[MUSIC] The second issue that we will discuss is the distinction between quote, unquote substantive questions and quote, unquote procedural questions. Now the federal statue that brings into existence the Federal Rules of Civil Procedure, the statue called the Rules Enabling Act of 1934, contains in the very text of the statute an apparent requirement that we distinguish between substance and procedure. The statute specifies that it authorizes the bringing into existence of these things the federal rules. And it says that there are rules that are designed to deal with questions of practice, procedure, and evidence. And the statute also specifies that these rules are never supposed to abridge, enlarge, or modify substantive rights. So right there in the text of the statute is an apparent requirement that we draw distinction between substance and procedure. And broadly speaking, that's a distinction that would seem to make a fair amount of sense. Substantive questions are the questions that we might think of as having greater social policy implications, being the types of questions that legislators and other types of account, politically accountable figures, ought to be responsible for carrying into effect. Procedural questions are the types of questions that are generally involved in the administration of a civil justice system. And drawing a distinction between the types of questions that legislature should address and the types of questions that rulemakers should address seems quite sensible. And that is, at base, what this substance procedure distinction is meant to capture. But it's not always quite so easy to draw that distinction. Or at least, to draw it in a way that makes a lot of sense. And after 75 years of practice under the Federal Rules of Civil Procedure, we have learned that, in fact, it's not always quite so easy to draw a sharp line between matters of procedure and matters of substance. As one example, the pleading standard cases that I mentioned from the previous section. Those are cases in which a procedural issue. Speaks in a very direct fashion to whether people are going to be able to get into court at all. That would seem to have some pretty significant, maybe even quote, unquote substantive implications to it. And so figuring out when it is that we can draw a distinction between substance and procedure that is satisfying is a continuing issue that gets addressed by scholars and by courts in the administration of our civil justice system. So, the example that I want to discuss to illustrate this proposition more fully, is the example of class actions. Class actions are one of the most powerful, procedural mechanisms in the modern civil justice system. In the federal system, they are governed by a rule that gets discussed a lot, Federal Rule's 23 in our civil procedure system. And, the modern version of Federal Rule 23 was brought into being just about 50 years ago in 1966. And, Rule 23 authorizes a representative lawsuit, a class action in which one or several individuals come into court with their lawyers, and they say, we've been injured in the following way, a contract has been violated our financial interests have be affected. We've been injured in some fashion, but not only have we been injured, a whole lot of other people have been injured as well. A whole lot of other people who are similarly situated to us have been injured in very much the same way. And when litigants come into court and invoke Rule 23 and seek to initiate a class action, what they say is, we don't want to just litigate our claims. We want to litigate the claims of everybody who's been hurt in the ways that we've been hurt. This is a remarkable proposition if you think about it. Right? A couple of litigants come in with their lawyers, and often it's the lawyers who really play a much more powerful role in, in guiding the course of these proceedings. And they say, we want to litigate a set of claims on behalf of a whole bunch of people whom we've never met, who we have no relationship with. But whom we think we would be adequate representatives for to adjudicate or to litigate their claims that are just like the claims of the particular people who come in, into court to initiate the proceeding. And the circumstances under which a class action is permissible, the circumstances under which a court will allow a lawsuit to proceed as a class action is an issue of major importance in the civil justice system of the United States today. Among other things, as you can well imagine, if a defendant, let's say for example a corporate defendant, faces the claims of one or a couple or a small handful of injured individuals, then their exposure. Right? The overall amount they might have to pay in response to these law suits is liable to be relatively modest. But if one or a couple or a handful of individuals can come into court and litigate everybody's claims, litigate the claims of a whole class of people who they say have been injured, suddenly the corporation exposure, the corporation's potential damages that they have to pay, is enormously magnified and it becomes a very very high stakes lawsuit. Class actions serve very important functions, in that they can enable claims that nobody would otherwise be able to afford to litigate, to get adjudicated by the court. So if you've got one hundred thousand people. Each one of whom has been injured to the tune of $50, let's say because of an improper billing practice from their cable company or from their cellphone company, no one person is going to be able to litigate a $50 claim in all likelihood. But, if it's possible for a couple of people to come into court, represented by lawyers who are going to bring those claims on behalf of everybody, then suddenly 100,000 people with $50 claims becomes a $5,000,000 lawsuit, and that's a lawsuit that's worth litigating. So class actions can have the effect of allowing claims to get enforced that wouldn't otherwise be enforced at all. But the flip side is that class actions have the potential to create a lot of pressure, maybe even improper pressure on defendants to settle lawsuits in order to avoid what might be crippling exposure. And there's all kinds of other reasons why class action lawsuits have to be monitored very carefully, because they can be misused or even abused in various ways. Okay. So, in New York state, there are a series of provisions in their state court systems, and in their state legal framework that address class actions. And in particular, New York brought in to being its own version of the class action, the modern class action. Several years after the federal version was brought into being. But when the lawmakers in New York created their class action system, they took a look at their laws and they said, you know, we have some statutes in New York where we have penalty provisions, we have statutory damages. We, we make certain kinds of remedies available to people on the assumption that they should get paid, not necessarily based upon how much they've actually been injured. But, they should get paid a, a fixed amount, which might be a larger amount than the actual injury that they've suffered in order to create a mechanism by which people, individual people, can actually bring these lawsuits. Or in order to create disincentives for certain kinds of defendants to engage in bad behavior. And we think these are great. We think these make a lot of sense in our laws. But if you can have a class action in a case involving statutory or penalty damages, then suddenly you're going to be magnifying the effects of these penalties totally out of proportion with what they were intended to do when they were first enacted. Or at least there's a danger that that could happen. And so we in New York are going to create class actions, we think class actions are a great idea. But we're going to create a separate provision of law that says, if you're dealing with a statute that confers penalty damages or statutory damages, where there's this danger that a class action could magnify the liability out of all proportion. Then no class actions, unless the actual statute that creates the penalty or the statutory damages authorizes class actions. In other words, we're going to say if we've created statutory or penalty damages, these types of damages that are really geared towards individual enforcement and could be misused or, or at least create bad consequences if they're the subject of a class action, you can't have a class action for that kind of substantive law dispute. Unless we specifically say in the statute itself that you can have a class action. So that's how New York geared its class action system in the state courts. Now, in a lawsuit that recently came before the Supreme Court, in a case called Shady Grove versus Allstate Insurance, a question arose. And the question was this. Let's say that you're bringing a lawsuit under New York State law. And let's say that you're bringing that lawsuit to enforce one of these penalty provisions or one of these statutory damages provisions. But instead of bringing it in the New York State courts, let's say you bring it in federal court. In many ways, the court systems in our country, the federal courts and the state courts, operate in parallel with each other. And there are many types of lawsuits, not all, but many types of lawsuits that could be brought either in the federal courts or in the state courts, and this was potentially one of them. And so the plaintiffs took a look at New York state law, and they said, well, Gee, we can't have a class action in New York state court, because New York statutes make it very clear that this is the type of penalty case where a class action is not appropriate. But let's just bring our lawsuit in federal court. And we can invoke Rule 23. And we can have a class action. Rule 23 doesn't have any of these limitations that New York's provisions have. And we can have our class action in federal court. And so the question I presented to the Supreme Court of the United States, is that possible? Is it possible to bring a lawsuit in federal court based on a New York claim, where you wouldn't be able to have a class action in the courts of New York, but you can have a class action in federal court, simply by pointing to this provision, Rule 23? And the case went up to the Supreme Court, and in a very fractured five to four in some places, six to three in other places, decision, the court said yes. And the court said, in fact, that Rule 23, because it was just a matter of quote, unquote procedure, controls the issue of class action in the federal courts for all purposes and trumps, or, or supersedes, any contrary law in the state of New York. And in particular, in response to the argument from the defendant in that case which was this insurance company, in response to the argument that there are these serious substantive implications to having a class action according to this New York Statue, where you couldn't have it in the course of New York, and where it looks like New York law says that a class action shouldn't happen. What the Supreme Vourt said was, but nonetheless, we have decided that class actions are a matter of quote, unquote, procedure. And that procedural questions are governed by the Federal Rules of Civil Procedure. And any consequences that it might impose upon the policies of New York to allow a class action in this kind of case are merely incidental consequences that don't change the character of this question as a quote, unquote procedural question. Now this is a very controversial opinion. And it's an opinion that really highlights what could be at stake, when you draw this distinction between quotes procedure and quote substance in such sharp and rigid terms, class actions are the biggest and most important or one of the biggest and most important things going on in our procedural system today. And in the New York case in particular, the result of this decision by the Court was to take what was essentially a $500 lawsuit by an individual and turn it into a $5 million lawsuit on behalf of an entire class. How can that not have some kind of substantive implications? Good question. But if it does have substantive implications, then does that mean that class actions in the federal court are always problematic or always somehow invalid, because, after all, the Federal rules of Civil Procedure are, are only supposed to deal with procedure questions and are not supposed to deal with questions of substance. If class actions have substantive implications in, in every case, then maybe class actions are invalid across the board under the Rules Enabling Act of 1934. This was the vexing question that the Court was presented with in this Shady Grove versus Allstate Insurance case. And in that case, they wound up adopting a relatively formalistic, in a fairly rigid way of defining this distinction between procedure and substance. And they allowed a class action to happen in the federal courts that couldn't have happened under the courts of, in the courts of New York and under the laws under New York. And so following this Shady Grove decision, the law today is that you can have a class action in the federal courts in a type of claim where you can't have a class action in the State courts of New York. And the reason for that somewhat surprising result is this sharp distinction that the Court has felt the need to draw between questions of quote, unquote substance and questions of quote, unquote procedure. So, there are two lessons I want to focus on we can, I think take away from this particular grappling with the substance versus procedure distinction. The first is that it's a distinction that we can't avoid grappling with. The Rules Enabling Act of 1934, that statute that carries into effect the federal rules of civil procedure, in its very text draws this distinction between procedure and substance. We have to draw this distinction. But it is a very difficult distinction to administer in particular cases. And part of what the Shady Grove decision illustrates is that a lot can be at stake, and if we approach this question with too much formalism, with too much rigidity, it can produce answers that don't seem to make a lot of sense on the ground. The second lesson goes back to this First Principle of Transsubstantivity. The idea that the rules are supposed to operate irrespective of the underlying substantive law, transsubstantivity, right, invites us I think to give more formalistic and more rigid answers to this question of procedure versus substance. Because if you think about it, one alternative in the Shady Grove case would have been to say that the type of statute involved in the New York case is one that needs to be treated differently in a federal class action than other types of statutes might be treated in different types of lawsuits. That might have produced a sensible result. But its intention with this transubsitivity principle, the procedure is not supposed to vary, depending upon the underlying substance of the legal dispute before the court. And so administering this distinction between substance and procedure is necessary and unavoidable, but also very difficult. And operates in some tension with this important, but, but sometimes excessively applied, principle of transsubstantivity, which says the procedure is supposed to operate in the same way, no matter what the underlying law. If procedure is supposed to operate in the same way, no matter what the underlying law, that encourages more formalistic or rigid answers to this substance procedure distinction. And we've seen that dynamic play out many times. [MUSIC]
