Tipping Points and Viral Law
Which channels for legal authority are most efficient? This enforcement-efficacy question is a tough one, understudied by traditional L&E and even BL&E. Most instrumentalist theories of law spend relatively little time thinking about the costs of distributing legal rules, and the likelihood that their recipients (citizens) will internalize them. Indeed, the basic L&E approach to criminal law (Becker’s) is frankly dismissive of law’s signaling function, and equates criminal and civil wrongs as taxable infractions.
The problem is not confined to criminal law, of course. Imagine that we want to promote good behavior by a corporate officer. Traditional corporate law doctrine says that we should do so by tinkering with legal rules (“the duty to auction should attach at a Revlon moment”; “Revlon doesn’t happen unless control transfers apart from a distributed market transaction”; “officers must seek Board approval for corporate opportunity taking”; etc.) These doctrinal choices are framed against an incentive problem (principal agent). Richer motivational accounts complicate the story: maybe officers won’t be incented to avoid negligence by imposing a care rule; maybe monitoring rules will increase distrust). But even behavioral law and economics assumes that the way that law is pushed out to its targets is basically immaterial to whether it is effective.
This is the standard, hierarchical, model of distributing law. Different approaches, born out of network theory, are of course possible. Malcolm Gladwell’s The Tipping Point illustrates the point. Gladwell popularized the idea of the “law of the few”: “The success of any kind of social epidemic is heavily dependent on the involvement of people with a particular and rare set of social skills.” He further identified connectors (people who “link us up with the world … people with a special gift for bringing the world together”; mavens (“people we rely upon to connect us with new information.”); and salesmen (“persuaders”). Finally, he suggested that some messages are more sticky than others. (Source for the quotes: Wikipedia) .
How would these insights apply to law? Well, obviously, we might imagine Judge Hercules thinking about a change in the law. She has some criterion to evaluate the goodness of that change. [Be it Kaldor-Hicks efficiency, or something as subtle as de-biasing a pernicious cognitive error, or maybe a fMRI readout of a few brain scans, or maybe she just flipped a coin. Don't be distracted by the mechanism, stick with the story!] Once she’s made the decision, however, she wants the greatest number of people in society to follow her new rule, so as to maximize the benefits she thinks flows from the change. L&E and BL&E have, to date, said almost nothing about this distribution and enforcement problem. (Indeed, as I learned from Alex Rasholnikov’s workshop at Temple this week, tax folks haven’t done much on enforcement either.) So, she follows the conventional wisdom, issuing her decision in an opinion, or an order if she thinks it likely to be unappealled, and assumes that individuals will learn about the new legal rule in the traditional ways – the media, by word-of-mouth, and by personal experience with the policeman’s stick.
Gladwellians, however, might imagine the legal change as a proposed social epidemic, and the judge’s goal to make that epidemic travel as fast, and as widely, as possible. She also wants the epidemic to stick – to embed itself in individuals’ daily behavior, so that post-hoc enforcement costs are low. Thus, she might want to find connectors to send her decision to (bloggers!); talk with mavens about the rules so they can explain them to others (law professors!); and then somehow enlist salesmen to her cause (friendly litigants). To make the message as sticky as possible, she might want to dress it up with provocative rhetoric, or maybe even embed some multimedia in the opinion itself. In short, Gladwell can explain many of the features of the way that the common law today is distributed, and makes sense of, say, the Delaware Supreme Court’s tremendous success at increasing their market share: the justices of Delaware understand the law of the few!
There’s just one problem with this story: it may not be right. Duncan Watts performed a large-scale experiment to test whether nodes improved virus transmission:
In 2001, Watts used a Web site to recruit about 61,000 people, then asked them to ferry messages to 18 targets worldwide. Sure enough, he found that Milgram was right: The average length of the chain was roughly six links. But when he examined these pathways, he found that “hubs”–highly connected people–weren’t crucial. Sure, they existed. But only 5% of the email messages passed through one of these superconnectors. The rest of the messages moved through society in much more democratic paths, zipping from one weakly connected individual to another, until they arrived at the target.
If Watts is more right than Gladwell, it poses a challenge for jurists: what is the most efficient way to distribute legal rules, where you can’t rely simply on nodal governance. Because this blog post is already too long, I think I’ll leave the question open to solicit your thoughts.
(Image Source: The Sick Doctor, Jehan Georges Vibert)