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Contractarians view the corporation as a nexus of contracts, constituted by the express or implied consent of each party to or contracting with it. Strong-form contractarianism takes this claim literally and holds that a corporation can be created and sustained by contract alone, thanks notably to the courts’ supportive gap-filling role. We argue that this view is undermined by the way courts actually treat implied terms. While courts do attempt to fill gaps and hold parties to their bargains, they do not typically manufacture counterfactual consent by resorting to the hypothetical bargain logic of contractarianism. Even under the most flexible form of contract law, the common law contract, the capacity of courts to imply third-party obligations in multi-party contracts is highly limited. This makes the contractarian reliance on contract and the courts to construct the complex set of multi-party obligations that make up the corporate form implausible.

As little commentary exists in English, it is the author’s hope that this note on the extension of the arbitration agreement to non-signatories in international arbitration in Latin America in light of the 2008 Peruvian “progressive” arbitration reforms will assist international practitioners and academics alike. Section II considers comparative theories of extension with a specific focus on French arbitral practice as transposition has been the means of construction for Latin America’s normative framework of implied consent. Section III presents as case studies (i) the unique Article 14 of the Peruvian Arbitration Law (PAL) No. 1071 (2008), the only arbitral statute in the world expressly providing for non-signatory extension of the arbitration agreement, and (ii) TSG Peru SAC v. Pesquera Industrial Chicama et al (2009), the first case to consider Article 14 PAL showcasing the transposition errors that may arise as transnational norms are articulated across continents to national legislatures, arbitral tribunals, and annulment courts. Section IV concludes that progressive statutory codification, overly reliant on foreign doctrine in its expansion of arbitral scope, will often be lost in translation by reviewing domestic courts. Thus, the Latin American theme of “contract reality” results in a cross-speech, not unique to the region given the very nature of transnational norms, which fails to speak to commercial parties.

The article has a dual aim. The first is to contribute to the study of criminalisation at the border in Europe by outlining some ways in which Greek law organises the normative exclusion of at least one class of immigrants. Secondly, it tackles the theoretical question of whether such practices are justifiable. No sooner is a non-citizen involved in the criminal law that a web of duties and rights is activated marking the gradual inclusion of the non-citizen in the political community as its proper subject. This renders the differential treatment of noncitizens incoherent. The article also argues that it is both permissible and necessary for a state to treat non-citizens as the proper subject of the criminal law. The former because of the implicit consent provided by non-citizens; the latter out of the respect owed to citizens, whose normative position is impacted upon by their criminal law related interactions with noncitizens.

This paper discusses the capacity of long-term care residents - even some with dementia - to consent to intimacy with their spouses or partners, the health and legal implications of prohibiting or allowing such intimacy, and a set of procedural and substantive policies that protect residents’ rights and interests while minimizing abuse risk. The policies provide, in part, that (1) residents are presumptively competent; (2) consent can be by way of explicit oral or written direction upon admission, a prior written statement, or, for those without a written statement and unable or unwilling to verbally communicate their wishes, by failure to object to intimacy with their spouse/partner either verbally or physically (“implicit consent”); (3) if there is no prior statement or a directive upon admission and the facility reasonably has substantial doubts about a resident’s competency, it shall arrange or require a competency evaluation using a described domain-specific and risk-sensitive approach; (4) all residents retain the right to revoke prior consent orally or physically regardless of competency, but a prior directive that intimacy cease if the resident becomes incompetent shall not be disregarded; (5) residents should be encouraged to include in any specific oral or written statements their wishes should they become legally incompetent as well as a surrogate decision-maker who can intervene and make decisions about intimacy in circumstances specified in the policy; (7) unless it becomes obvious -- to a surrogate or a qualified employee of the facility designated to make such judgments and informed through the medical records that shall contain entries by staff educated to observe for indications of abuse under the state of the art -- that the resident might lack the capacity to object orally or physically or the resident communicates a desire to revoke consent, the facility shall facilitate the resident’s and spouse/partner’s privacy; (8) if it reasonably appears that the resident might lack capacity and is suffering harm, the appointed surrogate or qualified employee can request the spouse/partner to confirm the resident has not verbally or physically refused intimacy, and intimacy must cease if there is no confirmation; (9) if there is confirmation, the surrogate, or the facility’s appointed s qualified employee when there is no surrogate, should bring the matter to court if the surrogate or qualified employee determines that it is in the resident’s best interests to cease intimacy, best interests being determined by considering the resident’s past relevant representations, other indications of the resident’s critical and experiential interests, and the resident’s physical and emotional well-being; and (10) the court should determine best interests using the same criteria.

‘Informing’ consent has evolved through scholarly and judicial interpretation with no established ‘authority’. This ‘concept’ has made conferring liability harder, and litigation too unpredictable. This article aims to denounce this subjective doctrine, and replace it with my ‘consent de facto’ doctrine to aid a new, objective approach to gaining consent which should be enshrined in legislation. Further, it will outline how the subjective common law approach has led to copious amounts of litigation, but it aims to create clear guidelines to establish ‘consent de facto’ and my remedial statute, the ‘General Medical Consent Practice Act’. This is demonstrated in three parts.Primarily, the perceptions of ‘informing’ consent are considered, and outlined, from both domestic and international jurisdictions, and this article considers those judgments. Secondly, it is submitted that the professional ‘paternalistic’ role of the doctor means that the patient will consent to treatment, regardless of the outcome, which should amount to undue influence, vitiating their ‘informing’ consent. Further, this article will briefly outline that ‘informing’ consent can, theoretically, only ever happen when one is in possession of the education of a medical professional. I further submit a remedial statute, considering both its policy reasoning and its viability.Whilst this article submits a normative approach to obtaining consent, I believe that, in disregarding the subjective test, and introducing the new statute, I have achieved legal certainty which could help quicken up court judgments, reduce costs for litigation and allow for established authorities to become available. Importantly, it will finally actually include patients in the decision-making process, ensuring their consent is a priority.

The distribution of intimate images and videos of another person without their consent, a practice commonly referred to as revenge pornography has become a significant social issue in Australia and other jurisdictions. At present, the criminal law on revenge pornography in Australia is fragmented with South Australia and Victoria having created specific offences to deal with the problem while other jurisdictions rely upon a patchwork of existing offences.This article examines the law as it stands in Australia and international jurisdictions where specific offences have been created and discusses a private members bill put before the Commonwealth parliament proposing to criminalise revenge pornography at the Commonwealth level using the Commonwealth’s telephony power.This article argues that criminal law in Australia is inadequate to deal with the issue of revenge pornography and argues for the creation of uniform state and territory legislation modelled after the Victorian revenge pornography legislation without the defence of implied consent.

Contracts require consent, yet no one reads form contracts. So what do we consent to when we consent to form contracts? Scholarly answers to this question range from “we consent to everything but the radically unexpected” to “we consent to nothing but the specifically negotiated.” This essay offers a new answer: when we consent to form contracts we consent to pay market price.Part I of this essay discusses Randy Barnett’s argument that consent to form contracts is consent to be legally bound, which raises the question of whether there are any limits on what can be consented to via form contract. Part II discusses Carnival Cruise Lines v. Shute as illustrative of Barnett’s theory and argues that Carnival’s approach should be rejected. Part III of this essay argues that consent to form contracts should be construed as consent to pay market price.

Contract law professors and students, attorneys, judges know that discussions about consent are rarely about consent. This results from three factors. First, it is the appearance of consent that is necessary to form a contract. Second, not every manifestation of consent is sufficient to create a contract that cannot be avoided. Third, interpretations of consent have the potential to allow courts to intervene when the benefit of the bargain is seen to be unfairly divided or one of the parties is actually worse off as a result of the contract. This Article assesses the extent to which recent decisions about consent are actually indirect means of addressing unfairness with respect to the terms of the exchange. Part of the reason for focusing on more recent cases is that it is possible that the doctrine of unconscionability has replaced more traditional theories as a means of addressing questions of fairness. This modest empirical effort suggests that the notion that courts rely on traditional notions of defects in consent to rescue those who are disadvantaged is obsolete.

This Article examines the underappreciated role of consent and refusal in copyright law’s fair use inquiry. As a matter of black letter law, the nature and circumstances of a copyright holder’s refusal to consent to a use are irrelevant to whether a particular use is fair. This “standard view” effectively treats all situations short of affirmative consent — such as silence or acquiescence from a copyright holder — as equivalent to an express refusal. Despite the standard view, a close analysis of the case law reveals that some courts implicitly consider consent-based factors in fair use decisions. Other courts, however, adhere strictly to the standard view and disregard consent across the board. Is there a principled basis to consider the nature of consent and refusal in the fair use analysis?This Article argues that consent, properly conceived, has an important role to play in certain categories of fair use cases. In particular, consent-based considerations should not be disregarded when they are relevant to the traditional fair use factors and fair use’s underlying goal of promoting socially-valuable uses. To make this argument, the Article creates and analyzes a model of the consent-seeking interactions between copyright holders and users. It concludes that a literal application of the standard view neglects important user reliance interests and fails to deter costly opportunistic behavior. The nature of the copyright holder’s consent or refusal, therefore, has a critical role to play in situations involving user reliance interests, such as cases of “partial consent,” bad faith strategic behavior, and digital opt-out systems. In these cases, consideration of consent and refusal accords with the traditional fair use factors and the doctrine’s history as an “equitable rule of reason,” and operates to creates a broader scope for fair use.

This paper examines a State's "implied consent" law after the U.S. Supreme Court's decision in McNeely v. Missouri (2013). McNeely held that the metabolization of alcohol does not “presen[t] a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Current case law in Idaho allows warrantless, nonconsensual ("forced") blood testing of suspected drunk drivers on an alternative ground: as "consent searches." The theory is that, by operation of Idaho's implied consent law, a driver impliedly consents to blood testing by using Idaho's roads and that, once given, this consent cannot be revoked when a driver is stopped on reasonable suspicion of drunk driving and asked to submit to blood testing. This implied-irrevocable-consent theory results in the oxymoronic result of upholding admittedly "involuntary" blood testing as consent searches. This paper argues that the irrevocable-implied-consent theory conflicts with U.S. Supreme Court case law. It also argues, however, that State can (as Idaho does) constitutionally encourage suspected drunk drivers to submit to blood tests by imposing administrative penalties -- including license suspension for one year -- for refusing to submit to a test. The paper predicts the Court will uphold such administrative penalties under a Fourth Amendment "reasonableness" analysis like that used by the Court to uphold searches of probationers and parolees.

Law enforcement officers frequently use written consent forms to obtain permission for searches. Consent forms are pervasive — indeed, more than ninety percent of state police departments use them in at least some circumstances. Moreover, consent forms are popular — traditional advocates for civil liberties, such as the ACLU, have championed their use. Yet even though consent forms are an integral part of our law enforcement culture, virtually no scholarly literature has examined their use.This Article is the first to provide an in-depth examination of the use of consent forms. Our analysis is founded on two original empirical data sets. The first is a survey of state police department practices in nearly every state, which demonstrates that officers routinely use consent forms. The second is a data set consisting of every published appellate case involving a consent form decided between 2005 and 2009, which reveals that fewer than 5% of defendants prevailed — less than half the rate at which defendants prevail in Fourth Amendment consent cases overall.With these novel empirical data as our foundation, we draw three conclusions. First, we argue that a signed consent form does not signify that a suspect rendered consent voluntarily. The form does little to improve a suspect’s understanding of her rights, particularly when the suspect is poorly-educated, frightened, or not fluent in English. Second, we argue that consent forms do not prevent coercion. If an officer can use coercion or other psychological tactics to obtain verbal consent, surely she can also do so to obtain a signature on a consent form. And finally, we conclude that consent forms implicitly discourage courts from closely examining whether consent was voluntary because the forms provide the illusion of voluntariness. That is, obtaining a signed consent form effectively insulates law enforcement from later invalidation of the search on voluntariness grounds. In light of these problems, we urge that police departments reexamine their use of consent forms and that courts rethink the way in which they evaluate consent forms.The Article concludes with four proposals to remedy the problems with consent forms. First, courts should state explicitly that a signed consent form does not automatically indicate that an alleged consent was in fact voluntary. Second, courts should analyze consent forms using a more searching inquiry into voluntariness imported from contract law. Third, rather than advocating the use of consent forms, civil rights organizations should use their resources to educate people about their rights. That way, people need not rely on a consent form to educate them after a situation has already arisen. And finally, these organizations should press law enforcement entities to use audio and video recording equipment to create a more accurate and complete account of an instance of alleged consent. Appendices to article are available from authors on request.

The United States Supreme Court undoes the Fourth Amendment by snipping bits and pieces from the prohibition of unreasonable searches and seizures, and from the requirement of warrants for searches and seizures. For travelers, a large patch was torn away by implied consent. Driving through highway “sobriety” checkpoints and walking through airport “security” checkpoints are rationalized as knowing waivers of the protections of the Fourth Amendment, although modern life is impossible without road travel and air travel. The legal catch is that no court uses implied consent for the benefit of a party other than a government, or for a purpose other than circumvention of the Fourth Amendment. Implied consent finds no anchor in the Fourth Amendment. That makes implied consent a Fourth Amendment fraud. Others are reasonable suspicion on the totality of the circumstances, profiling, the clairvoyance exception to probable cause, and Korematsu. Each Fourth Amendment fraud was made possible by the judicially-modified Fourth Amendment, the text of which is given. Lawlessness is the main item on the calendar of the United States Supreme Court, so there will be no judicial rejection of any of those frauds.

This article analyzes the concept of consent of the governed in the Hebrew Bible with special reference to the covenant on Mount Sinai. The author recognizes consent as a source of legitimate authority and deals in a sophisticated way with problems that have troubled later consent theories: whether parties actually consent; whether consent is voluntary; the information needed for informed consent; the issue of framing the issue so as to present the subjects with fair options; the problem of dissent; the impact of a social compact on non-participants and future generations; and the question of whether the compact is conditional or absolute. A remarkable feature of the Sinai episode is its similarity to the original position in Rawls’ Theory of Justice: the Israelites in the wilderness at Sinai, like Rawlsian subjects behind the veil of ignorance, make fundamental choices while shielded from knowledge as to their future positions or endowments.

What is the foundation of consent in the criminal law? In his book, The Logic of Consent, Peter Westen claims neither of the two classic philosophical accounts of consent fully explains how consent is treated in the criminal law. Focusing on the doctrines of prospective consent and retrospective consent, Westen identifies this dilemma: J.S. Mill’s conception of consent (that individuals are the best judges of their own interests) explains how the criminal law treats prospective consent, but cannot explain its treatment of retrospective consent. In contrast, Joel Feinberg’s conception of consent (that individuals have a sovereign right to autonomy) suffers from the opposite problem: it explains how the criminal law treats retrospective consent, but cannot explain how it treats prospective consent. This article resolves Westen’s dilemma by identifying a third, distinct conception of consent, articulated by Joseph Raz. Raz argues that we value consent because the state of being autonomous is a constituent element of the good life. The doctrines of prospective and retrospective consent illustrate how Raz’s conception is distinct from either Mill’s or Feinberg’s conceptions of consent. Moreover, Raz’s theory of consent is consistent with, and thus can provide a foundation for, the way the criminal law treats prospective and retrospective consent. I also discuss some of the implications for the criminal law if one accepts Raz’s account of consent. For example, some paternalistic laws might be justified under Raz’s account.

We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This article reviews how a wide range of authorities regard consent, discovering that they treat consent as a matter of degree and a measure of justification. By abstracting from that evidence, we can outline a theory of graduated consent. This article concludes by testing a graduated consent theory against such problems as enforcing standardized agreements, justifying political coercion, and reading a constitution. In those and other applications, a theory of graduated consent can contribute to legal, moral, and economic reasoning.(Part II of this paper materially revises and expands on material first presented in, "The Scale of Consent," a working paper available at http://ssrn.com/abstract=1322180.)

We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This working paper reviews how legal and other authorities regard consent, revealing that they treat consent as a matter of degree and a measure of justification. The scale described here plays a vital role in a larger project, one that will also explain consent's importance and apply graduated consent theory to such longstanding puzzles as the enforceability of standard form agreements, the justifiability of political coercion, and the meaning of a constitution. As a preliminary to that project, this working paper explains how consent and justification vary by degree and covary in value.

The word sanction has two meanings. A sanction may be a punishment - a punitive or coercive measure that results from a failure to comply with a law, rule, or order. On the other hand, a sanction may be an official or authoritative approval. Thus this question is posed: can one be sanctioned, in the latter sense, in performing an act that is otherwise sanctionable, in the former sense? Those members of the Internet community who infringe copyright by downloading music in violation of license agreements inarguably break the law. They infringe copyright, and are subject to harsh civil penalties, and in some cases, criminal penalties. But perhaps the latter type of sanction, something more like implied consent or deferral, would be more suitable in the copyright arena, in the interests of perpetuating the traditional purposes of copyright. In the context of contemporary music copyright law, what sanction is appropriate against infringers? The policy against copyright infringement is generally desirable. However, current technology makes meaningful enforcement impracticable. Moreover, censuring the introduction of new technological modalities is harmful both to concepts of justice and to market development. Industry-specific laws may be important towards informing market actors of lawmakers' policy intentions. However, they should not carry monetary penalties. Instead, such penalties should be postponed until such time that the market and the public have responded to the new technology and delivery mechanisms. In this way, lawmakers may determine, based on real and objective market factors, what constitutes useful or harmful application of the technology. This would deter incumbents from investing capital in judicial enforcement and policy-making rather than developing and embracing the new technology.

Consent searches reportedly comprise a vast proportion of government searches. The use of consent searches allows the police to uncover contraband in situations where there is otherwise no lawful basis for conducting a search. The Court's most recent pronouncement about the bounds of consent came this past term in U.S. v. Drayton, in which police boarded a Greyhound bus and asked passengers' permission to search their bags and their persons. Given the enormous practical value of consent in Fourth Amendment jurisprudence, it is not surprising that the Court repeatedly has interpreted freedom to refuse police requests to search very broadly. What is troubling, however, is the ever-widening gap between Fourth Amendment consent jurisprudence, on the one hand, and scientific findings about the psychology of compliance and consent, on the other. Ever since the Court first applied the totality of the circumstances standard to consent search issues, it has held in case after case (with only a couple of exceptions) that a reasonable person in the situation in question would feel free to refuse the police request to search. By contrast, empirical studies over the last several decades on the social psychology of compliance, conformity, social influence, and politeness have all converged on the same conclusion: our freedom to refuse to comply under situationally-induced pressures to do so is extremely limited. These situational pressures often are imperceptible to observers; at the same time they can be so overwhelming that attempts to reduce them with prophylactic warnings are insufficient. In light of mounting empirical evidence, it is remarkable that the totality of the circumstances standard has nearly always led the Court to the conclusion that a reasonable person would feel free to refuse the police request to search. Consent search doctrine is now at a point where the Court's reasoning must struggle against scientific findings about compliance, and against common sense. Thus, the Court's consent doctrine has devolved into a fiction of the crudest sort - a mere device for attaining the desired legal consequence. This has led to suspicionless searches of many thousands of innocent citizens who consent to searches under coercive circumstances. Perhaps the systematic suspicionless searching of innocent citizens is a worthwhile price to pay in exchange for effective law enforcement, but the Court has not engaged in this analysis in any of its Fourth Amendment consent search or seizure cases. Incorporation of empirical findings on compliance and social influence into Fourth Amendment consent jurisprudence would help to dispel the air of unreality that characterizes current doctrine.

This paper examines the effect of bank secrecy in Australia on disclosures to provide information in the interests of better regulation. At common law, the banker/customer relationship is a relationship of confidence which includes a duty to maintain secrecy and confidentiality about its customer’s accounts under the Tournier rule (UK, 1924). The Tournier rule has exceptions. A bank is not in breach of bank secrecy and confidentiality if it discloses information: (1) under compulsion of law, such as by legislation. Examples include disclosure under the Privacy Act which requires disclosure ‘required by or under law’, the Financial Transaction Reports Act 1988 (Cth), the Proceeds of Crime Act 1987 (Cth) and what is now the Australian Securities and Investments Commission Act 2001 (Cth). (2) where there is a duty to the public to disclose, such as where it suspects terrorist activities (3) where the interests of the bank require disclosure (eg litigation involving the bank) and (4) where the disclosure is made by the express or implied consent of the customer (customer has ticked the box).