Back in the 1990s, there was a lot of interest among law professors about the interaction between law and social norms. There were several conferences. I wrote a book about it. Even the New Yorker published an article about it. There had been a general sense that traditional economic models then being used in law and economics took too much for granted–suggested that the government could in an uncomplicated way lay down the rules for people to follow and then sanction them if they violate those rules. In fact, people often act in orderly ways and generate public goods for themselves without resorting to law. They may not even know about the law. Robert Ellickson wrote a famous book about this phenomenon. If all this is so, the question is how.
Game-theoretic models–then newish among lawyers (although decades old), now familiar–seemed to offer explanations. And they had interesting implications. Scholars quickly realized, and showed with these models, that poorly designed law, if it did not respect or work off of social norms, could damage them, possibly, or in other ways generate perverse consequences. Maybe people would be less likely to trust the government and follow its laws if the government tries to change the social norms they care about. On the other hand, the models provided no guarantee that social norms would be efficient, contrary to Ellickson.
The literature seemed to have run out of steam a number of years ago. The game-theoretic models turned out to be not very tractable. They seemed to be able to explain too much. (Game theory is good at showing that cooperative behavior is consistent with rationality, less good at showing that it is entailed by it.) Or maybe we don’t need (as well as can’t have) a general theory of social norms. It’s enough to know a lot about whatever particular area of human behavior you’re writing about.
Richard McAdams has published a new book called The Expressive Powers of Law. It is in some ways a throwback to the earlier literature. It puts a great deal of emphasis on the way that “focal points” can structure people’s behavior when people are otherwise trying to coordinate with each other. The government can manipulate focal points, and in that way influence people’s behavior for the better. But in the complex informational environment in which people operate, there are limits to how much the government can do. The strength of the book lies in the careful way that it explores those limits, and throws cold water on some excessively ambitious claims about how the government can “send a message” in order to influence behavior. This excellent book is well worth a read.