Texas Law Review See Also Response How Norm Entrepreneurs and Membership Associations Contribute to Private Ordering: A Response to Fagundes Robert C. Ellickson* Austin is the Mecca of women’s roller derby.1 In 2001, Austin skaters transformed this moribund sport into a hipper form of entertainment, leading to its renaissance.2 The Texas Rollergirls and the TXRD Lonestar Rollergirls, both based in Austin, are among the best known of the 147 women’s roller-derby leagues worldwide.3 It thus is fitting that the Texas Law Review is publishing David Fagundes’s sparkling account of how the derby skaters themselves came to create and honor a Master Roster that curbs infringement of skating pseudonyms.4 Especially since the early 1990s, legal scholars have produced dozens of thick descriptions of the social norms that govern particular social spheres.5 * Walter E. Meyer Professor of Property and Urban Law, Yale Law School. I am indebted to David Fagundes for his remarks on a preliminary version of this Response. 1. Kate Donbavand, The Devil in Derby Skates, GOZAMOS (April 9, 2010), http://gozamos.com/2010/04/the-devil-in-derby-skates/ (referring to Austin as ―the [M]ecca of roller derby revival‖). 2. Tam Eastley, Reborn in Austin, Roller Derby Spreads to Berlin, KUT NEWS (Feb. 16, 2012), http://kutnews.org/post/reborn-austin-roller-derby-spreads-berlin (―Modern roller derby dates back to 2001 in Austin, Texas where it was revived from what was essentially a multi-day skate-a-thon to what it is now: a full contact sport for women played entirely on quad roller skates.‖). 3. For a tally of the recognized leagues, see WFTDA, Member Leagues, http://wftda.com/leagues. 4. David Fagundes, Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms, 90 TEXAS L. REV. 1093. 5. E.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW (1991) (rural neighbors); Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115 (1992) (diamond industry); Dotan Oliar & Christopher Sprigman, 248 Texas Law Review See Also [Vol. 90:247 Fagundes’s contribution to this genre is exemplary in many respects. In this Response, I highlight his major accomplishments, but also suggest how his account might have been deeper. In the latter sections, I discuss several critical issues that he has flagged. The skaters’ Master Roster is not a document that can be altered bottom-up by any random participant, but instead a document controlled top-down by self-appointed leaders whom the other skaters have come to regard as their authorized agents.6 These features invite discussion of the role of norm entrepreneurs and nongovernmental organizations in the overall system of social control. I. Praise Fagundes deserves kudos for choosing to study the nonlegal protection of roller derby names. By accessing internet chat rooms and then following up with e-mail messages and interviews, he was able to burrow deep into the social world of the derby skaters. Because the skaters’ pseudonyms largely protect their privacy interests, he felt uncommonly free to pepper his article with references to specific participants, thereby bringing this social milieu to life. The descriptive portions of his article are page-turners, on account not only of the playfulness of the monikers that the skaters have chosen, but also Fagundes’s superior writing skills. Fagundes also has an eye for issues of theoretical importance. He recognizes that the renaissance of roller derby presents an opportunity to test the Demsetzian proposition that new forms of property rights emerge when cost-benefit conditions change.7 He convincingly argues that his findings add to the mountain of evidence that refutes the legal-centralist conception that individuals look only to the legal system to find the rules that govern their conduct.8 As all legal scholars who study norms agree, social order arises from not only state dictates and enforcement, but also from the decentralized social controls administered by individuals, households, and private associations.9 There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 VA. L. REV. 1787 (2008) (stand-up comedy); Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 VA. L. REV. 1687 (2006) (fashion industry). 6. See Fagundes, supra note 4, at 1115–26. 7. See id. at 1116 (citing Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347 (1967)). 8. When resolving disputes among themselves, the skaters ―have a particularly strong aversion to law and lawyers.‖ Id. at 1138. By contrast, when skaters deal with firms and individuals outside the derby world, they commonly are willing to invoke the protections of trademark law. Id. at 1129–31. See also ELLICKSON, supra note 5, at 94–100 (describing how rural residents of Shasta County, California, who applied norms to resolve disputes between neighbors, turned to the legal system to resolve disputes over serious auto accidents, in which the other party typically was a stranger). 9. See generally Richard H. McAdams, The Origin, Development and Regulation of Norms. 96 MICH. L. REV. 338 (1997) (discussing the emergence of norms in informal settings). 2012] Response 249 And Fagundes demolishes the view that norms only fill ―negative spaces‖ that the law hasn’t already occupied. In fact, when Hydra, the key norm entrepreneur in his tale, established the institutions that led to the Master Roster, she saw no reason to make a thorough investigation of the rules of trademark law that in fact provided an alternative source of name protection.10 Members of a closely-knit group typically sense that using the formal rules of private law is an inherently expensive process, and also anticipate that they themselves would outperform lawmakers in the tasks of establishing rules and enforcement mechanisms. When individuals hold these beliefs, they don’t waste time and money investigating the formal law that might apply, but instead reject it sight unseen. Derby skaters rightly consider their Master Roster system to be administratively cheaper than trademarking.11 And as long as they remain in control of the roster, they plausibly think that their Master Roster rules, substantive and procedural, will end up being sound.12 Fagundes also is alert to opportunities for fresh analytic contributions. He stresses that derby skaters regard their participation as ―identity constitutive,‖ an outlook that raises their estimation of the stakes involved when use of a skating name is infringed or diluted.13 He notes that derby skaters never sell their pseudonyms.14 The transfer of an established name would tend to create confusion and thus depreciate the value of all skating monikers.15 II. Underexploited Opportunities Although Fagundes’s account is admirably thick, at places some readers might wish for more detail and analysis. A. Motivations That Induce Personal Contributions to the System of Informal Social Control Social forces constrain the actions of individuals, but social forces themselves do not generate norms. A new norm, such as the skaters’ Master Roster, instead emerges from the actions of specific individuals. In my view, the key participants in norm creation are the norm entrepreneurs who propose new institutional approaches (and, in many contexts, the opinion 10. Fagundes, supra note 4, at 1135–36. 11. Id. at 1134 (estimating the cost of a trademark at $1,000). 12. Id. at 1135–36. 13. Id. at 1098 (citing GEORGE A. AKERLOF & RACHEL E. KRANTON, IDENTITY ECONOMICS: HOW OUR IDENTITIES SHAPE OUR WORK, WAGES, AND WELL-BEING 88 (2010)). See also Fagundes, supra note 4, at 1112–13. 14. Id. at 1110 n.80. 15. Id. at 1110–11. Although Fagundes reports that there is no articulated norm against the sale of a name, the paucity of sales suggests otherwise. 250 Texas Law Review See Also [Vol. 90:247 leaders who mobilize support for a particular approach).16 As noted, Hydra, an Austin-based skater, was the key norm entrepreneur in Fagundes’s saga.17 He commendably aspired to understand why she was willing to put in so much effort to create the roster, given that she might have sat back and hoped that others would act.18 The law review literature on social norms highlights three different kinds of utility that a successful norm entrepreneur might garner.19 Although Fagundes refers to all three sorts of rewards, his discussion of them is scattered. First, in a foundational contribution, Richard McAdams advances a theory that supposes that Hydra’s peers would reward her with positive esteem.20 And it indeed appears that they did. Fagundes mentions that Hydra once served as the President of the Women’s Flat Track Derby Association (WFTDA).21 In fact, in 2006–2007, shortly after she relinquished the Master Roster to Paige Burner and others, she served as its first President.22 It is also pertinent that, beginning in 2008, the WFTDA began awarding the Hydra Trophy to the team that had won its annual championship tournament.23 Esteem was indeed hers. McAdams’s key insight is that it is virtually costless for a member of a group to confer positive or negative esteem on another member.24 As a result, there is no incentive to free-ride on others’ provision of esteem. Esteem sanctions thus help to overcome what some theorists of cooperation call the ―second-order collective action problem‖—the need to reward individuals who work to maintain informal systems of social control. Second, while McAdams posits that individuals value esteem for its own sake, Eric Posner supposes that garnering esteem is valued because it enhances a person’s future exchange opportunities.25 Fagundes might have 16.