Download This PaperLegislative Transsubstantivity
12 Northeastern U. L. Rev. 707 (2020)
54 Pages Posted: 7 Sep 2019 Last revised: 8 May 2020
Date Written: August 31, 2019
Abstract
At the heart of judicial procedure in the United States – and at the core of our law school courses in civil and criminal procedure – is a principle of transsubstantivity, which presumes that rules governing court procedures should apply to all kinds of cases, regardless of their substance. In the civil system, this principle is embodied in the Federal Rules of Civil Procedure and the many state procedural codes that largely track the Federal Rules.
Over the years since the adoption of the Federal Rules, an increasing number of commentators have questioned whether the principle should constrain rulemakers in the drafting and modification of our rules of procedure. Some have argued that transsubstantivity artificially limits the creativity and nuance that could come from procedure more targeted to the needs of particular substantive areas. Other commentators remain defenders of the principle as applied to the rulemaking process. In the midst of that debate, however, there is very little disagreement that it is courts and court-adjacent rulemakers – not legislatures – that should be constrained by principles of transsubstantivity. With few exceptions, commentators assume that legislatures are inherently free of transsubstantive limits, and free to adopt procedures targeted to particular substantive areas.
As a constitutional matter, these commentators are certainly correct. And yet, as this article explores, our judicial system is often skeptical of substance-specific procedures adopted through the legislative process. For instance, in civil, administrative, and criminal systems, courts rely on presumptions that favor “standard” procedures, and use policy-based canons of interpretation that push courts in the direction of standard judicial processes. This presumption of legislative transsubstantivity is the focus of this article.
After exploring the basic principles of procedural transsubstantivity as applied to judicial actors, this article explores why most commentators have rejected imposing transsubstantive limits on the legislative process. The article then proceeds to look at ways that courts nevertheless view legislative enactments through a transsubstantive lens, and how that lens affects decisions in cases evaluating substance-specific legislative enactments.
Finally, the article argues for reasons why the application of a principle of legislative transsubstantivity not only helps to explain judicial approaches to certain procedural decisions, but why it should be used in this way. This is not to say that statutes should not be able to deviate from general procedural rules – they certainly should – but rather that our system is properly laced with presumptions favoring transsubstantive procedures. The skepticism of legislatively-adopted substance-specific procedures serves many of the same basic salutary principles that transsubstantivity serves in judicial rulemaking: the principle effectively acknowledges that most legislators (like most judges) are generalists; it improves legitimacy by limiting the risk of substance-specific capture of procedure by unelected interests; and it encourages predictability, familiarity, and ease of application of legal procedures by those who are subject to them. While legislatures should be able to overcome a judicially-imposed transsubstantive skepticism through clearly stated positive law, legislative transsubstantivity should be acknowledged as an important – and useful – constraint on legislative action and judicial decision making.
Keywords: Legislation, Legislatures, Judicial Process, Judicial Decisionmaking, Civil Procedure
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