Gregory Ablavsky, Stanford Law School, has posted Retconning the Law: A Reply to Prof. Nelson:
“The details of organization of the land system,” Henry Adams wrote in 1879, “implied much labor and minute attention, but they are not interesting.” Caleb Nelson and I evidently disagree with Adams. In my 2022 article Getting Public Rights Wrong, I argued that nineteenth-century administrative adjudication of private land claims unsettles the claim that vested property rights historically required judicial resolution. Prof. Nelson has now responded arguing that this history was, in fact, “consistent” with his framework.
I appreciate Nelson’s thorough and thoughtful engagement with my argument, and we agree on much. My core objection is that Nelson’s response is a retcon: a retroactive rewriting of the past to fit present narrative needs. Confronted with the private land claims, Nelson crafts a new exception: His framework, he now says, encompassed only “judicially cognizable” vested rights. But this new exception eliminates much of the value of Nelson’s original proposal, since it merely restates the test from Murray’s Lessee, the case his framework set out to clarify. It also turns a supposed limit on Congress into something closer to a drafting requirement. As for our other disagreements—whether imperfect titles were vested, the meaning of the California Land Act of 1851 and Botiller v. Dominguez—Nelson attempts to render the history “consistent” with his framework by positing distinctions largely unarticulated by the historical actors, plausible only by ignoring contrary evidence.
Our exchange also raises a larger question. If current doctrine turns on how nineteenth-century officials parsed perfect and imperfect titles in Sainte Genevieve and Natchitoches, Chief Justice Roberts’s mocking hypothetical about Kant and eighteenth-century Bulgaria has become serious business. That is not “ordinary lawyering,” as Baude and Sachs attempted to categorize uncovering the law of the past. It involves an ever-more sweeping, detailed, and technical inquiry into prior jurisprudence--ordinary history, you might call it. But relying on such fine-grained research to make law renders our law less transparent, less accessible, and more dependent on expert augury.
In the end, whatever the normative merits of Nelson’s framework as a solution to the problem of private rights, I don’t think he offers a faithful account of their framework—that is, of nineteenth-century jurisprudence. And if it takes over 30,000 words to try to explain away one “pocket” of law, perhaps that framework was never that coherent to begin with.