In the last twenty years, the concept of legitimate expectations has come to play a very prominent role in international investment treaty-based arbitration. This article explores what insights investment law scholars can gain from authors in the fields of critical race theory and settler colonial studies, who have examined the use, and implications of the use, of the concept of expectations in particular contexts.
This Essay argues that several principles associated with modern international investment law and dispute resolution arose in the wake of the American Revolution, as the revolutionaries and Britons sought to restructure trade relations, previously regulated by imperial law, under new treaties and the law of nations.
This Essay argues that federal land policy as a form of colonial administration has been constitutive for the logic of expectation as property in the United States. Approaching the Bundy occupations as flashpoints that illuminate competing interpretations and claims to land within the history of westward colonization, the Essay demonstrates the ways in which expectation emerges from particular economies of dispossession of indigenous peoples that have historically worked through and across the division of public and private property.
The article evaluates the doctrine of protecting investors’ specific-commitment backed-expectations. The author argues that the doctrine has shaky legal foundations and raises fundamental policy concerns. It affects the rules and processes governing allocation of property rights, can exacerbate inequality, and can send wrong signals to investors regarding responsible business conduct.
This special issue contains several papers presented at a workshop held at Columbia Law School in May 2017, which brought together investment law scholars to consider the legal construction and protection of expectations as objects of property in varied contexts and areas of law, from federal land policy to international investment law.
The “Morality Provision” of trademark law prohibits the registration of trademarks that are immoral or scandalous. This essay exposes how the Morality Provision is abused by individuals who do not have any real interest in the proposed trademark, but who morally disapprove of the trademark owner or its commercial activities.
Abstract The decision in Fisher II sustained the University of Texas’s use of race in its undergraduate admissions policy, in the face of nearly decade long attack, but on terms that reinscribed the onerous requirements of strict scrutiny on institutions utilizing any form of race-conscious policy. The debate before the Court and the rationales asserted
In recent California litigation, a California Court of Appeals held that California’s greenhouse gas emissions auction was not a form of taxation. This article argues that the court reached the right result. Like the government's sale of any other public resource, emissions auction should not be considered a form of taxation.