There is an almost heretical disenchantment with law percolating within the legal academy. Conventional wisdom sees law as the natural solution to problems of collective action. When attaining some societal good-for example, a clean environment, a stock of useful technologies, a public education system, or a transportation infrastructure-depends on the willingness of individuals to behave in a manner that is not in their material interest, the law supplies incentives-such as tax abatements for nonpolluters, property rights for inventors, and punishments for tax cheats-that bring individual interests into alignment with collective ones. The problem, though, is that a regime of regulatory incentives is costly. Even when such regulations are sensible in content, the expense of administering them dissipates the social surplus generated by collective undertakings. And often they aren't sensible in content. Securing the enactment of regulatory law presents a collective action problem in its own right, one that relatively small, intensely interested groups are more likely to overcome than are members of the public generally. The result is the embarrassing spectacle of special interest politics. Law is thus a deeply imperfect, if not a hopelessly flawed, instrument of social governance.
Dan M. Kahan,
Signaling or Reciprocating? A Response to Eric Posner's Law and Social Norms,
U. Rich. L. Rev.
Available at: http://scholarship.richmond.edu/lawreview/vol36/iss2/3