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What does ‘consent’ even mean anymore?

What does ‘consent’ even mean anymore?

By Paul Bland, Senior Attorney

So HERE is an outrage.

The case — Spring Lake v. Holloway — was decided early this month by a Florida District Court of Appeal.

It involves a 92-year-old woman with a fourth grade education and memory problems. When she was admitted to a nursing home, the woman, who has now passed away but was recognized at the time as “increasingly confused,” was asked to sign a bunch of legalese that contains an arbitration clause.

Now, with regards to legal claims filed in court against the nursing home, the question is whether her signature is legally binding.

Honestly, though, how could it be? After all, hasn’t the U.S. Supreme Court repeatedly stressed that arbitration is supposed to be a matter of “consent,” where parties are only forced to go into arbitration when they voluntarily agreed to arbitrate? This emphasis on consent was extremely important to the Supreme Court in 2010 in the Stolt-Nielsen case, where the question was whether a large corporation convicted of criminal price-fixing had consented to arbitration on a class action basis.

Apparently, the importance of consent has its limits when it applies to elderly women who are mistreated by nursing homes. The Florida District Court of Appeal in Spring Lake agreed with the trial court that “the contracts were so complex that she could not possibly have understood what she was signing.”

No big deal, though, as far as the Court of Appeal was concerned: “For better or worse, her limited abilities are not a basis to prevent the enforceability of this contract.” According to the court, not worrying about actual consent or understanding is necessary in this modern world; the court wrote that our “modern economy simply could not function” if a “meeting of the minds required individualized understanding of all aspects of the typical standardized contract.”

So the next time a consumer protection, workers’ rights, or injury victim lawyer challenges an arbitration clause or some other contract term that strips people of their rights, and the corporation’s lawyers responds with, “this was a voluntary agreement where the plaintiff CHOSE to give up all of her rights,” put a mental asterisk next to the disclaimers about what is “voluntary” and “consented to” in our “modern economy.”

The bigger picture is this: lots of people, including many powerful judges and the Chamber of Commerce, want to replace a system of law with a system of “contracts.” The typical justification is that letting private parties “order their affairs” through voluntary contracts is really better for everyone because of the great virtues of choice. For those of us who actually represent people of lesser power who have many aspects of their lives dictated to them by powerful corporations, this explanation is very hard to stomach. Our clients don’t write these agreements, and actually would prefer not to have their rights taken from them.

But when we have reached the point that courts in the United States of America say it does not matter if a vulnerable individual “COULD NOT POSSIBLY HAVE UNDERSTOOD WHAT SHE WAS SIGNING,” what does consent mean? Not much, apparently.