60 Pages Posted: 28 May 2021
Date Written: October 2, 2020
Procedural law is organized around the assumption that different categories of rules apply to different categories of cases. We internalize this idea at an early stage of our legal education and learn to treat the categories of civil, criminal, and administrative procedure as natural and sacrosanct. Unwittingly we imprison our theorizing, our rulemaking, and our practice within their strict bounds. Yet the premise is fundamentally false. The system of procedure is far from static, and the categories are not fixed or unchanging. The various sets of rules reflect nothing more than our latent—but vitally important—beliefs about the proper way to channel disputes into court. Illuminating the evolving nature of these categories, this Article sets out to identify for the first time the ways in which we shape the forms of procedure through the choices we make.
The interaction of two competing principles have long pulled procedure in opposite directions. One principle, transsubstantivity, pushes the design of rules toward a generic and content-indifferent form. The other principle, substance-specificity, points toward the need to tailor procedural rules to a specific type of litigation. The tension between these fundamental organizing principles reflects a tacit understanding that it is neither possible to adopt a general procedure for all types of cases nor adjust the system to address every nuance. It is their synthesis that brings us to distinct sets of rules that apply uniformly within but not beyond a certain class of proceedings. Given the changing attitudes about the correct balance between the two principles, over time new procedural categories are created while others are dissolved. These insights embolden us to rethink the present-day categories and determine whether they are in need of revision. Ultimately, this Article creates a common ground for discussion among proceduralists across separate fields and takes us a step forward toward a unified theory of procedure.
Keywords: Procedural law, litigation, federal courts, civil procedure, criminal procedure, bankruptcy, admiralty
JEL Classification: K40, K41
Suggested Citation: Suggested Citation