Luck v. Justice: Consent Intervenes, But for Whom?

Abstract

Consent in civil settlements should improve access to and delivery of justice by making luck (chance, contingencies, arbitrariness) less significant in process and outcomes. Consent-based processes and private settlement are supposed to support justice by redistributing decision-making power away from judicial-coercive authorities to the people most affected by the dispute.

But consent today has become little more than a pro forma process lever for bypassing regulation, litigation, and other more formal structures. No longer does consent serve as a reliable bulwark against luck distortions and arbitrariness in legal systems. Opening shrinkwrap (consent to arbitrate!), being shunted into compulsory mediation (consent to mediate!), and showing up at a town hall (consent to public sector decision-making!) are troubling examples of how we are stretching the notion of consent beyond recognition. And the more we stretch consent, the more alienated we become from our own authentic participation, engagement, and empowerment in state and corporate contexts.

Consent needs repair. To that end, this Article makes two new contributions: one, describing how theories of moral and legal luck can illuminate consent problems in in civil settlements; and two, proffering new participant-centered ideas about how to manage consent problems in alternative contexts.

Keywords: dispute resolution, ADR, consent, mediation