University of Illinois Legal Working Paper Series
University of Illinois Law and Economics Working Papers
Expressive Adjudication
Abstract
Abstract: This article provides a causal explanation of adjudicative compliance that is distinct from the court's threat of sanctions and its institutional legitimacy. The new mechanism for compliance is the power of adjudicative expression. The theory of “expressive adjudication” arises from a previously neglected synergy among three expressive concepts in game theory – a “correlated equilibrium,” a “focal point,” and a signal. The article identifies the circumstances in which adjudicative expression can, by itself, influence the behavior of existing disputants and of future potential disputants. In each case, ambiguity in the relevant facts or the concepts underlying intentional and spontaneous order can cause a conflict that clarifying expression resolves. This expressive power explains otherwise puzzling instances of compliance with tribunals that lack the power of sanctions and unifies theories of third-party norm enforcement with a theory of legal sanctions. Finally, the article examines certain normative implications of the expressive theory, including a novel function of adjudicative impartiality, a new justification for the system of public adjudication (a judiciary), and a trade-off between dispute resolution and dispute avoidance.
Subject Area
Law and Economics
Recommended Citation
Richard H. McAdams,
"Expressive Adjudication"
(September 2004).
University of Illinois Legal Working Paper Series.
University of Illinois Law and Economics Working Papers.
Working Paper 7.
http://law.bepress.com/uiuclwps/papers/art7
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