Creating Safe Social Norms in a Dangerous World

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.