Social Norms & Law Seminar

Course Syllabus

Christopher Fennell

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This course will explore the interaction and interdependence of social norms and formal legal rules. Norms provide social rules, distinct from formal laws, of expected behavioral responses to particular situations and back up those expectations with the threat of negative sanction if an individual behaves inappropriately. Social norms also provide cognitive categories for perceiving, making sense of, and ordering one's experiences.

We will examine issues such as: To what degree do different legal rules harness, enhance, displace, or subvert the substance of particular social norms and what effects follow? Should we utilize legal rules only when social norms fail to control harmful behavior? How do particular norms develop and then expand or dissipate in their influence over time and in different settings? Are norms typically generated through a widespread consensus of the members of a society, or are they the product of special interests? We will explore these issues using examples from various areas of legal doctrine, such as property, contracts and bargaining, crime, torts, and taxation.

Instructor: Chris Fennell (MA, U. Pennsylvania, 1986; JD, Georgetown U., 1989; Ph.D., U. Virginia, 2003) is an Associate Professor of Anthropology and Law.

Additional course documents for this seminar are available on the internet, including:

Required Texts:

The following required texts are available at the University bookstore, or can be purchased through internet booksellers.

Order Without Law: How Neighbors Settle Disputes, by Robert C. Ellickson. Cambridge: Harvard University Press, 1994.

Law and Social Norms, by Eric A. Posner. Cambridge: Harvard University Press, 2002.

Additional articles and text excerpts are included in the required readings and are listed in the detailed class schedule below. These articles are available to you through online services such as HeinOnline, Lexis, or Westlaw.

I also create a course web page using the University's intranet system. Other sources that you may find useful (but which are not required readings) include: Sources on Social Norms and Law, Sources on Anthropology and Law, and Sources on Analysis of Social Group Identities.

Course Requirements:

This course is an elective and no prerequisites are required. Evaluation for this course will be based on active and thoughtful participation in classroom discussions (20 percent of course grade) and a final, take-home essay exam (80 percent of course grade). The structure and schedule presented below were tailored to the University of Chicago Law School's quarter system. This schedule and structure will likely be modified when this course is offered within a semester system.

Course Schedule and Assigned Readings:

Week 1Disciplinary Perspectives on Norms and Law: Views from Sociology and Legal Analysis.
Jan. 5:Course Introduction and overview. Reading: Christine Horne, "Sociological Perspectives on the Emergence of Social Norms," in Social Norms, edited by Michael Hechter and Karl Dieter-Opp, pp. 3-29. Russell Sage Foundation (2001) (Horne Chapter on Chalk).
Jan. 6:Reading: Robert C. Ellickson, "The Evolution of Social Norms: A Perspective from the Legal Academy," in Social Norms, pp. 35-71 (2001) (Ellickson Chapter on Chalk).
Jan. 7:Readings: Horne Chapter and Ellickson Chapter, listed above. Film: Merchants of Cool, a documentary in the PBS Frontline series (2001) which examines the manufacture and destruction of norms within fashion, commodities, and popular culture targeted at teenagers in the United States, will be shown in class (a copy is also available in the Regenstein Library, DVD HQ799.2.M352U6 2001).
Week 2Norms, Meaning, and Economic Analysis of Law.
Jan. 12:Reading: Cass R. Sunstein, "On the Expressive Functions of Law," University of Pennsylvania Law Review 144(5): 2021-53 (1996).
Jan. 13:Reading: Richard A. Posner, "Social Norms, Social Meaning and Economic Analysis of Law: A Comment," Journal of Legal Studies 27(2): 553-65 (1998); Lawrence Lessig, "The New Chicago School," Journal of Legal Studies 27(2): 661-91.
Jan. 14:Reading: Lynn A. Stout, "Social Norms and Other-Regarding Preferences," in Norms and the Law, edited by John N. Drobak, pp. 13-24. Cambridge University Press (2006) (on Chalk).
Week 3Crimes, Constraints, and Stigma
Jan. 19:Reading: Dov Cohen and Joe Vandello, "Meanings of Violence," Journal of Legal Studies 27(2): 567-84.
Jan. 20:Reading: Dan M. Kahan, "Social Meaning and the Economic Analysis of Crime," Journal of Legal Studies 27(2): 609-22.
Jan. 21:Reading: Richard McAdams, "Group Norms, Gossip, and Blackmail," University of Pennsylvania Law Review 144(5): 2237-92.
Week 4Individual Rights, Governmental Limits, and Risk Distributions.
Jan. 26:Reading: Richard H. Pildes, "Why Rights are not Trumps: Social Meanings, Expressive Harms, and Constitutionalism," Journal of Legal Studies 27(2): 725-63.
Jan. 27:Reading: Martha C. Nussbaum, "Whether from Reason or Prejudice: Taking Money for Bodily Services," Journal of Legal Studies 27(2): 693-710.
Jan. 28:Reading: Cass R. Sunstein, "Selective Fatalism," Journal of Legal Studies 27(2): 799-823.
Week 5Norms and Mercantile Relationships.
Feb. 2:Reading: Robert Cooter, "Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant," University of Pennsylvania Law Review 144(5): 1643-96.
Feb. 3:Reading: Lisa Bernstein, "Merchant Law in a Merchant Court: Rethinking the Code's Search for Immanent Business Norms," University of Pennsylvania Law Review 144(5): 1765-1822.
Feb. 4:Reading: David Charny, "Illusions of a Spontaneous Order: 'Norms' in Contractual Relationships," University of Pennsylvania Law Review 144(5): 1841-58.
Week 6New Institutional Economics and Common Pools //
Reputations, Long-term Investments, and Signaling
Feb. 9:Reading: Thrainn Eggertsson, "Norms in Economics, with Special Reference to Economic Development," in Social Norms, pp. 76-92.
Feb. 10:Reading: Juan-Camilo Cardenas and Elinor Ostrom, "How Norms Reduce the Tragedy of the Commons: A Multi-Layer Framework for Analyzing Field Experiments," in Norms and the Law, pp. 105-36.
Feb. 11:Reading: Eric Posner's Law and Social Norms, Chapter 1, Introduction to Law and Collective Action, pp. 1-8; Chapter 2, A Model of Cooperation and the Production of Social Norms, pp. 11-35; Chapter 3, Extensions, Objections, and Alternative Theories, pp. 36-46.
Week 7Reputations, Long-term Investments, and Signaling (cont'd).
Feb. 16:Reading: Law and Social Norms, Chapter 4, Gifts and Gratuitous Promises, pp. 49-67; Chapter 5, Family Law and Social Norms, pp. 68-87; Chapter 6, Status, Stigma, and the Criminal Law, pp. 88-111..
Feb. 17:Reading: Law and Social Norms, Chapter 7, Voting, Political Participation, and Symbolic Behavior, pp. 112-32; Chapter 8, Racial Discrimination and Nationalism, pp. 133-47; Chapter 9, Contract Law and Commercial Behavior, pp. 148-66.
Feb. 18:Reading: Law and Social Norms, Chapter 10, Efficiency and Distributive Justice, pp. 169-84; Chapter 11, Incommensurability, Commodification, and Money, pp. 185-202; Chapter 12, Autonomy, Privacy and Community, pp. 203-22.
Week 8A Case Study among Ranchers.
Feb. 23:Reading: Robert Ellickson's Order without Law, Introduction, pp. 1-11; Chapter 1, Shasta County and Its Cattle Industry, pp. 15-28; Chapter 2, The Politics of Cattle Trespass, pp. 29-39.
Feb. 24:Reading: Order without Law, Chapter 3, The Resolution of Cattle-Trespass Disputes, pp. 40-64; Chapter 4, Who Pays for Boundary Fences?, pp. 65-81; and Chapter 5, Disputes Arising Out of Highway Collisions, pp. 82-103.
Feb. 25:Reading: Order without Law, Chapter 6, The Effects of Closed-Range Ordinances, pp. 104-20; and Chapter 7, The System of Social Control, pp. 123-36; Chapter 8, Shortcomings of Current Theories of Social Control, pp. 137-55.
Week 9Conclusions on a Case Study among Ranchers //
Course Review.
Mar. 2:Reading: Order without Law, Chapter 9, The Puzzle of Cooperation, pp. 156-66; Chapter 10, A Hypothesis of Welfare-Maximizing Norms, pp. 167-83; Chapter 11, Substantive Norms: Of Bees, Cattle and Whales, pp. 184-206; Chapter 12, Remedial Norms: Of Carrots and Sticks, pp. 207-29.
Mar. 3:Reading: Order without Law, Chapter 13, Procedural and Constitutive Norms: Of Gossip, Ritual and Hero Worship, pp. 230-39; Chapter 14, Controller-Selecting Norms: Of Contracts, Custom and Photocopies, pp. 240-64; Chapter 15, Testing the Contents of Norms, pp. 267-79; Chapter 16, Conclusions and Implications, pp. 280-88.
Mar. 4:Overview and course conclusions.
Final Exam
Mar. 15: Take-home essay exam due by March 15.
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Last updated: November 1, 2013
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