Distinguishing between Custom and Law: Empirical Examples of Endogeneity in Property and First Amendment Precedents

William & Mary Bill of Rights Journal, 21(1081), 2013

26 Pages Posted: 31 May 2017

See all articles by Daniel L. Chen

Daniel L. Chen

Directeur de Recherche, Centre National de la Recherche Scientifique, Toulouse School of Economics, Institute for Advanced Study in Toulouse, University of Toulouse Capitole, Toulouse, France

Susan Yeh

Charles River Associates (CRA)

Date Written: 2013

Abstract

This Article discusses the relationship between custom and law to highlight the phenomenon of endogeneity that arises when empirically evaluating the effects of laws. An important literature evaluates the roles of laws in motivating behaviors, including investigations of whether or how laws influence customs and social norms. Traditional economic analysis, for example, posits that codified laws influence behaviors by formally incentivizing a particular action, and social norm theories assert that the laws also communicate values. Enhancing this strand of thought, an increasing number of works employing historical or empirical analyses have linked laws to broader societal changes over time. Meanwhile, a valuable discourse examines how customs may determine both de facto laws and formally enacted laws, including the court precedents that are rendered. Whether they are directly codified into a legal test or informally referenced, customs can influence formal laws that are adopted in a community and beyond. Indeed, some scholars have argued that evolving customs and norms have influenced the Supreme Court in its decisions.

The subsequent effects of these formal laws and court decisions are of tremendous interest to policymakers and judges. With policy concerns in mind, we argue that one must not ignore the endogenous feedback between aggregate behaviors, customs, and laws. That is, while customs may shape or influence laws, laws can also shape customs through their effects on behaviors or norms in the aggregate. The endogeneity that custom produces suggests that simply by observing a correlation between law and behavior is not enough to assert that a law in itself is effective or to assert that social trends and evolving customs are driving legal change.

Keywords: law, customs, social norms

Suggested Citation

Chen, Daniel L. and Yeh, Susan, Distinguishing between Custom and Law: Empirical Examples of Endogeneity in Property and First Amendment Precedents (2013). William & Mary Bill of Rights Journal, 21(1081), 2013. Available at SSRN: https://ssrn.com/abstract=2975712

Daniel L. Chen (Contact Author)

Directeur de Recherche, Centre National de la Recherche Scientifique, Toulouse School of Economics, Institute for Advanced Study in Toulouse, University of Toulouse Capitole, Toulouse, France ( email )

21 allée de Brienne
31015 Toulouse cedex 6 France
Toulouse, 31015
France

Susan Yeh

Charles River Associates (CRA) ( email )

1201 F. St. NW
Ste. 700
Washington, DC 20004
United States

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