The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In my new paper, The Irrepressible Myth of Jacobson v. Massachusetts, I wanted to explain that Justice Holmes substantially revised the scope of Jacobson in Buck v. Bell. The verb that came to mind is retcon. Often in movies or literature, an author will introduce a new fact to reconcile some inconsistency with a prior work, in order to maintain continuity. Holmes substantially expanded the meaning of Jacobson to support a ban on compulsory sterilization. Buck retconned Jacobson. You could also say that Casey retconned Roe. Now we now what the real "central holding" of Roe was.
But I paused. Has retcon entered the vernacular? Or would I need a citation to explain the word. I checked the Westlaw database for federal cases. I found three appellate decisions that used that phrase–all published in the last two years! The word is catching on!
- Lehman predates modern public forum analysis but has been retconned into that framework. Ne. Pennsylvania Freethought Soc'y v. Cty. of Lackawanna Transit Sys., 938 F.3d 424, 440 (3d Cir. 2019) (Hardiman, J.).
- Either way we look at it—under our binding case law or under the Majority Opinion's retcon interpretation of it—this record, when viewed in the light most favorable to Gogel, establishes a material issue of fact that requires denial of summary judgment. For these reasons, I respectfully dissent. Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1190 (11th Cir. 2020) (Rosenbaum J., dissenting).
- It is telling that our sister circuits can give these clauses an operative meaning only by retconning them. United States v. Bryant, 996 F.3d 1243, 1260 (11th Cir. 2021) (Brasher, J.).
These judges did not think it necessary to define the word.
My colleague Ilya Somin used the phrase in last year's Cato Supreme Court Review.
I'll use it. Let's see if it catches on.