Judicial Rejection of Transsubstantivity: The FOIA Example

31 Pages Posted: 20 Nov 2015 Last revised: 6 Dec 2015

See all articles by Margaret B. Kwoka

Margaret B. Kwoka

The Ohio State University Moritz College of Law

Date Written: November 18, 2015

Abstract

Transsubstantivity, or the tenet that the same rules apply to cases concerning all substantive areas of the law, is a core feature of federal civil procedure. Yet, in significant ways, the rules give judges discretion to choose among various procedural options. This essay explores the use of that discretion to depart from the transsubstantive design of the federal rules by judicial decisions that create substance-specific procedure operating in their shadow. Using Freedom of Information Act litigation as an example, it documents this phenomenon and explores the legitimacy concerns that arise from judge-made substantive-specific procedural rules that are not subject to public debate and legislative input.

Suggested Citation

Kwoka, Margaret B., Judicial Rejection of Transsubstantivity: The FOIA Example (November 18, 2015). Nevada Law Journal, Vol. 15, No. 1493, 2015, U Denver Legal Studies Research Paper No. 15-59, Available at SSRN: https://ssrn.com/abstract=2692769

Margaret B. Kwoka (Contact Author)

The Ohio State University Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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