"Perhaps the hallmark of late twentieth-century critical legal studies (CLS) writing was the claim that this widely made inference from consent to value is simply unwarranted. People’s abilities to ascertain and act on their own self-interest are limited, the critical scholars argued. The capacity of countries, institutions, multinational corporations, social forces, or simply stronger parties to create in individual subjects a willingness to consent to transactions or changes that do not in fact increase their well being is well documented. “Consent” of the weaker can be manufactured to serve the interests of dominant parties, and when it is manufactured, it is not a good measure of the value to the weak of that to which consent was given. Neither skepticism regarding the good motives or knowledge base of the “paternalist,” nor faith in the self-regarding preferences of the individual, justify the unexamined inference that a consensual change so extracted is a good one for all affected parties. The degree to which a consensual change is perceived as such is the degree to which it has been unduly legitimated by the consent that preceded it. The legitimation cost of consensual transactions, then, is the sometimes unwarranted belief in the increased value of the change to which consent was proffered."
January 1, 1970