An Attitudinal Theory of Expressive Law

52 Pages Posted: 5 Jan 2001

Date Written: December 2000

Abstract

Economic analysis typically assumes that law changes the expected cost of behavior, and thereby changes behavior, only because it imposes legal sanctions. Another possibility is that law operates "expressively" - that it changes behavior by what it says rather than what it does. This article proposes an informal model to explain how law could have such an expressive effect. In the model, law changes the expected cost of behavior by signaling attitudes of approval or disapproval. The model assumes (1) that individuals value approval either intrinsically or instrumentally, (2) that individuals have only imperfect information about what others approve, and (3) that certain identifiable categories of legislation are positively correlated with diffuse public opinion. As a result, these categories of legislation cause individuals to update their prior beliefs about the approval pattern, and this updated belief produces behavioral change. As an example, anti-smoking legislation signals greater disapproval of public smoking, which raises the expected costs from public smoking, thereby decreasing such smoking independent of the legal sanctions. The article explores several implications of this attitudinal model of expressive law. One is that local ordinances have a greater expressive effect than state or federal laws, because most approval and disapproval occurs locally. Second, judicial decisions have an expressive effect because they are positively correlated with diffuse public opinion. Third, parties wishing to influence the behavior of others will invest in capturing the state's expressive power, with the result that there is substantial political conflict over what appear to be matters of pure symbolism.

Suggested Citation

McAdams, Richard H., An Attitudinal Theory of Expressive Law (December 2000). Oregon Law Review, Vol. 79, pp. 339-390, Summer 2000. Available at SSRN: https://ssrn.com/abstract=253331 or http://dx.doi.org/10.2139/ssrn.253331

Richard H. McAdams (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-834-2520 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
463
Abstract Views
4,509
rank
60,222
PlumX Metrics