The Constraining, Liberating, and Informational Effects of Nonbinding Law

We show that non-binding law can have a constraining effect on political leaders, because legal compliance is a costly signal to imperfectly informed voters that the leader is unbiased. Moreover, non-binding law can also have a liberating effect, enabling some leaders to take action when they otherwise would have done nothing. Additionally, our analysis reveals three surprising findings regarding the stringency of the non-binding legal standard: First, non-binding law is most constraining when the legal standard is relatively permissive. Second, leaders can achieve policy outcomes closest to their ideals when the legal standard is relatively stringent. Third, voters’ assessments of leader preferences are most accurate when the legal standard is relatively stringent. Thus in contrast to what one would expect if law were exogenously enforced, relatively weak legal standards constrain leaders the most, and relatively strict legal standards give leaders the most flexibility and give voters the most information. ∗Insert thanks. †Associate Professor, Department of Political Science, Yale University, ISPS, P.O. Box 208209, New Haven, CT 06520. Email: [email protected] ‡Professor, Harvard Law School, Griswold 509, Cambridge, MA 02138. Email: [email protected] (corresponding author) The binding force of legal rules and judicial decisions is sometimes taken as a given, but explaining why (and when and how) law constrains action—particularly government action— is one of the central puzzles of both traditional legal theory and the positive political theory of legal institutions. We contribute to the literature on this question by considering one of the mechanisms thought to induce government actors to comply with judicial rulings: the constraining force of public opinion. More specifically, we consider a “costly signaling” model of legal compliance in which the policy costs to a government agent of complying with formally non-binding law are positively correlated with some trait that voters dislike, such as bias or capture. In this framework, even non-binding law can induce legal compliance by leaders who would otherwise prefer to take more extreme (and illegal) action, because legal compliance is a way for leaders to signal lack of policy bias to imperfectly informed voters. In addition to this costly signaling explanation of non-binding law’s constraining effect, our framework also reveals that non-binding can have a liberating or legitimizing effect, enabling some leaders to take action when they otherwise would have done nothing at all. This effect arises because, in the absence of legal standards, leaders can still signal lack of bias through inaction—that is, by refraining from even moderate interventions into policy areas where biased leaders tend to prefer more extreme interventions. Moderately stringent (though non-binding) legal standards enable leaders with “intermediate” preferences to take action without appearing overly extreme. Legal theorists have long recognized a version of this liberating effect of law, but it has not been fully integrated into a positive political economy framework, nor has the literature fully appreciated how this liberating effect interacts with the constraining effect described above. Our costly signaling model of the constraining and liberating effects of non-binding legal standards also has a number of surprising and potentially interesting implications for the stringency of such standards. Three in particular stand out: First, non-binding law enforced through the mechanism we describe has the strongest constraining effect when the legal standard itself is relatively permissive (that is, when only very extreme actions would be ruled illegal). This is because as law becomes more stringent, legal compliance decreases