Legal Theory Blog

Andre LeDuc has posted Striding Out of Babel: Originalism, its Critics, and the Promise of Our American Constitution (William & Mary Bill of Rights, Vol. 26, No. 1, 2017) on SSRN.  Here is the abstract:

This Article pursues a therapeutic approach to end the debate over constitutional originalism. For almost fifty years that debate has wrestled with the question whether constitutional interpretations and decisions should look to the original intentions, expectations, and understandings with respect to the constitutional text, and if not, what. Building on a series of prior articles exploring the jurisprudential foundations of the debate, this Article characterizes the debate over originalism as pathological. The Article begins by describing what a constitutional therapy is.

The debate about originalism has been and remains sterile and unproductive, and the lack of progress argues powerfully for the conclusion that a successful resolution of the debate is not likely to be achieved by any of the protagonists. Instead, the debate should be abandoned.

At a conceptual level, there are a variety of sources for the pathology of the debate, but a series of tacit ontological and other jurisprudential assumptions play a central role. The Article explains why neither side in the debate over constitutional originalism can hope to prevail. Any hope to revive or reconstruct the debate seems at once implausible and unlikely to deliver any significant doctrinal or methodological payoff to our American constitutional law. If we articulate the tacit premises of the debate, we can recognize why the debate over originalism reflects more confusion than substantive disagreements. As we do so, we begin to see the way forward beyond the debate. Making the source of the debate’s disagreements appear confused rather than important also provides ample motivation to move on. This Article concludes by arguing that such a postdebate constitutional discourse and practice is indeed possible, as well as desirable.

Stephanie Bornstein (University of Florida - Levin College of Law) has posted Equal Work (Forthcoming in Maryland Law Review, Vol. 77, No. 3, 2018) on SSRN.  Here is the abstract:

Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average 80 cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap. Black and Latino men average only 71 cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay: as women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually worse than it was 35 years ago. Both pay gaps exacerbate growing income inequality in the United States. While demographic differences contribute to pay disparities (in hours worked and childbearing time off for women and in education and experience levels for minority workers), economists now find that fully one-third to one-half of both pay gaps is caused by two other factors: occupational segregation—meaning the unequal distribution of women and racial minorities across job fields—and discrimination. To what extent are these factors due to stereotypes about the value of women and racial minorities’ work, and what, if anything, can antidiscrimination law do to respond?

Existing federal law prohibits sex and race discrimination in pay, but requires an employee to provide proof of an employer’s intent to discriminate or a nearly identical “comparator” of a different sex or race performing “equal work” who is paid more. Current proposals for reform focus on narrowing an employer’s defenses in a lawsuit alleging unequal pay. This approach, while likely to improve plaintiffs’ successes in court, misses the forest for the trees. Leaving the definition of “equal work” untouched in threshold requirements for legal protection fails to account for the workforce segregation and gender and racial stereotyping at the root of much of the current pay gaps.

This Article explores how the limitations of existing law allow the gender and racial pay gaps to persist and analyzes proposals for improvement. To do so, the Article contrasts current reform efforts with alternatives, including the historical movement in the 1980s for “comparable worth” legislation and its echo in newly enacted laws in three states requiring equal pay for “substantially similar” or “comparable work.” Given the difficulty of enacting legislative change at the federal level, the Article then proposes a reframing of the concept of “equal work” in existing law, by drawing on examples of broader definitions used to set pay in some union, government, and private sector employment contexts. Debunking the outdated criticism that strong equal pay laws force employers to “compare apples and oranges” and framing the comparison of “equal work” more broadly, the Article argues, are essential to overcoming the impacts of occupational segregation and stereotyping on pay, and to closing the pay gaps.

Katlyn DeBoer (U.S. District Court) has posted Clash of the First and Second Amendments: Proposed Regulation of Armed Protests (Hastings Constitutional Law Quarterly, Vol. 45, No. 2, Forthcoming) on SSRN.  Here is the abstract:

The United States has strayed far from its traditional use of citizen militias to demand freedom from the British and has taken a deep dive into a practice of flaunting weapons at political protests as a display of bravado to provoke fear, chill opposition, and reap media attention. The recent “Unite the Right” rally in Charlottesville, Virginia and its resulting violent pandemonium brought the issue of open carry protests to the forefront of public discourse. Armed protesters cling to their First and Second Amendment rights as shields to justify the semi-automatic firearms slung about their backs, but is this faith misplaced?

This Article argues that governmental regulations of armed protests are a necessary and constitutionally permissible avenue that state legislatures should explore. This Article analyzes the constitutionality of such regulations under both the First and the Second Amendments, and offers a proposed prohibition on armed protests that lawmakers are welcomed and encouraged to use as a starting point for much-needed legislation.

First, this Article argues that, except for very rare circumstances, open carry during a protest does not contain sufficient elements of expression to constitute symbolic speech. However, even assuming that open carry during a protest does qualify as symbolic expression to bring it under constitutional protection, regulation of that behavior is wholly consistent with the First Amendment under three different doctrinal justifications. Prohibition of armed protests is likewise consistent with the prominent sociological and theoretical understandings of the freedom of speech. Second, this Article argues that the Second Amendment offers no protection to armed protesters because the open carry of firearms during a protest is not a historical right protected by the Second Amendment. Even if the display of a firearm during a protest demonstration fell within the traditional understandings of the Second Amendment, a reasonable regulation would satisfy constitutional scrutiny.

Frederick Schauer (University of Virginia School of Law) has posted Free Speech, the Search for Truth, and the Problem of Collective Knowledge (SMU Law Review, Vol. 70, pp. 231-52) on SSRN.  Here is the abstract:

This article, the written version of the Roy R. Ray Lecture delivered at the Dedman School of Law, Southern Methodist University, explores a neglected aspect of the search-for-truth and marketplace-of-ideas justifications for a Free Speech Principle. Those justifications, of which Chapter 2 of John Stuart Mill’s On Liberty is canonical, maintain that a free speech regime can facilitate the growth of knowledge within a society. That argument, however, its empirical dimensions aside, assumes that a society as a collective can know something. Following recent discussions within social epistemology about the possibility (or not) of group belief, this article attempts to unpack the idea of group belief or collective knowledge, and to explore how we might understand the idea of social epistemic advance in a context in which some members of a collective might come to accept truths that they had previously rejected or ignored, but in which other members of the same collective might come to reject the truths they had previously accepted.

Highly recommended.

Christopher Tomlins (University of California, Berkeley - Jurisprudence and Social Policy Program) has posted Marxist Legal History (Forthcoming, The Oxford Handbook of Historical Legal Research) on SSRN.  Here is the abstract:

“Marxism,” wrote the American legal historian William E. Nelson in 1985, “is not about to disappear as an attractive ideology or as a powerful political force in the world.” The prediction was not well timed. The Marxism of the socialist bloc was anything but an attractive ideology or a powerful force (in any intellectually defensible sense) in the world of the mid-1980s. The bloc’s inability to recover from the early 1980s world recession, combined with Soviet entrapment in war in Afghanistan, had already turned the historical conjuncture decisively against Soviet and Eastern European socialism. Western Marxism, meanwhile, was enmeshed in its own deep theoretical crisis, impaled on the stake of materialist determination, and increasingly “rigid and scholastic” in its attempts to escape. Given all this, Nelson’s coda – “I expect neo-Marxist legal history … to flourish” – was mystifying. Then in the “take-off” stage of what would prove to be thirty years of extraordinary growth, Anglophone legal history actually lacked any clear Marxist component. Nor has one been forthcoming. This paper charts the possibility for a Marxist historiography of law such as it existed in the 1970s and the reasons for its failure to materialize. Forty years on, in the grip of a new fast-forming historical conjuncture in which capital, both globally and within its historic Anglophone heartlands, is at war with itself, the paper asks what opportunities exist for renewing the attempt to create a Marxist legal historiography, and what responsibilities attend that effort.

Highly recommended.

Shachar Eldar (Ono Academic College Faculty of Law) has posted Criminal Law, Parental Authority, and the State (Criminal Law & Philosophy (Forthcoming)) on SSRN.  Here is the abstract:

In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary practice, designed to reintegrate offenders into society. I argue that the theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that the reintegrative model provides a better account of the justification and objectives of state punishment.

William Michael Treanor (Georgetown University Law Center) has posted The Genius of Hamilton and the Birth of the Modern Theory of the Judiciary (Cambridge Companion to The Federalist (Jack Rakove & Colleen Sheehan eds., Cambridge University Press Forthcoming)) on SSRN.  Here is the abstract:

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison’s political and constitutional theory the great story of the Federalist, and Federalist 10, in particular, has long been “in the center of constitutional debate.” But careful study of essays 78 through 83 reveals that Hamilton had an innovative and consequential vision of the law and the judicial role that deserves at least as much attention as Madison’s contributions.

Highly recommended.

Tabatha Abu El-Haj (Drexel University Thomas R. Kline School of Law) has posted 'Live Free or Die'—Liberty and the First Amendment (Ohio State Law Journal, Forthcoming) on SSRN.  Here is the abstract:

In recent years, the Roberts Court has significantly elevated the level of protection for speech in a number of critical areas. As a consequence, legislative choices once understood to be well within the bounds of democratic decision-making are increasingly challenged as violating individual speech rights. This Article argues that we desperately need a compelling alternative theoretical mooring from which to analyze contemporary First Amendment controversies because, despite its undeniable appeal, the libertarian course of the First Amendment is unsustainable in the long run.

Toward that end, this Article sets forth a preliminary and provisional case that such an alternative requires committing to a nuanced articulation of the self-governance interest. Disputes at the cutting edge of First Amendment litigation would be recast in the register of separation of powers in recognition of the fact that the First Amendment cordons off certain spaces from government intervention not as an end in itself, but as a means to preserve the possibility of the republican form of government. Its negative liberties are granted in the service of ensuring that the political process by which legislative judgments are made is an open one. Two things follow from this insight. First, the First Amendment rights of individuals cannot be so extensive as to undermine the capacity of legislatures to serve their most basic function—reaching provisional decisions, after deliberation, on contested values. Second, to the degree that the text of the First Amendment protects a range of practices understood to be prerequisites for responsive and accountable governance, the jurisprudence must attend to preserving a balance among these various conditions. Individuals’ free speech rights ought not be so great as to undermine the co-equal rights—freedom of assembly, association, the press and the right of petition—secured by the text of the First Amendment, either directly or indirectly.

Highly recommended.

Heather M. Whitney (New York University (NYU) ; Harvard Law School; University of Chicago - Law School) has posted Markets, Rights, and Discrimination by Customers (Iowa Law Review, Vol. 102, No. 346, 2017) on SSRN.  Here is the abstract:

This essay is designed to do two things:

First, review and critique Katharine Bartlett and Mitu Gulati's Discrimination by Customers, 102 Iowa L. Rev. 223 (2016).

Second, stand alone as a piece that more generally evaluates (1) efficacy and (2) autonomy- and constitutional-based objections to the regulation (both in direct and indirect form) of customer discrimination.

Paul P. Craig (University of Oxford - Faculty of Law) has posted Book Review: Comparative Administrative Law and Political Structure (2017 Oxford Journal of Legal Studies) on SSRN.  Here is the abstract:

Study of comparative administrative law reveals commonality and difference between the systems studied. That is axiomatic and self-evident. The depth of the resulting similarities and divergences may be difficult to estimate, the explanation for them even more so. It is to Peter Cane’s credit that he tackles these difficult issues in his recent book ( Administrative Power: An Historical Comparison), which examines control over administrative power in the US, England and Australia.

It is a book of considerable scholarship, based on significant research and full of insight on particular issues within administrative law. The scholarship merits respect, and this is so notwithstanding the fact that there are, in my view, problems with the methodology and its application.

The review begins by setting out the central thesis of the book. This is followed by consideration of the methodological problems with the underlying thesis. The remainder of the review discusses the application of Cane's methodology in four areas that are central to administrative law: rulemaking, review for error of law, review of discretion and damages liability.

Eve Hanan (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Remorse Bias (Missouri Law Review, Vol. 83, No. 2, 2018 Forthcoming) on SSRN.  Here is the abstract:

Whether a defendant expresses remorse at criminal sentencing often has a direct bearing on the severity of the sentence. But how good are judges at accurately assessing genuine, meaningful remorse? Research demonstrates that judges hold contradictory and unfounded views about how sincere remorse should be expressed and, as a result, are likely to misjudge remorse. Legal and social science scholars have grappled with the challenge of accurately assessing remorse, but no one has analyzed whether implicit racial bias skews remorse assessments at criminal sentencing in predictable and systematically discriminatory ways. In an effort to unmask this mode of discrimination, this Article synthesizes two areas of scholarship not previously compared — (1) scholarship on the role of remorse in criminal sentencing and (2) social science research on implicit racial bias — to argue that unconscious cognitive assumptions about race and criminality causes judges to discredit African American displays of remorse and, as a consequence, sentence them to harsher punishments. At a time when racial disparity and implicit bias dominates national discussions of criminal sentencing reform, improving our understanding of where our criminal justice system is particularly susceptible to racial bias can help reformers mend these weaknesses in our system to ensure it works equally for everyone.

Santiago Legarre (Universidad Catolica Argentina; Notre Dame Law School) has posted A New Natural Law Reading of the Constitution (78:3 Louisiana Law Review (2018), Forthcoming) on SSRN.  Here is the abstract:

This article first explains what natural law is not; secondly, it explains what is natural law; finally, and hopefully more originally, the article explores two different ways in which natural law is relevant in constitutional interpretation (and indeed in the interpretation of any positive law). In so doing it criticizes originalist theories of interpretation insofar as they make of historical inquiry not the starting but the final point of the interpretative venture.

M. Isabel Garrido Gómez (University of Alcala) has posted Forms of Demystifying Legal Pluralism on SSRN.  Here is the abstract:

Globalization is given impetus by the needs of the global economy and by the unequal distribution of power. And there are new spaces where there are innovating socio-post-materialistic programmes and policies to promote peace, the well-being of the environment, gender and racial equality, that are led by new groups and social movements. These ideas have influence in the new conception of law. In the second part, with the goal of demystifying legal pluralism we study substantive and formal instruments. Finally, we show an formal/substantive instrument that is represented by the equality because the concept has its origin in the creation of a legal and social order in which the independence of the individual could only be obtained by positioning him under the auspices of the legal power of the State, with the concept of independence being linked to a formal system and economic autonomy.

Sophia Z. Lee (University of Pennsylvania Law School) has posted From the History to the Theory of Administrative Constitutionalism (In Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw (Nicholas R. Parrillo ed., Cambridge 2017)) on SSRN.  Here is the abstract:

Legal scholars and historians have shown growing interest in how agencies interpret and implement the Constitution, what is called “administrative constitutionalism.” The points of contact between the history and theory of administrative constitutionalism are sufficiently extensive to merit systematic analysis. This chapter focuses on what history can offer the theory of administrative constitutionalism. It argues that historical accounts of administrative constitutionalism invite a more robust normative defense of the practice than theorists have thus far provided. There is much to the transparent, participatory versions of administrative constitutionalism that its defenders have primarily focused on thus far. This chapter is a preliminary effort to develop historically informed theoretical arguments that administrative constitutionalism can be virtuous even when it lacks those attributes. Also, while critics have reason to worry that administrative constitutionalism can be insufficiently deferential to courts and Congress, I contend that administrative constitutionalism can even be defensible if it varies from court doctrine and is contrary to congressional command.

Raphael Cohen-Almagor (University of Hull) has posted On the Philosophical Foundations of Medical Ethics: Aristotle, Kant, JS Mill and Rawls (Ethics, Medicine and Public Health, 2017) on SSRN.  Here is the abstract:

This article aims to trace back some of the theoretical foundations of medical ethics that stem from the philosophies of Aristotle, Immanuel Kant, John Stuart Mill and John Rawls. The four philosophers had in mind rational and autonomous human beings who are able to decide their destiny, who pave for themselves the path for their own happiness. It is argued that their philosophies have influenced the field of medical ethics as they crafted some very important principles of the field. I discuss the concept of autonomy according to Kant and JS Mill, Kant’s concepts of dignity, benevolence and beneficence, Mill’s Harm Principle (nonmaleficence), the concept of justice according to Aristotle, Mill and Rawls, and Aristotle’s concept of responsibility.

Lua K. Yuille (University of Kansas School of Law) has posted Creating a Babel Fish for Rights & Religion: Defining 'Rights' Through Sacred Texts (25 Transnational Law & Contemporary Problems 309-361 (2016)) on SSRN.  Here is the abstract:

Is there a way to reconcile the seemingly competing claims of human rights and religious faith? Or must religion modify itself to comply with and support secular universal human rights regimes? Using the scripture of the Bahá'í Faith as a case study, this Article takes up these questions to define the religious conception of rights. It argues that the answers require the recognition that the rights regimes promulgated within religions operate under a distinct paradigm that does not conform to popular conceptions of rights. The problem is not that rights are inconsonant with religion, but that the language of rights, as understood in modern political, legal, and moral discourse, is inapplicable within a religious paradigm. The languages of secular and nonsecular rights are incommensurable.

To support its incommensurability thesis, this Article outlines a broad framework under which human rights may be conceived in one religious paradigm, the Bahá'í Faith. The distinct definition of rights distilled makes possible the translation of "rights talk" within religion into a form commensurate with secular rights talk. This provides a foundation on which challenges to the critique of religion's role in the promotion of human rights can be grounded. The Article also offers suggestions as to the nature of the challenges that are possible once the language of the religious conception of rights is understood.

This Article concludes: Religion can be as deeply committed to rights as any liberal western human rights mechanism, but the very conception of rights in religion is different. The religious conception of rights may not reconcile the entire catalog of liberal rights, unmodified, within its framework, but it offers a solution to many difficult tensions among competing rights and provides a tenable reconciliation of the claims of the individual and the community.

Introduction

Recently, the Legal Theory Lexicon provided a very general entry on the the topic of justice. The notion of justice can be analyzed in many ways, but one good place to start is with Aristotle. Aristotle divides the topic of justice into two main parts, corrective justice and distributive justice. Distributive justice concerns the division of shares in social benefits and burdens; thus, many questions of tax policy are questions of distributive justice. Corrective justice involves the rectification of injustice, and thus includes a variety of topics from criminal law, torts, and contracts, among many others. Supplementing Aristotle's account, let us say that "procedural justice" is concerned with the means by which social groups (including governments, private institutions, and families) institutionalize the application of requirements of corrective and distributive justice to particular cases. This entry in the Lexicon provides an introduction to the idea of procedural justice for law students (especially first years) with an interest in legal theory.

Slicing a Cake

Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome. Slicer-picks-last is fair because guarantees accuracy.

But is it really the case that slicer-picks-last guarantees accuracy? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing.

But there is another feature of the slicer-picks-last rule that might account for intuition that this rule provides a fair procedure.  Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome.

Perfect, Imperfect, and Pure Procedural Justice

These questions about the fairness of procedures for slicing a cake can be generalized by setting out a framework for analyzing the idea of procedural justice. In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3) pure procedural justice. Consider perfect procedural justice first. There are, he writes,

two characteristic features of perfect procedural justice. First, there is an independent criterion of what is a fair division, a criterion defined separately from and prior to the procedure which is to be followed. And second, it is possible to devise a procedure that is sure to give that desired outcome.

Rawls argues that our rule for the slicing of cakes is an example of perfect procedural justice. The person who slices picks last; Rawls believes that this procedure insures the equal division of shares. "Equal shares for each" is the independent criterion of a fair division; the slicer-picks-last rule is the procedure that reliably produces that outcome.

In the case of imperfect procedural justice, the first characteristic, an independent criterion for fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is not. Rawls contends:

Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result. The theory of trials examines which procedures and rules of evidence, and the like, are best calculated to achieve this purpose consistent with the other ends of the law. Different arrangements for hearing cases may reasonably be expected in different circumstances to yield the right results, not always but at least most of the time.

Thus, imperfect procedural justice incorporates the notion of an independent criterion for accuracy but adds the notion of "other ends of the law," e.g., considerations of cost that may be balanced against accuracy. The final notion is "pure procedural justice." Rawls writes:

[P]ure procedural justice obtains when there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed. This situation is illustrated by gambling. If a number of persons engage in a series of fair bets, the distribution of cash after the last bet is fair, or at least not unfair, whatever this distribution is.

Pure procedural justice rejects an underlying assumption of both perfect and imperfect procedural justice--the assumption that there is an independent criterion for what constitutes the correct outcome. There are not criteria for the correct outcome except for an ideal (or actual) set of procedures.

Three Models of Procedural Justice: Accuracy, Balancing, and Participation

Rawls's theory provides an abstract framework that can be used to categorize theories of procedural justice, but it doesn't tell us what the content of a theory of procedural justice might be. Three approaches have been characteristic of thinking about procedural justice--one emphasizes accuracy, the second cost, and the third participation. Each of these three approaches can be expressed as simply model of procedural justice:

The Accuracy Model

We can begin with the utopian hypothesis that the current doctrine is structured by an implicit conception of perfect procedural justice?the accuracy model?corresponding to the idea of perfect procedural justice. The core idea of this model is that the aim of procedure is a search for truth?e.g. conclusions of law that are correct and findings of fact that are true.

But there are severe problems with the accuracy model. Given that civil procedure imposes real costs on litigants and society at large, it is difficult to argue that the smallest marginal gain in accuracy is worth the largest investment of resources. Justice has a price, and there is a point at which that price is not worth paying. Moreover, we have every reason to believe that accuracy is subject to the law of diminishing returns. If we were to make perfect accuracy our highest commitment, we would find that as we got closer and closer to our goal, the cost of reducing the marginal rate of error would become higher and higher. We will reach a point where society would be required to invest enormous resources for the most infinitesimal gain in accuracy.

The Balancing Model

The second model "the balancing model" corresponds to the idea of imperfect procedural justice. The consequentialist version of imperfect procedural justice finds substantial support in the decisions of the Supreme Court that interpret the Due Process Clauses of the United States Constitution. The most striking example is provided by the balancing test announced in Mathews v. Eldridge:

[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Beginning with the emphasis on balancing in doctrine, we could construct a utilitarian conception of imperfect procedural justice. This effort is complicated, however, because there are many forms of utilitarianism; for our purposes, we might consider ideal rule utilitarianism, in which an act is right if and only if it is conformity with the system of rules, which if universally followed would produce the best consequences. Let us make a further simplifying assumption: that all of the relevant costs can be expressed as prices. The resultant approach will be roughly similar to some law and economics approaches.

Consider for example, Richard Posner's economic analysis of procedure. He writes, "The objective of a procedural system, viewed economically, is to minimize the sum of two costs. The first is "the cost of erroneous judicial decisions." The second type of cost is "the cost of operating the procedural system." Operating costs are borne by the public, in the form of subsidies to the judicial system and by the parties in the form of court fees, attorneys' fees, and litigation costs.

The Participation Model

The third model--the participation model?corresponds to the idea of pure procedural justice. The key notion is that it is it is participation in the process and not outcome that defines procedural justice. The second interpretation of the participation model connects the independent value of process with the dignity of those who are affected by legal proceedings. One way of articulating this central notion is that everyone is entitled to their day in court. This right to participation is justified by a background right of political morality, i.e. the right of persons (or citizens) to be treated with dignity and respect. A procedure which ensures parties an opportunity to participate in the process of making decisions that affect them might be counted as a just procedure for this reason, independently of the correctness of the outcome that results from the procedures.

On influential version of the participation model has been developed by Jerry Mashaw. Mashaw states the intuitive idea as follows:

At an intuitive level, a dignity approach is appealing. We all feel that process matters to us irrespective of result. This intuition may be a delusion. We may be so accustomed to rationalizing demands for improvement in our personal prospects, in the purportedly neutral terms of process fairness, that we can no longer distinguish between outcome-oriented motives and process-oriented arguments. * * * Yet there seems to be something to the intuition that process itself matters. We do distinguish between losing and being treated unfairly. And, however fuzzy our articulation of the process characteristics that yield a sense of unfairness, it is commonplace for us to describe process affronts as somehow related to disrespect for our individuality, to our not being taken seriously as persons.

In recent years, the question whether participation has value that is independent of outcomes has been enormously controversial. The participation model reflects the view that participation matters for reasons other than cost and accuracy. Most advocates of the balancing model deny that participation has independent value--other than a subjective taste for participation which can be weighed in a cost-benefit analysis.

Conclusion

Of course, procedural justice is a very large topic, and we have only begun to scratch the surface. Law students encounter ideas about procedural justice in a variety of courses: Civil Procedure, Criminal Procedure, and Administrative Law are among the classes in which procedural justice may become an important focus of discussion. I hope this Lexicon post gives you a lively sense of the basic structure of legal thinking about procedural justice.

Related Entries

• Legal Theory Lexicon 018: Justice
• Legal Theory Lexicon 024: Balancing Tests
• Legal Theory Lexicon 049: Distributive Justice

Online Resource

• Lawrence Solum, Procedural Justice (PDF)
  

Bibliography

• Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83 B.U. L. REV. 485, 488-89 (2003).
• Mathews v. Eldridge, 424 U.S. 319 (1976).
• Jerry L. Mashaw, Due Process In The Administrative State (1985).
• Richard Posner, Economic Analysis Of Law (1992).
• John Rawls, A Theory Of Justice (1971).

(This entry was last revised on December 3, 2017.)

Michael D. Ramsey (University of San Diego School of Law) has posted The Constitution's Text and Customary International Law (Georgetown Law Journal, 2018, Forthcoming) on SSRN.  Here is the abstract:

The Constitution’s text does not directly address the role of unwritten international law in the U.S. domestic legal system, apart from giving Congress the power to define and punish offenses against the law of nations. This may seem surprising, as the Constitution’s framers were concerned about compliance with international law (then called the law of nations). Modern commentators have advanced various theories of the Constitution’s original relationship to the law of nations, ranging from the view that the Constitution fully incorporated the law of nations as U.S. federal law to the opposite view that the law of nations has no status in U.S. domestic law until incorporated by Congress pursuant to the define-and-punish power.

This essay defends an intermediate position based on the Constitution’s text and historical background. First, it argues that the law of nations was not supreme over state law nor the basis of federal court jurisdiction under the Constitution’s original meaning. In particular, the text’s distinct treatment of treaties – which it expressly makes part of supreme law and the basis of federal jurisdiction – strongly implies a different status for unwritten international law. The Constitution’s framers confronted parallel problems of states violating U.S. treaties and states violating unwritten international law. But in drafting the Constitution they did not provide parallel solutions. This indicates a distinct approach for unwritten international law, requiring action by Congress (or the treaty-makers) to convert it into supreme domestic law. Second, however, this essay argues that the unwritten law of nations could be a rule of decision for U.S. courts with appropriate jurisdiction if it did not conflict with other domestic law. English and American courts prior to the Constitution routinely used the law of nations as a rule of decision, and there is no reason to suppose that the federal courts’ “judicial Power” granted by Article III did not include this traditional authority. Moreover, U.S. courts in the immediate pre-ratification period routinely used the law of nations as a rule of decision without objection. Thus under the Constitution’s original meaning the law of nations was part of domestic law, but it was not of supreme domestic law established by Article VI nor a basis for federal jurisdiction under Article III.

This essay also considers a different “intermediate” view of the law of nations advanced by Professors Anthony J. Bellia and Bradford Clark in their important new book “The Law of Nations and the U.S. Constitution.” Bellia and Clark argue, among other things, that different parts of the law of nations had different roles under the Constitution’s original meaning. Specifically, they argue that the Constitution’s assignment to the federal government of the power to recognize foreign governments implicitly precluded states from interfering with the rights of foreign nations established by the law of nations. Thus, while the law of nations did not become part of supreme law for all purposes, the rights of recognized foreign governments – reflected for example in doctrines such as foreign sovereign immunity and the act of state doctrine – did in effect become part of supreme law, displacing contrary state law. This essay concludes that the Bellia and Clark position is not supported by evidence from the founding era. However, it further concludes that the Bellia and Clark position may be the best way to understand modern judicial practice, which appears to make foreign sovereign rights superior over state law without recognizing a full incorporation of unwritten international law into supreme domestic law.

Highly recommended.  A link to the book appeared in the post immediately prior post.

 Sanne Taekema (Erasmus University Rotterdam (EUR), Erasmus School of Law) has posted Between or Beyond Legal Orders: Questioning the Concept of Legal Order in Light of Interlegality (Jan Klabbers & Gianluigi Palombella, The Challenges of Interlegality, Cambridge University Press, Forthcoming) on SSRN.  Here is the abstract:

This paper address the idea of interlegality from the perspective of legal theory. Talking about interlegality inevitably leads to a consideration of legal orders between which linkages and connections appear. Interlegality is sometimes described as a process of mixing elements of different legal orders to create a new legal order. In this contribution, the concept of ‘legal order’ is reconsidered in light of the discussions of interlegality. More specifically, a notion of legal order as a system is contrasted with legal order as an interactional practice. Interlegality highlights plurality and tension which is problematic in a systemic view of legal order, and can be absorbed in an interactional view. However, taking the practice view to its limits may lead to a collapse of the notion of order altogether. Given the prominence of the value of coherence in legal thought, complete abandonment of the notion of legal order seems a step too far. This contribution considers how an interactional view of order may incorporate elements of systemic order in order to do justice to interlegality as a phenomenon of our legal world, ranging from the local to the transnational context.

William S. Dodge (University of California, Davis - School of Law) has posted Customary International Law, Change, and the Constitution (106 Georgetown Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Customary international law has changed in many ways since ratification of the U.S. Constitution. This Article considers the implications of those changes for customary international law’s role under the Constitution. In particular, it challenges the claims made in a new book, The Law of Nations and the United States Constitution [by Anthony J. Bellia and Bradford R. Clark], that U.S. courts must respect the “traditional rights” of foreign nations under the law of nations and may not apply the modern customary international law of human rights. The Article argues that the book is not consistent in its approach to changes in customary international law, embracing some while rejecting others. The Article also shows that a full account of how customary international law has changed undercuts each of the book’s two constitutional arguments.

And here is a description of the book (link above):

The Law of Nations and the United States Constitution offers a new lens through which anyone interested in constitutional governance in the United States should analyze the role and status of customary international law in U.S. courts. The book explains that the law of nations has not interacted with the Constitution in any single overarching way. Rather, the Constitution was designed to interact in distinct ways with each of the three traditional branches of the law of nations that existed when it was adopted--namely, the law merchant, the law of state-state relations, and the law maritime. By disaggregating how different parts of the Constitution interacted with different kinds of international law, the book provides an account of historical understandings and judicial precedent that will help judges and scholars more readily identify and resolve the constitutional questions presented by judicial use of customary international law today. Part I describes the three traditional branches of the law of nations and examines their relationship with the Constitution. Part II describes the emergence of modern customary international law in the twentieth century, considers how it differs from the traditional branches of the law of nations, and explains why its role or status in U.S. courts requires an independent, context-specific analysis of its interaction with the Constitution. Part III assesses how both modern and traditional customary international law should be understood to interact with the Constitution today.

Stephen E. Henderson (University of Oklahoma College of Law) has posted  Daredevil: Legal (and Moral?) Vigilante (Ohio State Journal of Criminal Law, Vol. 15, 2017) on SSRN.  Here is the abstract:

In 1964, the comic world was introduced to its first physically disabled practicing attorney: Matt Murdock. Initially a proud graduate of “State College” and later more impressively pedigreed as a graduate of either Columbia or Harvard Law, Murdock supplemented his day job as attorney with a side of vigilante justice as Daredevil.

In 2003, Murdock became the only attorney superhero to appear as the title character in a movie. A truly awful movie, yes, but a movie all the same. And then in 2015, thanks to the talents of Drew Goddard, Murdock became the star of a terrific television series.

But while it makes for good comics and television, does it make for good law? Good policy? Is there such a thing as moral vigilantism, and, if so, is Matt Murdock a moral vigilante? What of his foil, the Punisher, or the police officer who comes around to assisting Daredevil’s endeavors? I propose preliminary answers to these questions, including considering vigilantism as theorized by Paul and Sarah Robinson, Les Johnston, and Travis Dumsday. Their metrics are helpful and illuminating, but not, I think, a fully satisfying articulation of what constitutes moral vigilantism. And if we cannot adequately discern moral vigilantism in fictional characters, we will fare no better in the real world. There remains more good work to be done—and more good comics to be written.

Amalia Amaya (UNAM Philosophical Research Institute) has posted Imitation and Analogy on SSRN.  Here is the abstract:

Stephanie H. Barclay (The Becket Fund for Religious Liberty) & Mark Rienzi (Catholic University of America - Columbus School of Law) have posted Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions on SSRN.  Here is the abstract:

In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.

Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.

The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.

James A. Gardner (University at Buffalo Law School) has posted The Puzzling Success of 'Federal Democracy' (CITC Conference Volume, November 2017) on SSRN.  Here is the abstract:

Most of the world’s free population lives in states that are “federal democracies.” Such states select leaders and steer policy decisions through elections, but also divide power among two levels of government that enjoy some degree of mutual autonomy. Yet it is by no means obvious why this hybrid form of government organization should thrive. Federalism and democracy arose from different historical roots, rest on fundamentally distinct conceptions of politics, and proceed by very different and largely incompatible methods, which often causes them to become operationally entangled in ways that impair the efficacy of both systems.

A theoretical account of federal democracy may be constructed that explains its success as resulting from its incorporation, in a pragmatically useful format, of two very different mechanisms of social and political dispute resolution that are activated on different occasions, and in response to different kinds of problems. On this account, the success of federal democracy rests primarily on its ability successfully to assign issues for resolution to the forum – democracy or federalism – for which they are best suited. In practice, however, evolving political and social circumstances may change which forum is best suited to resolution of any particular issue. Federal democracies, however, have not in general devised any particularly effective or systematic method for adjusting the assignment of issues from one forum to another. As a result, mismatches between issues and the forums to which they are assigned are typically resolved in the crucible of constitutional politics, an environment that is not necessarily conducive to sound and lasting solutions to problems implicating the long-term stability of the state. An account of federal democracy as a dual system therefore does not solve the puzzle of its success but at best allows the question to be recharacterized as a better-known, longstanding puzzle about how federal states survive at all for any length of time.

David Ellerman (Phil. Dept. UC at Riverside) has posted Rethinking Libertarianism: A Review/Essay on Elizabeth Anderson's Private Government on SSRN.  Here is the abstract:

In her recent book Private Government, Elizabeth Anderson makes a powerful but pragmatic case against the abuses experienced by employees in conventional corporations. The purpose of this review-essay is to contrast Anderson’s pragmatic critique of many abuses in the employment relation with a principled critique of the employment relationship itself. This principled critique is based on the theory of inalienable rights that descends from the Reformation doctrine of the inalienability of conscience down through the Enlightenment in the abolitionist, democratic, and feminist movements. That theory was the basis for the abolition of the voluntary slavery or self-sale contract, the voluntary non-democratic constitution (pactum subjectionis), and the voluntary coverture marriage contract in today’s democratic countries. When understood in modern terms, that same theory applies as well against the voluntary self-rental or employment contract that is the basis for our current economic system.

Scott Thomas Fitzgibbon (Boston College - Law School) has posted The Promotion of Personhood is a Principal Good of Law on SSRN.  Here is the abstract:

A great good promoted by a well constructed legal system is the protection and promotion of character. Many other purposes prove to be justifiable, if at all, based on their instrumentality to this good.

When guided by this thesis, jurisprudence brings the discussion of law – what law is and what law ought to be – into constant conversation with anthropology: the perennial inquiry which our species conducts into the nature of the person.

Saba Bazargan-Forward (UC San Diego) has posted Complicity (Routledge Handbook on Collective Intentionality, Eds. Marija Jankovic, Kirk Ludwig. Routledge University Press, 2017) on SSRN.  Here is the abstract:

Complicity marks out a way that one person can be liable to sanctions for the wrongful conduct of another. After describing the concept and role of complicity in the law, I argue that much of the motivation for presenting complicity as a separate basis of criminal liability is misplaced; paradigmatic cases of complicity can be assimilated into standard causation-based accounts of criminal liability. But unlike others who make this sort of claim I argue that there is still room for genuine complicity in the law and in morality. In defending this claim, I sketch an approach to complicity which grounds our liability for what others do not in our causal relation to their actions but in our “agency-relations” with others. In such cases, one agent can be liable for the wrongs of second agent to the extent that first authorizes the second to act at her behest. This approach fills the gap where standard causation-based accounts of complicity fail – especially in where several agents cooperatively contribute to an overdetermined harm.

Marin K. Levy (Duke University School of Law) has posted Panel Assignment in the Federal Courts of Appeals (103 Cornell Law Review 65 (2017)) on SSRN.  Here is the abstract:

It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random.

This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in depth interviews with thirty-five judges and senior administrators, I show that strictly random selection is a myth, and an improbable one at that—in many instances, it would have been impossible as a practical matter for the courts studied here to create their panels by random draw. Although the courts generally tried to “mix up” the judges, the chief judges and clerks responsible for setting the calendar also took into account various other factors, from collegiality to efficiency-based considerations. Notably, those factors differed from one court to the next; no two courts approached the challenge of panel assignment in precisely the same way.

These findings pose an important challenge to the widespread assumption of panel randomness and reveal key normative questions that have been largely ignored in the literature. Although randomness is regarded as the default selection method across much of judicial administration, there is little exposition of why it is valuable. What, exactly, is desirable about having judges brought together randomly in the first place? What, if anything, is problematic about non-random methods of selection? This Article sets out to clarify both the costs and benefits of randomness, arguing that there can be valid reasons to depart from it. As such, it provides a framework for assessing different panel assignment practices and the myriad other court practices that rely, to some extent, on randomness.

Saba Bazargan-Forward (UC San Diego) has posted Standards of Risk in War and Civil Life (The Nature of Peace and the Morality of Armed Conflict, Ed. Florian Demont. Palgrave, 2017) on SSRN.  Here is the abstract:

Though the duties of care owed toward innocents in war and in civil life are at the bottom univocally determined by the same ethical principles, I argue that those very principles will yield in these two contexts different “in-practice” duties. Furthermore, the duty of care we owe toward our own innocents is less stringent than the duty of care we owe toward foreign innocents in war. This is because risks associated with civil life but not war (a) often increase the expected welfare of the individuals upon whom the risk is imposed, (b) are often imposed with consent, and (c) are often imposed reciprocally. The conclusion — that we have a pro tanto reason for adopting a more stringent standard of risk imposition toward foreign innocents in war — has implications for not only what standards of risk we should adopt in war, but also how we should weigh domestic versus foreign civilian lives.

Daniel D. Maurer (Government of the United States of America - Army) has posted The Clash of the Trinities: A New Theoretical Analysis of the General Nature of War (Army War College Press, Strategic Studies Institute (Advancing Strategic Thought Series)) on SSRN.  Here is the abstract:

This monograph suggests that theories of warfare and descriptions of the evolving character of war cannot be complete without first giving credit to the nature of war itself. Looking at varied portrayals of war from literary, academic, military, and civilian strategist perspectives, this essay (in the original meaning of the word) offers a re-definition of “war” as an investment in organized violence by parties interested in the extension, maintenance, or appearance of their power over an unspecified time, with an unknowable risk, for an uncertain reward. In drawing an analogy to painting, it suggests that “choice” is the underlying axiomatic theme of war, and it that is replayed and adapted at every scale of warfare like a classical fugue. From there, this essay pierces the interior of Clausewitz’s “trinity” description of war, and proposes that there are still more universal ways to describe conflict’s breadth, depth, and context. This argument concludes that war is better understood when it is described as a “clash of the trinities.” An ecology of war is proposed, in which fundamental components comprising fuel, biology, and interactions constitute a network or system undergoing entropy. It is this sense of entropy — a tendency toward social and political discontinuity and disorder — that chiefly describes war in all its varied guises and explains political, social, and military efforts to avoid them, corral them, plan them, or fight them.

Larissa M. Katz (University of Toronto - Faculty of Law) has posted two papers on property theory:

Legal Forms in Property Law Theory

In this paper, I argue that legal forms constitute the available ways of thinking legally about relations between persons in light of how we conceive of persons in law. Legal forms, as normative ideals, do not of course determine what positive law there is nor do legal forms even set out the particularities of the law we ought to have: for that, we have politics.

With this view of legal forms in mind, I suggest a way to bridge the divide between those who think there is a distinctively legal way of reasoning about human relations (whom I group together as “formalists”) and those who take themselves to reject the very possibility of distinctively legal reasoning (“moralists”). I suggest that there is a common threshold question for moralists and formalists alike: how ought we to conceive of persons for the purposes of law and how could people so-conceived possibly relate? Both the moralist and the formalist produce legal forms in answering that question, forms that constrain the available ways of reasoning about legal relations. But we are not all formalists now: there remains substantial disagreement about how to answer the threshold question and how far we get by just answering that threshold question.

Philosophy of Property Law, Three Ways

Is property in some way basic to our moral lives? Many have thought so. For Aristotle, moral virtues, like liberality, presuppose some idea of property, for one can display liberality only with respect to what is one’s own. For Kant, property is a requirement of freedom in the external world. For Locke, property, allocated according to principles of labour and desert, is basic to the very idea of justice that our political institutions are meant to secure. Others have denied that property is foundational in this way, suggesting rather that property is one strategy available to us in meeting the demands of our general theories of justice but is not itself morally basic. There are, I argue, three levels of philosophical inquiry that are aimed at working out property’s moral salience. I offer one view of what that might be.

Both papers are highly recommended.

Ronald Niezen (McGill University - Faculty of Law) has posted Power, Anthropological Approaches to (The International Encyclopedia of Anthropology, edited by Hilary Callan, Forthcoming) on SSRN.  Here is the abstract:

Anthropology differs from other disciplines in the extent to which it emphasizes the indirect and concealed manifestations of power, understood in its simplest terms as the ability to influence the decisions and behavior of others. Power is also commonly understood as influence that is generative of dominant ideas and institutional structures rather than narrowly repressive. A sharp break from ethnographies that were concerned with sources of power in the absence of the state took place in the 1970s as many anthropologists took positions of postcolonial critique. Under these circumstances, anthropology then turned to such concepts as hegemony (Gramsci), cultural capital (Bourdieu), and power-knowledge and governmentality (Foucault) in efforts to come to grips with the ways that power manifests itself through knowledge and everyday practice as much as through more recognizable institutional forms. Expansion of the scope of ethnography is currently producing more refinement of the methods and concepts for identification of its forms and realms of influence.

Josef Ostřanský (Graduate Institute of International and Development Studies (IHEID) - MIDS - Geneva LL.M. in International Dispute Settlement) has posted An Exercise in Equivocation: A Critique of Legitimate Expectations As a General Principle of Law Under the Fair and Equitable Treatment Standard (in A. Gattini; A. Tanzi, F. Fontanelli (eds.), General Principles of Law and International Investment Arbitration (Brill, Forthcoming)) on SSRN.  Here is the abstract:

The notion of legitimate expectations has become considered the bedrock of the obligation to provide fair and equitable treatment (‘FET’) both in arbitral practice and in international investment law (´IIL´) scholarship. Claimants invoke it in virtually all investment cases, and tribunals frame their decisions around this notion. This is despite the fact that the concept has rather unclear sources and juridical origins. The more recent accounts seem to accept the notion of legitimate of legitimate expectations as a general principle of law. This chapter starts with an overview of different sources and justifications of the protection of legitimate expectations in international investment law offered in case law and doctrine, focusing primarily on legitimate expectations as a general principle of law. Next, in line with the methodology of deriving general principles of law, a limited comparative overview of national conceptions of legitimate expectations as well as international law conceptions in other than investment protection contexts is presented. In this section, the rationales for and limitations on the protection of legitimate expectations in these other legal systems and regimes is highlighted. Finally, the concept is analysed in the investment treaty arbitration case law. The main thesis of this contribution is that there is a significant disconnection between the justifications, functions, and contents of the conceptions of legitimate expectations in other than investment contexts, on the one hand, and the practice and doctrine of IIL, on the other. Investment treaty arbitration case law shows that legitimate expectations are often used in a much more relaxed calibration; not as a residual and limited remedy, but rather as a core principle under FET or as an overarching argumentative framework for FET. This poses exacting constraints on the regulatory powers of the host State, which may be viewed as problematic due to the not so solid juridical basis of the notion when treated as a general principle of law and due to the questionable normative basis of the international protection of foreign investment.