The Expressive Powers of Law: Theories and Limits.

• Author: Geisinger, Alex C.
• Position: Book review

The Expressive Powers of Law: Theories and Limits. By Richard H. McAdams. Cambridge and London: Harvard University Press. 2015. P. 261. $39.95.

INTRODUCTION

The question of why people follow the law has long been a subject of scholarly consideration. (1) Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores. (2) Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them. (3)

More recently, legal scholars have recognized expressive effects as a third mechanism by which law influences behavior. (4) Expressive law scholars often focus on law's ability to change the social meaning of particular behaviors. (5) A common example is smoking laws, which likely contributed to changing the social understanding of smoking from a desirable "cool" activity to one that is dirty and undesirable. (6) This changed understanding in turn affects behavior by increasing the likelihood that individuals will socially sanction those who violate no-smoking laws. In addition, some will internalize the law's message by changing their own preferences regarding smoking. While smoking laws are a paradigmatic example, an expressive mechanism has explained a wide variety of laws. (7)

Being relatively new as a field, the expressive effect of law is the least studied and understood among theories on how law affects behavior. It is likewise heavily discounted. (8) As Richard McAdams (9) notes in his important new book The Expressive Powers of Law (Expressive Powers), empirical scholarship portrays analyses of legal compliance as "a long-running conflict between the social sciences, a battle between the rival hypotheses of deterrence and legitimacy" and in doing so "diverts our attention away from the possibility of other explanations" (p. 4). Thus the entrenched debate between deterrence and legitimacy partly obscures expressive effects from consideration.

Another potential reason for the marginalization of expressive mechanisms from law and economics is concerns about the complexity of expressive mechanisms, which some argue negatively affects their ability to be used predictively. (10) Expressive effects occur through a variety of incompletely understood cognitive and social mechanisms. (11) Hence, determining the expressive influence of law requires a sophisticated understanding of complex social and cognitive processes that are not yet fully grasped. Adding further complexity to expressive analysis, scholars also recognize that law is just one of many different influences on social meaning and individual belief. (12) A proper understanding of expressive effects therefore also requires separating the influence of law from other potential behavioral influences such as religion or social movements.

McAdams steps into this academic fray and sets an ambitious agenda with his newest book, Expressive Powers. He aspires to a detailed, rational choice-based model of expressive effects, and likewise seeks to demonstrate the relative importance of expressive effects to our understanding of how law affects behavior. (13) Expressive Powers is thus both an exegesis and an attempt to thrust expressive theory into the mainstream discussion of why individuals obey the law. McAdams succeeds laudably on both accounts. First he provides a detailed, analytically rigorous framework, and then he explains how to apply that framework to a wide range of laws from traffic regulation to international law. Such a far-reaching account of expressive effects challenges the conventional wisdom on why citizens obey the law and lays the course for richer future research.

Any effort to develop a theory in an area of great complexity, however, is likely to raise particular concerns about the theory. In the case of Expressive Law, these concerns include lack of comprehensiveness and lack of predictability. No theory is likely to capture every aspect of the complex interaction of the numerous and varied forces responsible for law's expressive influence on behavior. Further, the same complexity raises trepidation that expressive analysis does not yield predictive results and thus is of limited utility to lawyers. These two concerns are often interrelated. The need for predictability requires structure and simplification which, of course, threatens comprehensive analysis of complex behavioral mechanisms. While few theories are utterly comprehensive, a key goal for success of expressive analysis is to be as comprehensive as possible without sacrificing analytical rigor or predictable application.

In this Review, we address both issues of comprehensiveness and predictability. We turn first to the criticism that behavioral theories cannot be used predictively. This critique is founded on the notion of an unavoidable trade-off between complexity and predictive ability. We argue that, even if increasing complexity decreases predictability, that result does not militate in favor of more parsimonious theories. Theories such as deterrence can become so Spartan that they too, by blinding themselves to other causal mechanisms, cannot predict law's effect on behavior. We find McAdams's claim that expressive effects are relatively ubiquitous convincing. The ubiquity of expressive influence--as well as myriad other influences on behavior described in the social sciences--seriously undercuts the core critique because parsimonious theories will ignore these other behavioral effects although they occur often.

We then turn to concerns regarding comprehensiveness. Complexity, of course, makes it difficult to develop a comprehensive theory, especially when analytical rigor and predictability are also necessary. McAdams's theory is certainly robust enough to provide predictive results in many cases, yet it does not claim to be comprehensive. Indeed, McAdams is very attentive to the limits of his theory and explains that the book is intended solely to provide a starting point for empirical analysis of expressive mechanisms. (14) Nonetheless, Expressive Powers provides a solid foundation from which further exploration and application of expressive theories can progress. We expect that the book, as the first synthesis and thorough exegesis of expressive mechanisms, will become the starting point for many scholars wishing to consider the expressive effects of law. In the spirit of using Expressive Powers as the springboard McAdams intended it to be, this Review considers two limitations on McAdams's theory and argues that these limitations can be overcome--increasing comprehensiveness without sacrificing the clarity that comes from analytical rigor.

We raise our suggestions for extension of McAdams's theory through an analysis of the expressive influences of the Americans with Disabilities Act (ADA). (15) The ADA, which passed twenty-five years ago, prohibits discrimination against people with disabilities across many sectors, prominently in employment and places of public accommodation. (16) In analyzing the ADA's expressive effects we offer two specific suggestions for extension of McAdams's theory. First we aver that a model of inferential reasoning--which the book relies on frequently but never adopts explicitly--should be used to ensure that all types of information provided by law can be considered in expressive analysis. McAdams considers only how law provides information on the attitudes of others, risks of the regulated activity, and compliance with the law, but law can provide information on myriad factors. Second, we maintain that an additional inferential test regarding the expressive effects of compliance with a law should also be developed.

The Review is organized as follows. Part I describes McAdams's theory and its application to a wide variety of laws. Part II considers the assertions made by skeptics that the incomplete nature of behavioral theories makes the predictive use of such theories more difficult, and argues that continued disregard of behavioralism makes parsimonious theories less predictive as well. In Part III, we use the ADA to demonstrate the importance of expressive analysis while also identifying ways to expand McAdams's theory, especially in relation to providing information.

1. MCADAMS AND EXPRESSIVE POWERS

   Before discussing McAdams's theory, it is necessary to define what we mean by expressive effects because the concept is subject to different descriptions. Many law-and-economics scholars are particularly interested in the relationship between legal rules, community norms, and the "social meaning" of particular behaviors. Generally, these commentators suggest that law acts expressively when it changes the likelihood of social sanctioning or changes internal beliefs so that one feels guilty for doing something that she used to do without guilt. (17) For example, Professor Lessig describes how dueling laws changed the social meaning of dueling by providing a competing way in which community members could understand the subject. (18) Prior to the law's passage, refusing a duel was considered dishonorable. Passage of a law against dueling, Lessig argues, changed the social meaning of declining to duel from a dishonorable action to an honorable undertaking of legal duty. (19) Other academics have likewise considered the way in which law influences social norms and thus takes advantage of social-sanctioning mechanisms as a means of enforcement. (20) Finally, scholars have specifically considered ways in which individuals can internalize a law's message, thereby changing their beliefs and in turn their preferred behaviors. (21) Sanctioning in this case is accomplished by feelings of guilt...