The Limitations of Transsubstantive Procedure: An Essay on Adjusting the 'One Size Fits All' Assumption
16 Pages Posted: 31 May 2012 Last revised: 15 Jun 2012
Date Written: 2010
In this Essay, I explain both the nineteenth and twentieth century decisions to adopt transsubstantive procedure, borrowing from equity as the model. I then discuss the strengths and weaknesses of the transsubstantive/equity decision, and why, on balance, I think the combined decision needs readjustment. I end with suggestions for change, including a simpler procedural track for some cases and non-binding protocols for discovery and other procedural incidents for some of the more expansive and expensive case-types.
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