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William & Mary Law Review Online

Abstract

As political resistance to traditional forms of regulation has increased, regulators have turned to the social and behavioral sciences to identify new and better regulatory tools. One of these new tools is expressive regulation. Expressive regulation harnesses the internal and social enforcement mechanisms of community norms as a means of changing individual behavior. Expressive regulation holds significant promise for influencing many different types of behaviors, and its low administrative and enforcement costs are particularly appealing in the current political climate. However, the use of expressive regulation is hampered by a well-entrenched belief in legal scholarship that social enforcement of norms is available only in small, close-knit communities and ineffective in the case of large-group cooperation problems. This Article reconsiders the divide between social and internal enforcement. It argues that regulatory intervention can overcome the limitations to social enforcement in large groups, and describes the way in which such regulation can do so. The insights it generates are readily adaptable to a wide variety of situations in which large-group cooperation problems exist.

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