Content area
Full Text
ABSTRACT
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.
INTRODUCTION
Frank Ricci's suit for employment discrimination against the New Haven Fire Department was extraordinary.1 Very few cases get to the U.S. Supreme Court, much less remake an emotionally-charged, often-politicized area of law. But the suit was also ordinary. Ricci first requested help from the Equal Employment Opportunity Commission (EEOC), as 80,000 people do each year.2 He then commenced a lawsuit in the District of Connecticut using a form of complaint that differed in no material respect from one for a simple tort action or another for complicated antitrust claims.3 To decipher Title VII of the Civil Rights Act of 1964, the Supreme Court majority invoked the same canon of construction that the Court had deployed two days before the opinion's release to interpret the False Claims Act,4 and that a federal district court would use the next day for the Wiretap Act of 1968.5 The various courts handling Ricci's case also had to figure out what deference they owed to the EEOC's interpretation of Title VII, a problem of the sort that the Supreme Court has encountered over...