Monday, July 6, 2009
Prof. David Marcus recently posted an interesting piece on SSRN, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure. Click the title to download it. The abstract follows:
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.