It may be true that some procedural rules-purely ministerial in nature-will affect cases alleging different substantive rights unequally. This is not surprising, nor inherently wrong. What is wrong is when the burden falls consistently and more heavily on a distinct class of claims and claimants-as it does for employment discrimination and civil rights claims and their litigants. That wrong is exacerbated when the substantive claims and their proponents are those society has decided-as a policy matter-to afford special consideration and protection because of centuries of historical and modem subordination. Given the centrality of rule transsubstantivity in the civil litigation system and the open secret that it is significantly flawed-because of its unfair impact on workplace and civil rights claims-it is time for a change.
Part I of the Article briefly describes the evolution, justifications, and critiques of rule trans-substantivity. Part II explains how the language, interpretation, and application of the Rules have undercut court entry and merit-based decisions for those alleging employment discrimination and civil rights violations. Part III contends that the legitimacy of transsubstantivity is in jeopardy and proposes some ways that the bench, bar, and public may reconcile a trans-substantive process system with a robust democracy.
Suzette Malveaux, A Diamond in the Rough: Trans-Substantivity of the Federal Rules of Civil Procedure and Its Detrimental Impact on Civil Rights, 92 WASH. U. L. REV. 455 (2015).