August 12, 2009
In the article “The Procedural Foundation of Substantive Law,” which appears in a recent volume of the Washington University Law Review, 87 Wash. U. L. Rev. 801 (2010), Professor Thom Main uses both an historical and modern-day perspective to examine the substance-procedure dichotomy, a popular target of scholarly criticism because procedural law is inherently substantive.
Main’s article argues that substantive law is also inherently procedural. He suggests
that the construction of substantive law entails assumptions about the procedures
that will apply when that substantive law is ultimately enforced. Main posits that
those procedures are embedded in the substantive law and, if not applied, will lead
to over- or under-enforcement of the substantive mandate. Yet the substance-procedure
dichotomy encourages us to treat procedural systems as essentially fungible — leading
to a problem of mismatches between substantive law and unanticipated procedures.
Main’s focus locates his argument about the procedural foundation of substantive law within a broader discussion of the origin and status of the substance-procedure dichotomy. He concludes that although we have known that procedure is inherently substantive, we should now also appreciate that substance is inherently procedural. The construction of substantive law entails assumptions about the procedures that will apply when that substantive law is ultimately enforced. Those procedures are embedded in the substantive law and, if not applied, can lead to over-or under-enforcement of the substantive mandate. Understanding that procedure is substantive and that substance is procedural debunks two myths: first, that there is a substance-procedure dichotomy, and second, that procedure is the inferior partner. A substance-procedure antinomy that was introduced for teaching purposes was impulsively codified as a rigid substance-procedure dichotomy. Main warns that doctrines founded upon this false dichotomy are flawed and vulnerable.
Professor Main was named the winner of the 2011 John Sprankling Award for McGeorge faculty scholarship, based on this thought-provoking article and other scholarship he published throughout the year.