Skip to content

The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

Though the word ‘retcon’ is relatively new to the U.S. legal system, the process of retconning is not. That law professor friend of mine recently emailed me about a pair of articles: “Had to copy and paste these for you when I read them: my colleague’s retcon account of unconstitutional laws, which one would never find by search for ‘retcon’ or cognates. You’re right—we’re all retcons now.”

In his 2008 Georgetown Law Review article “The Executive’s Duty to Disregard Unconstitutional Laws,” Saikrishna Bangalore Prakash coins the term ‘Citizen Disregard’ as a subset of civil disobedience. A citizen “may choose to defy all manner of statutes that they believe are unconstitutional,” claiming such a “statute is no valid law at all and hence her actions were not unlawful.” If “a court concludes that the underlying statute is constitutional, the private citizen will be found guilty,” but if the court agrees, the citizen is not guilty—revealing that the apparent law was never an actual law. It was just mistakenly understood to be one by people other than the citizen disregarder.

Such a decision is a retcon. It reveals how things actually were all along. If the decision were a sequel, then the citizen disregarder would have been guilty of breaking the law while it was still a law, but then not punished because the law was struck down by the court during the subsequent trial. The sequel v. retcon distinction is less a disagreement about constitutionality and more about reality. Was a law a law before it wasn’t a law or was it never a law at all?

Prakash adds in his 2020 Harvard Lew Review “Faithless Execution” that citizen disregard retcons are independent of the judicial decision: “the American tradition has been to conclude that … some ‘acts’ are unconstitutional, and are therefore nullities, without regard to whether a court has so declared.” This further distinguishes the retconning from sequels, because sequels are created by new actions. Though retcons require revelations to be recognized and then applied, their logic requires that any revealed reinterpretation was always true and would be true whether revealed or not. The court does not make the statute a nullity. It discovers that the statute was always a nullity.

The Supreme Court’s 1886 Norton v. Shelby County decision makes the retroactive nature of a judicial retconning explicit: “An unconstitutional act is not a law … it is, in legal contemplation, as inoperative as though it had never been passed.” The case determined that bonds signed by a county commissioner were not valid because, despite a sequence of individuals appearing to serve as county commissioners for the two decades, the county never had a commissioner. They just thought they did. The Court explained: “As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions.” The court called them “usurpers.”

In his 1962 article “The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio,” Paul Bender explores the practical ramifications of such court-discovered usurpers. The Supreme Court ruled in 1961 that Cleveland police officers who broke into Dolly Mapp’s home without a warrant had no legal right. Mapp was dating a Cleveland racketeer, and the police found a suspect in the bombing of a rival racketeer’s home hiding in her basement. They also found gambling slips and pornography. Mapp was acquitted of the gambling offense, but after she refused to testify against her boyfriend, she was sentenced for the pornography. By declaring the evidence inadmissible, the Supreme Court freed Mapp and also reversed its 1949 Wolf v. Colorado decision, which had instead determined that the prohibition of illegally-seized evidence did not apply to state courts, upholding the conviction of Julius Wolf for “conspiracy to perform an abortion.”

Bender calls the “sudden change of law” produced by Mapps “an unorthodox exercise of judicial power” that creates a “problem of retroactivity” about “which rule applies when trials predating the announcement of the new exclusionary rule are now challenged.” Though he makes an extensive argument for what he calls “a somewhat arbitrary line excluding most previous trials,” Bender also acknowledges that “the only logical choice would be complete retroactivity.” That’s because Mapps is a retcon, not a sequel. While content that the decision applies to all future cases, he seems uncomfortable with its also being retroactive. (In the language of my previous posts on judicial retconning, Bender thinks Mapps is a Klingon butthead.)

Bender may be correct that “the purposes of the new rule do not call for general reexamination of previous convictions,” but any reexamination of a conviction based on evidence that is retroactively revealed to have been inadmissible must be overturned. While Mapps does not “call for a general reexamination”—which presumably would involve a review of all cases to identify those that involved inadmissible evidence—it does not bar it either. It does, however, require that if such a conviction is examined, it must be overturned.

Bender’s use of the word ‘announcement’ is revealing. Mapps announced “the new rule exclusionary rule,” and so in the logic of retconning which Bender acknowledges, it did not create the rule. The newly discovered rule applies to all trials regardless of when they occurred. The announcement itself did not do anything—except for Dolly Mapps. If other wrongful convictions are to be overturned, each must be brought before a court too.

This is true of retcons generally. The announcement of the new discovery of Neptune in 1846 did not alter any astronomy textbooks. That required a separate and protracted process of its own. Bender’s question of applicability is akin to an astronomer asking whether the existence of Neptune should be applied before 1846 or only afterwards.

Bender also cites the Supreme Court’s 1940 Chicot County Drainage Dist. v. Baxter State Bank, which expresses a similar discomfort with retconning and a preference for sequels. The decision reversed a lower court’s application of the Shelby logic to a bankruptcy case: “The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree.” This time the Court rejected that retconning logic: “The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration… a principle of absolute retroactive invalidity cannot be justified.”

Chicot incorrectly relies on the logic of sequels. A retcon does not erase the past—it reveals it. The past is neither justified nor unjustified—it is whatever it is, however convenient or inconvenient. If past facts were previously misunderstood, the mistaken account is invalid. Referring to “a new judicial declaration” that erases the past implies a kind of sequel. Things were one way, and now they are some other way. Shelby and Mapps instead establish that nothing actual has changed. Stating that the unconstitutional statue had “actual existence” would require that it had been previously constitutional—otherwise it was never an actual statute. The plaintiffs in Shelby argued the county commissioners “were officers de facto,” which means “in actual existence,” a principle the Court absolutely rejected.

The disagreement between the 1940 Court and 1886 Court is the nature of judicial revision. Do retroactive decisions change the past or reveal the past? The jury may still be out.

The short answer: probably not.

It’s a yard sign for a local grassroots get-out-the-vote campaign. It’s not something published by a comics publisher. That’s my circular but still useful shorthand definition of the comics medium. The comics medium is distinct from the comics form, which I can define in even fewer words: sequenced images.

So if the yard sign contained two sequenced images, would it be a comic? Well, if being a work in the comics form is enough for something to be a comic, then yes. But does the sign contain two images?

That’s going to require the long answer.

For the sign to be sequenced images, it has to include at least two images. If you look closely at the bottom right corner, there are three small images (including a recycling symbol and the outline of Virginia). Because they are so small, and so secondary to the larger design elements, I’m going to ignore them. That leaves seven much larger words and the central white area. If you call the word “BLUE” an image and if you call the shape framing “BLUE” an image, then the sign has two images.

But should we call either an image?

I’ve written previously about how the way a word is rendered can make it word-image art. In this case, does the way “BLUE” is rendered make it art? I suspect there’s room for debate, but my instinct says no. Its graphic-art qualities seem much less operative than its linguistic qualities.

That would mean the sign includes (at most) one (significant) image, and since one image can’t be sequences images, the sign isn’t in the comics form, and since it’s also not in the comics medium, it can in no sense (that I know of) be considered a comic.

But, what the hell, let’s say “BLUE” is word-image art (its size and color are the sign’s most distinctive qualities) and so an image. Then is the white space framing it an image too?

This is a variation on a question I’ve been chewing on while completing my next book manuscript, The Comics Form: The Art of Sequenced Images. The last chapter is titled “Sequenced Image-texts.” Though a comic (whether defined by form or medium) doesn’t have to include text, many do. So understanding how sequenced images work requires understanding the subset of sequenced image-texts. And that requires determining the minimum necessary qualities for an image to be an image.

Here’s a bit from the draft:

In traditional comics, hand-lettered or typeset words appear in frames termed ‘caption boxes’ and ‘balloons’ or ‘bubbles’ distinguished by the linguistic content of speech or thought, with ‘tails’ or ‘pointers’ directed at rendered subjects. The framed words typically divide into lines according to the discursive requirements of the frame and so with little or no linguistic consideration, but word frames can also produce units and rhythmic effects similar to lines or stanzas of poetry. The backgrounds of framed areas are sometimes different from the surrounding image, often with the same white negative space as margins and gutters. Since these frames, like drawn frames generally, are not actual frames but representations, words in word frames are image-texts, with the non-linguistic elements communicating meaning. Pratt, for example, observes that “word balloons may also, through their style or even color, give pictorial cues to the reader as to the mental states and attitudes of their utterers” (2009: 110).

If a frame and words are sufficient to make an image-text, then many PowerPoint presentations are in the comics form, including the story “Great Rock and Roll Pauses” in Jennifer Egan’s 2010 A Visit from the Goon Squad, which is a PowerPoint both discursively and diegetically since it is created by a character within the story. Many charts, graphs, and diagrams are image-texts too, and so would combine in the comics form. Alternatively, such example might be excluded from the comics form if non-linguistic images must display some minimal level of graphic-art quality to produce image-texts in combination with word-images. Such a spectrum would be subject to individual perception.

In other words, I’ve been thinking:

Now back to the yard sign: does the shape framing “BLUE” have enough graphic-art quality to be called an image? Here my instinct says yes. Though the bottom and side edges are single lines, the top edge consists of sixteen lines. The top edge is also representational: it represents the Blue Ridge mountains. Since representational images are a kind of image, they presumably have “some minimal level of graphic-art quality.”

But what if viewers don’t perceive the top edge as representing a mountain ridge? If those viewers don’t read English, they would not have the linguistic cue, and maybe the row of varyingly angled lines would be too abstract to evoke anything by itself?

I could always cheat and invoke authorial intentions. Which in this case would be my intentions. I drew those sixteen lines along the top edge of the rectangle to resemble a mountain ridge when drafting a possible campaign sign after a candidate dropped out of our local town council race last year. We wanted someone to jump in, and for a horrible moment I was considering being that someone:

I decided not to run, but when our grassroots group wanted a yard sign for this November’s election, I was happy to repurpose.

Which is a long way to say that I see a mountain ridge in the angles of the top edge. But I’m just one viewer (who happens to have unique knowledge of the creative process, including the creator’s intentions). Since perception is individual, the same object may be an image to one viewer and not an image to another viewer. Since the sign includes two elements (“BLUE” and the top edge of the white area) that seem to fall in the ambiguous middle zone of the image or not-an-image range, the sign may be perceived as containing no, one, or two images. The first perception would make it simply text (though apparently with some non-linguistic yet sub-image flourishes). The second would make it an image-text. And the third would place it in the comics form.

So is it a comic?

Like I said, probably not.

Retcons have entered U.S. law. They’ve also entered U.S. law studies—as a law professor friend of mine recently showed me after running a search for the term in law review articles. He found three.

In his essay “The Employment Status of Ministers: A Judicial Retcon?,” Russell Sandberg writes: ‘“Retroactive continuity”, often abbreviated as “retcon”, is a term often used in literary criticism and particularly in relation to science fiction to describe the altering of a previously established historical continuity within a fictional work.’

So far so good—especially if you consider superhero comics a SF subgenre. He continues: ”To date, however, the concept has not been used in relation to law.’

Sandberg published his Religion & Human Rights article in 2018, and the first use of ‘retcon’ in a court ruling is 2019, so still good. He continues: ‘Legal judgments often refer to history and include historical accounts of how the law has developed. Such judgments invariably include judicial interpretations of history.’

Yep, that’s a good working definition of ‘judicial retcon.’ But then Sandberg writes: ‘On occasions, they may even include a “retconned” interpretation of legal history – a “judicial retcon” – that misrepresents the past and rewrites history to fit the “story” of the law that the judge wants to give.’

No. That’s not a retcon—that’s a rejected retcon since it is identified as a misrepresentation. Worse, Sandberg suggests codifying his definition of ‘retcon’ into legalese: ‘This article explores the usefulness of a concept of a “judicial retcon” by means of a detailed case study concerning whether ministers of religion are employees.’

Setting aside minsterial employment minutia, the case is another Klingon butthead, or lame attempt, as discussed in earlier posts. Instead of discussing the general phenomenon of retconning in court rulings, Sandberg isolates an example that he feels is a false reinterpretation of historical precedents and uses it to define ‘retcon’ generally. By his definition, all retcons are bad retcons. But all judicial interpretations of history fit the “story” of the law that the judge wants to give.

Sandberg also doesn’t get credit for first author to use ‘retcon’ in a law paper. Dan L. Burk’s “The Curious Incident of the Supreme Court in Myriad Genetics” appeared in the Notre Dame Law Review in 2014. Burk’s use of ‘retcon’ is more complex.

He writes: ‘whatever such cases originally meant or perhaps now should mean, the Supreme Court has repeatedly relied upon them to justify and shore up the products of nature concept. Throughout its cases on subject matter, the Court has in particular “retconned” Funk Bros. as the go-to citation for the Chakrabarty dicta on products of nature. In Myriad, Justice Thomas reviews Funk Bros. at some length, concluding that the treatment of the Funk bacterial inoculum serves as squarely analogous precedent for the treatment of Myriad’s genomic sequence. Thus, notwithstanding its actual holding, the case seems to have undergone hindsight reconstruction as a decision about the patentability of natural products. Thomas uses this to provide a veneer of precedent for the Court’s holding on gene patents.’

There’s a lot to close read there. The tone is overall neutral and perhaps accepting of the ruling. Though the adjective “curious” in the title (and the allusion to a detective novel about a narrator with autism) is at best ambiguous. The adjective “hindsight” shuffles further toward negative connotation. And “a veneer of precedent” is a mild-mannered outburst of carefully passive aggression. Justice Thomas is, after all, Justice Thomas, and the Supreme Court ruling in question is the currently definitive ruling on the topic. Rereading Burk’s first phrase, his resistance to retconning is present there too, since “whatever such cases originally meant” suggests an unrevisable first meaning linked to the later “actual holding,” and “or perhaps now should mean” suggest a distinct change in meaning and so a sequel.

So Burk knows he can’t reject a Supreme Court retcon, but he doesn’t have to be happy about it.

‘Retcon’ appears in only one earlier law review essay, Jeffrey Zeman’s “The Adventures Of ‘Superman’: A Narrative Worth Mediating,” published in Conflict Resolution in 2011. He writes: ‘In comic book vernacular, this phenomenon is often referred to as “retconning” a story. “Retcon” is short for “Retroactive Continuity,” a literary device used by comic book authors to change the known history of their characters—most often superheroes. Changing one element of a character’s past can alter the significance of all of that character’s future stories. Comic book authors are especially fond of using this device when they want to resurrect a character that previously died at some point in the often decades-long archive of superhero stories under a publishing imprint.’

By “this phenomenon,” Zemans means the two-stage termination clause of the 1909 Copyright Act which “created a dual term in the copyright to a work, one realized upon the work’s publication and the second occurring twenty-eight years later with the copyright’s renewal.” The clause is included in the law because “an author’s ability to realize the true value of his or hers work was often not apparent at its creation, but required the passage of time (and the marketing efforts by a publisher) to materialize.” Zemans likens the reevaluation opportunity to transporting the parties “back to the time of consignment in order to create a more equitable contract.”

Regarding the copyright of Winnie the Pooh, Zemans writes that A.A. Milne’s heir “learned with the benefit of hindsight: that Pooh had greater value than A.A. Milne had anticipated when he first signed away his interest in the anthropomorphic bear.”

While the change in Milne’s contract would certainly reflect hindsight, is hindsight the same as time travel? Zeman says Milne’s heir “looked back at the way the story had gone” while “standing from the retrospective viewpoint of the statutorily-created termination period.” That’s not returning to the past and changing it. That’s just looking at the past. ‘Retrospective’ and ‘retroactive’ are not synonyms.

Zeman’s analysis also reveals nothing about the judicial meaning of ‘retcon’ since it applies only to the specifics of the 1909 Copyright Law and its sequel clause. That leaves only Sandberg’s rejection and Burk’s begrudging acceptance of retconning decisions. Based on the term’s vacillating use in law review articles and in previously discussed judicial decisions, the legal meaning of ‘retcon’ remains contested.

Here is a set of words:

"Texas banned abortions after six weeks. Seven more states are copying the law. If the GOP wins in November, Virginia will be next. 'Well, I can tell you that would be me,' said GOP Lt. Gov. candidate Sears, 'I would support it.' The Virginia Senate is split. The Lt. Gov. casts the tiebreaking vote. If elected governor, Youngkin will sign it. Don't let Virginia be the next Texas. VOTE TODAY"

Here is a set of words:

Are those two sets of words the same set of words?

Yes and no.

Yes, if by ‘words’ you mean linguistic content.

No, if by ‘words’ you mean graphic marks.

Since ‘words’ are both linguistic content and graphic marks, the contradiction is unresolvable.

Which creates a problem for the definition of comics, since all definitions include the word ‘images,’ usually along with the word ‘sequenced’ (or ‘juxtaposed,’ but let’s not go down that rabbit hole right now). I call sequenced images the comics form (which is distinct from but overlapping with the comics medium), but however termed, graphic marks are images. Which means the graphic marks you are currently reading are images, and because they are also sequenced, they must be a comic (or at least must be in the comics form).

Spoiler alert: they’re not.

Explaining why they are not is complicated and requires a tool for prying apart words as graphic marks and words as linguistic content.

Look at those two sets of identical/non-identical words again. The are identical as far as their linguistic content, but they differ significantly as far as their graphic qualities. The first set is graphically formatted the way this paragraph is: all the letters are in the same font, are the same size, and are the same color. The words in the second set are also all in the same font, but they differ in size (which varies according to rows, with words in rows consisting of fewer words printed larger because each row is sized to have the same width) and in color (black or red).

Those graphic qualities may also indirectly alter linguistic content, since differences in size and the relative rareness of red gives greater emphasis to certain words, and emphasis influences meaning. Readers of each set are going to have different reading experiences due to the graphic qualities.

Since both sets of words are graphic marks, some graphic marks are therefore more graphic than others.

That claim is both true and complete nonsense.

It’s nonsense because being graphic isn’t a graded quality. The adjective ‘graphic’ is like the adjective ‘physical.’ Either something is graphic or it is not graphic.

But ‘graphic’ also refers to something that occurs in degrees. I would call that something ‘art,’ specifically ‘graphic art.’ Along the graphic-art scale, these words you’re reading right now are very low. They are still 100% graphic (because to be graphic is to be 100% graphic), but they are hardly or not at all graphic art. That’s because their graphic-art qualities are so minimal.

In contrast, the set of words in the second example are higher on the graphic-art scale. Though they are certainly not great graphic art, they still fall into the general category graphic art.

(If authorial intention matters, I can add that I made the second example in response to a request for a ‘graphic,’ one that could be shared as a social-media meme or printed as a poster or postcard. I also made the first example, which can be copied and pasted into the body of an email, with no concern about changing fonts, font sizes, or line breaks–and so no concern for graphic qualities.)

Since the second set of words consists of words that are higher on the graphic-art scale, does that mean it’s a comic?

Well, if a ‘comic’ is something that is in the comics form, and if the comics form is sequenced images, then the answer is (probably) no. That’s because I understand the second set of words to be a single image, and a comic requires at least two images. Since that concern distracts from the core question, look instead at this:

Whatever you call it, there are definitely two of it. And since I would call each an image, I would have to also call their combination to be in the comics form.

Unless each set of words is not an image. And here I mean ‘image’ to mean not simply graphic marks but graphic art or, because the art consists entirely of words, graphic word art.

So determining whether it’s a comic first requires answering this question: Where is the dividing line between words that have only minimal graphic-art qualities and so are not graphic word art and words that do have sufficient graphic-art qualities and so are graphic word art?

I have no idea.

I am confident though that the first example falls into the first category. Those words are graphic only in the sense that is akin to something just being physical.

I’m not sure, but I suspect the second example can be called an image in the graphic-art sense only if its graphic-art qualities exceed its linguistic qualities. In other words: if it’s more about how the words are rendered than what the words mean regardless of rendering.

In this borderline case, my gut votes no. The rendering primarily serves the linguistic content, and without the linguistic content, the set of graphic marks wouldn’t be sufficiently artful to be called graphic art. Though as soon as I type that opinion, I start hearing counter arguments in my head. Which gets to my next point:

Judgements will vary.

As a result, judgements about whether any particular sequenced sets of words are in the comics form will vary to the same degree.

Exploring his essay-titling question Has The Word “Retcon” Entered The Legal Vernacular?, Josh Blackman identifies three court cases that include ‘retcon.’ Because all three uses are by judges, ‘retcon’ now has an official presence in U.S. law. Because none of the judges provide a definition, determining what ‘retcon’ means requires some analysis.

The first example is from 2019, the same year as Somin’s law article discussed last week (along with the “lame attempts” to insert an explanation for Klingon foreheads into Stark Trek history). The word appears in a footnote from the Third Circuit Court of Appeals case Northeastern Freethought Society v. Lackawanna Transit System. Judge Hardiman writes: “Lehman predates modern public forum analysis but has been retconned into that framework.”

For context, the Freethought Society purchased ad space on Lackawanna, PA’s busses. Their ad would have displayed the word ‘Atheists,’ and the county rejected it, citing their standing policy excluding religious and atheistic material. The court ruled that the policy, and so the rejection of the specific ad, violated the First Amendment.

Arriving at that decision required weighing the transit system’s various arguments, including whether it was fair to subject a captive audience to the “Atheists” ad. That prompted Judge Hardiman’s reference to Lehman, AKA Lehman v. City of Shaker Heights, the 1974 case in which the Supreme Court ruled that “the blare of political propaganda” could be prohibited from bus interiors, rejecting local political candidate Harry Lehman’s argument that his Ohio town had infringed on his free speech. The Third Court, however, found the precedent irrelevant, since the “Atheists” ad was planned for the exterior of the Lackawanna busses and so no “captive audience” would have been involved.

Regardless, the Third Court understood that, even though in 1974 Lehman seemed only to apply to “car card” interior advertising spaces, retroactively the decision also applies to “modern public forum analysis,” including things that did not exist in 1974. Policies for government websites, for instance, fall under Lehman. That’s because:

Lehman predates modern public forum analysis but has been retconned into that framework.”

Unlike Klingon foreheads, pre-internet precedents now regulating portions of the internet are not “lame attempts” but are respected law.

Blackman’s second example is from the 2020 decision Gogel v. Kia Motors. Judge Martin, joined by two colleagues on the Eleventh Circuit Court of Appeals, writes in the final paragraph of the 32-page dissent:

“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.”   

Andrea Gogel claimed that Kia Motors of Atlanta, Georgia fired her because of her sex (female), her national origin (U.S., unlike her managers in Korea), and for protected activity as Team Relations Department Manager. The court’s majority disagreed, ruling that Kia did not violate Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin. 

The dissenting opinion focused on the rules governing Gogel’s Title-VII related responsibilities. According to Judge Martin, the majority created a “new rule” that barred Gogel from discussing certain Title-VII processes with other employees at the cost of losing her own Title-VII protections. In short, Martin says no such rule exists, and the majority’s attempt to construct such a rule from “cherry-picked” precedents is a “retcon interpretation.”

Martin’s use of ‘retcon’ aligns with Thomas’s butt-headed Klingons discussed last week. It’s an insult. Or, as Simon summarized Thomas, it’s another “lame attempt.”

This suggest that, in legal contexts, ‘retcon’ has two possible meanings. The first is something like: a failed attempt to improperly insert a rule or interpretation into legal precedents. And the second: interpreting an earlier judgement to cover a matter that was not known at the time that the judgement was made.

The second definition of ‘retcon’ is correct. The first is not a definition of ‘retcon’ but of ‘failed retcon,’ or more precisely, ‘rejected retcon.’

Blackman identifies one other example, a tie-breaker in this first round of ‘retcon’ court usages. In the 2021 US v. Bryant, Judge Brasher writes: “It is telling that our sister circuits can give these clauses an operative meaning only by retconning them.”

Thomas Bryant is a cop convicted of trafficking cocaine and guns for himself and a gang for whom he and some of his fellow officers served as security guards and informants. After the First Step Act passed in 2018, Bryant brought a motion to reduce his 300-month sentence, citing that the law allows courts to reduce a term of imprisonment for “extraordinary and compelling reasons.” His reasons were his good behavior in prison, his higher sentence due to his going to trial instead of plea-bargaining, and the fact that sentencing guidelines were now lower. Whether those reason are “extraordinary and compelling” are secondary because the court first had to decide whether a key passage of the law applied to him at all.

Initially motions to reduce sentences had to made by the Bureau of Prisons, but because the Bureau so rarely did, Congress amended the law in 2018, allowing prisoners the ability to present such motions themselves. The amendment, however, did not update all of the act’s previous language, leaving the phrase “upon motion of the Director of Bureau of Prisons” in a key passage. Does the amendment revise that phrase too, adding an implicit “or motion of the defendant,” or does the original phrase now bar defendant-motions, even though defendant-motions did not exist when the passage was written?

Judge Brasher concluded that the ambiguous phrase is just a prefatory and out-of-date summary of the law as originally written and so does not bar defendant-motions. Previous courts had ruled oppositely, seeing the ambiguous phrase as not mere preface but as “operative” to the meaning of the sentence, citing other examples. This led to Brasher’s criticism: “It is telling that our sister circuits can give these clauses an operative meaning only by retconning them.” In short, the phrase can’t bar something that did not exist at the time; claiming that it does is retconning and therefore false.

I suspect Brasher is wrong. Courts routinely interpret laws to mean more than they appeared to have meant at the time they were written (thus a 1974 decision applies to government websites even though government websites did not and could not have existed in 1974). Retconning is a central aspect of the judiciary process.

Brasher may even be retconning himself. By retroactively applying the amendment’s allowance for defendant-motions in a passage that appears to prohibit them, he is reinterpreting the meaning of the original words to align with a later legal change (not unlike how the New Testament reconstructed the Old Testament out of the Tanakh).

Alternatively, his new interpretation is exactly that, something new, and so he is instead clarifying the full implications of the sequel that the amendment created out of the original text by negating parts of it. If so, the ambiguous phrase actually changed meanings. According to a retcon, there would be no change in meaning: the phrase always meant what it means now; we just didn’t realize it before.

Whether supporting a sequel or a retcon himself, Brasher’s accusation of ‘retconning’ is pejorative. He thinks his “sister circuits” are more Klingon butt-heads.

Meanwhile, I think we’ll need more judiciary sequels to determine what ‘retcon’ means in the U.S. legal system.

Retcon is short for “retroactive continuity,” a form of revision common in pop culture but that is also—according to my co-author Nathaniel Goldberg and me in our book Revising Fiction, Fact, and Faith: A Philosophical Account—essential to understanding much more. Right now, for instance, the concept of retconning is taking on new legal significance.

I’m using ‘legal’ in the literal sense, ‘concerned with law,’ and in his article, Has The Word “Retcon” Entered The Legal Vernacular?, Josh Blackman identifies what is likely the term’s first appearance in an official law-related context: an essay by Ilya Somin published in the journal Cato Supreme Court Review in 2019. Somin describes a solicter general’s attempt to avoid a legal Catch-22 that bars certain regulatory cases from entering federal court:

“In a somewhat strange amicus brief on behalf of the federal government, Solicitor General Noel Francisco argued that Williamson County should be interpreted in a way that avoids the catch-22 by reasoning that the state exhaustion requirement only applies to cases brought under … the federal statute authorizing law suits for violations of constitutional rights … but not ones brought to federal court under … the law giving federal courts jurisdiction over ‘all civil actions arising under the Constitution, laws, or treaties of the United States.’

“This argument makes little sense, because nothing in Williamson County distinguishes the two types of cases. [Regulatory] law expert Robert Thomas analogized the solicitor general’s argument to Star Trek producers’ lame attempts to “retcon” an in-universe explanation of why Klingons’ foreheads looked very different in later movies and TV series, beginning with Star Trek: The Next Generation, than in the original 1960s TV version (the real explanation was a bigger makeup and special-effects budget).” (159)

Somin is referencing Thomas’s analysis of Knick v. Township of Scott in a 2018 post on his personal blog, which is law-related but not official. The post is titled “Knick And Klingon Foreheads: Retconning Williamson County.” Thomas writes:

“And now having gone back and reviewed the SG’s difficult-to-comprehend argument, we are reminded of retconning. Because it seems to reach back and question the “continuity” of what were, we thought, “established facts.” 

“So the bottom line of the SG’s brief is this: Knick’s situation presents no federal claim sufficient to trigger federal jurisdiction … but there’s enough of a federal issue lurking about in a state … claim to trigger federal jurisdiction. Klingon foreheads, man.”

Thomas playfully but unfortunately cites Wikipedia for an incorrect definition of ‘retcon’: “a literary device in which established facts in a fictional work are adjusted, ignored, or contradicted by a subsequently published work which breaks continuity.”

The Wikipedia entry in turn cites a 2007 Telegraph article “One of these comic heroes really is dead” in which the author Sam Leith gets the definition of retconning correct. Describing the world of comics in which Captain America had just (temporarily) died, Leith writes:

“One of the main tricks is ‘retconning’ – that is, making retrospective continuity alterations, more or less subtle versions of saying ‘he wasn’t killed in the explosion, he was just, um, buried under a pile of rubble and lost his memory for 40 years, but now he’s back’.

Despite how the crowd-sourced Wikipedia page summarizes Leith, the described contradiction doesn’t break continuity. It retroactively reveals that continuity wasn’t what we all thought it was in order to avoid breaking it. That’s the opposite of ignoring established facts.

When Captain America returned a year after what is revealed to have been only his apparent death, Marvel illustrated Leith’s point: the gun used to kill him didn’t actually kill–the Doctor Doom technology instead unstuck him in time, allowing him to be rescued by his superhero pals.

As Somin mentioned, Thomas prefers Star Trek:

“compare the real-world explanation for why the 1960’s Star Trek show’s Klingons didn’t have butt heads, but the later-produced shows and movies did. The real-world reason was that the TV show had a bare-bones budget, so couldn’t afford the required intricate make-up. The later-produced stuff, having larger budgets, could. But to those concerned with an in-universe explanation that had to line up with the production realities, it turned out to be a big source of contention. Fandom as well as the later shows’ writers struggled to come up with a narrative that accounted for both Klingons with butt heads, and those without.” 

Thomas’s description suffers from a subtle form of retconning itself. Since the intricate Klingon make-up was created for the 1979 Star Trek: The Motion Picture, it did not exist during the TV show’s 1966-69 run. Though it’s also true that the original series operated on a much lower budget, Thomas would be equally wrong if he claimed that the reason that I do not now drive a 2031 Rolls Royce is because I can’t afford one. I predict that if such a thing as a 2031 Rolls Royce comes into existence it will be out of my price range, but that is not the primary reason why I do not currently own one. Thomas, presumably accidentally, retcons the idea of later Klingon make-up into an earlier decade treating it as though its use on the TV show were possible and even desirable but prohibitively expensive.

This case of retconning, even as an exemplar of bad retconning, avoids the even more aesthetically unpleasant recognition that Star Trek: The Motion Picture and all of the films and TV shows that followed it are not sequels of the original TV series. They are reboots. Or rather Star Trek: The Motion Picture is a reboot, and all that follow are sequels of it. Of course, the world of Star Trek: The Motion Picture is extremely similar to the world of the original TV series, but since no retcon can adequately explain how a planet’s population changed physical appearance in the course of an unnoticed decade, they are distinct worlds. And since later prequels insert variations of the 1979 Klingon make-up into the universe’s past, it now seems no change in appearance happened there at all. Even specific Klingon characters who appeared on the original TV show appear in later shows with ridged foreheads.

Regardless, Thomas’s use of ‘retcon’ in a legal context is strictly pejorative, what Somin summarized as “lame attempts.” His point is that the solicitor general attempted to insert a point of law retroactively, pretending that his newly devised distinction always existed. Because it clearly did not always exist, his retcon is rejected. The past existence of the new distinction could only be accomplished through a reboot, something as anathema to law as to Star Trek fandom.

Blackman also identifies the appearance of the word ‘retcon’ in three recent court cases—which I hope to explore next week.

You really just never know what’s happening in a student’s head.

I got my first full-time teaching job around 1990, a split position in a New Jersey high school, with one eighth-grade class in the middle school down the suburban road. There were maybe fifteen students in the room, and I still remember three of them pretty well. Apparently one of them remembers me too.

This email appeared in my inbox last spring:

“There is little chance you’ll recall, but you were my 8th grade English teacher back at Edison Intermediate School in Westfield, NJ. Your class was one of the places I learned to fall in love with literature and literacy, particularly developing as a writer. It stayed with me, and it helped guide me towards work as a journalist and now an educator.  I’ve always wanted to say thank you.

“I have a number of memories from your class – for example, our acting out Romeo and Juliet – but what I remember most is that you encouraged me to see myself as a writer and to write about what I wanted – even if my 8th-grade self mainly wanted to write gory stories.  😊

“I’m reaching out because I’m about to publish a book on middle and high-school literacy instruction, and I wanted to send you a copy as a way of thanking you. It’s a small gesture, but I hope it signals my lasting appreciation for the difference you made in my life.”

I responded:

“What a pleasure to hear from you! I do in fact remember you—you and only two other students from that class, so take that as a compliment. That was my first year teaching too, so an especially important one for me too. You really never know what kind of impact you have on students, so it’s very kind of you to contact me after all of these years. I’d meant to do the same for an influential high school teacher I’d had, but never did. Honestly, it’s incredible that I had any influence on you, let alone the one you describe below. And it sounds like you’ve been up to many impressive things—I would be delighted to have a copy of your book…. I look forward to reading it, and a huge congratulations to you on the publication.”

And Steve responded:

“You know, years back when I was at WHS, they announced you’d moved away. I went to the office to ask for your address to write you a thank you note, but I chickened out. I’m glad to be able to correct that so many years later.

“I’m so happy I get to share a copy of this with you.  If you ever make it back to the NYC area, let me know!  My wife and I bought a home in Maplewood, so not too far from the city (or Westfield, for that matter).”

Over the summer, Stephen Chiger and Paul Bambrick-Santoyo’s Love & Literary: A Practical Guide for Grades 5-12 to Finding the Magic in Literature arrived in my mailbox.

Steve taught high school English for a decade, winning the 2015 Educator of the Year award from the New Jersey council of Teachers of English, and he’s now a director of literacy for Uncommon Schools, training thousands of other teachers. Which is to say he has far far surpassed me. And his practical guide is NOT the kind of textbook that was available when I was getting my masters and teaching accreditation over three decades ago.

The introduction opens with a sample class discussion of Atwood’s The Handmaid’s Tale, with students probing whether Offred had a choice to have sex with the commander. It’s at a level of conversation I strive for in my college seminars. The first chapter continues with an epigraph and then book excerpt by Toni Morrison, before contrasting two 11th grade reading lists. The first looks a lot like the 1980s-era curriculum I read (or, alas, skimmed) as a high schooler: Hardy, Homer, Steinbeck, Wordsworth, Dickens, Shakespeare. Steve and Paul suggest using the equally rigorous second list: Hurston, Homer, Lahiri, Kaminisky, Allende, Baldwin, Shakespeare. Graphic memoirists Alison Bechdel and Marjane Satrapi earn mentions and an excerpt too.

The tone of the guide is pleasantly complex: it combines inspirational directives (“if you want students to grow, nourish them with challenging texts”) with no-nonsense practicality (“Asking students to read for claims presupposes a philosophy that we want to name: all texts–from Instagram posts to Victorian novels–make arguments”). It bridges those two poles with an impressive array of example lessons, providing both nuts-and-bolts specifics (“Slow down and reread–increase your annotations to every 2-3 lines”) and overarching aspiration (“Great discourse often feels magical to the observer, but there are no tricks at play. Skilled teachers know it takes loads of preparation for a discussion to run like clockwork”).

I could continue, but I feel both indirectly narcistic (is all my praise of Steve’s hard work just round-about self-congratulation?) and retroactively inadequate (the portrait of 6th-grade teacher Angela Thomas reveals just how much I was NOT doing back when Steve was a student in my classroom). Still, there are probably worse emotional check-and-balance combinations than pride and chagrin. And leaning into the pride just a little longer, I happily imagine myself in a long line of folks evoked in the Acknowledgements:

“We would also like to thank every teacher, professor, mentor, friend, and family member who pushed or nurtured us. It’s an admittedly long list, and we are both the better for it.”

I don’t actually remember teaching Romeo and Juliet in Steve’s class, but I do recall the open-topic creative-writing assignments. I suspect middle-school Steve was still mentally immersed in the Poe unit that preceded them. He has since clearly moved beyond “gory stories.”

This is the last (for now at least?) of my appropriation/transformation series. I made this one and two others (from Picasso and O’Keeffe paintings) to explore the ambiguous legal line that the U.S. court system (as well as Canada’s, England’s, and other nations’) continues to leave undefined when it comes to the (possible) fair use of images for new artworks. Klee’s painting is from 1922, so presumably beyond any copyright infringement statute.

And here are parts ONETWOTHREEFOUR, and FIVE of my fair use musings.

That block of text is my 2017 essay “Refining the Comics Form” published in European Comic Art, which has since evolved into my book manuscript The Comics Form: The Art of Sequenced Images, which I just finalized and submitted to Bloomsbury for copyedits today.

It includes a discussion of word-images:

“The word ‘word’ has at least two definitions. In alphabet-based writing, a word is a combination of letterforms, and it is a set of meanings including connotations linked to that combination of letterforms and experienced in a reader’s mind. Neither refers to a specific instance of a word’s appearance as an image, which may be termed a ‘word-image.’

The same chapter discusses word-image art, including extreme cases where “word-images’ non-linguistic qualities don’t add meaning to their linguistic content; they replace it.” In one example, the “layered words are not legible and so arguably are not word-images but the equivalent of paint strokes that produce the non-linguistic content. … Instead of word-image art, the page consists of images composed of word-images that are only minimally graphic when not layered to produce non-linguistic content.”

While letters-as-tiny-paint-strokes is already its own visual arts genre, I’ve been developing my own approach by exploring (yet again) the usefully limited yet somehow oddly expansive possibilities of MS Paint. The following images use the above text as both canvas and palette. I begin with the block and then select and scissor segments free-hand with the mouse, overlapping them either transparently (which creates white lines and spaces) or non-transparently (which creates darker lines and spaces).

I’m calling them “text-ures,” which is probably too corny. Each surpasses the adage: ” Every picture is worth a thousand words.”

The first stage direction in The Zombie Life begins: “As audience arrives, various objects can be seen arranged carefully on the mostly bare ‘seminar room’ stage.” The script went through many many developmental changes during the rehearsal process, but that sentence remained the same. Why? Because it didn’t need to change. Ultimately, what’s on the page doesn’t matter. But what those words allow to happen on an actual stage does.

Also, it’s literally not my job. My vague “arranged carefully” was all that Todd Labelle, Firehouse Theatre’s production designer, needed. He sketched this ground plan:

Which became this actual stage design:

The stage directions later describe the Therapist (the play is his seminar as he tries to convince the audience to convert to being zombies to avoid human pain) “laying out a smorgasbord of objects with a reverential attitude.” The “reverential” is an actor’s problem, but AC Wilson, Firehouse’s prop designer, had to take my “smorgasbord” of weird objects (Liquor bottle, Rifle, Condom package, Pussy hat, Confederate flag, Crucifix, Child’s doll, etc.) and acquire, adapt, and/or make actual objects for the Therapist to use:

Each object contains the memories and personality of its former owner before they became a zombie–which is how my sister and I answered the dramaturgical question (before she become the show’s director, Joan played the role of dramaturg during our months of drafting): How can these zombies speak?

My stage directions say not a word about what any of the characters are wearing. So Annette Hairfield, Firehouse’s costume designer, had to plumb the script for inspiration. We talked a lot during early production meetings about whether the Therapist was part of a larger corporation (Todd dubbed it ZombieCorp), but we decided that, no, this guy is just a lone lunatic. That nixed the idea of a ZombieCorp logo on the convert’s polo shirts. But it still left room for other possibilities.

Annette wrote after a meeting: “So…We talked about zombie inner human self being evident in progressive wear on their clothing.. What if Mother showed the staining on the abdominal area from touching her baby. Father’s pant pocket area from clinching his fists in his pockets or rubbing his palms on his upper thigh. Sex Worker knee and lower leg area from, well, we know what. Chef’s apron front area from wiping his hands . Mortician’s pant hem distressed from all the standing and walking at funerals. No specific thoughts about Nun just a progressive overall darkness.”

Small production choices also steered the text in slightly different directions, as when the Zombie Chefs became Zombie Butchers because of the meat cleaver and bloody apron:

Joan’s directorial approach is also physically focused, helping the cast learn ways of embodying themselves that seem to lead inevitably to declaring the words in the script. I now can’t image anyone other than these six actors being these six characters:

Ken Moretti, Shalandis Wheeler Smith, Keaton Hillman, PJ Freebourn, Marjie Southerland, Jacqueline Jones.

Rehearsals began in a nearby church basement (either very appropriate or very inappropriate for a play about zombies) where Joan and Dan Plehal, Joan’s long-time dance collaborator and the production’s movement director, developed movement vocabularies for the zombies as they changed characters and scenes. One section of the script was entirely Joan’s idea and focused on the zombies’ accidental discovery of a harmonica and an ensuing rendition of “When the Saints.”

My wife has called me a “promiscuous collaborator” (exact quote), so I find all of these choices exciting. Joel Bassin, Firehouse’s producing artistic director, paid me a high compliment when he said I wasn’t like other playwrights–you know, the ones who think their words are sacrosanct and that the theatre’s main job is to satisfy the playwright’s preferences (not an exact quote). I’m entering theater from the lonelier realm of fiction writing, one of the least collaborative art forms. Usually it’s just me and my laptop clacking away, so the idea of my words lurching off to inspire new kinds of creative mayhem is horrifyingly delightful.

Grace Brown, Firehouse’s stage manager, kept meticulous track of it all, sending detailed rehearsal notes after each rehearsal. They tell a dozen stories themselves:

“The rehearsal knife has been further dulled.”

“We have tentatively cut the condom wrapper and checkbook lines, and permanently cut the flag and rifle lines on pg.13 in the Objects Hold Memories section.”

“Please note we may need to use a thicker knife for the chef’s knife so that we can dull it down further or perhaps a different prop entirely for the chef. We discussed perhaps using a wooden spoon or a more blunt kitchen tool instead. We will further discuss.”

“Please note the bourbon bottle should have tea in it.”

“We discussed potentially moving the sound board from SL to SR and moving all objects with sound to the table on the same side of the stage as the sound board.”

“Ken will not be wearing socks so that he can just take off his shoes when he’s eaten.”

I did stage crew in high school, so I couldn’t help but notice all the work that Emma Avelis and Scott Shephardson, Firehouse’s crew, did behind the scenes too. (Spoiler Alert: the seminar doesn’t end as “carefully arranged” as it begins.)

My one non-textual contribution to the production was the poster design–not something playwrights usually do, but I’m a promiscuous dabbler too:

It was even a thrill to see the digital art take physical form:

The larger physical context matters too. One of the “dangerous objects” is a Confederate flag that triggers a Klansman group monologue performed with “I Wish I Was in Dixie Land” piped over the stage speakers (which you probably didn’t notice changed position from Todd’s original design sketch). Richmond is the former capital of the Confederacy, and the empty pedestal for General Robert E. Lee’s former statue on Monument Avenue is two blocks from the theater:

Lee exited on July 10th. The Zombie Life closes on August 29th.

%d bloggers like this: