Reading · Who Decides Who Decides?

The law says the seller owes you a refund. The seller says take a walk.

Now what? You could challenge him to a duel, which is how Aaron Burr and Alexander Hamilton settled a dispute about reputation, and how a great many Americans once settled disputes about less. You could gather your relatives and start a vendetta. You could propose a hand of high-stakes poker. Every one of those produces an outcome, and produces it faster and cheaper than what we actually do.

What we do instead is hand the dispute to a court. A court is a government institution, which means that when you sue the seller you’re not merely asserting your rights, you’re deploying public power for your private benefit. Your neighbors pay for the judge, the clerk, the courthouse, and the marshal who enforces the judgment. They have a stake in how that power gets used, and so do you, which is the first reason to care about the rules governing it even if you never plan to be within a mile of a courthouse.

Madison wrote that if people were angels, no government would be necessary. If men and women were angels, we wouldn’t need civil procedure either. What we’d have instead is a set of rights written down and honored, which is not the world. Madison also warned, in a different paper, that a demarcation on parchment restrains no one by itself.

Rights are parchment promises. Procedure decides which ones get redeemed.

Karl Llewellyn told first-year students in 1930 to read every substantive course through the spectacles of procedure, because what the law says you’re owed means nothing except in terms of what procedure lets you make real. That was a claim about the structure of legal thought. Over the last twenty years it has become a description of how American public law actually changes.

Consider who lost, and how.

Javaid Iqbal was detained in Brooklyn after September 11th, never charged in connection with the attacks, and alleged that he was beaten and held in solitary confinement because he was a Pakistani Muslim. The Supreme Court held in 2009 that his complaint hadn’t alleged enough facts to be plausible, and dismissed it. The evidence that would have proved his case sat inside the government’s own files, which he’d have reached only in discovery, which he never got.
Betty Dukes was a greeter at a Wal-Mart in California. She and roughly 1.5 million other women alleged the company paid them less than men doing the same jobs and promoted them more slowly. In 2011 the Court decertified the class, reasoning that because Wal-Mart’s policy was to leave pay and promotion to the discretion of local managers, the women had no question in common. Each remained free to sue Wal-Mart by herself. (Good luck.)
Vincent and Liza Concepcion were charged about thirty dollars in sales tax on cell phones advertised as free. No one litigates thirty dollars alone. Their AT&T contract required arbitration and forbade them from banding together with anyone else, and in 2011 the Court held that federal arbitration law preempted California’s rule against such clauses. In 2018 the Court extended the reasoning to employees pressing wage claims against their employers, which is a fine arrangement for a company that shaves a few dollars a week off ten thousand paychecks. In the aggregate that’s a fortune. Divided by ten thousand, it’s less than the cost of the phone call to a lawyer.
Sergio Ramirez went to buy a car. The dealer ran a credit check, and TransUnion‘s report flagged him as a possible match for a name on the Treasury Department’s list of terrorists and narcotics traffickers, generated from his first and last name and nothing else. The dealership refused to sell to him, and his wife bought the car while he stood there. He sued for himself and 8,185 people whose files carried the same flag. In 2021 the Court took 6,332 of them out of the case, assuming the company had broken the statute but holding they couldn’t show their reports had actually reached anyone, and that Congress can’t create an injury for constitutional purposes by writing a right into a law.
Voters in North Carolina and Maryland showed that their maps had been drawn to entrench the party in power, Republicans in the first state and Democrats in the second. In 2019 the Court held that federal courts cannot hear such claims at all.

Five sets of losers, and almost no substantive law. Nobody held that Iqbal’s treatment was lawful, or that Wal-Mart hadn’t discriminated, or that gerrymandering is constitutional. What changed was the pleading standard, the certification standard, the arbitration rule, the standing rule, and the jurisdictional rule. The rights survived intact and unenforceable.

Texas took the logic further.

In September 2021, with Roe v. Wade still on the books, Texas banned abortion after about six weeks, which is before many women know they are pregnant. The drafters understood that a federal judge would block it within days.

The ordinary way to stop an unconstitutional law is to sue the official who enforces it, the attorney general or the state health commissioner, and ask a judge to order that official to stand down. So Texas wrote a law that no state official enforces. Enforcement runs entirely through private lawsuits. Any person, anywhere, with no connection to anyone involved, may sue the doctor who performs an abortion or the friend who drives the patient to the clinic, and collect at least ten thousand dollars plus attorney’s fees.

There was nobody to enjoin. Clinics across Texas stopped performing the procedure the day the law took effect. No court had upheld it. The exposure was simply unlimited, and no judge had told them they were safe.

That December the Supreme Court let a narrow suit proceed against a few state licensing officials and turned away the rest. The ban stayed in force until Dobbs overruled Roe the following June. No federal court ever ruled on whether it was constitutional.

Which brings the story to a decision from last summer that most people filed under immigration.

In Trump v. CASA, the Court held six to three that federal district judges lack authority to issue universal injunctions, orders that block a policy as to everyone rather than just the plaintiffs before the court. The underlying dispute concerned an executive order on birthright citizenship. The holding concerned remedies.

Justice Alito, joined by Justice Thomas, wrote separately to warn district judges against certifying nationwide classes without scrupulous adherence to the rigors of Rule 23, lest the universal injunction return from the grave wearing class-action clothes. Plaintiffs filed for class certification within hours of the decision. On July 10 a federal court in New Hampshire certified a nationwide class and blocked the order.

So the question of who is a citizen of the United States, a Fourteenth Amendment question of the first order, ran straight through Rule 23(a). Numerosity. Commonality. Typicality. Adequacy of representation. Four requirements that read like clerical housekeeping and that, for a stretch of last year, operated as the working constitutional law of birthright citizenship.

All of which can still be read as lawyers’ business, until you get to the clause that is nothing but procedure.

The Fifth Amendment doesn’t promise you a good outcome. It promises you a process. Notice, so you learn what the government says you are, and a hearing before a neutral decider, so you can answer that you are not that.

On March 15, 2025, the government put more than 130 Venezuelan men on planes to CECOT, El Salvador’s terrorism prison, under a statute enacted in 1798 for a war with France that never came. Their lawyers maintain that many of them, perhaps most, had been listed as members of Tren de Aragua largely on the strength of their tattoos. None of them got to say so much as a word about it first. A federal judge held the following June that they had been removed before receiving constitutionally adequate notice of the reason or any real opportunity to seek habeas relief.

When the government moved to do it again, the Supreme Court stopped it, seven to two, and the reasoning was entirely procedural: notice roughly 24 hours before removal, carrying no information about how to contest the removal, does not pass muster.

(This month a Fifth Circuit panel held that one of the central Alien Enemies Act challenges had gone moot and declined to decide whether the invocation was lawful in the first place, while two judges wrote separately that they would have upheld it. The Supreme Court’s order barring removals under the act has not been disturbed. Mootness is one more procedural door. Nobody rules the right away. It simply never gets vindicated.)

That was not a ruling about immigration policy. The Court did not hold that the men could stay, or that the 1798 statute could never be invoked. It held that before the government puts a human being on a plane to a foreign prison, the human being gets to be heard. Nineteen months in, that holding is the spine of so much of the litigation against the Trump administration. The recurring questions are small, procedural, and decisive. Does the person get told what the government says he is, and does he get to answer, before the [metaphorical and/or actual] plane takes off?

A right to be heard, held by someone with no meaningful way to be heard, is a parchment promise

None of which is remote from you. Look at the terms governing your phone, your bank account, your last job. Somewhere in there is a clause waiving your right to a court, waiving your right to join with anyone else in your position, and routing any dispute to a private decisionmaker under rules you’ve never read. You agreed by opening the box.

That clause is the seller saying take a walk, with better lawyers. It picks the forum, forecloses your explanation, and substitutes a fast private resolution for a public one. It is the single most consequential piece of American dispute resolution most people will ever encounter, and it was built almost entirely out of procedure.

Tomorrow I stand in front of a new group of first-year law students, most of whom expect it to be drudgery. They came for constitutional law. Or criminal law. They came to argue about rights. I get that.

Twenty-six years ago I sat where they’ll sit, and for most of a semester I couldn’t see it. My professor was superb. I did the reading and I did the work, and I still spent months among the trees without confidence as to the forest. Torts had injuries. Contracts had promises. Civil Procedure had the Erie Doctrine. The pieces assembled themselves in the closing weeks, only because of the time I had spent lost (and because of an exceptional study group).

What I’ll tell them is that the words that sound like filing instructions are the words in which American rights are won and lost. Personal jurisdiction. Subject matter jurisdiction. Whether a complaint is plausible or merely conceivable. Numerosity, commonality, typicality, adequacy of representation. Standing, and what makes an injury concrete enough to count. Complete relief, and who is entitled to it.

Most of those phrases ended a case in this essay. Very few of the cases ended by answering the question the parties came to ask.

I’m glad you’re here. I’m grateful you’re engaged. Here and everywhere— James

Interested in this Substack’s approach to AI? The policy is here.

Parchment Promise

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