Consent, Legitimation, and Dysphoria
| Author | Robin West |
| DOI | http://doi.org/10.1111/1468-2230.12489 |
| Published date | 01 January 2020 |
| Date | 01 January 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12489
THE
MODERN LAW REVIEW
Volume 83 January 2020 No. 1
Consent, Legitimation, and Dysphoria
Robin West∗
Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation
of lawful from unlawful, legitimate from illegitimate, and good from bad. This is a particularly
pronounced trend in the areas of sexual and reproductive rights and ethics. Consensual sex
has almost completely displaced marital sex as the demarcation of not only criminal from
laudatory sex but also good from bad sex. Likewise, the consensuality of a pregnancy is
increasingly the demarcation of a celebrated rather than mourned pregnancy, rather than its
marital province. This development is justly celebrated as a breakthrough in women’s rights
and equality, but it car ries costs. This essay develops some of the limits and perils of an
over-reliance on consent and consensuality as the primary criterion of the morality of sex and
reproduction. Consent is not always a trustworthy guide to wellbeing,for both general reasons,
and reasons specific to sexual and reproductive life.
INTRODUCTION
It is now a truism that many of the legal obligations of individuals in wester n
legal systems – and particularly those systems which derive from the common
law – have moved decisively ‘from status to contract’ over the last two hun-
dred years, by which is meant, generally, that while an individual’s rights and
responsibilities were once a function of his or her status stemming from the
circumstances of birth or family position – her status as slave, servant, master,
husband, wife, first born, later-born, daughter or son – today, the legal rights
and responsibilities an individual possesses are largely a function of what he or
she has contractually agreed to do or refrain from doing.1We contract into our
rights and responsibilities, we are not legally assigned them by virtue of the
accidents of our birth. This movement, famously heralded by Henry Maine
∗Frederick J. Haas Professor of Law and Philosophy at Georgetown University. I would liketo thank
David Kirwin, Virginia Mantovalou,the London School ofEconomics and the Moder n LawReview
for inviting this article as a part of their Chorley Lecture Series. I would also like to thank Deborah
Epstein, David Luban, David Grant and the participants at the University of California Irvine Law
School and Georgetown University Law Center’s faculty workshops for comments on early drafts.
All URLs were last accessed 1 October 2019.
1 Henry Maine, Ancient Law 168 (1861).
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2020) 83(1) MLR 1–34
Consent, Legitimation, and Dysphoria
in the middle of the nineteenth century, has been an even more striking and
prominent feature of twentieth and twenty-first century law. Across a sizeable
number of both private and public fields of law – including family law, tort
law, employment law, parts of fiduciary law, criminal law, constitutional law
and civil procedure – contract principles, contract law, and of course ultimately
contracts themselves, are displacing other, more regulative, and arguably more
coercive legal norms. Each such development – each movement from status
to contract – over the last century and a half, has attracted celebrants, but also
scores of critics.2
2 For discussion and critique of the g rowing role of contract in family law, see J. Singer, ‘The
Privatization of Family Law’ (1992) Wis L Rev 1443; J. Singer, ‘Legal Regulation of Mar riage:
From Contract to Status – and Back Again?’ in Strategies to Strengthen Marriage: What do we Know?
What do we need to Know? The Family Impact Seminar, June 1998.
The displacement of large swaths of employment law with contract law, through mandatory
arbitration clauses, mandatory waivers, and other devices, has generated a large and largely crit-
ical literature. See for example, J. Grodin, ‘Arbitration of Employment Discrimination Claims:
Doctrine and Policy in the Wake of Gilmer’ (1996) 14 Hofstra Lab & Emp LJ 1; P. Hop-
per, ‘Mandatory Arbitration and Title VII: Can Employees Ever See Their Rights Vindicated
Through Statutory Causes of Action’ (1995) J Disp Resol 315; S. Plass, ‘Privatizing Antidis-
crimination Law with Arbitration: The Title VII Proof Problem’ (2007) 68 Mont L Rev 151;
H. Edwards, Where are We Heading with Mandatory Arbitration of Statutory Claims in Employment
(1999-2000)16 Ga St U L Rev 293. The lack of coverage under Title VII for independent
contractors in particular has generated an extensive and critical literature, much of it aimed at
formulating ways to protect independent contractors from discrimination, given their exclusion
from Title VII. In addition to the pieces noted above see for example,L. Maltby and D. Yamata,
‘Beyond Economic Realities: The Case for Amending FederalEmployment Discrimination Laws
to Include Independent Contractors’ (1996-1997) 38 B C L Rev 239; D. Tarantolo, ‘From Em-
ployment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor
Workforce’ (2006-2007) 116 Yale LJ 170; B. Rogers, ‘The Social Costs of Uber’ (2015-2016)
82 U Chi L Rev Dialogue 85; C. Alexander, ‘Misclassification and Antidiscrimination, an
Empirical Analysis’ (2017) 101 Minn L R 907; M.C. Harper, ‘Explaining the Blurred Line Be-
tween Employment and Independent Contracting’ Jotwell 16 September 2015, reviewing Tomas-
setti at https://worklaw.jotwell.com/explaining-the-blurred-line-between-employment-and-
independent-contracting/ and J. Tomassetti, ‘The Contracting/Producing Ambiguity and the
Collapse of the Means/Ends Distinction in Employment’ (2014) 66 S C L Rev 315.The effect of
mandatory arbitration clauses on sexual harassment in the workplace is now a subject of public
discourse. For an early analysis of the problems with the role of contract in this area see M.H.
Bowers and E. Patrick McDermott, ‘Sexual Harassment in the Workplace: How Arbitrators
Decide’ (2000) 48 Clev St L Rev 439; Equally important, however, is the effect of mandatory
arbitration clauses on other forms of discrimination, as well as all other affected employment
rights. For discussions of the broader perspective, see K. Stone, ‘Mandatory Arbitration of Indi-
vidual Employment Rights: The Yellow Dog Contract of the 1990s’ (1995-1996) 73 Denv U L
Rev 1017; K. Eddy, ‘To Every Remedy a Wrong: The Confounding of Civil Liberties through
Mandatory Arbitration Clauses in Employment Contracts’ (2000-2001) 52 Hastings LJ 771; D.
Schwartz, ‘Mandatory Arbitration and Fairness’ (2008-2009) 84 Notre Dame L Rev 1247. For
advocacy of the displacement of antidiscrimination law with contract law, see G. Becker, The Eco-
nomics of Discrimination (Chicago, IL: University of Chicago Press, 2nd ed, 1971) 57-58, Epstein’s
contribution in R.A. Epstein and E. Chemerinsky, ‘Should Title VII of the Civil Rights Act of
1964 be Repealed?’ (1993) 2 S Cal Interdisc L J 349 and R. Epstein, Forbidden Grounds: The Case
Against Employment Discrimination Laws (Cambridge, MA: Harvard University Press, 1992).
For discussion and criticism of the degree to which contract has displaced constitutional
norms outside of employment law, such as in cr iminal and civil procedure, see for example, S.J.
Ware, ‘Mandatory Arbitration: Arbitration Clauses, Jury-Waiver Clauses, and Other Contrac-
tual Waivers of Constitutional Rights’ (2004) 67 L & Contemp Prob 167, 170; J.R. Sternlight,
‘Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury
2C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2020) 83(1) MLR 1–34
Robin West
Albeit less noted, a parallel development in legal consciousness may have
accompanied the doctrinal shift from status to contract. As ‘status’ has given
way to ‘contract’, as Maine both observed and predicted, so the appreciation
and respect once accorded the generative power of the ‘law’ that once created
those statuses, may be steadily giving way to that of the individual acts of
‘consent’ that generate – at least in theory – all of those contractual obligations.
Thus, as law gives way to consent as the generative source of our rights and
responsibilities, so the felt moral authority of law may be ceding ground, in
turn, to the felt moral authority of consent. Thus: the shift in consciousness.
Today, it is often the act of an individual proffering his or her consent, rather
than the enactment of a law by a representative governmental body, which
garners our respect and deference. Individual consent, rather than democratic
law, in effect, is emerging as the main source of legitimate author ity.
We can see the shift away from the authorit y of law, and to th e auth ori ty
of consent, in large swaths of social and legal life,3but nowhere, I believe,
Trial’ (2001) 16 Ohio St J Disp Resol 669, 678; A. Szuch, ‘Reconsidering Contractual Waivers
of the Right to a Jury Trial in Federal Court’ (2011) 79 U Cin L Rev; Senator R. Feingold,
‘Mandatory Arbitration: What Process is Due’ (2002) 39 Harv J Legis 281. For classic discussions
of the still worsening problem of plea agreements displacing due process rights, see J. Langbein,
‘On the Myth of Written Constitutions: The Disappearance of Criminal Jury Trial’ (1992) 15
Harv J L & Pub Pol’y 119; J. Langbein, ‘Torture and Plea Bargaining’ (1978) 46 Chi L Rev 3;
S. Bibas, ‘Plea Bargaining Outside the Shadow of the Law’ (2004) 117 Harv L Rev 2463 and
S. Bibas, ‘Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protec-
tion’ (2011) 99 Calif L Rev 1117. For an early near-canonical discussion of the general tension
between a contract and civil rights sensibility, see P. Williams, The Alchemy of Race and Rights
(Cambridge, MA: Harvard University Press 1992) 98-130.
For a discussion and partial critique of the tendency to see fiduciary relationships and obli-
gations as a species of contractual relationships, see G. Klass, ‘What if Fiduciary Obligations are
Like Contractual Ones?’ in P.B. Miller and A.S. Gold (eds), Contract, Status, and Fiduciary Law
(Oxford: OUP, 2016) 93. For a defense of the view that fiduciary obligations are nothing but
contractual obligations, see F.H. Easterbrook and D.R. Fischel, ‘Contract and Fiduciary Duty’
(1993) 36 J L & Econ 425. See also V. Brudney, ‘Contract and Fiduciary Duty in Corporate Law’
(1997) 38 BC L Rev. 595.
And finally, for discussion of the displacement of tort law by contract, see S.J. Burnham, ‘Are
You Free to Contract Away Your Negligence Claim?’ (2014) 89 Chi-Kent L Rev 379. For an
early defense of the proposition that one should be free to subject tort to contractual limits, see
R. Posner, Economic Analysis of Law (Boston: Little Brown, 1977) 158. For an argument that
permitting contractual waivers of the right to sue for malpractice would reduce medical costs
and not result in an increase of malpractice, see R.H. Thaler and C. Sunstein, Nudge: Improving
Decisions about Health, Wealth and Happiness (New Haven, CT: Yale University Press, 2008) 4-6.
For a response, see T. Baker and T. Lytton, ‘Allowing Patients to Waive the Right to Sue for
Medical Malpractice: A Response to Thaler and Sunstein’ (2010) 104 Nw U L Rev 233. The
law of informed consent – a hybrid of tort and contract – has increasingly displaced traditional
conceptions of malpractice in health care law. For an overall discussion and critique of the law of
informed consent in this and other doctrinal areas, see A. Schwartz et al, ‘Encouraging Contrac-
tual Alternatives to Tort’ in Amer ican Law Institute, Compensation and Liability for Product Related
Injuries: Proposed Final Report Council Draft #1 (1990) 581. See generally,P.H. Rubin, Tor t R e f o r m
by Contract (Washington, DC: AEI Press, 1993); G.L. Priest, ‘A Theory of the Consumer Product
Warranty’ (1981) 90 Yale L J 1297, 1347-1349.
3 For a powerful and seminal philosophical treatment of the ‘magical’ ‘transformative’ power of
consent to, inter alia, ‘create and destroy obligations in the blink of an eye’, and the way that it
‘thus constitutes a normative power that allows agents to change their moral landscape, to alter
others’ moral legacies, and to author moral laws by will alone’, see H. Hurd, ‘The Normative
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2020) 83(1) MLR 1–34 3
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