentional

act, knowledge, and voluntariness).

. The Belmont Report: Ethical Principles and Guidelines for the Protection of Human

Subjects of Research, NAT’L COMM’N FOR THE PROT. OF HUM. SUBJECTS OF BIOMEDICAL AND

Fall 2022] The Inconsistencies of Consent 707

honor individual autonomy, courts should only hold the consenting party

accountable where their consent is a result of voluntariness, information, and

comprehension.

Scholars have labeled this type of consent as “informed

consent.”

Observable signs of consent may evidence voluntariness by means of an act

either through verbal or nonverbal communication. They are, however, no proof

that the voluntary act means consent based on access to information and

comprehension. For ease of reference, this article uses the term, simple consent,

to denote consent based merely on observable signs of consent whether verbal

or non-verbal but without evaluation of the information or comprehension

elements,

to differentiate it from the informed consent approach which

considers all three elements.

II. CONSENT IN CONTRACT, MEDICAL TREATMENT, AND CRIMINAL

CONFESSION CASES

A review of selected cases shows that the judicial consent approaches across

the three areas started from a similar position in the late nineteenth century.

Courts’ search for consent focused on observable signs of consent and

recognized the importance of voluntariness through defenses such as duress,

undue influence, or coercion.

In other words, all courts began with the simple

consent approach.

In contract disputes, courts’ consent approach has stayed constant throughout

the examined period and retains the simple consent approach to this day. In

medical treatment cases however, courts have over time evolved from the simple

consent approach to a search for informed consent. In criminal confession cases,

the courts’ approach to consent also changed dramatically over time with the

adoption of a presumption of non-consent in custodial interrogations.

A. Consent in Contract Law

Consent plays a prominent role in contract law because consent of the parties

remains the justification for courts to exercise state power to enforce private

BEHAV. RSCH. (1979), https://www.hhs.gov/ohrp/sites/default/files/the-belmont-report-508c_

FINAL.pdf (last visited Feb. 14, 2021) [hereinafter Belmont Report].

. Kim, supra note 5, at 169–70.

. Belmont Report, supra note 50; Kim, supra note 5, at 171.

. This term was used by Dr. Simon N. Whitney et al., in their article, A Typology of Shared

Decision Making, Informed Consent, and Simple Consent, 140 ANNALS INTERNAL MED. 54, 55

(2004) (where simple consent occurs by verbal or non-verbal communication such as “accepting

and filling a prescription or by choosing fish instead of steak when advised to eat a more heart-

healthy diet.”).

. See Sparf v. United States, 156 U.S. 51, 55 (1895); Wilson v. United States, 162 U. S.

613, 623 (1896); Brown v. Mississippi, 297 U.S. 278, 286 (1936).

708 Catholic University Law Review [Vol. 71:699

agreements.

If a party has consented to the terms of the agreement, then the

consent creates obligation on the part of the consenter.

The search for evidence

of consent is thus the courts’ primary focus when parties dispute that they have

consented.

In their search for consent in contract disputes, courts have focused on

observable signs of consent, both verbal and nonverbal, since the late nineteenth

century. Courts have referred to these observable signs as “manifestations of

assent.”

Courts’ approach remains the same today despite the tremendous

technological changes in business practices our society has experienced over the

last few decades with the ascent of the internet and e-commerce.

1. Verbal Signs of Consent

Courts have generally accepted a party’s signature (verbal communication) as

evidence of consent absent situations which would trigger contract law defenses

since the late 19th century.

One’s signature is an observable sign of consent.

Indeed, courts treat written contracts as the highest evidence of the terms of an

agreement and impose a duty on every contracting party to learn and know its

contents before signing.

Courts even enforce a contract against a party where

the party signed the agreement even if they did not read it.

. G. Richard Shell, Contracts in the Modern Supreme Court, 81 CALIF. L. REV. 433, 493

(1993).

. Arthur L. Corbin, Offer and Acceptance, and Some of the Resulting Legal Relations, 26

YALE L.J. 169, 171 (1917).

. Tole, 6 Cow. at 339; Knutson, 771 F.3d at 561, 565 (discussing whether failure to cancel

a trial subscription constituted a manifestation of assent to an arbitration provision).

. Kar & Radin, supra note 5, at 1140–42 (describing the changes that technology has

brought about to our society while contract law has remained the same resulting in lack of

coherence between the meaning and function of the core contract law concepts such as consent).

. Coolidge v. Puaaiki, 3 Haw. 810, 814 (1877); Grivas, 484 N.E.2d at 434 (denying

reformation of lease where lessee signed lease and court found no mistake of fact, fraud, or

misrepresentation despite the lessee’s contention that he did not read the terms of the lease).

. Coolidge, 3 Haw. at 813 (“The laborers signed the contract intelligently and there is no

allegation made that either of the parties here have been sent to any place or subjected to any

exposure which was not reasonably contemplated by themselves when they signed the contract.”).

. Vargas v. Esquire. Inc., 166 F.2d 651, 654 (7th Cir. 1948) (“It is a rule universally

recognized that a written contract is the highest evidence of the terms of an agreement, and it is the

duty of every contracting party to learn and know its contents before he signs it.”).

. Oelze v. Score Sports Venture, LLC, 927 N.E.2d 137, 144 (Ill. App. Ct. 2010);

Montgomery v. Fidelity & Guar. Life Ins. Co., 713 N.W.2d 801, 803 (Mich. Ct. App. 2005) (“It is

well established that failure to read an agreement is not a valid defense to enforcement of a

contract.”); Huber v. Hovey, 501 N.W.2d 53, 55 (Iowa 1993) (rejecting appellee’s argument that

release was invalid because he did not read it) (“It is well settled that failure to read a contract

before signing it will not invalidate the contract.”); Computer Network, Ltd. v. Purcell Tire &

Rubber Co., 747 S.W.2d 669, 675 (Mo. Ct. App. 1988).

Fall 2022] The Inconsistencies of Consent 709

Courts have also found consent where consent was communicated orally,

another observable sign of consent. Courts have often enforced an oral contract

unless writing is specifically required by statutes of fraud.

With the advent of e-commerce in recent decades, courts have found consent

based on the digital versions of verbal communication of consent—clicking “I

accept” or “I agree,” also known as clickwrap agreements.

Many businesses

have established an online presence and use standard form agreements with

boilerplate clauses. Website users are sometimes required to click an “I agree”

box after being presented with a list of terms and conditions of use or with a link

to those terms.

For example, in Holl v. United Parcel Service, the District Court for the

Northern District of California enforced an arbitration clause against the plaintiff

where the plaintiff checked a box when signing up for the defendant’s

program.

The text next to the box read, “[b]y selecting this checkbox and the

Continue button, I agree to the UPS Technology Agreement and the UPS My

Choice® Service Terms.”

The actual terms were hyperlinked next to the

checkbox. The court found that the plaintiff was provided with an opportunity

to review the terms of service and was put on “inquiry notice” of the terms.

The court rejected plaintiff’s argument that the plaintiff did not meaningfully

consent to the terms.

Apparently, the plaintiff’s act of clicking the box is

sufficient as evidence of consent.

2. Nonverbal Signs of Consent

U.S. courts have also found consent to contract terms based on nonverbal

signs. For example, courts have found that the consent is satisfied where one

party noticed the contract terms and did not return the product.

In these cases,

. Heritage Roofing, LLC, 164 S.W.3d at 135 (holding that party orally accepted terms of

written proposal when he stated “I approve it, I want you to go ahead and do the work.”); Tymon

v. Linoki, 213 N.E.2d 661, 663 (N.Y. 1965) (holding enforceable contract of sale was made when

plaintiff orally accepted written offer).

. I. Lan Sys., Inc. v. Netscout Serv. Level Corp., 183 F.Supp.2d 328, 338 (D. Mass 2002);

Ranazzi v. Amazon.com, Inc., 46 N.E.3d 213, 218 (Ohio Ct. App. 2015); Collins P. Marks, There

Oughta Be a Law: What Corporate Social Responsibility Can Teach Us About Consumer Contract

Formation, 32 LOY. CONSUMER L. REV. 498, 499 (2020).

. Marks, supra note 64, at 499.

. Holl v. United Parcel Service, No. 16-cv-05856, 2017 U.S. Dist. LEXIS 153317, at *5

(N.D. Cal. Sept. 18, 2017).

. Id. at *3.

. Id. at *14.

. Id. at *12–13.

. Lewis v. Meginniss, 12 So.19, 21 (Fla. 1892) (describing the “well-recognized principle

of law that, where one person performs services for another at his request, or where services are

rendered by one person for another without his expressed request, but with his knowledge and under

710 Catholic University Law Review [Vol. 71:699

courts assume the nonverbal act⎯noticing the product and failing to return the

product, constitutes evidence of consent.

In Carnival Cruise Lines v. Shute, the United States Supreme Court enforced

a forum selection clause included among three pages of terms attached to a

boarding ticket for a cruise ship vacation.

The Supreme Court enforced the

forum selection clause because the buyers had notice of the terms and considered

the plaintiff’s conduct of going on the cruise, a non-verbal communication, as

evidence of consent.

Following the Carnival Cruise Lines case, courts began enforcing agreements

against a consenting party where the party communicated consent non-verbally,

for example, by keeping a product.

In those cases, buyers typically purchased

a product without seeing the contract terms.

Courts enforced the contract term

against the buyer because the buyer kept the products after they had notice of

the terms.

The act of keeping the product is treated as evidence of consent.

For example, in Hill v. Gateway 2000, Inc., plaintiff buyers who had

purchased computers through a telephone order sued the manufacturer under the

Civil Racketeer Influenced and Corrupt Organizations Act among others.

The

manufacturer tried to enforce the arbitration clause included in terms sent to

buyers together with the computers.

The lower court refused to enforce the

agreement and the manufacturer appealed.

Judge Easterbrook found that the

terms sent in box, which stated that they governed sale unless computer was

returned within 30 days, were binding on the plaintiffs.

Judge Easterbrook

apparently treated the act of keeping the computers as non-verbal

communication of consent.

In some cases, courts found apparent consent where business websites state

that website visitors agree to the terms by browsing the site’s content as long as

circumstances which give rise to the presumption of a promise to pay for them, reasonable

compensation may be recovered”); Hill, 105 F.3d at 1150; ProCD, Inc. v. Zeidenberg, 86 F.3d

1447, 1452–53 (7th Cir. 1996); Adobe Sys., Inc. v. Stargate Software Inc., 216 F. Supp. 2d 1051,

1060 (N.D. Cal. 2002).

. Carnival Cruise Lines v. Shute, 499 U.S. 585, 587, 595 (1991).

. Id. at 593–97.

. ProCD, Inc., 86 F.3d at 1452–53; Rinaldi v. Iomega Corp., No. 98C-09-064, 1999 Del.

Super. LEXIS 563 at *1, 19 (Super. Ct. Sept. 3, 1999).

. Hill, 105 F.3d at 1150.

. Id.

. Id. at 1148.

. Id.

. Id. at 1148–49.

. Id. at 1149; see also ProCD, Inc., 86 F.3d at 1452–53.

Fall 2022] The Inconsistencies of Consent 711

there was some evidence that the consenting party was aware of the terms.

Pollstar v. Gigmania, Ltd., plaintiff Pollstar allowed internet users, subject to a

license agreement, to download concert information published on Pollstar’s

website.

Pollstar alleged defendant Gigmania breached the license agreement

by copying information from Pollstar’s website and using it on Gigmania’s

website for commercial purposes.

On a defense motion to dismiss, Gigmania

argued that there was a lack of mutual consent to the license agreement because

the web page containing the agreement was only linked to the homepage, and

while the homepage contained a notice stating “use is subject to license

agreement,” it appeared in gray print with a gray background.

While

acknowledging that website users might be unaware of the agreement, the court

refused to declare the invalidity and unenforceability of the license agreement.

The court noted that it was possible for people to “enter into a contract by using

a service without first seeing the terms.”

In conclusion, in adjudicating contract disputes, courts seem to be satisfied

that consent exists where a person acted voluntarily, for example, by signing or

clicking a button or keeping a product without any objections. Courts’ search

for consent does not go beyond observable signs of consent.

B. Consent in Medical Treatment Cases

In medical treatment cases, consent becomes an issue when a defendant raises

it as a defense against a plaintiff’s attempt to seek recovery for injury caused by

a treatment. The consent issue can arise in multiple scenarios. One scenario is

that the defendant did not obtain any consent at all.

Another is that the

defendant obtained consent for one treatment but provided a different

. Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 401 (2d Cir. 2004) (enforcing a

browsewrap agreement based on defendant’s admission that he was aware of the terms); Specht v.

Netscape Commc’ns Corp., 306 F.3d 17, 35 (2d Cir. 2002) (refusing to enforce a browsewrap

contract because of lack of mutual assent).

. Pollstar v. Gigmania Ltd., 170 F. Supp. 2d 974, 976 (E.D. Cal. 2000).

. Id. at 976–77.

. Id. at 980–81.

. Id. at 981–82.

. Id. at 982.

. Carnival Cruise Lines v. Shute, 499 U.S. 585, 595 (1991); ProCD, Inc., 86 F.3d at 1452–

53.

. To keep this article’s examination more manageable, this article focuses only on judicial

approaches to consent in medical treatment cases. Consent is a shield against imposition of liability

in many different types of tort claims. RESTATEMENT (SECOND) OF TORTS § 892A cmt. a (AM.

LAW INST. 1979) (“[N]o one suffers a legal wrong as the result of an act to which, unaffected by

fraud, mistake or duress, he freely consents or to which he manifests apparent consent.”).

. Shulman v. Lerner, 141 N.W.2d 348, 348–49 (Mich. Ct. App. 1966).

712 Catholic University Law Review [Vol. 71:699

treatment.

The third scenario is where the defendant obtained consent for and

provided the treatment, but the plaintiffs argue that they would not have given

consent had the doctor advised them of all the risks.

In all three situations,

courts have to determine if the plaintiffs in fact consented to the treatment.

Courts in the late nineteenth century treated the act of seeking a physician’s

treatment as a form of non-verbal consent.

Eventually, courts rejected the

implicit consent approach and began to focus on the quality of consent.

Today,

all states have adopted the informed consent standard in medical treatment

cases.

1. Voluntary Act of Seeking Medical Treatment as Consent

Courts began wrestling with the consent issue involving medical treatments

in the late nineteenth century.

When a plaintiff raised lack of consent as the

basis for recovery, courts treated the plaintiff patient’s seeking medical

treatment as “consent” for a doctor to perform an operation and the only basis

for recovery in that situation would be under a negligence theory.

For example, in the 1898 Sullivan v. McGraw case, the plaintiff sued a doctor

to recover damages for the wrongful operation upon the plaintiff’s left leg when

the defendant was employed to operate upon the right leg.

The plaintiff alleged

that the “defendant wrongfully and carelessly operated upon the left leg, thereby

causing plaintiff great pain and suffering.”

The plaintiff argued that he did not

consent to the operation on the left leg.

The lower court rejected the consent

argument and treated the case as resting on a negligence theory.

100

The lower

court noted that the plaintiff had gone to the doctor for the purpose of having an

operation, suggesting that the plaintiff’s visit at the doctor was deemed as

consent implied from the plaintiff’s conduct.

101

The lower court then directed a

verdict for the defendant because of lack of evidence of any negligence. On

appeal, the Michigan Supreme Court affirmed the lower court’s statement on the

. Mohr v. Williams, 104 N.W. 12, 13 (Minn. 1905); In re Estate of Johnson, 16 N.W.2d

504, 507 (Neb. 1944).

. Rodriguez v. N.Y.C. Health & Hosps. Corp., 858 N.Y.S.2d 99, 101 (N.Y. App. Div.

2008).

. Sullivan v. McGraw, 76 N.W. 149, 150–51 (Mich. 1898).

. Salgo v. Leland Stanford Jr. Univ. Bd. of Trs., 317 P.2d 170, 181 (Cal. Ct. App. 1957).

. Anthony Szczygiel, Beyond Informed Consent, 21 OHIO N.U. L. REV. 171, 172 (1994).

. FADEN & BEAUCHAMP, supra note 47, at 7–8.

. Sullivan, 76 N.W. at 150–51.

. Id. at 149.

. Id.

. Id. at 150.

100

. Id. at 150–51.

101

. Id.

Fall 2022] The Inconsistencies of Consent 713

consent issue.

102

The courts accepted the plaintiff’s voluntary act of seeking

medical treatment as evidence of consent.

2. Requirement of Verbal Communication of Consent

A few years later, an Illinois court rejected the idea of a broad implicit consent

simply by seeking treatment.

103

In Pratt v. Davis, Mrs. Pratt sued a physician

for battery because he performed a hysterectomy on her without first obtaining

her consent. The plaintiff did not allege the operation was unskillfully

performed.

104

The physician had obtained her consent for an earlier operation,

but admitted he had not even attempted to get consent for the second

procedure.

105

The physician acknowledged he had intentionally misled the

plaintiff and had taken chances of which she had been completely unaware.

106

The doctor claimed that because Mrs. Pratt was an epileptic, she was

incompetent to give consent or to deliberate intelligently about her situation.

107

The court held the physician liable for operating without consent.

108

The Illinois

Supreme Court subsequently affirmed the appellate court’s reasoning.

109

While acknowledging the broad rule regarding the implied consent, the

appellate court rejected the defense argument that the plaintiff’s voluntary act of

seeking treatment gave the consent for him to do whatever he might have

deemed necessary.

110

The court limited the implied consent to specific

procedures and not to seeking medical treatment in general.

111

The court held

that the surgeon had to obtain express consent from the patient before the

surgeon could engage in a serious, major operation.

112

Eight years later, the Supreme Court of Oklahoma extended the reasoning in

the Pratt case to narrowly interpret the scope of a patient’s consent.

113

In Rolater

v. Strain, a woman sued her physician after he removed a sesamoid bone from

her foot during an operation.

114

The plaintiff had consented to the operation to

drain an infection, but had instructed the doctor not to remove any bones from

102

. Id. at 151.

103

. Pratt v. Davis, 118 Ill. App. 161 (Ill. App. Ct. 1905), aff’d, 79 N.E. 562 (Ill. 1906).

104

. Id. at 180.

105

. Id. at 170.

106

. Id.

107

. Id.

108

. Id. at 183–84.

109

. Pratt, 79 N.E. at 565.

110

. Pratt, 118 Ill. App. at 166.

111

. Id.

112

. Id. at 166–67; see also Mohr, 104 N.W. at 14−15 (adopting the reasoning of the Pratt

court and holding that the surgeon should have consulted with the patient and obtained her consent

before performing any surgery).

113

. Rolater v. Strain, 137 P. 96, 98 (Okla. 1913).

114

. Id. at 96.

714 Catholic University Law Review [Vol. 71:699

her foot.

115

The defendant argued that Mohr v. Williams did not apply because

he obtained the patient’s consent to operate on the foot and he operated on the

correct foot.

116

The court rejected the argument and held that the principles of

the earlier cases applied to the facts.

117

The court noted that the doctor did not

operate on the foot in the exact manner that the patient had consented to.

118

With those cases, courts moved away from the earlier implicit consent rule

based on nonverbal communication⎯the seeking of medical treatment. Courts

required doctors to obtain the patient’s explicit consent before they could operate

on a patient, except for certain life-threatening emergencies.

119

3. The Informed Consent Doctrine in Medical Treatment Cases

Courts in early twentieth century cases discussed the consent issue related to

lack of consent and scope of consent, i.e., whether a doctor needed to obtain

consent at all and the scope of the consent. They did not focus on the quality of

the consent until a few decades later.

120

In 1957, a California court first addressed quality of consent in Salgo v. Leland

Standford Jr. University Board of Trustees.

121

Mr. Salgo brought a malpractice

suit against his physicians alleging negligence when he became permanently

paralyzed after having undergone an aortography.

122

Mr. Salgo’s doctor had

recommended the surgery and the patient consented to the procedure.

123

Mr.

Salgo argued that the doctor never explained the various possible complications

of the suggested procedures or warned him about the risk of potential

paralysis.

124

The court stated that “[a] physician violates his duty to his patient

and subjects himself to liability if he withholds any facts which are necessary to

form the basis of an intelligent consent by the patient to the proposed

treatment.”

125

The court specified that the information

needed

make

telligen

decision included

the harms,

benefits,

risks and

alternativ

of the

proposed procedure.

126

The court left it to the doctor’s discretion to decide how

much information to disclose to the patient

127

The Salgo court thus imposed a

115

. Id. at 97.

116

. Id. at 98.

117

. Id.

118

. Id.

119

. Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914) (relying on Pratt and

Mohr for support).

120

. Salgo, 317 P.2d at 181.

121

. Id.

122

. Id. at 172–75.

123

. Id. at 173.

124

. Id. at 181.

125

. Id.

126

. Id.

127

. Id.

Fall 2022] The Inconsistencies of Consent 715

duty on the doctor to disclose the facts necessary to form the basis of an

“intelligent consent.”

128

Subsequent to Salgo, the Supreme Court of Kansas recognized the duty to

disclose rule in a negligence claim.

129

In Natanson v. Kline, the plaintiff suffered

from breast cancer and had a mastectomy.

130

She then endured cobalt therapy

to the mastectomy site to reduce the chance that the cancer would spread.

131

After she was injured from the cobalt radiation therapy, she sued her radiologist

for negligence both in the performance of the procedure and in failing to warn

her about the nature and hazards of the treatment.

132

The court outlined the duty

of disclosure as “the obligation of a physician to disclose and explain to the

patient in language as simple as necessary, the nature of the ailment, the nature

of the proposed treatment, the probability of success or of alternatives, and

perhaps the risks of unfortunate results and unforeseen conditions within the

body.”

133

By imposing a duty to disclose on the defendant, courts refuse to accept verbal

and nonverbal communication of consent alone as evidence of consent.

134

Instead, plaintiffs have to give consent while having access to the necessary

information and comprehension, i.e., plaintiffs’ consent has to be informed.

The informed consent doctrine has now been firmly established in medical

treatment cases.

135

All U.S. jurisdictions have adopted it.

136

States began

codifying the informed consent doctrine between 1957 and 1988.

137

All states

have now enacted statutes mandating informed consent before a physician can

provide any medical treatment.

138

128

. Id.

129

. Natanson v. Kline, 350 P.2d 1093 (Kan. 1960).

130

. Id. at 1095.

131

. Id. at 1096.

132

. Id. at 1098–99.

133

. Id. at 1106. It is beyond the scope of this paper to examine the exact contours of the duty

to disclose. The scope of the duty to disclose and the precise standard to measure if the duty to

disclose has been complied with is a subject of intense scholarly discussion. See generally David

M. Studdert et al., Geographic Variation in Informed Consent Law: Two Standards for Disclosure

of Treatment Risks, 4 J. EMPIRICAL LEGAL STUD. 103 (2007); Marc D. Ginsberg, Informed

Consent: No Longer Just What the Doctor Ordered?, 15 MICH. ST. U.J. MED. & L. 17 (2010).

134

. Jay Katz, Informed Consent

⎯

Must It Remain a Fairy Tale?, 10 J. CONTEMP. HEALTH L.

& POL’Y 69, 72 (1993) (noting that “the doctrine of informed consent, if taken seriously, constitutes

a revolutionary break with customary practice”).

135

. Szczygiel, supra note 94, at 172.

136

. Id.

137

. Id. at 189–90.

138

. For interesting discussions about the codification efforts, see Kandy G. Webb, Recent

Medical Malpractice Legislation—A First Checkup, 50 TUL. L. REV. 631, 675 (1976).

716 Catholic University Law Review [Vol. 71:699

C. Consent in Criminal Cases Involving Admissibility of Confessions

Consent also features prominently in criminal cases as the basis to determine

when defendants’ own words can be used against them.

139

The U.S.

Constitution prohibits the government from compelling individuals in a criminal

case to be witnesses against themselves.

140

Defendants may waive the right

based on consent.

141

The observable sign of consent in this context is a

defendant’s making of oral statements or signing a written statement.

142

Consent

justifies the use of defendants’ incriminating statements against them despite the

constitutional prohibition.

143

The late 19th century saw courts treating the act of making a confession as

consent unless the circumstances suggested the act was not voluntary.

144

The

U.S. Supreme Court then elevated the consent issue as a matter of constitutional

due process and eventually adopted the totality of the circumstances standard to

ascertain the existence of consent.

145

The Court focused its inquiry on the

accused’s access to information, whether the information was comprehended,

and whether the act of consenting was voluntary.

146

The courts use this totality

of the circumstances standard essentially to ascertain if the defendant’s waiver

was based on informed consent.

147

However, the Court did not stop with the totality of the circumstances

standard. In 1966, with Miranda v. Arizona, the Court took a dramatic turn and

rejected a finding of consent based on verbal and non-verbal communication in

the making or signing of a confession when the accused was in a custodial

interrogation.

148

The Court essentially adopted a presumption of non-consent in

a custodial interrogation unless the necessary information has been provided.

149

139

. Hopt v. Utah, 110 U.S. 574, 579 (1884); Bram v. United States, 168 U.S. 532, 541–42

(1897); Haynes v. Washington, 373 U.S. 503, 514 (1963).

140

. U.S. CONST. amend. V.

141

. Miranda v. Arizona, 384 U.S. 436, 478 (1966); United States v. Santos, 131 F.3d 16, 19

(1st Cir. 1997) (finding confessions voluntary after defendant alleged they were involuntary due to

his “mental disease” and the conduct of Secret Service agents who interviewed him).

142

. Santos, 131 F.3d at 19.

143

. Some scholars may question whether the confession cases are really decided on the basis

of free will or choice. Yale Kamisar, On the Fortieth Anniversary of the Miranda Case: Why We

Needed It, How We Got It—and What Happened to It, 5 OHIO ST. J. CRIM. L. 163, 164–65 (2007).

That debate is beyond the scope of this article. It is also beyond the scope of this article to examine

whether consent should justify a finding of waiver of a constitutional right.

144

. Hopt, 110 U.S. at 585.

145

. Haynes, 373 U.S. at 514.

146

. Id. at 513–14.

147

. Id.

148

. Miranda, 384 U.S. at 457–58, 467–68.

149

. Id. at 467–69, 475–76.

Fall 2022] The Inconsistencies of Consent 717

1. The Common Law Presumption of Consent

In assessing whether the accused confessed voluntarily, the late nineteenth

century courts focused on observable signs of consent—the making or the

signing of the confession by itself—as evidence of consent unless the

circumstances showed that the accused did not do so voluntarily.

150

The courts

presumed that an innocent person would not imperil their safety or prejudice

their interests by an untrue statement.

151

Based on that presumption, courts

found a confession voluntary in the absence of inducements, promises, and

threats.

152

For example, courts found confessions voluntary if the defendant made the

statements voluntarily and the statements were not obtained by putting the

prisoner in fear or by promises.

153

The fact that the defendant was in custody

and in irons did not destroy the competency of a confession.

154

Imprisonment

was not, in itself, sufficient to justify the exclusion of a confession.

155

In Hopt v. Utah, the Court found that the defendant consented when he made

the confession voluntarily without requiring additional evidence of non-

coercion.

156

The witness, a detective, arrested the defendant at a railroad

depot.

157

The detective then sent the defendant to jail with a policeman while

he remained behind.

158

A few minutes later, the detective rejoined the defendant

and the policeman.

159

The accused confessed to the detective at that time.

160

During the trial, the detective testified that the defendant made the confession

voluntarily, “uninfluenced by hopes of reward or fear of punishment.”

161

appeal, the defendant argued that the court should have excluded the confession

150

. Steven Penney, Theories of Confession Admissibility: A Historical View, 25 AM. J. CRIM.

L. 309, 320, 328–29 (1998) (“Given the myriad ways in which early modern Anglo-American

criminal procedure compelled incriminating testimony from the accused, it is not surprising that

confessions were considered admissible no matter how they were obtained.”).

151

. Hopt, 110 U.S. at 585.

152

. Id.; Pierce v. United States, 160 U.S. 355, 357 (1896).

153

. Sparf, 156 U.S. 51, 55 (1895); Wilson v. United States, 162 U. S. 613, 622 (1896) (“But

the presumption upon which weight is given to such evidence, namely, that one who is innocent

will not imperil his safety or prejudice his interests by an untrue statement, ceases when the

confession appears to have been made either in consequence of inducements of a temporal nature,

held out by one in authority touching the charge preferred, or because of a threat or promise, by or

in the presence of such person, which, operating upon the fears or hopes of the accused in reference

to the charge, deprives him of that freedom of will or self-control essential to make his confession

voluntary within the meaning of the law.”).

154

. Sparf, 156 U.S. at 55.

155

. Id.; see also Wilson, 162 U. S. at 623.

156

. Hopt, 110 U.S. at 585.

157

. Id. at 584.

158

. Id.

159

. Id.

160

. Id.

161

. Id.

718 Catholic University Law Review [Vol. 71:699

and required that the prosecution prove that the policeman did not do anything

with the defendant outside of the detective’s presence to unduly influence the

confession.

162

The U.S. Supreme Court rejected the defendant’s argument.

163

2. The Adoption of the Totality of the Circumstances Standard

Over the next three decades, judicial decisions show that the courts became

more aware of the effect of psychologically coercive pressures and inducements

on the mind and will of an accused.

164

The consent question took on

constitutional dimension in 1936 when the Court held that admission of a

coerced confession would deny the accused due process under the Fourteenth

Amendment.

165

The Court found that coerced confessions and resulting

convictions would be “revolting to the sense of justice” and “a clear denial of

due process.”

166

In 1963, the Court adopted the totality of the circumstances standard in

Haynes v. Washington to determine whether a defendant’s confession was

voluntary.

167

Under that test, courts would examine almost every factor

involved in the case. For example, courts would consider the intelligence,

physical health, and emotional characteristics of the particular suspect, their age,

education and prior criminal record, how often they were fed, whether they were

deprived of sleep, how long the police questioning lasted, whether relatives or

friends had been turned away, and whether their request for a lawyer had been

denied.

168

Even though the Court did not frame the issue in those terms, it

focused its analyses on the presence or lack of voluntariness and access to

information and comprehension, all elements of an informed consent.

169

In Haynes, the defendant argued his confession was involuntary and

inadmissible, because it was induced by police threats and promises.

170

The

defendant “testified at trial that during the approximately 16-hour period

between the time of his arrest and the making and signing of the written

162

. Id. at 585.

163

. Id. at 587.

164

. See Penney, supra note 150, at 329.

165

. Brown v. Mississippi, 297 U.S. 278, 287 (1936). Gerard E. Lynch, Why Not a Miranda

for Searches?, 5 OHIO ST. J. CRIM. L. 233, 236 n.4 (2007) (“The era of the Court’s involvement

with these issues is conventionally understood to have begun with the Brown v. Mississippi, 297

U.S. 278 (1936).”).

166

. Brown, 297 U.S. at 286.

167

. Haynes, 373 U.S. at 514.

168

. Dassey v. Dittman, 877 F.3d 297, 301 (7th Cir. 2017) (“Whether [petitioner’s] confession

was voluntary or not is measured against a general standard that takes into account the totality of

the circumstances.”); Fare v. Michael C., 442 U.S. 707, 725 (1979) (“This totality-of-the-

circumstances approach is adequate to determine whether there has been a waiver even where

interrogation of juveniles is involved.”); Kamisar, supra note 143, at 164–65.

169

. Haynes, 373 U.S. at 513–15.

170

. Id. at 504.

Fall 2022] The Inconsistencies of Consent 719

confession,” he asked police to allow him to call an attorney and to call his wife

several times.

171

The police refused his requests and repeatedly told him “he

would not be allowed to call unless and until he ‘cooperated’ with police and

gave them a written and signed confession admitting participation in the

robbery.”

172

The police denied him contact with the outside even after he signed a

confession and after a preliminary hearing.

173

The police held the petitioner

incommunicado for about a week after his arrest.

174

The defendant did not claim

that the police physically abused him, denied him food or sleep, or questioned

him for extended periods of time.

175

The Haynes Court emphasized that the question whether the police obtained

the petitioner’s confession “by coercion or improper inducement” (that is

whether the confession was voluntary) depended on an examination of the

surrounding circumstances.

176

The Court, in a five-to-four decision, held the

confession inadmissible.

177

With the totality of the circumstances standard,

courts focused on the quality of consent rather than merely considering

observable signs of consent, such as the acts of making or signing a

confession.

178

3. Miranda’s Presumption of Non-Consent in a Custodial Interrogation

Three years after the Haynes decision, the Court’s consent approach took a

dramatic turn with Miranda v. Arizona.

179

The Court found that the statement

obtained from an accused without providing the accused with the necessary

171

. Id.

172

. Id.

173

. Id.

174

. Id.

175

. Id. at 504 n.1.

176

. Id. at 513.

177

. Id. at 514.

178

. Id. (“Confronted with the express threat of continued incommunicado detention and

induced by the promise of communication with and access to family, Haynes understandably chose

to make and sign the damning written statement; given the unfair and inherently coercive context

in which made, that choice cannot be said to be the voluntary product of a free and unconstrained

will, as required by the Fourteenth Amendment.”).

179

. Miranda v. Arizona, 384 U.S. 436 (1966). The Miranda decision has generated extensive

scholarly discussions from all different perspectives. See generally Paul G. Cassell & Richard

Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda’s Harmful Effects on Law

Enforcement, 50 STAN. L. REV. 1055, 1060 (1998) (concluding “that Miranda has in fact

handcuffed the cops and that society should begin to explore other, less costly ways of regulating

police interrogation”); Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39

VAND. L. REV. 1, 21 (1986) (“Thus, Miranda’s symbolic value not only has produced a better

atmosphere for people who come in contact with the police but also may have made a tangible

contribution toward curbing abusive police practices.”). This article focuses only on the Miranda

case for its significance on the consent issue.

720 Catholic University Law Review [Vol. 71:699

warnings was not admissible as part of the government’s case in chief.

180

While

the totality of circumstances test remains the standard in non-custodial cases,

181

the Miranda approach is a drastic departure from the prior consent approach,

because it disregards all observable signs of consent when a defendant is in

police custody where the police failed to provide the Miranda warning.

182

other words, the accused’s observable sign of consent⎯the making or signing

of a confession⎯was presumed to be invalid where the police failed to warn the

accused of the consequences of their statements.

183

In Miranda, police obtained statements from several defendants questioned

while in custody or while their freedom was restrained in significant ways.

184

All of the defendants were interrogated in isolation.

185

No defendant was

warned of their rights before their interrogations.

186

The police obtained oral

admissions and statements signed by three of the defendants throughout those

interrogations.

187

Noting those statements were obtained during

incommunicado interrogation in a police-dominated atmosphere without full

warnings of constitutional rights, the Court found the statements inadmissible

because they were not given voluntarily.

188

The Court recognized that the inherent coercive pressures of custodial

interrogations would force defendants to speak where they would not otherwise

do so freely.

189

To resist these pressures and to safeguard the privilege against

self-incrimination, the Court announced suspects had to be “adequately and

effectively apprised of [their] rights” prior to the questioning.

190

The Court held that for a confession to be considered voluntary, a suspect in

custodial interrogation must be warned “[p]rior to any questioning, . . . that he

180

. Miranda, 384 U.S. at 444.

181

. Arizona v. Fulminante, 499 U.S. 279, 285−86 (1991).

182

. One could argue that this is no different from the contract law defense of duress where a

party’s consent would be invalid if the consent was given under duress. Duress under contract law

is a defense where the party seeking to invalidate consent has the burden of proof. In the Miranda

context, there is a presumption of non-consent in favor of the party seeking to invalidate consent.

This is also different from the situations where law disregards consent altogether for example, in

contract law, consent by a minor is presumed to be invalid, in criminal law, consent is not a defense

against a rape where the victim is a minor. In those situations, the law presumes that the parties are

not capable of consenting. In the Miranda context, the defendant is capable of consent, but the

Miranda rule presumes that consent is invalid unless the defendant is given the necessary

information in the form of the required warnings.

183

. Miranda, 384 U.S. at 444.

184

. Id. at 445.

185

. Id.

186

. Id.

187

. Id.

188

. Id.

189

. Id. at 467.

190

. Id.

Fall 2022] The Inconsistencies of Consent 721

has a right to remain silent, that any statement he does make may be used as

evidence against him, and that he has a right to the presence of an attorney, either

retained or appointed.”

191

The Miranda warnings mandated by the Court are

designed to provide the defendant with the necessary information to provide an

informed consent.

192

III. SAME QUESTION, BUT DIFFERENT APPROACHES—POSSIBLE

EXPLANATIONS FOR THE DIVERGENCE

Courts are faced with the same factual question in all three contexts: has the

consenting party actually consented? Why have courts developed different

approaches, retaining the simple consent approach in contract disputes while

adopting heightened standards for consent in medical treatment and criminal

confession cases? This section offers some possible explanations for this

divergence.

Multiple factors contribute to the divergent approaches. Consent plays a

different role in contract disputes from that in medical treatment and criminal

confession cases. Courts adopted the heightened consent inquiry in medical

treatment and criminal confession cases in response to significant social changes

and increased public awareness of individual rights and the need to protect

individuals from potential abuses and arbitrary government power. In the

economic area, although business practices have changed dramatically, courts

have retained the simple consent approach based apparently on business

justifications.

A. Different Contexts, Different Interests, and Different Approaches

The divergent approaches can be explained by the different contexts in which

the consent issue is raised. Consent in contract law is intimately associated with

important aspects of our very identity including individual autonomy and

freedom of contract. Contracts deal with economic relationships. Interests

being protected in medical and criminal cases are different. In medical treatment

cases, courts are trying to protect the right to bodily integrity. In criminal cases,

courts are trying to protect a person’s right to life, liberty, and against arbitrary

government power.

191

. Id. at 444.

192

. For a discussion of courts’ treatment of confession where the accused gave confessions

after the Miranda warning, please see Garrett, supra note 6, at 1092 (examining false confessions

in forty cases).

722 Catholic University Law Review [Vol. 71:699

1. Consent’s Role in Contractual Relationships

Consent is the sine qua non of contract.

193

Because of a commitment to

individual autonomy and freedom of contract, courts have always focused on

enforcing parties’ intent and refrained from interfering in parties’ contractual

relationships.

194

In addition, contract law is conventionally viewed as protecting

private parties’ economic relationships.

195

Consent is the basis to impose

obligations on both parties to the contract. The simple consent approach favors

the finding of a contract while a heightened consent approach would have led to

a finding of no contract.

196

The simple consent approach in contract law has been justified based on

economic liberties and freedom of contract.

197

With the prevalence of form

contracts and e-commerce, courts began relying on economic justifications to

enforce contracts based on observable signs of consent.

198

The Supreme Court

enforced a forum selection clause based on the business’ need to limit the fora

in which it could be sued, the potential to save litigants time and conserve

judicial resources, and the reduced cost for cruise passengers.

199

Other courts

also relied on market place justifications to enforce contract terms based on

verbal or non-verbal signs of consent. Because it would be practically difficult

to convey all the contract terms at the time of a sale, accepting the consenting

party’s verbal or non-verbal signs as evidence of consent would help reduce

transaction costs,

200

saving both contractual parties money.

201

193

. Michael J. Cozzillio, The Athletic Scholarship and the College National Letter of Intent:

A Contract by Any Other Name, 35 WAYNE L. REV. 1275, 1293 (1989).

194

. West, supra note 47, at 384.

195

. Contracts have also been used to deprive people of their access to courts and right to a

jury trial through arbitration agreements. See Leonhard, Dangerous or Benign Legal Fictions,

supra note 9, at 421–22. It is beyond the scope of this paper to explore all the rights affected by

the judicial consent approach when adjudicating contract dispute.

196

. Id. at 407–08, 416.

197

. Leonhard, Unbearable Lightness of Consent, supra note 2, at 57.

198

. Shute, 499 U.S. at 593–94 (1991).

199

. Id.

200

. Deborah Zalesne, Enforcing the Contract at All (Social) Costs: The Boundary Between

Private Contract and the Public Interest, 11 TEX. WESLEYAN L. REV. 579, 584 (2005) (noting that

“[c]ourts have typically been enthusiastic about upholding private exchanges to protect commerce,

the business community, and the efficiency of the marketplace”); Todd D. Rakoff, Contracts of

Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1173, 1177 (1983); Hill, 105 F.3d at

1149 (“Writing provides benefits for both sides of commercial transactions. Customers as a group

are better off when vendors skip costly and ineffectual steps such as telephonic recitation, and use

instead a simple approve-or-return device.”).

201

. Zalesne, supra note 200, at 586 (“Adhesion contracts are beneficial to both businesses

and consumers. Standardization of terms ‘reduces transaction costs . . . and stabilize[s] the

incidents of doing business,’ thereby saving both the buyer and seller money.”).

Fall 2022] The Inconsistencies of Consent 723

2. Role of Consent in Protecting the Rights to Self-Determination and

Bodily Integrity

Consent plays a different role in medical treatment cases. In these cases,

doctors are using consent to avoid liability to the consenting patients.

202

The

interests at stake are the patients’ right to bodily integrity and self-determination.

A heightened standard of consent protects individual rights while a simple

consent approach, which would lead to a finding of consent, would have resulted

in undermining those rights.

The desire to protect individual rights motivated the courts to move away from

the simple consent approach to the informed consent approach. In rejecting the

voluntary act of seeking medical treatment as consent, the Pratt court described

what it called “the right to the inviolability of his person” as having “universal

acquiescence.”

203

The court explained that universal right meant that doctors

were prohibited from violating the bodily integrity of patients without

permission.

Other courts echoed the same sentiment by focusing on the patient’s right to

self-determination. Justice Cardozo famously stated: “[e]very human being of

adult years and sound mind has a right to determine what shall be done with his

own body; and a surgeon who performs an operation without his patient’s

consent, commits an assault for which he is liable in damages.”

204

3. Role of Consent in Protection of Liberty and Against Arbitrary

Government Power

Consent in criminal confession cases serves as a shield to protect the accused

against invasion of the accused’s liberty interests and arbitrary government

power. A heightened consent inquiry affords the accused more protection than

a simple consent approach.

In criminal confession cases, courts recognized the right not to be compelled

to testify against oneself as “resting on the law of nature.”

205

The Court pointed

out that the importance of the right not to testify against oneself was reflected in

the fact that the right was embodied in the Constitution.

206

Distrust of arbitrary government power is part of our national identity. The

Bill of Rights is designed to curb excessive government power.

207

The Miranda

202

. See, e.g., Salgo, 317 P.2d at 181.

203

. Pratt, 118 Ill. App. at 166.

204

. Schloendorff, 105 N.E. at 93.

205

. Bram, 168 U.S. at 545.

206

. Id. at 544–45 (relying on Brown v. Walker, 161 U.S. 591, 596–97 (1896)) (acknowledging

the maximum “Nemo tenetur seipsum accusare” being “clothed in this country with the

impregnability of a constitutional enactment.”).

207

. Miranda, 384 U.S. at 459 (“Those who framed our Constitution and the Bill of Rights

were ever aware of subtle encroachments on individual liberty.”).

724 Catholic University Law Review [Vol. 71:699

decision reflects courts’ concerns about exercise of arbitrary government power

which could violate fundamental principles of liberty and justice.

208

The Court

did not want a trial to be a mere pretense where the state obtained a conviction

solely based on coerced confessions.

209

The Court believed that respect for the

inviolability of the human person demanded that the state had the burden to

produce evidence against an individual through its own work, rather than by

compelled confessions.

210

Courts were also aware of the temptation for police to exert undue pressure

on witnesses.

211

Confessions have always ranked high on the scale of

incriminating evidence.

212

The Court believed that condoning the use of coerced

confessions would undermine the legitimacy of our system of law and justice.

213

At the same time, the Court was also concerned about the difficulty of judicial

search for informed consent under the totality of the circumstances standard,

noting that “[a]ssessments of the knowledge the defendant possessed, based on

information as to his age, education, intelligence, or prior contact with

authorities, can never be more than speculation.”

214

B. Judicial Preference of Protection of Liberty Interests Over That of

Economic Interests

215

Courts have traditionally erected additional safeguards to protect people’s

liberty interests against arbitrary government power. Courts have treated

economic and property interests as second-class rights less deserving of

protection.

216

The judicial attitude may reflect the belief that property interest,

if damaged, can be compensated for by some other form of property interest

208

. Id. at 459–60.

209

. Brown, 297 U.S. at 286.

210

. Chambers v. Florida, 309 U.S. 227, 235–38 (1940).

211

. Brown, 161 U.S. at 595–97.

212

. Id.

213

. Haynes, 373 U.S. at 519.

214

. Miranda, 384 U.S. at 468–69.

215

. It is beyond the scope of this article to examine why courts have maintained such a

distinction or whether courts should maintain such a distinction. For an interesting discussion about

the Supreme Court’s economic rights jurisprudence, see Richard E. Levy, Escaping Lochner’s

Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329 (1995).

216

. CHARLES FRIED, MODERN LIBERTY AND THE LIMITS OF GOVERNMENT 154 (2007);

Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (“We do not sit as a super-legislature to

determine the wisdom, need, and propriety of laws that touch economic problems, business affairs,

or social conditions.”); Marsh v. Alabama, 326 U.S. 501, 509 (1946) (noting that liberty rights are

preferred over property rights when courts balance them against each other); Erin Rahne Kidwell,

The Paths of the Law: Historical Consciousness, Creative Democracy, and Judicial Review, 62

ALB. L. REV. 91, 124 (1998).

Fall 2022] The Inconsistencies of Consent 725

while liberty interests affect everyone⎯“diminish one and all are

diminished.”

217

This judicial bias in favor of liberty interests is reflected in multiple judicial

approaches. For example, the Supreme Court employs a heightened standard to

scrutinize government restrictions on liberty interests, but a deferential lower

rational basis scrutiny regarding government regulations on economic

interests.

218

The different burdens of proof in civil and criminal cases show that

courts favor protection of people’s liberty interests over their economic

interests.

219

In civil cases, a plaintiff generally only has to prove a claim by a

preponderance of the evidence in order to recover against a defendant.

220

criminal cases, the government has to prove an accused is guilty beyond a

reasonable doubt.

221

Medical treatment and criminal confession cases implicate liberty interests

deemed important by courts. The desire to protect those liberty interests may

explain why the courts’ consent approach evolved from simple consent to

heightened consent scrutiny in those cases. Contract disputes, on the other hand,

involve primarily economic interests. Here courts are apparently content with

the simple consent approach.

217

. Kidwell, supra note 216, at 124.

218

. W. Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943) (noting that the state may

promulgate any regulation justified by a rational basis under the due process clause as opposed to

a more limited power when more fundamental restrictions such as those associated with speech and

press are involved).

219

. Andrew E. Taslitz, Cybersurveillance Without Restraint? The Meaning and Social Value

of the Probable Cause and Reasonable Suspicion Standards in Governmental Access to Third-

Party Electronic Records, 103 J. CRIM. L. & CRIMINOLOGY 839, 854–56 (2013).

[T]he level of the standard of proof expresses important societal values. If the

individual or group interest invaded is considered of moderate social importance or the

degree of invasion of that interest is likewise seen as moderate, then the lower

preponderance standard of proof suffices. But if the interest invaded is seen as highly

important or its degree of invasion as extreme, the higher beyond a reasonable doubt

standard is required. . . . [B]ecause we value some things more than others, our

tolerance for error in finding the facts and in applying the law varies. The

preponderance standard tolerates a fairly significant risk of error; the beyond a

reasonable doubt standard permits much less of a risk. Id.

220

. McCormick on Evidence § 339 (John William Strong et al. eds., 4th ed. 1992).

221

. In re Winship, 397 U.S. 358, 361 (1970).

The requirement that guilt of a criminal charge be established by proof beyond a

reasonable doubt dates at least from our early years as a Nation. The ‘demand for a

higher degree of persuasion in criminal cases was recurrently expressed from ancient

times, [though] its crystallization into the formula ‘beyond a reasonable doubt’ seems

to have occurred as late as 1798. It is now accepted in common law jurisdictions as

the measure of persuasion by which the prosecution must convince the trier of all the

essential elements of guilt. Id.

726 Catholic University Law Review [Vol. 71:699

C. Significant Social Events Coincided with the Heightened Consent Inquiry

Courts do not operate in a vacuum. What happens in society affects judicial

decision making.

222

American society underwent tremendous change during

early and mid-twentieth century. Those changes contributed to the development

of judicial consent jurisprudence in medical treatment and criminal confession

cases.

The Enlightenment philosophies have had a dramatic effect on American

society since the founding of the country.

223

The leading American thinkers

adopted the Enlightenment ideas of freedom, democracy, and reason as the

primary values of society.

224

Common people were becoming increasingly

aware of their individual rights.

225

After the Second World War, reports about Nazi doctors’ medical

experiments on prisoners shocked the public’s conscience.

226

In the 1960s,

scholars began raising concerns about medical experiments without the subjects’

consent.

227

Although these notorious abuses did not occur in medical treatment

settings, their publicity increased the public and judicial awareness of the

importance of the right to bodily integrity and the potential for abuse.

228

Courts’ opinions in the medical treatment cases reflected this increased

awareness among the public at large. In medical treatment cases, courts rested

their analyses on a person’s right to self-determination. As the court announced

in Natanson, “each man is considered to be the master of his own body, and he

may, if he be of sound mind, expressly prohibit the performance of life-saving

surgery or other medical treatment.”

229

In criminal confession cases, courts note extensively the historic lessons from

unjust methods of interrogation against the accused.

230

Decided during the Civil

Rights Movement in the 1960s, the Miranda case cited contemporaneous reports

of police resorting to brutal tactics to obtain coerced confessions.

231

222

. Eric J. Segall, The Skeptic’s Constitution, Remnants of Belief: Contemporary

Constitutional Issues by Louis Michael Seidman and Mark V. Tushnet (Oxford University Press

1996), 44 UCLA L. REV. 1467, 1504 (1997) (pointing out that judicial decision-making changes

reflect evolving societal understandings).

223

. Harold J. Berman, The Impact of the Enlightenment on American Constitutional Law, 4

YALE J.L. & HUMANS. 311, 322–23 (1992).

224

. Id.

225

. FADEN & BEAUCHAMP, supra note 47, at 87 (suggesting that the increased legal interest

in the right of self-determination reflected the social movements at the time).

226

. Id.

227

. Id.

228

. Szczygiel, supra note 94 at 193–95 (describing a cancer study involving doctors injecting

live cancer cells into chronically sick patients without the patients’ consent and other experiments

including the infamous Tuskegee syphilis experiment).

229

. Natanson, 350 P.2d at 1104.

230

. Brown, 161 U.S. at 596–97.

231

. Miranda, 384 U.S. at 445–46.

Fall 2022] The Inconsistencies of Consent 727

In the economic arena, business practices have changed as well because of

technological advances and the pivot to digital commerce.

232

Businesses have

been relying on standard and online forms which have been enforced by the

courts even though there is no meaningful consent. Although many legal

scholars have been critical of the courts’ consent approach, those practices have

not generated outrage equal to that which followed reports of abuse in medical

experiments or confessions compelled by police brutality.

D. Human Cognitive Biases and Consent Jurisprudence

Judicial resistance to change in contract disputes may also be explained by the

mere fact that judges are human beings with flawed human decision-making

processes. During the last few decades, scientific studies have shown humans

often make decisions automatically based on intuition (referred to as System 1)

unless something triggers a more deliberate thinking process (referred to as

System 2).

233

System 1 thinking relies on mental shortcuts and coherence to

make decisions.

234

System 2 thinking is more deliberate and is triggered only

when our brain is stimulated by jarring reminders.

235

In contract disputes, the simple consent approach is more consistent with

judges’ and society’s beliefs about individual autonomy and freedom of

contract.

236

Judges have often declined to scrutinize contract parties’ agreement

because of deference to parties’ freedom to contract.

237

Judges lack reminders

to engage in more deliberate thinking, i.e., heightened scrutiny of consent.

238

Indeed, it is easier for judges to indulge in the consent fiction than to challenge

it because the simple consent approach will lead to a finding of a valid contract

while a heightened inquiry would result in a finding of an invalid contract.

239

In medical treatment and criminal confessions, medical abuses and police

brutality serve as powerful reminders for judges to question the assertion of

consent.

240

That reality is inconsistent with the judges’ own belief system and

232

. Marks, supra note 64, at 499.

233

. See Leonhard, Dangerous or Benign Legal Fictions, supra note 9, at 395–400 (for a

detailed description of System 1 versus System 2 thinking and common cognitive biases that human

beings suffer) and references therein.

234

. Id. at 396.

235

. Id. at 396–97.

236

. Id. at 416; Leonhard, Unbearable Lightness of Consent, supra note 2, at 64−65; White,

supra note 19, at 138–39.

237

. See Leonhard, Dangerous or Benign Legal Fictions, supra note 9, at 415–17 for a detailed

analysis on why it is easier for the judges to stay with the simple consent approach.

238

. Id.

239

. Id. at 416.

240

. See Miranda, 384 U.S. at 445–46; New York v. Portelli, 205 N.E.2d 857, 857 (1965).

728 Catholic University Law Review [Vol. 71:699

therefore, triggers a more deliberate thinking process which forces judges to

examine if consenting parties actually consented.

241

Thus, social science research shows, the human decision-making process will

lead to a heightened consent scrutiny in medical treatment or criminal confession

cases. System 1 intuitive thinking will warn judges automatically against the

dangers of consent in medical treatment and criminal confession cases. There is

universal agreement that it is wrong to experiment on people or to use

confessions against them without their consent. Therefore, it is easier for judges

to apply heightened scrutiny of consent because that approach is more coherent

with the universal (and with judges’) world view.

242

These jarring reminders do

not exist in contract disputes. In fact, the opposite is true. Powerful business

interests benefit from the simple consent approach and have been promoting the

underlying economic theories to justify the judicial approach.

243

CONCLUSION

This brief overview of selected case law from the late 19th century until the

present shows that courts have approached the factual question of consent

differently in the three selected areas. In contract law, courts have retained the

original 19th century focus and are limiting inquiry to identifying observable

verbal or non-verbal communications of consent. In contrast, in both medical

treatment and confession cases, courts’ search for consent evolved from an

initial focus on observable signs of consent⎯verbal or non-verbal

communications⎯to an inquiry into the quality of consent. In those two areas,

courts are not relying on observable signs of consent and have adopted the

informed consent doctrine, albeit phrased differently in criminal confession

cases.

The most dramatic consent approach is Miranda’s presumption of non-

consent in a custodial interrogation. The Miranda standard rejects observable

signs of consent⎯the voluntary act of making or signing a confession⎯in a

custodial interrogation where police failed to provide necessary information for

the accused to make an informed decision.

241

. Leonhard, Dangerous or Benign Legal Fictions, supra note 9, at 405 (“In sum, legal

fictions that have some built-in reminders are benign because the reminders serve to activate

System 2 thinking, resulting in better decision making.”).

242

. See id. at 417.

The consent concept in many ways allows us to embrace a world view coherent with

the ideal image that we would like to have. And coherence is the guiding principle

underlying the maintenance of “quick judgment” System 1 heuristic thinking. Judges,

like all other humans, have a strong need for coherence. Respect for consent means

respect for our individualism and autonomy. Judges intuitively rely on consent as the

basis for enforcing agreements when there is nothing reminding them that signature,

clicking, and browsing are only reifications of consent, not complete proof of actual

consent. Id.

243

. White, supra note 19, at 149–50.

Fall 2022] The Inconsistencies of Consent 729

These differences can be partially explained based on different roles consent

plays in each context and social changes over the examined period. Heightened

consent inquiry reflects judicial bias in favor of stronger protection of individual

rights to bodily integrity, self-determination, and liberty and protection against

arbitrary government power. In addition, the divergent approaches may reflect

human cognitive biases in judicial decision-making process.

This overview across time and context offers a few insights about judicial

consent jurisprudence. First, courts have clearly recognized that verbal and non-

verbal communications of consent do not necessarily reflect internal mental

processes and reliance on observable signs of consent may not promote

individual autonomy in some situations. Courts have rejected the simple consent

approach in at least two areas⎯medical treatment and criminal confession cases.

Second, courts are willing and able to fashion different standards to ascertain

consent. They adopted a heightened standard of consent when interests at stake

are deemed more important⎯right to bodily integrity, individual liberty, and

protection from arbitrary government power. In sum, this overview shows that

United States courts are capable of calibrating their consent approach to search

for informed consent—if they are willing.

730 Catholic University Law Review [Vol. 71:699