TABLE OF CONTENTS INTRODUCTION I. FROM ANTINOMY TO DICHOTOMY II. DICHOTOMY IN DISARRAY III. PROCEDURE AS SUBSTANCE IV. PROCEDURE IN SUBSTANCE V. CONCEPTUAL POSSIBILITIES A. Apply Only Forum Law B. Apply All of Foreign Law C. Normalize Procedure D. A Hybrid Solution CONCLUSION INTRODUCTION
The substantive implications of procedural law are well understood. Procedure is an instrument of power that can, in a very practical sense, generate or undermine substantive rights. For example, there is no need to change the substantive contours of employment discrimination law when modifications to pleading rules and motion practice can bypass the more arduous substantive law-making process and deliver similar results. Yet even with knowledge of the capacity of procedure to achieve substantive ends, doctrinal reliance upon the dichotomy persists.
To complement the argument that procedure is inherently substantive, I suggest that the converse is also true. specifically, the construction of substantive law necessarily entails making assumptions about how that law ultimately will be enforced. Many of those assumptions are rooted in the procedures pursuant to which a claim to vindicate that law would be litigated. The construction of substantive law, rather than occurring in a vacuum, is informed by expectations about pleading rules, the availability of a class action, the scope of discovery, case management techniques, rules of evidence, trial practice, and a constellation of other procedures. This contextualization of substantive law within a procedural framework will be subconscious when not deliberate.
Because substantive law is calibrated to achieve some outcome, fidelity to that law may require that it remain hinged to the corresponding procedural law that was presumed its adjunct. If the drafters of some substantive law require proof of defendant's intent, for example, that legislation may be predicated on affiliated procedures--say, that plaintiffs would have broad access to defendant's records through discovery, that plaintiffs would be able to introduce expert testimony at trial, and that defendants would be subject to cross-examination under oath. If this substantive law were enforced without these presumed procedures, there could be a mismatch between the desired and achieved levels of deterrence.
once we see that procedure is embedded in substantive law, we can appreciate the additional strain that this places on the substance-procedure dichotomy and on doctrines that are premised upon the legitimacy of that dichotomy. consider, in particular, the practice of applying forum procedural law no matter the applicable substantive law. When forum procedure is combined with foreign substantive law, the procedure that was embedded in the foreign substantive law is displaced. Applying forum procedural law to another system's substantive law necessarily distorts the latter.
My argument proceeds in five parts. In Part I, I present the origin of the substance-procedure dichotomy. The origin provides important context because understanding when and how the substance-procedure nomenclature emerged helps explain the fragility of the dichotomy. This dichotomy was neither time- nor battle-tested when it was codified as a foundational precept of our contemporary jurisprudence. Indeed, codification of a substance-procedure dichotomy is something of an accident of history. Appreciating these circumstances helps explain some of the incoherence of the doctrines constructed upon the dichotomy. I summarize that doctrinal incoherence in Part II.
In Part III, I relate the familiar narrative about how procedure is inherently substantive. The narrative presents in two basic forms. In one, procedure is substantive because procedure affects the outcome of cases; in the other, procedural reform is a disguise for the reform of substantive law. Both are demonstrably true.
In Part IV, I argue that procedure is embedded in substantive law. Using a stylized example of a state statute, I demonstrate that substantive law is neither aprocedural nor trans-procedural. Rather, substantive law has an associated procedure that must be applied by the enforcing court if the substantive law is to achieve the level of deterrence its drafters intended. To apply any other procedure leads to over- or underenforcement of the substantive mandate.
The consequences of admitting that there is a false dichotomy at the core of our legal system may be substantial. But the magnitude of this problem should influence only the treatment of the condition, not the diagnosis. And in Part V, I consider various conceptual approaches, though all may appear radical to generations conditioned to accept a substance-procedure dichotomy.
One approach would abandon the notion that it is possible to apply some other jurisdiction's law. Instead, a strict lex fori regime would require the application of the forum's substantive and procedural law in all circumstances. In other words, there would be no choice of law doctrine. A second approach posits that, because we have misunderstood the nature of a substantive right, our choice of law doctrines are not robust enough, such that the application of another system's law would include all of that law, substance and procedure. A third approach would seek to harmonize all procedural systems and establish a universal procedure to ensure that forum procedure always matched the embedded procedure.
Ultimately, I advance a modest proposal that combines parts of all three approaches. First, choice of law doctrines should express greater humility and skepticism about the ability to apply another jurisdiction's law. second, when such application is appropriate and necessary, our choice of law doctrines should apply as much of that law as reasonably possible, without regard to the labels substance and procedure. And finally, procedural conformity efforts should be appreciated for their ability to enhance the integrity of substantive law.
In sum, this Article promotes realization of a fundamental rhetorical problem rather than reformation of a doctrine. This emphasis reflects both the advantages and the limitations of my Article. But inherent in my argument--in my analysis of the complex and problematic substance-procedure relationship--is the premise and aspiration that refined, meaningful doctrinal change is not possible without a comprehensive understanding of how rhetoric shapes reality. To analyze the rhetoric, then, is to commence the larger and better reform, which requires understanding before action.
FROM ANTINOMY TO DICHOTOMY (1)
The history of Anglo-American law, which is typically dated from 1066, is approaching the end of its first millennium. (2) Interestingly, however, the categories of substance and procedure appear only in the last quarter of that historical narrative. one scholar has traced the development of a substance-procedure dichotomy to the waning years of the eighteenth century:
The dichotomy was fathered by Jeremy Bentham in a 1782 work entitled Of Laws in General, sub nom the distinction between substantive law and adjective law. Bentham there makes clear that he believes he is drawing a new distinction in the descriptive organization and analysis of the concept of law, and an examination of the leading pre-Bentham sources on English legal theory supports his claim. (3) As Professor Risinger observes, Bentham located a substance-procedure dichotomy within "an extremely elaborate conceptual analysis of the phenomenon of law." (4) And the originality of the dichotomy was "a major point of the entire structure of Of Laws in General." (5)
In previous work I have credited (or blamed, as the case may be) Sir William Blackstone for introducing categories of substance and procedure. (6) In his famous Commentaries on the Laws of England, Blackstone, using what he called a "solid[,] scientifical method," restated the entire corpus of English law in the form of substantive rules. (7) In so doing, he appears to have differentiated substantive rights from the procedural mechanisms to prosecute the wrong, announcing in his Commentaries: "I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury: and shall, secondly, describe the method of pursuing and obtaining these remedies in the several courts." (8)
Blackstone died in 1780, so we do not have the benefit of his response to the claims of originality that fill Bentham's 1782 book. (9) But there is no doubt that Bentham was very familiar with his former professor's work. (10) Bentham was a persistent and often savage critic of Blackstone, and may have been loath to share credit for introducing the substance-procedure paradigm. (11)
More important than attributing the paradigm to a single source is understanding the context of its emergence. specifically, why would the categories of substance and procedure (or "adjective law" (12)) emerge in the eighteenth century, rather than earlier in the many centuries of English jurisprudence? The answer is that, until then, substance and procedure were "inextricably intertwined" in both the Law courts and in the Equity courts. (13)
First, the Law courts had centuries of experience with writs, forms of action, and single-issue pleading. (14) That system boasted a network of highly technical pleading and practice rules that determined the course and outcome of litigation. (15) These rules earned common Law the dubious distinction as "the most exact, if the most occult, of the sciences." (16) Importantly, these procedural forms "were the terms in which the law existed and in which lawyers thought." (17) Accordingly, what we might today refer to as "a substantive law of, say, torts, could only be explained through the actions of trespass, case and trover." (18) "[O]ne could say next to nothing about actions in general, while one could discourse at...