Enforcing contracts we enter into is fair, we are told, because we have consented to their terms. But what is consent? Is consent possible under circumstances of extreme ignorance, including ignorance of facts and relevant law? And what considerations ought to determine the scope of our consensual commitments, even when freely made? Can reflection on these abstract questions help us understand the law of contract? Can it help judges do their jobs better as interpreters? And do judges presuppose, knowingly or not, controversial notions about the nature and value of consent when applying contract law's doctrines or interpreting contracts? These and related questions will be the focus of our seminar, which includes reading recent philosophical and empirical work on consent, as well as recent case law that presupposes or engages with these thorny issues.
Encarnacion, Erik