“I Think i Do”: Another Perspective on Consent and the Law

“The doctrine of informed consent surfaced, seemingly out of nowhere in Salgo v. Leland Stanford Jr. University Board of Trustees [317 P.2sd 170 (Cal. 1957)].” Katz Jay , The Silent World of Doctor and Patient (New York: Free Press, 1984), 60. See also Faden Ruth R. & Beauchamp Tom L. , A History and Theory of Informed Consent (New York: Oxford University Press, 1986), 86–91, 125–29.

To cite just a few examples: Pharmaceutical companies are required by law to tell the consumer of potential adverse effects of using their products, see 21 U.S.C. § 352 (1982); processed foods bear legally mandated labels stating their contents, see id. § 343 (1972); lending institutions must inform the borrower of the total dollar amount of interest to be repaid, see 15 U.S.C. § 1638 (a) (1982); and the police are legally obligated to tell the person about to be arrested of her Constitutional right to an attorney and to remain silent, see Miranda v. Arizona, 384 U.S. 436, 467–73 (1966).

For a discussion of the rise of—and partial retreat from—the legal doctrine of informed consent, see Katz Jay , supra note 1, 48–84. See also Faden & Beauchamp, supra note 1, 114–50; Alan Meisel & Kabnick Lisa D. , “Informed Consent to Medical Treatment: An Analysis of Recent Legislation”, University of Pittsburgh Law Review 41 (1980): 407.

See generally Katz, supra note 1.

See also, e.g., Clark v. Clark, 10 N.H. 380, 382 (1839) (“A perfected negotiation, or treaty, of marriage, is undoubtedly a civil contract.”); Ryan v. Ryan, 277 S.2d 266, 268–69 (Fla. 1973) (marriage “a ‘contract’ rather than a mere ‘relationship’”); Fearon v. Treanor, 272 N.Y. 268, 272, 5 N.E.2d 815, 816 (1936) (“Marriage is more than a personal relation between a man and a woman. It is a status founded on contract and established by law. It constitutes an institution involving the highest interests of society.”)

A xerox copy of the Kentucky manual, entitled “Because you are getting married …,” that was obtained from Mr. Greeman contained no information related to “the legal responsibilities of spouses to each other and as parents to their children,” as ostensibly required by section 402.270.

Louisiana is at present the only exception. See supra note 6.

By public knowledge of the law, I do not mean to include public knowledge of, for example, the sanctions that attach to various crimes. I am interested only in studies that measure the ordinary person's knowledge of whether a particular action is prohibited by the criminal law or subjects one to liability under the civil law. Thus, the vast majority of studies of public knowledge of the criminal law, which focus on the deterrent effects of various sanctions as well as public perceptions of sanctions, are not relevant. The above-listed three studies appear to be the only published surveys of public knowledge of the law, thus described.

See generally Note, supra note 8.

Curran Barbara A. , The Legal Needs of the Public: The Final Report of a National Survey (Chicago: American Bar Foundation, 1977), 186–94.

Id. at 196.

Id. at 196, 218–19 n.27.

This fact may well change as antenuptial contracts become more accepted. Unfortunately, there do not at present appear to be any statistics available on how many persons contact an attorney for assistance in drawing up such an agreement.

See, e.g., VA. CODE ANN. § 20–48, 49 (1983); WASH. REV. CODE ANN. § 26.04.010 (1986).

See, e.g., LA. CIV. CODE ANN. art. 93 (West Supp. 1988); DEL. CODE ANN. tit. 13, § 1506(a)(5) (1981).

See, e.g., MINN. STAT. ANN. § 518.02 (West Supp. 1988); PA. STAT. ANN. tit. 23, § 205 (Purdon Supp. 1988).

See supra note 16.

See, e.g., MISS. CODE ANN. § 93–7–3 (1972); W. VA. CODE § 48–2–2 (1986).

See, e.g., W. VA. CODE § 48–2–2 (1986); R.I. GEN. LAWS § 15–1–5 (1981).

See, e.g., MINN. STAT. ANN. § 518.02 (West Supp. 1988); S.C. CODE ANN. § 20-1-10 (Law. Co-op 1976).

See, e.g., MISS. CODE ANN. § 93-1-5(f) (Supp. 1987); PA. STAT. ANN. tit. 48, § 1–5(d) (Purdon Supp. 1988).

See Miranda v. Arizona, 384 U.S. 436, 467–73 (1966).

For a brief intellectual history of the notion of the rule of law, see Shklar Judith N. , “Political Theory and The Rule of Law”, in Hutchinson A.C. & Monahan P. , eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), 1.

Hayek Friedrich A. , The Road to Serfdom (Chicago: Univ. of Chicago Press, 1944), 72. It is Hayek's conception of the rule that is implicit in the familiar logo, “a government of laws, not men.”

Bentham Jeremy , “Essay on the Promulgation of Laws, and the Reasons Thereof; with Specimen of a Penal Code”, in Bowring J. ed., The Works of Jeremy Bentham (New York: Russell & Russell Inc., 1962), Vol. 1, 158.

Bentham Jeremy , “Papers Relative to Codification and Public Instruction: Including Correspondence with the Russian Emperor, and Divers Constituted Authorities in the American United States”, in Bowring J. ed., The Works of Jeremy Bentham (New York: Russell & Russell Inc., 1962), Vol. 4, 481.

Bentham Jeremy , supra note 25, 158.

Id.

Id.

Id.: 159.

Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).

For an extended discussion of how our rhetoric of fair notice might be reconciled with the legal reality, see Jeffries John Calvin Jr. , “Legality, Vagueness, and the Construction of Penal Statutes”, Virginia Law Review, 71 (March 1985): 189, 205–12.