BYU Law Review


David Marcus


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 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.


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