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Abstract:
This article uses informal game theory to model the complex and important role that social norms and customs play in tort law. Such an account is overdue as the recent burst of law-and-norms legal literature has focused overwhelmingly on contract law or property law. In tort, social norms may directly affect whether a particular action is negligent. This fact makes norms and customs of great interest to tort law. The article first establishes the superiority of a game-theoretic approach in comparison to the classic jury-psychology approach of Clarence Morris or the traditional economic approach as best articulated by Richard Posner and William Landes. Next, it is demonstrated that the emerging game-theoretic accounts of Robert Ellickson, Robert Cooter, Eric Posner, and others, while superior to the traditional economic approach, nevertheless fail to explain the complex rational structure of various social norms and customs that are significant for tort law. Because these theorists get the structure of social norms wrong, their accounts of the interaction between norms and the law are correlatively either incorrect or not comprehensive. In the remainder of the paper, I develop an alternative model. Specifically, a tripartite account of the rational structure of customs will be shown to illuminate the modern rule that custom is evidence of, but does not determine, negligence. While this evidentiary rule is dominant, under certain circumstances courts nevertheless continue to apply the per se rule and the rule whereby custom is given no priority. The account I develop will make sense of this behavior by showing how the underlying rational structure of social situations determines which social customs are likely to be efficient, and consequently, which rule of custom is likely to be welfare maximizing. The per se rule will make more sense when the custom at issue is thought to be efficient as this rule will protect the conforming action from going to the jury where the injurer might be found to be negligent, despite the fact that the injurious act conformed to a welfare-maximizing custom. The evidentiary rule will make more sense when the custom at issue is not optimal but welfare-enhancing nevertheless, as this rule encourages juries to give deference to the custom, while allowing the jury to find negligence if a superior custom appears attainable. Finally, the rule that accords conformity no priority may be suitable if sanction-driven customs are welfare neutral or welfare decreasing.

Abstract:
This article uses informal game theory to model the complex and important role that social norms and customs play in tort law. Such an account is overdue as the recent burst of law-and-norms legal literature has focused overwhelmingly on contract law or property law. In tort, social norms may directly affect whether a particular action is negligent. This fact makes norms and customs of great interest to tort law. The article first establishes the superiority of a game-theoretic approach in comparison to the classic jury-psychology approach of Clarence Morris or the traditional economic approach as best articulated by Richard Posner and William Landes. Next, it is demonstrated that the emerging game-theoretic accounts of Robert Ellickson, Robert Cooter, Eric Posner, and others, while superior to the traditional economic approach, nevertheless fail to explain the complex rational structure of various social norms and customs that are significant for tort law. Because these theorists get the structure of social norms wrong, their accounts of the interaction between norms and the law are correlatively either incorrect or not comprehensive. In the remainder of the paper, I develop an alternative model. Specifically, a tripartite account of the rational structure of customs will be shown to illuminate the modern rule that custom is evidence of, but does not determine, negligence. While this evidentiary rule is dominant, under certain circumstances courts nevertheless continue to apply the per se rule and the rule whereby custom is given no priority. The account I develop will make sense of this behavior by showing how the underlying rational structure of social situations determines which social customs are likely to be efficient, and consequently, which rule of custom is likely to be welfare maximizing. The per se rule will make more sense when the custom at issue is thought to be efficient as this rule will protect the conforming action from going to the jury where the injurer might be found to be negligent, despite the fact that the injurious act conformed to a welfare-maximizing custom. The evidentiary rule will make more sense when the custom at issue is not optimal but welfare-enhancing nevertheless, as this rule encourages juries to give deference to the custom, while allowing the jury to find negligence if a superior custom appears attainable. Finally, the rule that accords conformity no priority may be suitable if sanction-driven customs are welfare neutral or welfare decreasing.

Abstract:
In his article entitled "The FTC as Internet Privacy Norm Entrepreneur," Professor Steven Hetcher takes a closer look into the Federal Trade Commission's efforts to promote online privacy by means of website privacy policies. In his analysis, Professor Hetcher employs a public choice approach to model the FTC's activities with the hope of better understanding what may really be motivating the FTC's policy choices. This article considers and rejects the supposition that the FTC's purported efforts to promote industry self-regulation indicate that the agency has been captured by the industry. Instead, Professor Hetcher charges that the FTC's endorsement of self-regulation of the Internet is simply a ruse whereby this powerful industry will come to completely dominate the personal data of the consuming public, resulting in the complete disappearance of individual informational privacy.

This article considers the FTC's role as an internet privacy norm entrepreneur. Professor Hetcher argues that once websites are induced to make representations in writing via privacy policies, it is easier for the FTC to seek enforcement actions for deceptive trade practices. The FTC's promotion of privacy policies thus allows the agency to increase its jurisdiction. The FTC's seeming attempts to promote industry self-regulation have all the while been establishing the predicate for their jurisdictional grasp over website activities. Because the FTC is able to gain a jurisdictional foothold by means of promoting more respected website privacy norms, the agency is aptly characterized as an internet privacy norm entrepreneur.

Abstract:
There is much debate regarding the Internet's effect on the liberty of the individual and how this liberty is best preserved. In his article entitled "Climbing the Walls of Your Electronic Cage," Professor Steven Hetcher surveys Professor Lawrence Lessig's Code: And Other Laws of Cyberspace, in which Professor Lessig attempts to provide an answer to this debate. Professor Lessig's Code argues that the liberty of the Internet must be preserved and that this should be accomplished through the use of computer code and a constitution.

Code primarily argues that open computer code should be used to regulate the Internet. Open code reveals its source and closed code does not. Open code is not owned by large corporate entities subject to the influence of governmental interests. Open source code is less regulable then closed source code and regulability is inversely related to liberty. Therefore, because liberty should be protected, open code should be protected. In supporting open source code, Professor Lessig advocates a constitution for cyberspace (constitution in the British sense as opposed to the American). Professor Hetcher notes that Professor Lessig provides no guidance as to the form or substance of the constitution, and the constitution appears problematic in that Professor Lessig suggests that Americans may craft this constitution, which is in contrast to the international reach of the Internet. However, the importance of Professor Lessig's constitution comes from the fact that it is suggested as a solution, not the suggestion of the details of a possible constitution.

Professor Lessig disagrees with the popular sentiment that the Internet should be left alone to regulate itself, an attitude he terms "do-nothingness." He describes such individuals as Internet libertarians. He argues that these individuals have failed to take into account the Internet's changes since its inception that make it more regulable. Professor Hetcher agrees with this argument. Professor Lessig then addresses the relationship between regulability and freedom and concludes that consumers' ability to use the Internet freely (i.e, without their personal information being gathered) leads to greater freedom. Professor Hetcher notes that this relationship may be more complex than Professor Lessig suggests and that there are instances when consumers are benefited and able to act more freely when others possess their personal data. Professor Hetcher suggests the Internet may be changing to a contractarian model where individuals can actively choose to selectively bargain away their personal information.

Professor Lessig's Code provides an "intentionally scary" account of the future of the Internet if free from regulation. Professor Lessig predicts a future where individual's options, choices, and movements are regulated as a result of the use of closed code on the Internet. To prevent such a future Professor Lessig advocates the preservation of the use of open code. Professor Hetcher recognizes the importance of altering the direction in which modern techno-society is heading, but notes there are other options, such as governmental regulations, that should be considered in attempting to avoid a future where Internet users find themselves "wired in."