Blockchain Papers

Tom Gerald Daly

Gardbaum’s comparative political process theory (CPPT) arrives at an odd juncture in world history. Positing a role for courts to remedy representative democracy’s defects, especially given the ascendance of authoritarian populism, it was completed just before the global COVID-19 pandemic hit and places courts center-stage just when they have suddenly receded into the background. Exceptions include the US Supreme Court’s refusal to extend the deadline for absentee ballots in the Wisconsin presidential primary on April 7, 2020—decried by Justice Bader Ginsburg as generating “massive disenfranchisement.”1 Even before the pandemic, it appeared increasingly untenable to cleave to a view of courts as strong bulwarks for threatened democratic systems. A growing literature frames the US Supreme Court as degrading democracy due to the substance of its decisions, not the mere fact that it enjoys constitutional supremacy.2 The Constitutional Tribunal has been captured and pressed into service as a “government enabler” in Poland.3 The Israeli government is said to have retained the “judicial revolution” empowering the courts while rolling back its liberal dimensions.4 The Indian Supreme Court has appeared more interested in self-preservation than guarding the democratic system threatened by Modi, and has undermined the functioning of parliament.5 It is a profoundly different global reality compared to just a decade ago, when the international juggernaut of juristocracy still seemed unstoppable. We are potentially entering the era of “post-juristocracy,” where courts’ decades-long accretion of governance power—and the accompanying obsession with, and faith in, courts—is waning. While courts remain a core preoccupation, many in the global comparative constitutional law community seemed to be moving on to new obsessions, such as political parties, citizens’ assemblies, and other deliberative innovations.6 Yet, Gardbaum’s theory remains acutely relevant. The pandemic has laid barer than ever deficiencies in governance worldwide and re-emphasized the centrality of effective political processes to what Schmitter calls “real-existing democracy.”7 As recent high-profile cases attest, courts play an irreplaceable role in supporting the role of other systemic actors—not least the UK Supreme Court’s stunning riposte to the government’s prorogation of Parliament.8 Gardbaum’s theory presents a laudable project to go beyond zero-sum, excessively abstracted debates on judicial review’s democratic legitimacy, and a patchwork of single-country analyses, by crafting a framework for understanding how courts worldwide can offer a targeted democracy-supporting role. This article responds to Gardbaum’s theory on the theoretical and empirical planes. Section 2 addresses how CPPT relates to existing theories not addressed in his account. Section 3 addresses contextual factors that complicate, frustrate, and limit the application of his theory. The main argument is that CPPT can be more fully integrated with existing frameworks, and that the assumed universality of its application should be reconsidered against today’s global reality. In constructing his theory Gardbaum draws, beyond Ely, on the work of theorists such as Sam Issacharoff, but does not engage with a range of relevant frameworks.9 This section places his account in a fuller context, drawing out its connections and resonances with existing theories. First, a brief summary. Gardbaum’s theory builds on Ely’s “participation-oriented, representation-reinforcing” approach to judicial review across three dimensions: (i) expanding Ely’s binary focus on incumbents’ suppression of democratic participation and systematic disempowerment of minorities to encompass additional malfunctions, including legislative failure to hold government accountable, executive capture of independent institutions, special interests’ capture of the political process, and outright dysfunction of one or multiple institutions; (ii) shifting the focus from outputs (especially legislation) to process; and (iii) seeking a more universal theory than Ely’s “self-consciously parochial” approach. For Gardbaum, like Ely, policing against erosion and distortion of the political process cannot be left to the elected branches alone, as vividly underscored in today’s era of “abusive constitutionalism” where the primary targets of errant executives are the structures of democratic government, rather than rights, and where policing legislation alone will leave much dysfunction and manipulation unremedied. CPPT seeks to provide a framework for grouping together issues that may otherwise not be analyzed as variants of the same problem, and a standard for when courts should intervene. For Gardbaum, courts should assist the democratic system to function “as it is supposed to,” support the functioning of other systemic actors and guard institutional pluralism, block attempts to stymie deliberation, contain and prevent manipulation (even if it cannot be fully remedied), and do so through a mix of mostly weak-form review, but also strong-form review when necessary: policing electoral processes and rules; lawmaking processes; mechanisms for executive accountability between elections; and rules and procedures of the executive and legislative branches, and the administrative state more widely. This departs from Gardbaum’s long-held position focused exclusively on weak-form review as the best universal option, allowing courts to adjudicate boldly and guard the coherence of the constitution without antagonizing the other branches, raising the risk of political attacks, and undermining the principle of judicial independence.10 The return to Ely’s theory, as well as moving past the longstanding US debate between interpretivists and non-interpretivists, serves to reanimate the well-worn debate hammered out in the context of long-established Western democracies, where the Waldronian and Dworkinian camps for and against strong judicial review (i.e. the ability to strike down legislation, and judicial supremacy more broadly) had argued to a stalemate by the early 2000s. Gardbaum’s theory also resonates with a parallel debate encompassing a broader suite of theories on judicial roles in young and Global South democracies which, as explained in Section 2, has increasing relevance to all democracies in the era of global “democratic decay.” This debate can be characterized as containing five principal, partially overlapping, arguments: Gardbaum’s “weak review” argument, discussed above, and what may be dubbed the “mirror,” “Global South,” “surrogate,” and “scaffolding” arguments.11 The “mirror” argument holds that constitutional courts in young democracies should approximate the role carried out by courts in mature democracies; playing an active part in democratic governance, but acting strategically to avoid addressing matters that will trench unduly upon other government branches’ sphere of action. For Sadurski and Ginsburg, discussing younger democracies in Europe and Asia, the main contribution courts can make is protecting rights,12 and constraining state authority.13 Ginsburg suggests caution is warranted regarding intervention “on core issues of the political process,” albeit in the context of extreme cases in Mongolia, South Korea, and Thailand concerning impeachment, the formation of government, and appointment of the prime minister.14 Daniel Bonilla Maldonado has argued that the jurisprudence of non-Western constitutional courts, including the Colombian and Indian apex courts’ assumption of more expansive governance functions across both substance and process, should be viewed as a legitimate “constitutionalism of the Global South” constructed in response to starkly different socio-political contexts and governance challenges—including political violence, high rates of poverty and inequality, cultural and religious diversity, and “consolidation of the rule of law”—which should not be discounted simply because it departs from the approaches taken by leading Western apex courts.15 The “surrogate” argument pushed this logic to the extreme, contending that courts could drive democratic development where the existing political party and wider political systems are unequal to the task. Scheppele described the stunningly assertive role of the Hungarian Constitutional Court in the 1990s as “democracy by judiciary.”16 The Court not only intervened strongly regarding outputs—striking down a third of all laws passed by parliament in its first six years, for instance—but also weighed heavily in the legislative process, especially by issuing advisory opinions during parliamentary deliberations and ordering the legislature to enact laws mandated by the Constitution.17 Approaching the “separation of powers as a contact sport,” the Court assumed an expansively interventionist role.18 The “scaffolding” argument adopts a much more targeted approach, focused on actively mitigating the worst deficiencies of young democracies and preventing elected organs from overwhelming the basic structure of democratic governance. For Issacharoff, in states such as South Africa, where the democratic transition leads to single-party dominance, the courts’ central role—which constitutes legitimate intervention in the political process—is protecting the “vitality of democratic competition for electoral office and the ability of the political process to dislodge incumbents”; to prevent the transition souring into a new autocracy through hobbling of the opposition, partisan capture of all state power, and control of elections and the media.19 Courts thereby shore up the “weakness of not only political institutions, but the ancillary civil-society participants in democratic life”—especially political parties.20 In the Latin American context, Gargarella’s concept of “democratic justice” has similarly argued for targeted judicial assertiveness, especially to counter excessive concentration of power through hyperpresidentialism.21 My own position aligns with the scaffolding argument, on the basis that it respects the principle of popular government, avoids the trap of overloading courts, provides a sense of core mission, and expects courage when fundamental democratic functioning is at stake—not merely staying within the political branches’ “tolerance levels.”22 More recently, David Prendergast has revisited Ely’s theory in arguing for a “suitably restrained” judicial approach to protecting any kind of democracy from populism, through specific, modulated, and often prophylactic intervention in political processes “to correct them when they have gone awry and to help prevent them going awry in the first place,” by policing the fairness of processes and procedures, and upholding institutional pluralism.23 Placed within this broader theoretical landscape, Gardbaum’s theory clearly pursues a scaffolding argument in its delineation of a sphere of robust judicial intervention without according courts uncabined discretion. However, he augments existing frameworks by providing a more granular theory of how targeted intervention may play out in practice, and the issues it would address. Gardbaum’s self-consciously global theory provides an illuminating analytical lens for a variety of states. It adds to our understanding of the UK Supreme Court’s reasoning in its prorogation judgment that judicial intervention “will not offend against . . . [but] be giving effect to the separation of powers.”24 It provides a clear framework for judicial protection of representative democracy in states still considered to enjoy good governance and independent courts—the Canadas, Germanies, and South Koreas of the world—as well as states in which, despite significant challenges, the democratic system has not degraded beyond targeted judicial intervention, such as South Africa. It may be instructive for states undergoing democratic transition, such as the Gambia, where both draft constitutions envisage a rather powerful supreme court.25 However, in the global climate of democratic decay, various factors complicate and limit CPPT’s universal application. Recall here that Waldron’s core argument against strong judicial review made a distinction between “well-functioning democracies” and other states. For Waldron, in the former—with adequately functioning representative and judicial organs, most officials and citizens committed to the idea of individual and minority rights, and “persisting, substantial and good faith disagreement” concerning the implications and meaning of such rights commitments—strong judicial review cannot be justified.26 In the latter, by implication, more extensive judicial action might be justified, suggesting the democratic legitimacy of judicial review, and its ambit, is context-sensitive. Of course, Waldron never specified what states counted as well functioning, but we could surmise his inner circle as comprising Global North democracies in North America and northern Europe, and perhaps states such as Japan and Costa Rica. The “parallel debate” on young and Global South democracies discussed in Section 2, while interesting from a comparative angle, was intuited to be of limited relevance to well-functioning democracies. The global phenomenon of democratic decay has significantly softened this dividing line. With many long-established democracies experiencing authoritarian populist leadership, dysfunctional governance, weakened parliaments, hyper-partisanship, sweeping negative transformation of the political-party system, and society-wide polarization, the parallel debate has become more broadly relevant.27 The pandemic has revealed this political dysfunction in its most alarming detail: Scheppele, for instance, has described the Trump administration as acting like the government of an “(almost) failed state.”28 However, this is not an argument for untrammeled expansion of judicial power. Indeed, even with the most independent, learned, perceptive, and strategically nimble court, the assumption of an overweening tutelary role could never be justified in democratic terms: indeed, arguments casting Brazil’s Supreme Court as a “moderating power” beyond the reach of any democratic control, as a response to the perceived failures of democratic politics, have been sharply criticized.29 Yet, even within the narrower confines of CPPT, it is contested that the current US Supreme Court could meet its apparent starting preconditions of independence, impartiality, and institutional legitimacy. Responding to the Kavanaugh nomination debacle, Epstein and Posner have offered that the Court, “[f]or the first time in living memory, . . . will be seen by the public as a party-dominated institution, one whose votes on controversial issues are essentially determined by the party affiliation of recent presidents.”30 Recent decisions have fueled the arguments of both the Court’s supporters and detractors: the landmark six-to-three judgment of June 15, confirming that the antidiscrimination protections of Title VII of the Civil Rights Act of 1964 apply to gay and transgender workers, can be argued as proof of its independence;31 while just two weeks later a judgment significantly freeing the President’s power to remove senior officials in the executive branch has raised serious fears.32 Many see the rot as much deeper than the Kavanaugh era, perceiving the Court as, not just a victim of authoritarian populist leaders, but itself an engine of democratic decay, having starkly degraded the structural functioning of the democratic system—including its watershed 2010 Citizens United decision on campaign financing and its weak response to gerrymandering.33 This view sees the present as merely a continuation, albeit intensified, of past practice—including the Court’s refusal to extend the deadline for absentee ballots in Wisconsin’s presidential primary in April 2020, which left citizens in the position of pitting their health and lives against exercising their democratic rights.34 Greenhouse described the decision as an exercise in “raw partisanship,”35 while Justice Bader Ginsburg’s dissent characterized the majority’s judgment as not only permitting “massive disenfranchisement” but endangering “the health of the Nation.”36 What might have happened with a stronger decision in line with CPPT? Had the Court extended the date for absentee ballots, raising the risk of a Republican loss and setting a precedent that could vastly transform the electorate for the November presidential elections, might it have unleashed serious political attacks—or even non-compliance? With increasing political pressure on courts, claims of absolute presidential power, and denial of the existence of any objective institution outside the realm of partisan contestation,37 we have strayed far from the “waspish civilities”38 of yesteryear, where (despite serious deficiencies in the democratic system) US governments could still be trusted to comply with rulings they bitterly opposed. Yet, it is not merely about this government. Perhaps more problematic is that CPPT tends to characterize problems as isolated, aberrant, or limited malfunctions, when the US political process as a whole faces multiple deeply rooted challenges arguably beyond judicial remedy. For instance, in response to the Supreme Court’s 2019 decision in Rucho v. Common Cause39 that partisan gerrymandering is “incompatible with democratic principles” but non-justiciable, Levinson argued that even adopting Justice Kagan’s (minority) solution would not have provided “a genuine cure for what ails us as a political system.” The only remedy would be for a democratic movement to “rise up” and push for a constitutional convention.40 Even this may be insufficient. Gardbaum’s framing of the 2017 tax law, for example, as an instance of “undue influence and corruption of the lawmaking process”41 elides the structural symbiosis of Americans for Prosperity (AFP) and the Republican Party, which blurs the division between the two, and leaves a form of “shadow party” in place, distorting the political process, which even constitutional reform would not address.42 That said, even if CPPT faces clear limitations, it remains a valuable yardstick. For instance, we can see the legitimacy of the Polish Supreme Court’s pushback against government and (captured) Constitutional Tribunal actions to end judicial independence as the institutional at the core of the democratic system by In the Gardbaum’s theory may more robust protection where degraded democracies courts as a central for threatened democracies, recent have been a reality about how we might reform courts, or even democratic through institutional However, as global juristocracy its we also guard against out the with the is any from the recent it is to avoid of any as courts never as or as they have so often been the is not While CPPT deeper about the of universal theories of judicial review, or at least the to more up their limitations, for to the democratic role of courts in our constitutional or more theory, a for courts to in guarding us all on which to and

Cătălina Goanță

No abstract is available for this record.

Atiba R. Ellis

Despite the antidiscrimination frameworks contained in the constitutional and statutory protections for the right to vote, access to the American ballot box is generally perceived as heavily contested. More precisely, many right-to-vote advocates (and their popular supporters) believe that the right to vote is in a crisis of exclusion so extreme that it represents a resurgence of Jim Crow racial exclusion from the franchise. Advocates for election integrity initiatives and their supporters claim that because of impending threats by “illegal voters” who will distort election results, initiatives like voter identification laws, proof of citizenship laws, and voter purges are necessary, else the integrity of the electoral process will be destroyed.\nThese views are diametrically opposed and suggest that what we know about the status of the right to vote itself is at stake. One view is premised on seeing the ecosystem of democracy as replicating intersecting racial and class-driven exclusion. The other sees the world as dominated by the threat of illegal voters and supposes that the threat of voter fraud is an existential threat to American election integrity. That such divergent views exist on exactly what the crisis of voting rights is, suggests that there is a fault in the way we obtain and order our knowledge regarding American democratic practices. Our knowledge about how to understand the right to vote is a contested issue. ...\nIn the years since this argument, the meme of voter fraud has been amplified17 and augmented in the far more dense (and self-selecting) political ecosystem that is Internet-driven American political discourse. The meme has served as justification for not only voting rights policy changes, like voter identification laws, but also to connect the threat of so-called “illegal voters” to issues ranging from proof of citizenship requirements, to felon disenfranchisement, the census, and the Electoral College. The evolved, weaponized, amplified voter fraud meme has created an epistemic crisis—a crisis of how we know—for the law of democracy.\nThis short Article will consider this crisis. The Article will argue that the meme has evolved providing an “alternative facts” explanation for voting threats to the creation of a worldview that underscores an ideology of exclusion of those unworthy to exercise the franchise by expanding the narrative of the persons and communities who pose a threat to American elections. The Article will turn next to explaining my claims about the voter fraud meme and connect that to how it consolidates political power. It will then examine how the meme has evolved and amplified in recent years and consider its ramifications for upcoming election cycles. And then the Article will end by considering the larger, epistemological threat that such meme-driven thinking poses to our democracy, and how the law of democracy is ill-suited to address such problems. But to adequately explain this point, I must first draw on my prior research to explain the sense in which I mean a “meme” and how it relates to voter fraud talk.

Israel Cedillo Lazcano

Cryptocurrencies have been around since 2009 when the programmer Satoshi Nakamoto launched the technology behind Bitcoin. There are now several different cryptocurrencies and they are likely to be ...

Marc Jonathan Blitz

Just over twenty years ago, in 1998, science fiction writer and technologist David Brin warned, “One of the scariest predictions now circulating is that we are about to leave the era of photographic proof. . . . We are fast reaching the point where expertly controlled computers can adjust an image, pixel by microscopic pixel, and not leave a clue behind.” (David Brin, The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom? 28 (1998)). Now, many articles are reporting that a similar technological transformation is occurring in the realm of audio- and video recording. Legislators and legal scholars have begun asking what laws or technological measures can be used to protect the public from being deceived by “deep fake” videos. This symposium essay considers how First Amendment free speech protection might apply to the creation of such videos – and how such protection might differ from the protection that the Supreme Court found, in 2012, applies to false statements of fact. First, it analyzes how courts have generally adhered to a well-established dichotomy in First Amendment treatment of false claims: In the commercial marketplace, government often stands ready to intervene to protect us against being sold forgeries or other fake goods. The same is true in certain situations where security is at stake, for example, where a fake ID might give a person unwarranted access to an airplane or a building off-limits to the general public. Matters are very different, by contrast in the marketplace of ideas. Here, individuals are largely on their own. Government may not constitutionally exile certain ideas from the free trade in ideas, as it can ban harmful goods or services from the realm of buying and selling. In the realm of free expression, wrote Justice Jackson, “every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Thomas v. Collins, 323 U.S. 516 (1945) (Jackson, J concurring). The justices in the 2012 case, United States v. Alvarez, disagreed about how to classify verifiably false autobiographical statement in this dichotomy (and thus disagreed about how to analyze Alvarez’s false claim to have won a Congressional medal of honor). But they largely agreed that false statements on matters of public concern should generally be treated as contributions to the marketplace of ideas, and receive staunch First Amendment protection – unless they constitute defamation, fraud, or some other legally-cognizable harm. Having examined the Alvarez decision and certain difficulties that confront it, the essay then asks whether this First Amendment framework requires modification when the vehicle for deception is not merely a falsity but a forgery – that is, where it is not merely the content of the speech that is intended to deceive, but also its purported source or vehicle. A deep fake video, for example, does not simply present a false description of an event. It clothes such falsity in the authority of video evidence. The essay considers some of the reasons why the First Amendment should perhaps give government greater leeway to regulate fake video- or audio-recording than verbal lies - why, for example, a false statement about war-time actions might be protected speech, whereas a fake video of an event in that war allowing people to see with their own eyes, events which never occurred - might raise more significant concerns. Or why the false content in a fake news article may be protected speech but this may not be true of the false guise it wears as a New York Times, Chicago Tribune, or Washington Post article when neither publication played any role in it. The essay also briefly considers some of the difficulties that courts would face in attempting to differentiate in this way between falsity and forgery, and providing different First Amendment rules to each category of deception.

Marcin Wielec, Bartłomiej Oręziak

This article concerns the correlation between criminal law and procedure and the technical, technological and civilisation progress in the form of possibility to stand bail in Bitcoin virtual currency (cryptocurrency) in the criminal procedure. The article, firstly, presents introductory remarks to provide information about the analysed subject. Secondly, there is an outline of the essence and mechanism of applying bail in criminal procedure. Thirdly, the process transformation of money as an element of assets is presented. Fourthly, the article presents a categorisation of digital money and an economic qualification of Bitcoin. The above provides a background for argumentation relating to the legal qualification of Bitcoin as money and presentation of the basic threats connected with this cryptocurrency. The article ends with a brief summary containing the authors’ view on the subject of these reflections and a proposal of the desired legal amendments, addressed to the Polish legislator.

David Fox

Abstract This chapter focuses on the characterisation and treatment of cryptocurrencies in the common law of property, using Bitcoin as the main example. It first examines how a crypto-coin might be viewed as an object of property, and more specifically whether it could make a suitable object for any regime of property rights at all, before discussing the fungibility, specificity, scarcity and exclusivity of cryptocurrencies in the context of property law. It then considers whether crypto-coins fall into either of the two conventionally recognised categories of personal property: choses in possession or choses in action. It also explores the applicability of rules of derivative transfer of title to crypto-coin transactions, and how the standard rules of following and tracing may be used for the identification and tracing of cryptocurrencies through mixtures. Finally, it looks at remedies available at common law and in equity for enforcing titles to cryptocurrencies.

Alan Cunningham

The increasing collective use of distributed application software platforms, programming languages and crypto-currencies around the blockchain concept for general transactions may have radical implications for the way in which society conceptualises and applies trust and trust-based social systems such as law. By exploring one iteration of such generalised blockchain systems – Ethereum – and the historical lineage of such systems, it will be argued that indeed their ideological basis is largely one of distrust, decentralisation and, ultimately, via increasing disassociation of identity, a fear of the body itself. This ideological basis can be reframed as a crypto-legal approach to the problems of human interaction, one whereby the purely technological solutions outlined above are considered adequate for reconciling many of the problems of our collective existence. The article concludes, however, by re-iterating a perspective of law more so as an entirely embodied and trust dependent notion. These aspects go some way to explaining the necessarily centralised role it takes on within societies. They also explain why the crypto-legal approaches advanced by systems like Ethereum – or even the co-opting of blockchain technology by law firms themselves – will only ever be at best efficiency exercises concerned with the processing of data relating to legal affairs, and not the more radical, ambiguous and difficult process of actual legal thought or, indeed, engagement with trust.

Scott L. Cummings

The question of whether and how law plays a role in producing social change has received renewed scholarly attention, powered by research on the role of social movements in law making and the relation between court decisions and backlash. Reflecting the broader turn to empiricism within legal scholarship, this research either directly engages in or builds upon the empirical study of law in ways that chart exciting new scholarly directions — but also raise important conceptual and methodological questions. This essay explores these questions in an effort to frame what is at stake and guide future research. It makes three contributions.First, it offers a map of the law and social change field, suggesting how researchers across disciplines have asked a set of questions that can be understood as part of a coherent model in which law is viewed as both an “input” and “output” of social change campaigns. Within this model, debate centers on what factors cause lawyers and activists to turn to law as a tool of reform in the first instance (input analysis) and whether legal mobilization ultimately advances movement goals (output analysis). Focusing on the input side, the Essay next outlines how existing research presents a more nuanced story of legal mobilization than posited by the conventional view of rights claiming in court to advance underrepresented interests. In contrast to the traditional account of lawyers deploying litigation as a substitute for traditional politics, the input literature offers a more complex and dynamic account of the relationship of legal mobilization to political power; of lawyers to clients and constituencies; and of litigation to other legal and nonlegal social change strategies.Finally, the Essay turns to the output side to consider the multiple — and often contested — ways in which law may effect change. Here, it highlights an important challenge that empiricism poses to law and social change researchers: the challenge of evaluation. In particular, much of the debate about law and social change has centered on whether legal mobilization makes positive or negative contributions to reform efforts. As these debates become more informed by interdisciplinary research, it is useful to think about how the questions asked may shape the answers produced — and what this means for our understanding of law as a tool of transformative politics. Toward this end, the Essay identifies four key evaluative challenges — how to account for background conditions, select baselines, understand burdens of proof, and weigh counterfactuals — and offers some thoughts on how they might be addressed.

Patricia Cochran

One of the questions that lies at the heart of the Insite case is this: what kind of connections should exist between the law and the people it governs? In this short comment, I explore one of the ways this question informs the treatment of evidence and proof by focusing on the section 7 aspect of the case and the question of arbitrariness. With the goal of inviting discussion, I suggest that in cases involving the constitutional rights of marginalized individuals and communities, the concept of the “burden of proof” can provide a way to help understand what is at stake, and what criteria we might use to relate the burden of proof to values of equality and justice.

Mireille Hildebrandt

This article explores the complex relationship between law and (scientific) expertise. The author first discusses the difference between scientific knowledge and scientific expertise, tracing the historical roots of the concept of proof in a legal rather than a mathematical context. Second, the historical roots of the fair trial are discussed in terms of the premodern épreuve and the modern preuve, demonstrating the relationship with coordinate and subordinate types of justice. Third, Foucault's analysis of épreuve, enquête, and examèn is extended to clarify how preuve and épreuve have been integrated into the fair trial, which is explained in relation to the formal and the substantive notions of the "Rechtsstaat." This analysis finally allows the author to discuss the difference between two approaches of scientific expertise in court: one claiming that judges should defer to science and another claiming that a court of law is one of the spaces in which such expertise can be contested. The article concludes that the integration of subordinate and coordinate justice exemplified in the fair trial, opens new perspectives for the testing of scientific expertise, taking into account whose interests are at stake.