DISCONSENTS, a paper by Daryl Levinson and David Pozen
SEPTEMBER 20, 2024 
Abstract: Consent is both an indispensable concept in a liberal legal order and an increasingly elusive ideal in myriad settings. Even as consent-based regulation has spread across field after field, the normative meaningfulness and empirical feasibility of many forms of consent have come under strain. The result is a systemic crisis of consent that crosses the public law/private law divide and imperils the legitimacy of both.

In this paper, we document how the rise of neoliberalism led to greater reliance on consent throughout the law as well as to greater doubts about its moral efficacy, so that some of the pathologies of consent that have been identified within particular domains now generalize broadly. We explain how this phenomenon and related ones have unsettled not only regimes of private ordering but also constitutional democracy and global governance. We offer a typology of legal strategies available to those who wish to shore up specific forms of consent against these threats. And we raise the question whether such strategies are enough to enable effective cooperation, protect vulnerable parties, and vindicate the values consent is meant to advance.

Bio: David Pozen teaches and writes about constitutional law, information law, and nonprofit law, among other topics. Pozen’s body of work includes dozens of articles, essays, and book chapters, as well as The Constitution of the War on Drugs (Oxford, 2024). Pozen has also edited two volumes for Columbia University Press, on transparency (2018) and free speech (2020), and been a semi-regular contributor to the Balkinization and Lawfare blogs. A keynote speaker at numerous academic conferences, in the United States and abroad, Pozen’s scholarship has been discussed in outlets including the New York Times, New Yorker, Washington Post, Harper’s, Politico, American Scholar, and NPR. Continue reading profile.