Will Baude

2072, says such rules shall not abridge, enlarge, or modify any substantive right.

And John Hardy Lee argued, as I understand it, that he was the law clerk on Hannah versus Plummer, right?

He argued that what was the substantive right was partly a question of state law.

So while it's true that the A question, is this a rule of practice or procedure, just asks whether the rule is a rule of procedure.

He's argued that at B, if a federal rule of procedure takes away a state rule of substance, then that's a B problem.

That the rule is now abridging, enlarging, or modifying a substance in the right.

And he thought there were a lot more such cases.

Like that, in a way, I think he would say, I have a state law substantive right not to have frivolous medical malpractice claims filed against me, where frivolous includes any claim that isn't accompanied by an affidavit of merit.

That's like a substantive right of doctors to be left in peace to do their freaking jobs that the state believes in.

And now we are using a federal rule of procedure, Rule 8, to modify and abridge the doctor's substantive right to be left alone to do his job.

Now, Steve Sachs tells me I'm wrong about this.

So, probably Steve Sachs versus John Hardy Lee always has to go to Steve Sachs.

No, just because John Hardy Lee is a genius and Steve is a super genius.

And super geniuses are better than geniuses.

Yes.

I mean...

So I don't know where the substance procedure line is.

That's where we started.

That's a sort of impossible or very hard line to draw.

But the majority seems to say there is no second step.