(last updated 7.28.13)
Trans-Personality
This paper introduces and develops the concept of trans-personality. It is the principle that procedural rules should not vary based on the personhood of the litigating parties. My current paper examines this principle and employs it to upend conventional wisdom in key procedural areas.
I argue that personal jurisdiction doctrine must abandon the trans-personal norm and bifurcate into two branches (personal jurisdiction and entity jurisdiction) to account for fundamental differences between natural and artificial persons. Similarly, courts and commentators have mischaracterized recent changes in pleading standards as animated by trans-substantive concerns. I reframe this debate by arguing that courts tried to protect one type of entity (government actors) but were shackled by the trans-personal norm to craft pleading standards that apply to all types of entities. This lack of personhood-specific flexibility imposes unnecessary costs. The existing literature attempts to deal with this rigidity problem but often identifies the wrong culprit (types of lawsuits, rather than types of entities). Trans-personality provides a better diagnosis and a better solution.
The paper makes three important contributions. First, it defines the concept of trans-personality, identifies trans-personality as a foundational principle underlying civil procedure, and documents existing trans-personal rules and their justifications. Second, the paper contrasts the assumed trans-personal uniformity against the discriminating reality. It identifies instances when the trans-personal norm breaks down, explains why, and traces the changing targets and beneficiaries of deviations from the trans-personal norm. Third, the paper argues against haphazard deviations from or adherence to the trans-personal norm. It maintains that deviations from the trans-personal norm are only warranted where fundamental traits mandate differential treatment. This plain principle generates new insights that illuminate past practices, current quagmires, and future avenues for innovation.
DRAFT. Please do not cite without permission.
