Untrammeled Whimsy

[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."

Tom G Varik