Half a century ago, the legal doctrine of informed consent was presumably transformed in order to enshrine the ethical goals of ensuring autonomous, voluntary, and informed decision- making in medicine into law. The reasonable patient standard introduced in Canterbury v. Spence and Cobbs v. Grant sought to center the patient by requiring that the physician disclose all information that a reasonable person in the patient’s position would consider material to her decision-making. However, those efforts, while laudable, have proven inadequate to achieving the ethical principles they were intended to achieve.

The legal doctrine of informed consent’s focus on the adequacy of physician disclosures— both in documents and conversations—emphasizes ritual over relationships. It has proven to be both needlessly adversarial and backward-looking, leading physicians to assume more disclosure is better for the purposes of preventing liability. In effect, the law’s onerous legal requirements necessitate overdisclosure at the expense of patient understanding, rendering it ineffective at actually informing voluntary decision-making. The objective reasonable person standard has proven inadequate in shifting the emphasis from physician disclosure to patient comprehension.

This Article introduces a new element to an informed consent claim: subjective patient understanding of the risks, benefits, and alternatives of the proposed intervention. This proposal transforms the standard for informed consent to emphasize patient comprehension and consent rather than solely focusing on physician disclosure in order to ensure the lofty ethical goals of clinical informed consent.

Despite the social and legal resonance of fear events, fear has received little academic attention as a mechanism for creating and entrenching law in the United States. Importantly, long after the fear stimulus fades from social discourse, the law remains, sometimes in ways that are not obviously derivative of the original fear object. Consequently, understanding fear as an origin of law is of heightened importance. In this Article, we analyze various domains of law using experimental digital surveys and detailed case study analysis to unveil the fear principle that demonstrates how fear becomes law.

We examine the lawmaking potential of fear through the process of objectification. To do so, we dissect the multidimensionality of objects—the social, the tangible, and the legal—and explain how overidentification with one dimension of an object leads to a process of objectification. From there, we consider how the unique emotional capacity of fear can accelerate the process of objectification to create law. In doing so, we craft and empirically test an interdisciplinary definition of fear. Through five case studies: the 1976 Crime Wave Against the Elderly, the Satanic Panic, the Juvenile Superpredator Myth, the Creepy Clown Conspiracy, and the Fentanyl Contact Overdose Myth, we trace the objectification of fear into law and identify key elements needed for objectification to occur. Critically, none of these fear objects were real—but we argue that realness is not necessary for a wave of fear to create law. We end the Article with our theoretical contribution of the Fear Principle: an analytic tool designed to help scholars and policymakers identify the legal objectification of fear.