It's common in several areas of law to distinguish between substance and procedure. It's also just as common to point out that this distinction cannot rigorously be maintained or defended. As John Hart Ely summed it up, quote, we were all brought up on sophisticated talk about the fluidity of the line between substance and procedure, unquote. So, You should be comfortable trying to distinguish between the two kinds of rules and also comfortably quick in critiquing your own attempt. Procedural rules govern how, in court, the process of litigation will be carried out.
Procedural rules ordain, for example, who gets to first make an opening statement and how testimony will be introduced into evidence. Substantive rules, in contrast, determine what outcomes and consequences are supposed to flow from the facts found in the proceeding. Thus, for example, it's a substantive rule to say that a defendant commits the crime of burglary if the defendant engaged in an unauthorized breaking and entering into a building with the intent to commit a crime inside. A primary critique is that procedural rules often can be outcome determinative. For example, being the first to give an opening statement may decide some cases by causing the jury to anchor on a particular version of the events.
The Supreme Court has struggled to maintain the substance procedure distinction. When a federal court is sitting in diversity because the litigants come from different states, it is allowed to use federal procedural rules. But the court cannot, under the Erie Doctrine, use federal substantive rules. But the courts are supposed to apply state substantive rules in such settings. The substance and procedure dichotomy also arises in a host of other contexts, where courts look to the substance and procedure of others.
For example, a contract is to be found void as unconscionable. if it is both substantively and procedurally unconscionable. A contract that is grossly one-sided is substantively unconscionable, but to be procedurally unconscionable, courts also demand some defect in the process of contracting, such as small print that was likely to impede the ability of the non-drafter to understand what she was signing. As I record this, In 2015, the United States military attacks on ISIS are, I believe, substantively defensible. But Bruce Ackerman has persuaded me that as a procedural matter, they violate the War Powers Resolution because Congress has not authorized this use of military force.
Lawyers, in their interpersonal dealings, tend to become more acutely aware of the difference between substantive and procedural failures. When I complain to my lawyer spouse that she wrongly threw out an old pair of my pants, I begin solely by focusing on whether it was a procedural wrong for her to throw them away without asking me first. And now for discussion.
From the Bible, try to identify procedural and substantive unconscionability with regard to Jacob's dealings with others.