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Prof. David Marcus Posts Article on Trans-Substantivity

Professor David Marcus (Arizona) has posted an Article entitled The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure 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.

The full-text version of the Article may be downloaded at http://ssrn.com/abstract=1428992.

Full post as published by Federal Civil Practice Bulletin on July 29, 2009 (boomark / email).