Academic journal article Michigan Law Review

Expressive Law and the Americans with Disabilities Act

Academic journal article Michigan Law Review

Expressive Law and the Americans with Disabilities Act

Article excerpt

EXPRESSIVE LAW AND THE AMERICANS WITH DISABILITIES ACT

THE EXPRESSIVE POWERS OF LAW: THEORIES AND LIMITS. By Richard H. McAdams. Cambridge and London: Harvard University Press. 2015. P. 261. $39.95.

INTRODUCTION

The question of why people follow the law has long been a subject of scholarly consideration.1 Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores.2 Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them.3

More recently, legal scholars have recognized expressive effects as a third mechanism by which law influences behavior.4 Expressive law scholars often focus on law's ability to change the social meaning of particular behaviors.5 A common example is smoking laws, which likely contributed to changing the social understanding of smoking from a desirable "cool" activity to one that is dirty and undesirable.6 This changed understanding in turn affects behavior by increasing the likelihood that individuals will socially sanction those who violate no-smoking laws. In addition, some will internalize the law's message by changing their own preferences regarding smoking. While smoking laws are a paradigmatic example, an expressive mechanism has explained a wide variety of laws.7

Being relatively new as a field, the expressive effect of law is the least studied and understood among theories on how law affects behavior. It is likewise heavily discounted.8 As Richard McAdams9 notes in his important new book The Expressive Powers of Law (Expressive Powers), empirical scholarship portrays analyses of legal compliance as "a long-running conflict between the social sciences, a battle between the rival hypotheses of deterrence and legitimacy" and in doing so "diverts our attention away from the possibility of other explanations" (p. 4). Thus the entrenched debate between deterrence and legitimacy partly obscures expressive effects from consideration.

Another potential reason for the marginalization of expressive mechanisms from law and economics is concerns about the complexity of expressive mechanisms, which some argue negatively affects their ability to be used predictively.10 Expressive effects occur through a variety of incompletely understood cognitive and social mechanisms.11 Hence, determining the expressive influence of law requires a sophisticated understanding of complex social and cognitive processes that are not yet fully grasped. Adding further complexity to expressive analysis, scholars also recognize that law is just one of many different influences on social meaning and individual belief.12 A proper understanding of expressive effects therefore also requires separating the influence of law from other potential behavioral influences such as religion or social movements.

McAdams steps into this academic fray and sets an ambitious agenda with his newest book, Expressive Powers. He aspires to a detailed, rational choice-based model of expressive effects, and likewise seeks to demonstrate the relative importance of expressive effects to our understanding of how law affects behavior.13 Expressive Powers is thus both an exegesis and an attempt to thrust expressive theory into the mainstream discussion of why individuals obey the law. McAdams succeeds laudably on both accounts. First he provides a detailed, analytically rigorous framework, and then he explains how to apply that framework to a wide range of laws from traffic regulation to international law. Such a far-reaching account of expressive effects challenges the conventional wisdom on why citizens obey the law and lays the course for richer future research. …

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