McAdams, Richard H. --- "The Expressive Power of Adjudication in an Evolutionary Context" [2011] ELECD 243; in Zumbansen, Peer; Calliess, Gralf-Peter (eds), "Law, Economics and Evolutionary Theory" (Edward Elgar Publishing, 2011)

Book Title: Law, Economics and Evolutionary Theory

Editor(s): Zumbansen, Peer; Calliess, Gralf-Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448230

Section: Chapter 7

Section Title: The Expressive Power of Adjudication in an Evolutionary Context

Author(s): McAdams, Richard H.

Number of pages: 27

Extract:

7. The expressive power of adjudication in an
evolutionary context
Richard H. McAdams

This chapter offers a `third way' of understanding compliance with adjudication. The
two conventional theories are economic ­ that people fear threatened sanctions ­ and
sociological ­ that people defer to perceived legitimacy. Without denying the importance
of these mechanisms, I offer to supplement them with a new causal story for the effect of
adjudication. To explain how courts influence behavior independent of their perceived
legitimacy and the sanctions they wield, one must engage in a peculiar thought experi-
ment imagining a court without these two typical characteristics. I therefore devote much
of the chapter to describing an expressive influence that any third party might have over
two parties in a dispute.
The expressive theory of adjudication synergistically combines three ways that eco-
nomics has of understanding communicative influences: (1) as a device for creating a
`correlated equilibrium;' (2) as a `cheap talk' means of constructing a `focal point' around
which individuals coordinate; and (3) as a signal of private information. The synergy of
these three forces gives the third party an expressive power to resolve the specific disputes
subject to adjudication.
After discussing dispute resolution, I turn more clearly to a discussion of adjudication
­ to the ability of courts or quasi-judicial bodies to influence the behavior of those not
a party to the dispute that prompts its decision. This part of the story requires an evo-
lutionary approach. I discuss how informal order ­ conventions and norms ­ inherently
contain ...