Judicial Rejection of Transsubstantivity: The FOIA Example
31 Pages Posted: 20 Nov 2015 Last revised: 6 Dec 2015
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.
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