Doctrinally, both consent and estoppel seem to lack a conceptual core. If consent is the exercise of a normative power predicated on our autonomy interests, then sometimes what we call “consent” is not really consent. And if estoppel is about barring/stopping/hindering one’s ability to make a claim, but not about changing the underlying rights and duties themselves, then sometimes what courts deem to be estoppel is not really estoppel. Instead, consent has alternative normative groundings, and estoppel seems to be employed as the term by which courts can simply reach what they deem to be the fair or equitable result.
This paper aims to make sense of these categories, venturing into both consent and estoppel, but focusing more on the far more undertheorized estoppel. As it surveys these doctrines at work in criminal law, tort law, property, and IP, it points to the sorts of changes in normative relations that appear to be at work and what might ground them. Ultimately, some of our practices make far more sense than others, although our nomenclature makes little sense at all. Apparent consent is not consent at all. And estoppel masks distinctions between “forfeiture by insincere act” (a forced shift in rights and duties), other cases that should be deemed exercises of normative powers, other instances that should be seen as tort-like for creating liabilities, and thinner losses of the ability to complain/assert one’s rights. Even this final forfeiture of mere assertability proves questionable because when it does not camouflage a more significant estoppel, it ultimately produces a result that may be disproportionate to A’s behavior and B’s reliance. Ultimately, I hope to show that our concepts are conflating radically different sorts of relations and that these labels prevent us from scrutinizing our practices as carefully as we should.
Civil Wrongs and Justice in Private Law
Ferzan, Kimberly Kessler, "Losing the Right to Assert You've Been Wronged: A Study in Conceptual Chaos?" (2020). Faculty Scholarship at Penn Law. 2322.