A Roseanna Sommers Two-Fer: Research that Will Change Your Views of Consent and Deception

Roseanna Sommers (right) is an Assistant Professor at the University of Michigan Law School.  She is on our radar for two reasons today.  First, over on Jotwell, our own Nancy Kim has published a comment on Professor Sommers’ Contract Schemas, available on SSRN.  The article, as Nancy summarizes it, makes for depressing reading from the perspective of a contracts professor.  Professor Sommers draws on empirical research in which non-lawyers are asked about what they think of when they think of contracts.  It’s not good. 

Ordinary people might hate contracts more than they hate the government.  More than they hate dentists.  More than they hate people who use “fulsome” to mean comprehensive.  According to Sommers’ research, people associate contracts with dense, fine-print boilerplate that they will never understand but which they are bound by once they sign, even if they are deceived into signing.  Lay people are apparently not conversant with affirmative defenses to contracts liability.   

Sidebar: I think these lay instincts are not far off.  If you are deceived into a contractual commitment, you are not likely to be able to bring a successful suit avoiding the contract based on an affirmative defense.  Rarely is the suit worth the hassle and expense.  Still, in many cases, you could return the goods and get a refund, either because the vender knows that it would lose on the law, or (more likely) because it’s bad business to allow ill will to fester in the consuming community.  However, in cases of real scams, the law is likely of little use, because the scammer is operating through shells, and even if you could identify them, they are likely judgment-proof.

Second, Professor Sommers is also featured on the latest episode of Felipe Jimenez‘s Private Law Podcast, about which we have blogged about before here and here.  In the episode, Professor Sommers discusses her forays into experimental jurisprudence.  That is, she does empirical work that uncovers lay people’s understanding of legal terms, like “consent” or “reasonableness.”  The approach is similar to that of Tess Wilkinson-Ryan and David Hoffman, back before they became podcast co-hosts and, and as a result, Kardashian-level international celebrities.

One shocking result of Professor Sommers’ research is that people regularly consent to things to which similarly-situated people say that they would not consent.  That is, Professor Sommers’ sweetly asks her research subjects, “Would you unlock your phone and let a researcher take it into another room to check on something?”  People say they would not.  But in the context of her IRB-approved research, she asks research subjects to do that very thing, and over 90% consent.  More alarming still, people are extremely reluctant to withdraw consent once they have given it.  Once in medias res, people do things that they would not agree to do if the full extent of what was being asked of them were disclosed ex ante.  As Nancy suggests in her review referenced above, Professor Sommers’ research gives us additional reasons to regard with a jaundiced eye claims of consumer consent to boilerplate contractual terms.

As Professor Sommers and friend-of-the-blog, Meirav Furth-Matzkin argue in Consumer Psychology and the Problem of Fine-Print Fraud, lay people do not know that consent can be withdrawn.  They think that if they sign a contract they are bound, notwithstanding deception.  Manipulative venders rely on the in terrorum effect, and they can get away with it because consumers do not think they have any recourse when they are tricked into signifying assent to contractual terms. 

Professor Sommers’ scholarship also reaches across doctrinal areas to test our notions of consent in very different contexts.   In Commonsense Consent, Professor Sommers looks at deception in the context of sexual relations, police investigation and interrogation, medical procedures, research with human subjects, and contracts.  Her research provides fascinating results, the fulls impact of which is a bit hard to sort out.  For example, feminists worked for decades to transform our understanding of rape from being associated exclusively with violence and threats of violence to being associated with power.  But courts (and common intuitions) do not treat people who are tricked into having sex, for example by people lying about their marital status, as sexual assault victims.  They do recognize sexual assault-by-deception in cases where the sex itself is misrepresented; for example, when medical professionals commit sex acts disguised as procedures or when people trick others into sex by concealing their identity.  We may have changed laws to eliminate use of force as an element of sexual assault, but the coercion/deception distinction makes it hard to prosecute sexual assault by deception.  When you couple that with Professor Sommers’ results indicating that people do not realize that consent can be withdrawn, Antioch College’s “infamous” sexual assault policy doesn’t look so “ridiculous” after all, if it ever did.

Our tendency to think that deception does not negate legal consent is also relevant in many police contexts, as police can intentionally  engage in all sorts of deception, short of quid-pro-quo threats, and such chicanery will not invalidate inculpatory statements.  Similarly, Professor Sommers’ research indicates that people do not think that consent to medical procedures is negated by medical professionals’ misrepresentations in connection with those procedures.  Consumer protection faces difficult challenges when it bumps up against common-sense understandings of consent, which tend to be quite broad.

While scholars have puzzled about the distinction the law makes between fraud in the inducement and fraud in the factum, Professor Sommers’ research suggests that the legal distinction builds on common-sense intuitions.  That insight does not justify giving legal effect to the distinction, but it does help explain its origins and longevity.

Give a listen to this podcast.  Whether you do contracts law, criminal law, sexual assault and workplace harassment law, or health law, you will find much to contemplate in Professor Sommers’ contributions.  it will be an hour very well spent!