Expressive Procedure

This article explores the expressive dimension of procedural law, arguing that some procedural rules can be usefully understood as instruments of expression: they can express, or be employed to express, values, preferences and attitudes—independently of the economic incentives such rules create and regardless of the specific substantive law that governs the dispute. This is illustrated through two case studies that demonstrate how expressive considerations can underlie procedural rules, court decisions in relation to procedural matters and procedural choices that litigants make. The first is the requirement that litigants conduct civil proceedings in a diligent, honest and otherwise appropriate manner, which operates in part as an expressive norm, allowing courts to impose procedural sanctions as a way to condemn litigants’ behaviour. The second case study is the right to self-representation, which has been used by litigants in certain contexts as an act of protest against the legitimacy of the proceedings.