Edited by Peer Zumbansen and Gralf-Peter Calliess
Chapter 7: The Expressive Power of Adjudication in an Evolutionary Context
7. The expressive power of adjudication in an evolutionary context Richard H. McAdams This chapter offers a ‘third way’ of understanding compliance with adjudication. The two conventional theories are economic – that people fear threatened sanctions – and sociological – that people defer to perceived legitimacy. Without denying the importance of these mechanisms, I offer to supplement them with a new causal story for the effect of adjudication. To explain how courts influence behavior independent of their perceived legitimacy and the sanctions they wield, one must engage in a peculiar thought experiment imagining a court without these two typical characteristics. I therefore devote much of the chapter to describing an expressive influence that any third party might have over two parties in a dispute. The expressive theory of adjudication synergistically combines three ways that economics has of understanding communicative influences: (1) as a device for creating a ‘correlated equilibrium;’ (2) as a ‘cheap talk’ means of constructing a ‘focal point’ around which individuals coordinate; and (3) as a signal of private information. The synergy of these three forces gives the third party an expressive power to resolve the specific disputes subject to adjudication. After discussing dispute resolution, I turn more clearly to a discussion of adjudication – to the ability of courts or quasi-judicial bodies to influence the behavior of those not a party to the dispute that prompts its decision. This part of the story requires an evolutionary approach. I discuss how informal order – conventions and norms – inherently contain ambiguity that the...
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