Is Consent Overrated?

SHERRY F. COLB

Cornell law professor Sherry F. Colb argues that while consent is an important and necessary condition of many activities in which adults engage, it does not necessarily follow that consent is a sufficient condition as well. Colb describes some circumstances in which the apparent consent of the parties does not make the result desirable or good.

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Casalicchio v. BOKF, N.A.

Docket: 19-20246

Opinion Date: March 9, 2020

Judge: E. Grady Jolly

Areas of Law: Banking, Consumer Law, Real Estate & Property Law

Plaintiff requested that the court set aside a foreclosure sale of his residence because his lender mailed him a preforeclosure notice with the wrong deadline for curing default. In this case, the letter contained a deadline thirty days from the day the notice was printed, even though the deed of trust called for a deadline thirty days from the day the letter was mailed. The Fifth Circuit held that the district court correctly applied Texas precedents and denied plaintiff relief, because the lender's "minor" non-compliance with the terms of the deed of trust did not justify unwinding the foreclosure sale. The court held that the error in the foreclosure notice did not clearly harm or prejudice plaintiff, where he does not dispute that, even if the notice had stated the correct deadline, he would not have had the funds to pay the past-due balance on his account.

A. A. v. Northside Independent School District

Docket: 19-50007

Opinion Date: March 9, 2020

Judge: Carl E. Stewart

Areas of Law: Education Law, Public Benefits

The Fifth Circuit affirmed the district court's denial of a parent's motion for summary judgment against the school district for alleged procedural and substantive violations of the Individuals with Disabilities Education Act (IDEA). The court held that the district court did not err in finding that the parent failed to meet her burden of showing that the school district violated the procedural requirements of the IDEA. In this case, none of the incidents the parent claimed amounted to a procedural violation and the court was not convinced that the student was denied a free and appropriate public education. The court also held that there were no substantive IDEA violations. The court was satisfied that the school district took the necessary steps to ensure that the student was being properly serviced under this individualized education plan, despite his absences. Accordingly, the court affirmed the district court's grant of the school district's motion for summary judgment.