[MUSIC] So, let's start our conversation about this first issue of transsubstantivity. As I mentioned, when the federal rules of civil procedure were brought into existence, procedure had been a mess. Procedure had been a mess in the federal courts and it was a mess in the state courts as well. And one of the goals of the enactment of this statute, the Rules Enabling Act, and the, the bringing into being of these federal rules of civil procedure, one of the goals was to clean up that mess. And to create a set of mechanisms by which people could bring their civil cases into court, that would be relatively uniform and relatively predictable. And the principle of transsubstantivity was one of the tools by which that goal was sought to be carried into effect. And this is a principle that has two concepts bound up in it. You might think of them as vertical transsubstantivity and horizontal transsubstantivity. These are big fancy terms, but they're really meant to capture some very simple ideas. First of all, this, this idea of vertical transsubstantivity is basically an idea that says that procedures will operate in the same basic way. That is to say, the same procedures will apply whether a lawsuit is a big complicated lawsuit or a small, relatively simple lawsuit. And we have one set of procedures. A very fully realized and, and all the bells and whistles system of procedure, that apply regardless of whether you bring a big, expensive, complicated case into federal court or a relatively simple and relatively low-stakes case into federal court. Now why might this matter? Well, it matters because the, all the bells and whistles version of the federal rules of civil procedure can sometimes be moderately expensive. And one of the facts about the federal procedural system, which has gotten some attention recently, is that the, the completeness of it. The fact that it makes so many tools available for discovery, for learning information from the other side and getting them to turn information over to you. For motion practice, for filing formal motions with the court in which you ask the court for various different kinds of relief at various stages of the litigation process. It has a fully realized system of procedure, which when it is utilized in, in, to its fullest extent, can be a relatively expensive way of resolving disputes. And so the transsubstantivity principle in this vertical orientation has held for the last 80 years or so, that our federal procedure system ought to work the same way for big cases as it does for small stakes cases. Now, there's a lot of benefits that comes from that idea of vertical transsubstantivity. But also potentially some costs as well. There's at least the possibility that smaller cases might get priced out of the federal courts in various ways. And so one conversation about transsubstantivity has to do with the affordability of litigation. That is to say, whether people will have access to justice and whether one unintended consequence of creating this fully realized system of procedure that is uniform in all of its applications, is the possibility that certain types of cases might wind up getting priced out of the federal courts. This is a useful issue to start with because it focuses us on the relationship between a procedural system and the viability of enforcing a claim, right? The cost associated with for, enforcing a claim. That's an issue that we're going to talk about a fair amount in relation to the second and third issues that we put on the table just a moment ago. So, that's this concept of vertical transsubstantivity. There's also an idea of what I'll call horizontal transsubstantivit. And here, this is a description of the way that procedure operates in different types of cases. That is to say, different cases that are governed by different substantive legal principles. And one of the core concepts one of the core philosophical principles according to which our procedure system has operated for in, its entire lifetime, is that procedures should not vary depending upon the type of claim that you're seeking to prosecute. Procedures should not vary depending upon the substance of the claim that you've brought forward. So, if you're bringing an anti-trust claim, if you're bringing a securities law claim, if you're bringing a civil rights claim, if you're bringing a personal injury claim, very, very different substantive law claims. Claiming very different kinds of injuries. They all use the federal rules of civil procedure if they're brought in the federal courts, and it's the same set of federal rules for all of these different types of claims. And at least in theory, the federal rules will operate in the same fashion according, without regard to what type of substantive claim it is that a litigant has brought forward. Now, that may sound like a fairly sensible and straightforward proposition, and indeed, in a lot of ways, this idea of horizontal transsubstantivity has in fact been a very important unifying feature of the civil procedure system in the federal courts. But there are times when it can also cause problems or at least cause some confusion. And there's a recent case that I want to talk about, that helps to illustrate some of the problems and confusion that this idea of transsubstantivity can introduce. It's a case called Bell Atlantic versus Twombly. Bell Atlantic versus Twombly was an anti-trust case. And it was a case specifically that deals with pleadings standards. Now pleadings standards, pleadings is a description of the very, very first stage of a lawsuit where you initiate the lawsuit by filing a complaint with the court. And when you're a plaintiff, when you're somebody who thinks you've been injured and you want to start a lawsuit, you draft this document called a complaint. And because you're right at the outset of a lawsuit, you don't have any evidence, necessarily. You don't necessarily have any testimony or any documents from the other side. All you can put in a complaint is allegations, right? I allege that the following things happened. A complaint is basically a promise for what it is that you think you'll be able to prove. What it is that you're offering to prove if you're given an opportunity to have a lawsuit and develop evidence. It contains allegations that are supposed to show why you would be entitled to relief from the court, if you're able to prove the things that you say happened to you. So, the question of what you have to put into a complaint in order to get into court, right? What is the threshold requirement for initiating the very powerful processes of a lawsuit is a matter of great concern and we refer to that question as the standard of pleading that you have to satisfy. So, Bell Atlantic vs Twombly was a case that involved pleading standards. It involved a dispute over whether a complaint that had been filed by an anti-trust plaintiff was an adequate complaint. Whether it met the standard for getting this anti-trust plaintiff into federal court. So, in the Bell Atlantic versus Twombly case, the Supreme Court wound up deciding that the complaint that the plaintiff had filed in that case was inadequate, that it failed to satisfy the pleading standard required to allow the plaintiff to initiate the litigation process to have a day in court. And specifically, what the court wound up deciding was that a very specific issue of anti-trust law. That is, how, what it is that you have to demonstrate to establish a conspiracy in anti-trust. What it is that you have to show, in order to establish that there has been a conspiracy to violate the anti-trust statute. That aspect of the complaint was insufficient and the plaintiff had not alleged enough facts to make it, in the court's words, plausible that there was a conspiracy to violate the anti-trust laws. Now, this was an issue in the field of anti-trust, that had a particular a particular substantive context. Anti-trust policy is very concerned about fostering competition, and nonetheless, policing abuses of market power. And so the doctrines around conspiracy in the anti-trust laws seek to draw or to strike a very careful balance between the desire to foster competition, but to prevent certain kinds of abuses of market power. And what the court had to say in the Bell Atlantic versus Twombly case, about why the complaint in that case was inadequate, were geared, to a very significant extent, to these particular substantive policy judgements that our anti-trust laws make about balancing the fostering of vigorous competition with preventing abuses of market power. So, that was Bell Atlantic versus Twombly. And after Bell Atlantic was decided, there was a question. And the question was, is this a case that establishes a pleading standard, a heightened pleading standard, across the board for all kinds of lawsuits, no matter what the substantive context? Or, is it a case that was really about pleading and anti-trust cases? Is, is it really a case that was specific to this concern about the substantive policy underlying the anti-trust statute and how conspiracy operates the anti-trust statute? In a series of cases, two cases following the Supreme Court's Bell Atlantic versus Twombly decision, the Supreme Court answered that question by invoking this principle of transsubstantivity, and saying that in fact, what Bell Atlantic represented was a ratcheting up of the pleading standard across the board. This is a procedural issue. And what we say about procedure in one context applies in all the other contexts as well. And so, in a pair of cases involving civil rights claims improper imprisonment claims, discrimination claims, that kind of claim. The court took these stronger and more demanding statements that it had made about pleading in the very specific context of a conspiracy to violate the anti-trust statute. It applied the same procedural doctrine to these civil rights cases, and wound up shutting several litigants, or potentially shutting several litigants, out of court because of what it viewed, what the court viewed, as the implausible nature of their allegations at the very outset of the lawsuit. And this is a very consequential procedural holding because the pleading standards not only determine whether you're going to be able to get into court in the first place, but if your complaint gets dismissed because you have failed to satisfy the pleading standards and you can't rehabilitate your complaint in a sufficient fashion, that's your one shot. You get one shot to file a complaint on a given claim in the civil court system. And so ratcheting up the pleading standard means that, potentially, litigants are going to be shut out of court and shut of court permanently. And this principle of transsubstantivity winds up producing this very consequential result. Now, there are both good and bad aspects to this principle of transsubstantivity. The virtue of this principle is that we want our procedure system to be predictable. We want it to be the case that when the courts talk about procedure doctrines in one type of lawsuit, that we can take what they say, we can take the, the holdings and the principles that they articulate in those cases, and predictably apply them to other types of cases as well, right? There is value to that kind of uniformity and predictability. The danger is that the line between procedure and substance is not always quite so sharp. And if we have a procedural holding in one particular type of case that really seems powerfully tied to the substantive law in that case, then is it always clear that this principle of transsubstantivity should mean that it should apply to all kinds of other cases as well? The idea of transsubstantivity, that is, depends upon a fairly robust understanding of the distinction between substance and procedure. And Bell Atlantic versus Twombly is one case that illustrates that, perhaps sometimes, that assumption that there is this sharp distinction between procedure and substance, is not always a good assumption. And that applying transsubstantivity in such a, a, a doctrinaire fashion can sometimes produce negative consequences. That illustration of transsubstantivity in this relationship to this substance procedure distinction will provide a great bridge into our next discussion of the second principle, which is, in fact, this distinction between procedure and substance. [MUSIC]
