Document Type

Article

Publication Title

University of Pennsylvania Law Review

Abstract

The articles presented here portray several different conceptions of the relationship between the realm of formal state law and the realm of social norms-as well as various views on what economic analysis might contribute to our knowledge of that relationship. Robert Ellickson's pathbreaking work describes two parallel domains, largely segregated from and irrelevant to each other; the norms of Shasta County arise and are maintained not in the shadow of the law, but in ignorance of it. Robert Cooter offers a more normative and synthetic vision, but it is a synthesis in which state law should understand itself primarily as the passive, Hayekian reflector of a dynamic, creative domain of social norms formed under the appropriate decentralized and efficiency-tending conditions. A third view emerges from several members of what might be called the Pennsylvania contingent (that this convergence arises from discrete empirical studies of seemingly disparate fields, such as commercial law and labor law, makes these findings particularly provocative). On this third view, state law and social norms are still viewed as parallel, separate domains; yet both are highly relevant to those they regulate (contra Ellickson), and nonetheless the regulated parties prefer ex ante to keep the two domains independent and distinct (contra Cooter). This complex position emerges because state law and social norms have different substantive characteristics, at least in the commercial context: To borrow from sociologists of law, state law is "cold," social norms are "warm." Hence different phases of commercial interaction justify the application of different principles; social norms for ongoing relationships, state law for endgames. Commercial actors bargain in the shadow of both regimes, but to unify these regimes-by letting one subordinate the other-would be to undermine the overall efficiency of commercial transactions. Cass Sunstein's article presents a fourth and wholly different view. Drawing more on the domain of general public-policy than that of commercial exchange, Sunstein emphasizes state law as an instrument for the production and reshaping of social norms. This view pictures law and norms as neither independent nor easily separated. Sunstein instead envisions two mutually constituted realms, though he focuses primarily on one direction of that influence: that of law on norms. This interdependence I want to explore a bit further.

First Page

2055

DOI

https://doi.org/10.2307/3312648

Volume

144

Publication Date

1996

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