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McAdams, Richard H. --- "The Focal Point Theory of Expressive Law" [ 2011] ELECD 1068 ; in Parisi, Francesco (ed), "Production of Legal Rules" (Edward Elgar Publishing, 2011)

Book Title: Production of Legal Rules

Editor(s): Parisi, Francesco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440326

Section: Chapter 10

Section Title: The Focal Point Theory of Expressive Law

Author(s): McAdams, Richard H.

Number of pages: 18

Extract:

10 The focal point theory of expressive law
Richard H. McAdams



1. Introduction
A common claim about law is that it influences behavior "expressively." At the
most general level, the claim is that law's behavioral influence is not entirely
limited to the effect of legal sanctions (deterrence and incapacitation). The
residual effect is termed "expressive." Unfortunately, the expressive effect is
often left at this vague level, with no specific theory of how it works. But some
theorists offer expressive mechanisms of law's influence. One possibility is that
law communicates information, as by revealing the law-makers' information
about public attitudes or the risks of regulated behavior (see Geisinger 2002;
McAdams 2000a; Dharmapala and McAdams 2003). Another theory is that
law changes preferences (see Cooter 1998, 2000b; Dau-Schmidt 1990). This
chapter addresses a third expressive theory: that in certain circumstances law
facilitates coordination by supplying a focal point (see e.g. Cooter 2000a; Garrett
and Weingast 1993; Hadfield and Weingast 2010a, 2010b; McAdams 2000b).
To some degree, these different theories ­ sanctions, information, preference
change, focal point ­ may be seen as rival hypotheses for how law influences
behavior. But there is no reason why law cannot have all these effects, some
being expressive, which work in an additive way.
The focal point theory might also be termed a "coordination theory" of
expressive law. Game theory shows how individuals often have a common
interest in coordinating their behavior. In these situations, if anything makes
mutually salient a particular way of ...