McAdams, Richard H. The Expressive Powers of Law: Theories and Limits.

Brennan, Patrick McKinley

McADAMS, Richard H. The Expressive Powers of Law: Theories and Limits. Cambridge, Mass.: Harvard University Press, 2015. 322 pp. Cloth, $39.95--Why do people obey the law? One possible answer is exactly that law is an ordinance of reason, for the common good, promulgated by those who have care of the community, where it is understood that the threat of state coercion is an ordinary incident of the operation of law even though not a part of law's definition. Richard McAdams has written a book about why people obey the law that takes a different tack, one that works a helpful corrective of the two dominant accounts.

According to McAdams, one familiar theory maintains that law works mostly by deterrence, namely, by making the cost of compliance cheaper than noncompliance, and a second conventional account of compliance points to legitimacy, the belief in the existence of a legitimate order such that its violation would be more or less repugnant to a person's sense of duty, as an explanation. McAdams laments that "theoretical pluralism is distressingly rare.... Yet because compliance is of paramount concern, we should seek to understand all the causal mechanisms that produce it." Causes, rather than reasons for action, are McAdams's assumed unit of analysis, and his stated aim for the book is to show that, in some contexts, an "expressive mechanism causes [sic] more of the compliance we observe than deterrence or legitimacy."

McAdams identifies and exemplifies two expressive functions of law, its coordinating function and its information function. The central thesis of the book is that the adduced examples of these two functions "demonstrate that law has expressive powers independent of the legal sanctions threatened on violators and independent of the legitimacy the population perceives in the authority creating and enforcing the law." McAdams finds law's expressive powers at work in constitutional and international law, criminal punishment, race and discrimination, the relationship between law and social movements, and many other areas in which law regulates.

McAdams mercifully does not purport to offer a neutral analysis of what law should express. For example, according to McAdams, "the power of law to reveal information offers important insights into the need for the Establishment Clause, as we can now understand how the government's symbolic endorsement of religion can have behavioral effects on religious practice." A different sort of exponent of law's expressive power might have concluded that his discovery illuminated why enforcement of a nonestablishment norm under should be presumptively disfavored. It is McAdams's view, however, that "[t]he majority of people want the advantages of a scientifically oriented government, at least some of the time, and it would be quite impractical to forbid government from taking actions that, on occasion, endorse scientific values over religion."

Be that as it may, McAdams endeavors to show why the Supreme Court has interpreted the Establishment Clause as forbidding some but not all endorsements of religion. Specifically, endorsement not only makes the excluded feel less respected, but it also alters their behavior in favor of compliance with the endorsed conduct. According to McAdams, the latter amounts to the kind of "social tyranny" of which J. S. Mill warned, apparently conclusively. Some readers of McAdams's book might nonetheless conclude that he has under-valued law's expressive power per se, thus leading him to undervalue the importance of expressive harms that do not "cause" compliance.

McAdams's analysis widening the perspective of our understanding of why people comply with the law should be welcomed by those interested either in the nature of law, the function of law, or both. Especially valuable in the expressivist analysis pursued by McAdams is a rejection of the account(s) of law that either exaggerate the place of coercion in the operation of law or make coercion part of the definition of law. Frederick Schauer, for example, has recently defended (The Force of Law [2015]) a definition of law in which its deterrent function is the focal point, while not denying that there are also regulative and constitutive rules of law. McAdams's account goes much further than Schauer's in illuminating how law works when, for example, a state passes a law against same-sex marriage that merely restates the status quo. Such a law has no coercive effect, but its expressive power is considerable indeed, irrespective of whether it leads to altered conduct.

I have emphasized McAdams's account of law's expressive power to convey information, but his account of how that expressive power coordinates behavior is also noteworthy. Working from the signaling power of yield signs and solid-center street lines on motorists, McAdams shows how law sometimes works by a power of suggestion. His varied examples are fascinating for their capacity both to demonstrate and to show the limits of law's expressive power.

Finally, McAdams contends that as part of "[his] effort to persuade the economist to inquire systematically about law's expressive effects, [he] even show[s] that legal sanctions owe their power entirely to the law's ability to facilitate coordination expressively." For this reason, among others, the book should be read by those who are interested in how law works, whether from the point of view of economics, game theory, jurisprudence, or even that tradition of jurisprudence that denies that coercion is any part of the definition of law.--Patrick McKinley Brennan, Villanova University School of Law