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The Patron Saint of Superheroes

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

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.

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