In 2000, Prof. Richard McAdams published an article entitled “AN ATTITUDINAL THEORY OF EXPRESSIVE LAW”, 79 Or. L. Rev. 339, which I which to summarize and discuss here, for legal research purposes of the visitors of this blog. In his article, Prof. McAdams makes the following conclusions:
1. Law influences behavior by what it says. In a democratic society, legislation and other law can change what people believe about the approval patterns in their community or society. The law operates as a signal of popular opinion. Because people value approval, intrinsically or instrumentally, such beliefs influence behavior. Updating one's beliefs to account for the law, an individual will infer the prospect of greater disapproval costs from behavior the law condemns, which gives the individual an incentive to obey the law that is independent of the legal sanctions.
2. Like other accounts of expressive law, the attitudinal theory suggests that economic theorists should stop implicitly assuming that law matters only because legal sanctions affect the costs of behavior. The economic analysis of a legal rule is at least presumptively incomplete when it ignores the possibility that law influences behavior expressively, as by influencing beliefs about approval patterns.
3. In addition, the attitudinal theory of expressive law has a number of interesting implications including: that local law will have a greater expressive effect than state or national law; that the expressive effect depends on the degree to which the public believes that law is positively correlated with public opinion; that courts can have an expressive effect because court decisions are so correlated; that ideological interest groups will seek to capture the expressive power of law as a means of expanding their influence over the behavior of others; and that some limits on government expression may be desirable to avoid its undesirable exploitation by such groups.
Law is often defined by the fact of its sanction. The state does not merely recommend compliance with the rules we call law, but backs those rules with liability or punishment. Law affects behavior "expressively" by what it says rather than by what it does. Law changes behavior by signaling the underlying attitudes of a community or society. Because people are motivated to gain approval and avoid disapproval, the information signaled by legislation and other law affects their behavior.
The attitudinal theory has three components. First, there is a motivational assumption that an individual's behavior depends, in part, on what actions she believes others will approve or disapprove. The motivating power of approval may arise either because the individual values approval for its own sake, or as an instrument for achieving some other end. Second, there is a claim that individuals have imperfect information about what others approve and that their beliefs about such matters are frequently (though not inevitably) mistaken. Given their concern for approval, individuals are therefore sensitive to new sources of information. Third, there is a claim that democratically produced legislative outcomes are positively correlated with popular attitudes and therefore provide a signal of those attitudes. Independent of the sanction, the legislative signal influences behavior by causing people to update their prior beliefs about what others approve and disapprove.
The attitudinal theory of expressive law also presents several interesting implications. First, the theory implies that local ordinances will have a greater expressive effect than state or national legislation because most approval and disapproval occur locally, where others observe us. Second, the perception that "special interests" control the legislature will undermine the expressive effect because it depends on the size of the perceived positive correlation between public attitudes and legislation. Third, court decisions may also have an expressive effect because court decisions often reflect public attitudes. The most significant implication, however, is some insight into political conflict over symbols.
Economics explains an individual's behavior as the result of his preferences, beliefs, and opportunities. That is, an individual seeks to maximize satisfaction of his preferences, given his beliefs about how he can accomplish these ends, subject to the constraints of his opportunities. In recent years, various rational choice theorists have applied this basic framework to explain social regularities, such as norms, that were at one time thought to be outside the range of economic theory.
The utilitarian analysis of law is dominated by a focus on legal sanctions. The above analysis, however, begins to reveal how law might have a significant expressive effect, an effect dependent not on the legal sanction but on what the law says. Law signals the existence of information held by the law-maker. In particular, democratically enacted legislation provides information about what elected representatives believe their constituents approve and disapprove. Because legislators have a professional interest in correctly judging approval patterns, their enactments reveal their private information about such patterns. The law, not the sanction, then influences behavior by causing people to update their prior beliefs about what others approve and disapprove.
It would be naive to deny that elected representatives sometimes feel immune from popular pressure. Legislators know that many citizens do not vote and those that do have imperfect information about how their representative has voted on or otherwise influenced legislation. Even if the citizen knows what her representative did, she also has imperfect information about whether the result was desirable. Perhaps the legislator had investigated the matter, possessed superior information, and acted paternalistically in the voter's interest. Finally, when the citizen enters the voting booth with the thought of ousting her representative in retaliation for some legislative act, she will have only a limited range of electoral options. Even if the voter disapproves of many of the incumbent's votes, she may still think herself better off with the incumbent than the challenger. For these reasons, democratic processes often fail to reveal or displace pluralistic ignorance. Not only do these limitations weaken the connection between majority preferences and legislative outcomes, but there are strong nonmajoritarian influences over legislation.
Here enters public choice theory and the problem of "rent-seeking." Rent-seeking occurs when a well-organized but narrow interest group exploits these limitations to secure a legislative transfer of material wealth from a larger and poorly organized majority. The obvious point is that lobbying groups influence legislators with campaign contributions and other favors. Less obvious before public choice theory was the relevance of a collective action problem.
When legal scholars talk of the expressive function of law, they often mean the expressive function of court-made law. The claim is that judicial pronouncements shape how individuals frame social and political issues and otherwise have a powerful symbolic effect on behavior. Indeed, if courts are "counter-majoritarian" institutions, as much legal theory suggests, then judicial decisions are not constrained by, and therefore cannot be a signal of, diffuse public attitudes. Under this line of thinking, the attitudinal model predicts that judicial decisions have no expressive effect.
The constitutional debate over the extent to which the Supreme Court is counter-majoritarian tends to obscure a second point: that much of what courts do is not constitutional. Courts interpret statutes and exercise common law powers. In both cases, they are subject to being "overruled" by the legislature, which has primacy in non-constitutional fields.
Two theories predict that courts would attempt to avoid issuing rules that legislatures feel compelled to supplant. First, if judges are motivated by prestige, they will presumably seek to avoid the loss of prestige that occurs when legislators enact highly popular legislation that "corrects" a judicial decision. Another theory posits that judges seek to implement their own policy preferences. If so, judges will get more of what they want if they push the policy only slightly beyond what it desires. The claim here is that legislatures can give attention to only a limited number of issues and that they are more likely to allocate that time to overruling judicial decisions the more those decisions deviate from legislative preferences. In other words, a statutory interpretation or common law rule is more likely to survive if it is consistent with or only slightly offends the popular attitudes that influence legislatures. Thus, under either a prestige model or a policy preferences model, non-constitutional decisions are constrained by popular attitudes. More precisely, popular opinion constrains publicized cases, but (as with legislation) law's expressive effect is, in any event, limited to cases that attract public attention.
Symbolic governmental actions, and the controversy they generate, present something of a puzzle for economic analysis. Even when the symbolic action involves legislation, it imposes no real sanction and allocates no material resources. Why then do people invest so much in a purely symbolic struggle? One can give an explanation based entirely on preferences. To satisfy this preference is then no different than satisfying material preferences. One's ends--to observe the veneration or desecration of the symbol--make rational some degree of political involvement to achieve those ends.
While a group may use symbolic governmental action to demonstrate its actual majority status, the struggle is not limited to signaling true approval patterns. Ideological interest groups would prefer to constitute a majority but will settle for creating the appearance of being the majority. Creating pluralistic ignorance will serve the group's interests nearly as well because, as noted above, this outcome can be stable and can substantially influence behavior. For this reason, opposing groups vying for public influence each will claim to represent the "mainstream." More generally, the size of an interest group often becomes a hotly contested issue, with a group expending significant effort in claiming to have the largest possible membership.
