The Expressive Function of the Law: Legality, Cost, Intrinsic Motivation and Consensus

77 Pages Posted: 5 Jul 2006 Last revised: 27 Dec 2015

See all articles by Yuval Feldman

Yuval Feldman

Bar-Ilan University - Faculty of Law

Abstract

In recent years, a growing number of leading legal scholars have attempted to explore the expressive function of the law. Unfortunately, since the vast majority of these papers do not employ empirical methods, it is difficult to assess whether the picture presented in this literature improves our overall understanding of a distinctive, expressive - social norms mediated - function of law, separate from the traditional functions of the law. The few empirical studies that have examined the expressive function of law have examined the effect of the law in abstract terms and in a laboratory context. In contrast, in this paper I take a real life dilemma - sharing confidential information when one moves from one company to another - and examine the mechanisms through which the law can affect people's behavior. Hence, in this paper I examine the expressive impact that results when trade secret laws are experimentally "primed" on factors such as: intention to share confidential information, morality of sharing confidential information, perceived proportion of other employees who would share confidential information and the likelihood of social approval by previous and current employers for sharing confidential information. Taking a path analysis approach, I discern which models (price-related, consensus-related or morality-related) best explain the mechanism responsible for the expressive effect of legality. The comparison among the models illustrates the relative legal repercussions of price, consensus and intrinsic motivation, as they relate to both employees' behavior and to their evaluations of the prevalence and desirability of trade secret sharing norms. Based on data collected from a sample of 260 high tech employees in Silicon Valley, I will demonstrate that the participants' respect for the law is based primarily on its morality and its association with the prevailing practice and not on its ability to exact increased social and career costs.

Keywords: expressive law, social norms, legal compliance, trade secrets

JEL Classification: K42

Suggested Citation

Feldman, Yuval, The Expressive Function of the Law: Legality, Cost, Intrinsic Motivation and Consensus. The First Conference of Empirical Legal Studies, University of Texas, October 2006., Bar Ilan Univ. Pub Law Working Paper No. 1-04, Available at SSRN: https://ssrn.com/abstract=912989 or http://dx.doi.org/10.2139/ssrn.912989

Yuval Feldman (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

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