Trans-Substantivity and the Processes of American Law

David Marcus

University of Arizona - James E. Rogers College of Law

February 15, 2013

Arizona Legal Studies Discussion Paper No. 13-12

The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to offer a more complete account of trans-substantivity, one that explains the principle in all of the contexts in which it surfaces. This inquiry leads to a novel defense of trans-substantivity as a principle of doctrinal design. Trans-substantivity is justified as a response to deficits in the performance of institutions that craft and administer interpretive, procedural, and administrative law. This defense not only challenges the prevailing skepticism in procedural scholarship regarding the principle’s normative appeal. It also provides a metric to determine when doctrine should remain trans-substantive, and when doctrine may legitimately splinter into substance-specific strains.

Number of Pages in PDF File: 64

Keywords: civil procedure, trans-substantive, administrative law, statutory interpretation

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Date posted: February 20, 2013  

Suggested Citation

Marcus, David, Trans-Substantivity and the Processes of American Law (February 15, 2013). Arizona Legal Studies Discussion Paper No. 13-12. Available at SSRN: https://ssrn.com/abstract=2220505 or http://dx.doi.org/10.2139/ssrn.2220505

Contact Information

David Marcus (Contact Author)
University of Arizona - James E. Rogers College of Law ( email )
P.O. Box 210176
Tucson, AZ 85721-0176
United States

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