Substance vs. Procedure in Law

Key Concepts

• Substance and Procedure Distinction

  • Common in law but often critiqued as indefensible.
  • John Hart Ely: The line between substance and procedure is fluid.

• Procedural Rules

  • Govern how litigation is carried out in court.
  • Examples:
    • Who makes the first opening statement.
    • How testimony is introduced into evidence.

• Substantive Rules

  • Determine outcomes and consequences based on facts in a proceeding.
  • Example: Definition of the crime of burglary.

Critiques of the Distinction

• Outcome Determinative Nature of Procedural Rules

  • Example: First opening statement may influence jury perception and case outcome.

• Struggles in Legal Systems

  • Supreme Court and Diversity Jurisdiction
    • Federal courts use federal procedural rules but state substantive rules.
    • Guided by the Erie Doctrine.

Applications in Other Contexts

• Contracts

  • Contracts can be void if both substantively and procedurally unconscionable.
  • Substantive Unconscionability: Contract is grossly one-sided.
  • Procedural Unconscionability: Defect in contracting process (e.g., hard-to-read small print).

• Military Actions

  • Example: 2015 U.S. military attacks on ISIS.
  • Substantively defensible, but potentially procedurally violating the War Powers Resolution (lack of Congressional authorization).

Interpersonal Context

• Lawyers often aware of substantive vs. procedural failures.
  • Personal anecdote: Discussing whether an act was procedurally wrong in a domestic context.

Discussion Prompt

• Identify procedural and substantive unconscionability in a biblical context, specifically in the dealings of Jacob.