Has The Word "Retcon" Entered The Legal Vernacular?

Buck retconned Jacobson. Casey retconned Roe.

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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.

NEXT: Today in Supreme Court History: August 6, 1792

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  1. umm, I never even heard of the word “retcon” until now.

    Lawyers inventing words, when they cant even use ordinary words correctly, lol. smh.

    1. Whats the word that means “Often in legal academia, an author will introduce a new word to reconcile some inconsistency with a prior word, in order to maintain continuity.”

    2. Lawyers are not inventing this word, simply appropriating it from comic book fandom. Lawyers have decades of practice at reconning things, they just didn’t have a short name for it 🙂

      1. The question is whether they’re going to rewrite older opinions to add it in as though it had always been used…

        1. lol. I feel so out-geeked.

          But seriously, aren’t they “graphic novels” now, not comic books?

          1. Graphic novels have, traditionally, been large format collections of comic books, made some time after they were originally published.

            But it’s been some time since I’ve had time for comic books, unfortunately; I gave up on American comics back in the 90’s, and switched over to manga, but pretty much stopped that after Ah My Goddess finished. Family activities don’t give me much time for reading these days. So my familiarity with the genre is somewhat dated.

            1. The history of the “graphic novel” is interesting.

              The term was originally developed to separate the long form, cohesive narratives in the comic format that were published as books from the periodical contemporaries. It did not (originally) refer to anthologies, which is the grouping of periodicals into book form.

              The first written example of it was in the 1970’s, gaining popularity in the smaller comics fandom with “A Contract with God” by Will Esiner. The term did not reach broad, popular lexicon until “Maus” in 1986 essentially validated graphic novels (and comics) as a format that could be used to develop serious literature with its Pulitzer Prize win.

              From then it was off to the races, with comics publishers taking long form narrative comics published as periodicals (Watchmen across 12 issues, Dark Night published across 4) and bundling them together as graphic novels for additional commercial success.

              1. Last time I read Hulk was long ago, comics were in a phase where they wrote for their eventual anthology publication as if a graphic novel, no longer concerned with digestible montly stories, and just split it up into monthlies. This lead to idiocies like the Hulk not even appearing some months in his own book, much less anything like classic action.

                When the Ang Lee movie came out, Hulk was 25 cents that month as a promotion, and you saw…Hulk’s elbow in one panel.

          2. Taking your “But seriously” literally — rather than as a satirical take on fandom — no, those are different types of works.

            A comic book is a periodical, and while a particular volume often has the usual plot development and climax of a longer work, it is part of a longer story that spans multiple volumes. A graphic novel tells a story that stands on its own, although it usually has a place within a broader mythos, and is typically much longer and more involved than a comic book.

          3. My kids keep correcting me about “comics books” telling me that they are graphic novels.

            1. As the literacy of American youth has declined to the point where pictures become necessary….

              1. Not quite. Studies have shown that the combination of graphics and text is helpful in teaching kids to read. And as George R.R. Martin once put it, you can easily tell what 8-year-olds read comics; they’re the only ones who know what “invulnerable” means. Personally, I was reading at at least a sixth-grade level in first grade and think my reading comics had a fair amount to do with that. And my career has ended up being a writer about complex and complicated subject matter, so they seem to have done pretty well with/for me.

                1. I’m not so sure that was because of the mixed media, and not just because the comics used a more mature vocabulary than the school books. Because they certainly did.

                  My mother taught her children to read before kindergarten, and I was reading adult level material at home while they were subjecting me to “See Spot run” in school. Ditto for my son, who began reading before he was two.

                  Kill off preschool, and subsidize Refrigerator Phonics. It’s more cost-effective.

  2. Retcon means “To change the meaning of” not to clarify.

    So if Casey “retconned” Roe, it would change the meaning of Roe. Not clarify.

    1. Ah, but you’d claim to be clarifying… You know, much like Obergefell clarified the meaning of the 14th amendment, but was actually retroconning into it a meaning that it hadn’t had.

  3. A useful (and short) word to add to a lawyer’s vocabulary, provided it’s used in its current narrow sense.

  4. “Holmes substantially expanded the meaning of Jacobson to support a ban on compulsory sterilization. Buck retconned Jacobson.”

    Didn’t Buck v. Bell infamously uphold a compulsory sterilization law, rather than upholding a “ban” on compulsory sterilization, as Blackman states?

    1. “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765. Three generations of imbeciles are enough.” Buck v. Bell, 274 U.S. 200, 207, 47 S.Ct. 584, 71 L.Ed. 1000 (1927).

      1. “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

        This quote should be repeated to every person pushing for mandatory vaccination.

        1. No it shouldn’t. It is an example of Holmes’s incredibly specious reasoning. Much like he compared protesting the draft to “shouting fire in a crowded theater” in Schenck, here he is making a completely dumb analogy without any analysis. There are numerous reasons why vaccination is not the same as sterilization. The fact that one totally overrated intellect from the 1920s equated them means nothing.

          1. Is that specious or just nasty?

            1. Speciousness in service of nastiness.

    2. Yes it did. And not only is it still good law, but Roe v. Wade cited the case with approval. It is therefore still consistent with our constitution for the government to rip out a woman’s fallopian tubes if the government determines that she is likely to produce “inadequate” offspring.

      Remind your local feminist of this the next time she tells you about Roe v. Wade being super precedent

      1. There is exactly one citation to Buck v. Bell in Roe. It is in the section explaining why the right to privacy is not unlimited and therefore the State can in fact regulate the ability to terminate pregnancies:

        “The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization). We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

        So the citation is actually in support of the prohibitionist position that the State can regulate abortion. This of course makes perfect sense: Buck v. Bell held that the has state power over the reproductive decisions of the “feeble minded.” It couldn’t be used to support a right to privacy or a liberty right to be able to terminate a pregnancy because both of those concepts are limits on the State’s power to regulate reproduction.

        I’ll just assume you didn’t know this and weren’t being incredibly dishonest.

    1. Interesting, because I put “retcon” into that Merriam Webster dictionary and it returned “The word you’ve entered isn’t in the dictionary” !!

      1. “Words We’re Watching talks about words we are increasingly seeing in use but that have not yet met our criteria for entry.”

  5. Very fond of neologisms, but here the word does not seem to fit the concept.

  6. Retcon actually means “retroactive conservative” – for example when Kagan purports to write an opinion based on history text and tradition.

    Retcons are often encountered as progressive jurists, where they serve as a means of allowing the work’s creators to create a parallel universe, reintroduce a debunked idea couched in cherry picked historical context, or explore balancing tests lines that would otherwise be in conflict with the constitution.

    1. Retcons or “retroactive conservatives” can also be found in the Oval office, for example when the current President constructs an alternative universe where he was always in favor of an executive order that his predecessor The Racist&trade of the opposite party used to deport people.

      https://www.foxnews.com/politics/biden-migrants-expelled-title-42-mexico-covid-fears

  7. As to the related issue — where are we with _Beck v. Bell_?
    IANAA — is that still considered “good law” post-Holocaust?

    I ask because if it isn’t — and I like to think it isn’t — that raises some serious issues regarding Jacobson that I haven’t seen mentioned.

    1. I’ll go further — I am of the opinion that the Holocaust started here in the US with the Eugenics Movement and that the Nazis merely implemented what American intellectuals were proposing.

      Margaret Sanger spoke openly of “exterminating” what she considered to be “inferior” races of people — and what was the stated goal of the Holocaust????

    2. I repeat: in Roe v. Wade, the majority opinion cited Buck v. Bell with approval for the proposition that a woman‘s reproductive rights are not absolute. So it is very much still good law.

      Remember: Buck was written by Oliver Wendell Holmes. For progressives to reject Buck means admitting that their hero got something wrong. And that cannot happen.

      1. Who TF thinks Holmes is a hero for today’s progressive movement?

  8. Here is the entirety of the discussion of Jacobson in Buck:

    The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. /Jacobson v. Massachusetts, 197 U. S. 11.

    Whether you agree with Holmes on this point or not, how in the world is “substantially revis[ing] the scope” of the case?

  9. Just chiming in to note that the word retcon is a portmanteau of “retroactive continuity.” (Since a ctrl+f search of the page isn’t turning up those words).

    A retcon It creates continuity between what is being said now and something that contradicts it in the past. However, that continuity is being created retroactively, after the contradiction has already emerged.

    Okay, I’ll head back to my shadowy corner now and continue with my lurking. As you were.

  10. retcon = Retroactive Continuity?

  11. Amused by this, since I was active on Usenet’s rec.arts.comics when Damian Cugley coined the retcon portmanteau. This particular usage did not originate with the 1973 work cited in the Merriam-Webster article. Rather writer Roy Thomas used it in a letter column in a 1983 issue of All-Star Squadron, attributing it to a unknown fan at a convention. It became frequently used in the rec.arts.comics newsgroups, among other places, particularly after the 1986 Crisis on Infinite Earths series did a *lot* of explicit retroactive continuity changes. In 1988, Damian shortened it to “retcon” and it caught on. It’s been used in other places in amusing ways; in the Torchwood tv series, retcon was the common name of a drug that removed memories. While it may remain to be seen if it truly catches on in legal circles, in comics and science fiction circles it’s a well-established and commonly used term. The Wikipedia article on Retroactive Continuity does a decent job on its history and usage. https://en.wikipedia.org/wiki/Retroactive_continuity

  12. Often in movies or literature, an author will introduce a new fact to reconcile some inconsistency with a prior work,

    That’s not how retcon is used ‘in the literature’.

    A retcon is going back and changing something already written and then pretending the change is the way it always was. This can be because you’re trying to solve a contradiction, deal with an unexpected consequence of previous continuity, or simply because you think the change is cooler ‘better’.

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