09.27.09

Substance Over Process

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Tim Jost is correct that procedural issues are being neglected in the tortuous legislative process that hopefully is leading to some meaningful reform.  But, we all know the quip about making sausages and laws.  Administrative and judicial remedies may simply need to be part of the long list of issues that Congress comes back to later, in the clean-up measures that inevitably follow major legislation, especially one as complex as this.  Considering all the contentious substantive issues on the table, I don’t fault legislative leaders too much for sidelining procedural protections, for the moment. 

I’m well aware of, and have significant sympathy for, the Legal Process school’s insight that process IS substance in many important respects.  But process is protected at least to some extent by laying the dense tapestry of substantive reforms over the plethora of remedial provisions embedded in existing federal and state laws that Jost quickly catalogues. At least the legislation does not overtly deny, limit, or pre-empt existing remedies, as far as I’m aware. Undoubtedly, there will be many poor fits, but in this case, I think it’s probably necessary to grab whatever ready-made suits there are on the legislative racks and then alter them later, after they’ve been purchased.

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