The Yale Law Journal

June 2020

Commonsense Consent

Experimental Jurisprudence

abstract. Consent is a bedrock principle in democratic society and a primary means through which our law expresses its commitment to individual liberty. While there seems to be broad consensus that consent is important, little is known about what people think consent is.

This Article undertakes an empirical investigation of people’s ordinary intuitions about when consent has been granted. Using techniques from moral psychology and experimental philosophy, it advances the core claim that most laypeople think consent is compatible with fraud, contradicting prevailing normative theories of consent. This empirical phenomenon is observed across over two dozen scenarios spanning numerous contexts in which consent is legally salient, including sex, surgery, participation in medical research, warrantless searches by police, and contracts.

Armed with this empirical finding, this Article revisits a longstanding legal puzzle about why the law refuses to treat fraudulently procured consent to sexual intercourse as rape. It exposes how prevailing explanations for this puzzle have focused too narrowly on sex. It suggests instead that the law may be influenced by the commonsense understanding of consent in all sorts of domains, including and beyond sexual consent.

Meanwhile, the discovery of “commonsense consent” allows us to see that the problem is much deeper and more pervasive than previous commentators have realized. The findings expose a large—and largely unrecognized—disconnect between commonsense intuition and the dominant philosophical conception of consent. The Article thus grapples with the relationship between folk morality, normative theory, and the law.

author. Harry A. Bigelow Teaching Fellow and Lecturer in Law, University of Chicago Law School. For helpful comments and discussions I thank Dan Barnhizer, Rachel Bayefsky, Adam Bear, Omri Ben-Shahar, Paul Bloom, Esther Burson, Lincoln Caplan, Lingxi Chenyang, Adam Chilton, Fiery Cushman, Sarah Cohen, Joanna Demaree-Cotton, Mihailis Diamantis, Tom Dougherty, William Eskridge, Lee Fennell, Meirav Furth-Matzkin, McKenna Freese, Joshua Greene, Daniel Hemel, David Hoffman, Jillian Jordan, Matthew Kugler, Genevieve Lakier, Saul Levmore, Robert Manduca, Jonathan Masur, Richard McAdams, Janice Nadler, Martha Nussbaum, Rebecca Ojserkis, John Rappaport, Lior Strahilevitz, Dane Thorley, Kevin Tobia, Deborah Tuerkheimer, Tom Tyler, Nina Varsava, Laura Weinrib, Tess Wilkinson-Ryan, Megan Wright, and Gideon Yaffe. I am indebted to Josh Knobe for suggesting Study 5. This research was supported by the Oscar M. Ruebhausen Fund at Yale Law School and the Wachtell, Lipton, Rosen & Katz Program in Behavioral Law, Finance and Economics at the University of Chicago Law School.