Expressive Law in Mixed Motive Games

American Bar Foundation, Chicago IL

Investigators

Abstract

A fundamental issue for legal theory is to identify the ways that law influences behavior. This project seeks to understand empirically the expressive effects of law on behavior; that is, the effects that law has apart from sanctions it imposes. Many theories, including most of law & economics, point to sanctions as the sole mechanism by which law achieves compliance. By contrast, most expressive theories tend to follow psychological and sociological claims that law influences behavior to the extent of its perceived legitimacy. As a third possibility, a few theorists have suggested coordination as another mechanism for generating legal compliance, a third reason why people obey the law. The aim of this project is to test empirically one such theory: that law influences behavior in coordination games with multiple equilibria by providing a focal point around which the parties coordinate. A simple example of coordination is the choice between driving on the left side or right side of the road. The fact that we all want to coordinate does not guarantee that we will all choose the same side of the road. A "focal point" gives guidance about how to coordinate. More common are mixed-motive coordination games, in which the parties have conflicting preferences between choices . e.g., two drivers at a four way intersection each want to proceed first; yet, they both prefer not to proceed simultaneously and collide. The overarching hypothesis guiding this research is that in mixed-motive coordination games, legal actors can influence behavior merely by making a particular equilibrium focal or salient. To test this claim, a series of controlled experiments will be run in which the expressive effects of law will be modeled in the laboratory. The aim of these experiments is to tease apart several different components of expressive law. Study 1 tests the ostensive properties of law in which law works by merely pointing to a particular outcome and increasing its salience. Study 2 tests whether these expressive effects are enhanced by law's legitimacy (arising from agents who are elected, appointed, and so on) and by its normativity (articulating what citizens should or should not do, in terms of rights, obligations, etc.). Study 3 tests a more strenuous claim: that expressive law can change behavior even when the recommended behavior is contrary to an existing convention. Empirical investigation of the expressive effects of law on behavior will provide information that is critical for legislators and policymakers. Because it is commonly assumed that law works solely through the sanctions it imposes, legislators draft statutes, sentencing commissions produce guidelines, and government agencies construct regulations using considering only possible deterrence (and sometimes, incapacitation). By contrast, empirical data on the effects of expressive law will inform legal reform by documenting the circumstances under which law is likely to work simply by providing a focal point around which parties can coordinate. It is hoped that the proposed activity will eventually lead to a better understanding of systematic successes and failures of legal compliance, such as the circumstances under which parties tend to keep contractual promises, settle rather than litigate disputes, and comply with regulations regarding smoking and recycling.