138 Stan. L. Rev. 623 (1986). Other articles are "A Critique of Economic and Sociological Theories of Social Control," 16 JLS 67 (1987) and "A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry," JLEO 83 (1989).
2 "To exaggerate only a little, the law-and-economics scholars believe that the law-and-society group is deficient in both sophistication and rigor, and the law-and-society scholars believe that the law-and-economics theorists are not only out of touch with reality but also short on humanity.
This book was written with one foot firmly placed in each of these two opposing camps." Ellickson, pp. 7-8.
3These are what Ellickson describes as "Traditionalist" ranchers, as distinguished from the "Modernists" who typically use irrigated, fenced pasture to get their cattle through the summer.
4 "These settlements affronted the cattlemen's belief that a motorist always bears losses arising out of open-range collisions. The cattlement were certain that the insurance companies and courts, because of either incompetence or gutlessness, had misconstrued the law." Ellickson p. 90.
5The false belief about the liability consequences of open vs closed range might also impose costs on modernist ranchers, who use fenced range, since it could induce them to take additional precautions on making sure their cattle never got out. According to Ellickson (pp. 112-113) such effects are small or nonexistent.
6They could, for example, claim that they were continuing to herd cattle in the closed range areas despite the risk of liability claims or higher insurance, thus representing themselves to themselves as bravely bearing the cost of maintaining the ranchers' life against adverse conditions.
7 "Although formal legal analysis thus suggests that a closed-range ordinance should have no evidentiary weight in a collision case, the fact of a closure might in practice increase a motorist's chances of prevailing for a number of reasons. First, if a collision case were to be litigated, a trial judge might allow a motorist to introduce the fact that the collision had occurred in closed range as evidence that the cattleman had been negligent. ... Second, a Shasta county ordinance makes it unlawful for a livestock owner, other than an owner of "livestock upon the open range," to permit his animals "to habitually trespass" on public property (such as a highway). ... a closure may in fact somewhat increase motorists' prospects in collision cases, although certainly not by as much as the cattlemen's folklore would have it." (Ellickson, pp. 92-93)
8Ellickson, pp. 105-106.
9A slightly different way of putting this argument is say that we are observing what Dawkins has described as the evolution of "memes": ideas evolving in an environment consisting of the minds of humans (Dawkins, The Selfish Gene [add p. reference]). One reason a meme--such as the belief that "one ought to be honest towards honest people"-- will spread is that those holding it are observed to be more successful as a result. But in order for the process to get past the early stage, when the meme is still rare in the population, it must be useful to hold the meme even when most other people do not. This works for memes representing norms such as honesty, but it does not work for a meme for conservation of whales, which raises the very interesting questions of why memes in favor of conservation have recently spread so rapidly within our current population--to the point where belief in conservation has become very nearly the secular equivalent of a state religion.
10In the context of law rather than norms, this is one argument against using efficient punishments such as forcing convicted criminals to "work off" their debt to society--it gives the court system an incentive to lower its standard of proof when the local government decides that it needs convict labor to build a road. A good fictional statement of the argument, in the context of the proposal that those guilty of capital crimes should forfeit their organs (for transplants) as well as their lives, is _____ by Larry Niven (check title).
11An even better norm would be one that required punishments that were costly to both parties but benefitted other members of the society--slaughtering the animal and donating it to the local soup kitchen, say. This might not work for small groups, since potential beneficiaries might conspire with the "victim" to induce him to impose the punishment even when it was not deserved--and, for reasons discussed above, a norm that does not work for small groups is unlikely to develop.