Academic

Marcus on Trans-Substantivity

By Lawrence Solum

David Marcus (University of Arizona - James E. Rogers College of Law) has posted The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure (DePaul Law Review, Vol. 59, 2010) on SSRN. Here is the abstract:

The trans-substantivity principle ? the same procedural rules should apply regardless of the substance of the case ? has been a central feature of modern federal civil procedure since its beginnings in 1938. In recent years, however, a number of scholars have questioned whether the principle should continue to govern procedural rulemaking. Mirroring this scholarly disquiet, legislatures have crafted substance-specific rules to apply in heavily-litigated areas of substantive doctrine. The future of trans-substantivity is uncertain. In this symposium contribution, I use the history of the rise of trans-substantivity in American civil procedure as a basis to predict its role going forward. This history, beginning in the early nineteenth century and culminating in 1938, illuminates the jurisprudential foundation for trans-substantivity, its normative implications, and the political role it played in assisting the development of court-supervised rulemaking. I then assess the current status of trans-substantivity. Recent legislative developments call the jurisprudential and normative bases for trans-substantivity into question, but court-supervised rulemakers continue to limit themselves to trans-substantive rules. Guided by this pattern of institutional behavior, I argue that the principle, however theoretically suspect, has a role going forward as a mechanism for the allocation of rulemaking power. Court-supervised rulemakers can strengthen their legitimacy if they limit themselves to trans-substantive rules, while substance-specific departures from the principle should come from legislatures.

Full post as published by Legal Theory Blog on July 10, 2009 (boomark / email).