Explaining 'what process is due' in 'substantive due process' (cont.)

[Janet Alexander]

Perhaps the the absence of the modern substance/procedure distinction had 
to do in part with the writ system.  The applicable procedures were to a 
great extent determined by the particular writ involved -- that is, by the 
nature of the right.  The notion of trans-substantive procedural rules 
couldn't develop until the writ system was replaced.
         Janet Alexander

At 02:26 PM 10/4/2005 -0700, Tom Grey wrote:

>Thanks to Ed Hartnett for coming up with the cite to the Risinger article. 
>I'd had a vague recollection of reading something good on this subject 
>many years ago --- and I'm quite sure now that this was it! The 
>right/remedy distinction is indeed quite different from our contemporary 
>view of substance/procedure -- what remedy one can obtain, say specific 
>performance or damages, we think of as part of the substantive law of 
>contracts, not the trans-substantive law of civil procedure. The really 
>interesting thing to me is that there simply is no term or phrase 
>corresponding to our notion of "substantive law" before Bentham, who I 
>think of as inventing the distinction -- the concept seems not to have 
>been part of the mental equipment of lawyers.  And it wasn't until 
>Bentham-Austin-Holmes style positivism became orthodox (or at least 
>broadly familiar) among lawyers -- which wasn't really until the very late 
>19th century -- that this concept came into general use. I think the 
>earliest characterizations of Lochner-style decisions as "substantive due 
>process" (aka, oxymoron) date from the decade 1900-1910.
>
>Thomas C. Grey
>Sweitzer Professor of Law
>Stanford Law School
>tgrey at law.stanford.edu
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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892
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