[E]ven more regret­table than the fail­ure to either fol­low or unequiv­o­cally over­rule the cited cases is the char­ac­ter of the “rule” which is now pro­mul­gated: the major­ity assert that hence­forth “a statute or other rule of law will be char­ac­ter­ized as sub­stan­tive or pro­ce­dural accord­ing to the nature of the prob­lem for which a char­ac­ter­i­za­tion must be made,” thus sug­gest­ing that the court will no longer be bound to con­sis­tent enforce­ment or uni­form appli­ca­tion of “a statue or other rule of law” but will instead apply one “rule” or another as the untram­meled whimsy of the major­ity may from time to time dic­tate, “accord­ing to the nature of the prob­lem” as they view it in a given case. This con­cept of the major­ity strikes deeply at what has been our proud boast that ours was a gov­ern­ment of laws rather than of men.

Grant v. McAu­li­ffe, 264 P.2d 944 (CA 1953) (Schauer, J. dissenting).

Laws and rules often require char­ac­ter­i­za­tion as one thing or another for var­i­ous pur­poses. Erie R.R. Co. v. Tomp­kins, 304 U.S. 64 (1938), is a prime exam­ple. Erie requires Fed­eral Dis­trict Courts, sit­ting in diver­sity juris­dic­tion, to apply the sub­stan­tive law of the states and the pro­ce­dural law of the Fed­eral courts. So it is some­times (actu­ally, quite often) nec­es­sary to char­ac­ter­ize a par­tic­u­lar rule as sub­stan­tive or procedural.

The same is true in the tra­di­tional approach to con­flict of laws. The tra­di­tional approach says that a court should apply its own pro­ce­dural rules (includ­ing its own con­flicts rules), while apply­ing the sub­stan­tive law of the state where the cause of action arose. The court must deter­mine whether a par­tic­u­lar law or rule is sub­stan­tive or pro­ce­dural in order to decide which one to apply.

In Grant, the plain­tiffs were injured in an auto­mo­bile col­li­sion with a guy named Pullen. Plain­tiffs and Pullen were res­i­dents of Cal­i­for­nia, but the acci­dent occurred in Arizona.

Under the tra­di­tional approach to con­flicts, Ari­zona law would apply to the case, no mat­ter where Plain­tiffs decided to bring it. Plain­tiffs could have sued Pullen in Cal­i­for­nia, and the Cal­i­for­nia courts would apply the tort law of Ari­zona to the case, because the injury giv­ing rise to the claim occurred in Ari­zona. This is called lex loci delicti — the law of the place of the delict (legal wrong).

Alas, woe and regret! Pullen died as a result of injuries sus­tained in the col­li­sion before Plain­tiffs filed suit. Under the old puni­tive model of tort law, a claim aris­ing out of a per­sonal act died with the per­son. Amer­i­can tort law took a dif­fer­ent route after split­ting from British law, and became a com­pen­satory sys­tem, designed to com­pen­sate the vic­tim for the injury he sus­tained. So some states have statutes (or common-​​law rules) pre­vent­ing the abate­ment of claims on the death of the tortfeasor.

Cal­i­for­nia had such a statute. It allowed the estate of a dead tort­fea­sor to be sued for dam­ages aris­ing from the tort he com­mit­ted before he died. Ari­zona, how­ever, had deter­mined that such claims should die with the tortfeasor.

So Plain­tiffs sued Pullen’s estate (admin­is­tered by McAu­li­ffe) in Cal­i­for­nia, assert­ing that Ari­zona tort law should gov­ern the claim, but that California’s sur­vival rule should apply. Unfor­tu­nately for Plain­tiffs, California’s Supreme Court had already ruled that sur­vival rules were sub­stan­tive in a dif­fer­ent sit­u­a­tion. (In Cort v. Steen, 224 P.2d 723 (CA 1950), the court held that California’s statu­tory sur­vival rule was sub­stan­tive and there­fore not to be applied retroac­tively to suits filed before it was enacted.) If sur­vival rules are sub­stan­tive, then Arizona’s sur­vival rule should apply, not California’s. And if Arizona’s sur­vival rule applies, then Plain­tiffs have no case. It smelled of doom for Plaintiffs.

But on appeal to the Cal­i­for­nia Supreme Court, Plain­tiffs lucked out and Judge Traynor (known for invent­ing prod­ucts lia­bil­ity nearly from whole cloth) wrote an opin­ion apply­ing California’s sur­vival rule. Explain­ing the con­flict with the ear­lier prece­dent from Cort, Traynor wrote, “a statute or other rule of law will be char­ac­ter­ized as sub­stan­tive or pro­ce­dural accord­ing to the nature of the prob­lem for which a char­ac­ter­i­za­tion must be made.” It is this rule with which Judge Schauer took such great issue.

I don’t really care whether sur­vival rules are sub­stan­tive or pro­ce­dural, or whether tort claims should sur­vive the death of the tort­fea­sor. Well, I do, but those are not the impor­tant issues here. Judge Schauer and I are both look­ing for con­sis­tency in the rule of law. Allow­ing com­part­men­tal­iza­tion of the con­cepts “sub­stan­tive” and “pro­ce­dural” on the basis of unnec­es­sary or irrel­e­vant dis­tinc­tions allows the courts to use inap­pro­pri­ate means to affect the out­come of a case. Recall, if you will, Rand’s Razor: “Con­cepts are not to be mul­ti­plied beyond neces­sity.” Ayn Rand, Intro­duc­tion to Objec­tivist Epis­te­mol­ogy 96 (1990).

The only “rea­son” to char­ac­ter­ize a law as pro­ce­dural in one cir­cum­stance and sub­stan­tive in another is because you want one out­come in one case and a dif­fer­ent one in another. Judge Schauer had it right: With­out proper con­cep­tu­al­iza­tion, the appli­ca­tion of the law will be for­ever sub­ject to “the untram­meled whimsy of the majority.”