Retconning The Law: A Reply To Prof. Nelson

*Marion Rice Kirkwood Professor of Law, Stanford Law School; Professor of History by Courtesy, Stanford University. I am grateful to Jud Campbell, Jonathan Gienapp, Bernie Meyler, Caleb Nelson, and the participants of the Stanford Law faculty workshop for feedback. Thanks to Marcus Ellinas for outstanding research assistance.Show More

Introduction

I want to start by thanking Caleb Nelson for his deep engagement with my article. Scholars always hope that people will read their work, but I did not anticipate that I would have a fellow traveler on my strange dive into the particularities of nineteenth-century land law. “The details of organization of the land system,” the historian Henry Adams wrote in 1879, “implied much labor and minute attention, but they are not interesting.”¹ 1.Henry Adams, The Life of Albert Gallatin 299 (Peter Smith 1943) (1879).Show More

I was ambivalent whether to reply to Nelson’s response for the reason that Adams flagged—who would find it interesting or worthwhile? I was not surprised that my evidence failed to persuade Nelson; indeed, I anticipated this outcome in my original piece.² 2.See Gregory Ablavsky, Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277, 347–48 (2022).Show More Equally unsurprisingly, I stand by my original conclusions. But scholars claiming that they are right is decidedly “not interesting.”³ 3.Adams, supra note 2, at 299.Show More

I was surprised, and impressed, by the seriousness with which Nelson took my critique and the history I cited. Surprised, because, though I invoked Nelson’s work as the best example of a framework that I thought my evidence questioned,⁴ 4.Ablavsky, supra note 3, at 282.Show More most of the article was targeted at statements by the Supreme Court, and I only cited Nelson nine times.⁵ 5.Id. at 282 nn.16–18, 283 n.23, 288 n.48, 320 n.236, 322 n.254, 323 nn.255 & 259.Show More Impressed because I know firsthand the “labor and minute attention”⁶ 6.Adams, supra note 2, at 299.Show More this research requires, and so I genuinely appreciate Nelson’s willingness to follow me into this tangled history. Moreover, as Nelson himself notes, he and I actually agree about much of the history, even if we disagree about some of the conclusions it supports.⁷ 7.See, e.g., Caleb Nelson, Did I Get Public Rights Wrong?, 112 Va. L. Rev. 661, 724 (2026).Show More But admiration and agreement are perhaps even more tedious to read.

Finally, much of this debate turns on obscure law and technical legal distinctions. Relitigating each historical example in the same detail as either my original 30,000-plus-word article or Nelson’s 30,000-plus-word reply—even if I had the room to do so, which I don’t—would not make for gripping reading, either.

I am also not naïve about the broader stakes or context. I had little expectation at the outset that my history would meaningfully unsettle a hardening originalist consensus around the meaning and significance of public and private rights. I have even less hope that an exchange with Nelson will change many minds in what has become yet another polarized public law conversation: I see little cause for optimism in the interminable debates over the historical pedigree of, say, the non-delegation doctrine.⁸ 8.This literature is too vast to comprehensively survey. For an overview of the debate, see Julian Davis Mortenson & Nicholas Bagley, Essay, Delegation at the Founding: A Response to the Critics, 122 Colum. L. Rev. 2323, 2324 nn. 1–2 (2022).Show More

I nonetheless decided to write this response for three reasons. First, I felt it important to repay the courtesy that Nelson showed in taking my arguments seriously.⁹ 9.Space, as well as inclination, means that I cannot emulate Nelson’s fondness for parentheticals. In any event, I think the key disagreements between us are not about the weight of the evidence but its interpretation and significance.Show More Second, I thought that our conversation might highlight important methodological disagreements in thinking through historical evidence. Third, several scholars said they found my original article useful as a guide to nineteenth-century property doctrine, and so perhaps further spelunking in the historical intersection between property and public law might be helpful.

If you’ve gotten this far, you’re presumably aware of the private land claims, as both my original article and Nelson’s response describe them in detail. If you’re just joining this conversation, very briefly, the claims were land grants from prior European empires and Mexico that the United States promised to honor when those sovereigns ceded territory to the United States. The federal government generally resolved them through boards of commissioners that, depending on the statute, either reported on them to Congress, provided for federal court involvement, or made the boards’ determinations final. The core of the dispute between Nelson and me is that I argue that these procedures question the assertion that core vested rights to property could not be subject to administrative resolution; he disagrees.

I aim to do two things in this response. First, I want to expand beyond my original article and offer some broader thoughts on the place of history in constitutional debate more generally. Second, I will flag where, despite important agreements on much of the law governing the private land claims, Nelson and I still disagree about the evidence and its import. Here, I’ll focus on three questions: Were the private land claims vested? What is the significance that the private land claims were not judicially cognizable absent congressional action? And how should we interpret the California Land Act of 1851? In each of these instances, I find Nelson’s efforts to explain away contrary evidence implausible.

I also have two more general points of disagreement with the framing of Nelson’s response. First, his approach fits within a well-established game—the game of doctrine and litigation.¹⁰ 10.I borrow the “game” metaphor from my colleague Jonathan Gienapp. SeeJonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era 8–9 (2018).Show More In that game, you advance a theory of the case that supports your position, adduce evidence, and attempt to distinguish the evidence that seems to contradict your position. Hence why Nelson repeatedly says that various pieces of historical evidence are “consistent” with the framework in his original article, in that they don’t contradict it.¹¹ 11.See, e.g., Nelson, supra note 8, at 695, 698 n.136, 718, 720, 722; see also id. at 711 (describing the effect of land confirmations on later federal grants as “not inconsistent with the framework I described”).Show More And the thing about litigation is that, if the litigants have done their jobs well, both positions are plausible. Here, I will happily concede that, if you accept all the distinctions that Nelson has crafted and resolve all evidentiary ambiguities in his favor, the history I recounted can be massaged to fit his earlier account.

That result would be fine if Nelson’s framework was, indeed, his framework: that is, rooted in what he regards as the best reading of the applicable law. And perhaps he’d be right: I am no expert on what the correct law governing non-Article III adjudication should be.

The problem, however, is that he argues that this approach is not actually his framework, but that of nineteenth-century American jurists, legislators, and lawyers. This requires a slightly different game—the game of history. It, too, involves making claims that best fit the evidence. But to play this game, you must do more than just show that current law is consistent with the history; you have to show that what you’re recounting is, in fact, their law, not your law.¹² 12.I articulated this concern in my original article, too. Ablavsky, supra note 3, at 348 (expressing concern about “attempt[ing] to cram the past into present-day jurisprudential assumptions”).Show More

And here, in my view, is where Nelson’s account fails to persuade. His historical account does not seem to me a plausible explanation of the evidence. Nelson is unquestionably correct when he suggests that most mid-nineteenth-century jurists thought that some category of legal rights could not be subject to administrative adjudication. But what those rights were, how they were defined, what the relevant limitations were, and how the rules changed over the nineteenth century were all hotly contested, with little resembling a coherent framework. Indeed, instead of providing clarity, Nelson’s response now proposes new, further distinctions and exceptions to try to explain away my evidence.

Hence why I have entitled this response “retconning the law,” a perhaps unfamiliar title that may reveal the generational divide between Nelson and me. The term “retcon”—short for retroactive continuity—describes when authors go back and alter the past to make it fit current narrative needs.¹³ 13.A Short History of ‘Retcon,’ Merriam-Webster, https://www.merriam-webster.com/word‌play/retcon-history-and-meaning [https://perma.cc/YH3X-VHH3] (last visited Sep. 30, 2026).Show More Though the term largely arose in the context of comic books and television shows,¹⁴ 14.Id.Show More law engages in its own form of retconning, in which judges and lawyers who want to construct a story about the connection between past and present construct their own stylized narratives. But “retcon” is rarely a term of approbation, and for good reason: as Merriam-Webster notes, a retcon facilitates “a general disregard for reality.”¹⁵ 15.Id.Show More We should be still more concerned about efforts to rewrite historical categories to serve present narrative needs when it involves real power and actual people, not just Chewie and Han Solo.

The second divergence concerns how Nelson characterizes my intervention. He casts the private land claims as a “pocket of law”;¹⁶ 16.Nelson, supra note 8, at 725.Show More he also describes them as different from “normal vested rights.”¹⁷ 17.Id. at 681.Show More The implication is that I have unearthed a minor “alleged counterexample”¹⁸ 18.Id. at 665.Show More to his overall framework.

This, in my view, is doubly wrong. First, it is anachronistic. I have a pet peeve about the term “normal” in characterizing law, since it arrogates to the interpreter the power to decree the norm and then to cast less helpful material as exceptional.¹⁹ 19.Gregory Ablavsky, Sovereign Metaphors in Indian Law, 80 Mont. L. Rev. 11, 40 (2019) (“[T]he language of exception and anomaly does more: it smuggles in ideas about legitimacy.”).Show More To be sure, just like every area of law, the private land claims were distinctive. But they were both highly important and one of the key ways that the federal government governed property in the nineteenth century. You cannot sideline hundreds of Supreme Court decisions, let alone the enormous amount of legislative and congressional attention that they consumed, as a minor part of nineteenth-century American jurisprudence. I may be wrong about their meaning, but I don’t think there is a serious question about their significance.

Second, I understood the claims not as a counterexample but as a test case: a deep dive into one important area where federal adjudication intersected with property to see how this distinction between public and private rights held up. As both of our articles suggest, getting this material right takes lots of work and careful attention. Nelson seems to interpret this targeted approach as an acceptance of the validity of his framework applied to other areas. In fact, I’m skeptical. A large literature, including Nelson’s own work, exists to try to make sense of the so-called “historical exceptions” to the limits on non-Article III federal tribunals, a category that conventionally includes courts-martial, the territorial courts, and perhaps bankruptcy and tax courts, but also encompasses a whole host of less familiar courts, that all adjudicated private rights.²⁰ 20.Overviews of non-Article III courts appear in William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511 (2020); Laura K. Donohue & Jeremy McCabe, Federal Courts: Article I, II, III, and IV Adjudication, 71 Cath. U. L. Rev. 543 (2022); John M. Golden & Thomas H. Lee, Congressional Power, Public Rights, and Non-Article III Adjudication, 98 Notre Dame L. Rev. 1113 (2023); James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 Harv. L. Rev. 643 (2004). On military courts, see Stephen I. Vladeck, Military Courts and Article III, 103 Geo. L.J. 933, 939–45 (2015); David A. Schlueter, The Court Martial: An Historical Survey, 87 Mil. L. Rev. 129, 145–50 (1980). On international tribunals, see Marco Basile, Lincoln’s Commissioners on the International Slave Trade Courts at Sierra Leone, 10 J. Civ. War Era 160 (2020); Eugene Kontorovich, The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals, 158 U. Pa. L. Rev. 39, 43–44 (2009); Jenny S. Martinez, International Courts and the U.S. Constitution: Reexamining the History, 159 U. Pa. L. Rev. 1069, 1075–80 (2011); Henry Paul Monaghan, Article III and Supranational Judicial Review, 107 Colum. L. Rev. 833 (2007). On the consular courts, see Donohue & McCabe, supra, at 601–02; Eugene Kontorovich, Essay, Three International Courts and Their Constitutional Problems, 99 Cornell L. Rev. 1353, 1375–76 (2014). On territorial courts, see Gary Lawson & Guy Seidman, The Constitution of Empire: Territorial Expansion and American Legal History 139–50 (2004). On federal commissioners under the Fugitive Slave Act of 1850, see Baude, supra, at 1555; Jeffrey M. Schmitt, The Antislavery Judge Reconsidered, 29 Law & Hist. Rev. 797, 803–09 (2011). On non-Article III adjudication in federal enclaves, see Stephen I. Vladeck, Petty Offenses and Article III, 19 Green Bag 2d 67, 74–78 (2015).Show More And this perspective does not include additional courts that barely feature in the current literature on non-Article III tribunals like the courts of Indian offenses,²¹ 21.SeeDenezpi v. United States, 142 S. Ct. 1838, 1849–51 (2022) (Gorsuch, J., dissenting) (recounting the late nineteenth-century creation of the courts and querying “how an executive agency can claim the exclusive power to define, prosecute, and judge crimes”). On the history of these courts, see William T. Hagan, Indian Police and Judges: Experiments in Acculturation and Control (1966); Alexandra Fay, Courts of Indian Offenses, Courts of Indian Resistance, 124 Mich. L. Rev. 777 (2026). In my research on the history of federal Indian law, I have in fact encountered other non-Article III tribunals that arguably adjudicated private rights, most notably the Department of the Interior’s tribunal to adjudicate Native allottees’ probate rights, see Hallowell v. Commons, 239 U.S. 506 (1916). Whether the Choctaw-Chickasaw Citizenship Court involved private rights seems a closer question. See Wallace v. Adams, 204 U.S. 415, 422–23 (1907) (suggesting that in determining citizenship the court was not deciding a “vested right” but merely “privileges”).Show More Freedmen’s Bureau Courts,²² 22.Amalia D. Kessler, Inventing American Exceptionalism:The Origins of American Adversarial Legal Culture, 1800–1877, at 263–322 (2017); John M. Bickers, The Power to Do What Manifestly Must Be Done: Congress, the Freedmen’s Bureau, and Constitutional Imagination, 12 Roger Williams U. L. Rev. 70, 75, 84 (2006); Bernice B. Donald & Pablo J. Davis, “To This Tribunal the Freedman Has Turned”: The Freedmen’s Bureau’s Judicial Powers and the Origins of the Fourteenth Amendment, 79 La. L. Rev. 1, 16–17 (2018); Zachary Newkirk, A Brief Moment in the Sun: The Reconstruction-Era Courts of the Freedmen’s Bureau, 101 Judicature, no. 4, 2017, at 49, 52.Show More and federal commissioners under the Fugitive Slave Act.²³ 23.I had long been surprised by the absence of substantial attention to the Fugitive Slave Act in this context—and then, while I was crafting this response, two important articles appeared. A student note explored the Act’s implications for the public rights doctrine, noting that the Act authorized non-Article III federal commissioners to finally adjudicate “an individual’s liberty and a slaveholder’s asserted property right.” Scott Jones, Note, The Fugitive Slave Act of 1850: A Public-Rights Paradox, 135 Yale L.J. 1768, 1811 (2026). And a forthcoming law review article suggests that Justice Curtis’s opinion in Murray’s Lessee was motivated partly to vindicate the Fugitive Slave Act’s adjudicatory provisions. Ryan C. Williams, Murray’s Lessee, Non-Article III Adjudication, and the Fugitive Slave Act of 1850, 102 Notre Dame L. Rev. (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7541683 [https://pe‌rma.cc/L8FY-S7W8].Show More

Whether all these courts are consistent with Article III is hotly contested, with arguments back and forth. My view of this debate echoes my concerns with Nelson’s response. Of course clever scholars can craft all sorts of present-day explanations as to why these historical examples are consistent with a formalist vision of Article III (or are perhaps just outliers that can be ignored). But in every instance in which I have dug into the underlying evidence, the effort to make these courts fit a formalist account felt, at best, a partial and tendentious interpretation of the historical record. At some point, these attempts to cram unruly history into tidy categories start to seem like so many just-so stories motivated less by a desire to understand the past than by a vision of how scholars wish the law to be now. Perhaps, if you’re spending all your time distinguishing away contrary evidence on all sides, you should start to wonder if the framework is all that plausible in the first place.

1.  Henry Adams, The Life of Albert Gallatin 299 (Peter Smith 1943) (1879). ↑
2.  See Gregory Ablavsky, Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277, 347–48 (2022). ↑
3.  Adams, supra note 2, at 299. ↑
4.  Ablavsky, supra note 3, at 282. ↑
5.  Id. at 282 nn.16–18, 283 n.23, 288 n.48, 320 n.236, 322 n.254, 323 nn.255 & 259. ↑
6.  Adams, supra note 2, at 299. ↑
7.  See, e.g., Caleb Nelson, Did I Get Public Rights Wrong?, 112 Va. L. Rev
   

   .

   661, 724 (2026). ↑

8.  This literature is too vast to comprehensively survey. For an overview of the debate, see Julian Davis Mortenson & Nicholas Bagley, Essay, Delegation at the Founding: A Response to the Critics, 122 Colum. L. Rev. 2323, 2324 nn. 1–2 (2022). ↑
9.  Space, as well as inclination, means that I cannot emulate Nelson’s fondness for parentheticals. In any event, I think the key disagreements between us are not about the weight of the evidence but its interpretation and significance. ↑
10.  I borrow the “game” metaphor from my colleague Jonathan Gienapp. See Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era
    

    8–9

    (2018). ↑

11.  See, e.g., Nelson, supra note 8, at 695, 698 n.136, 718, 720, 722; see also id. at 711 (describing the effect of land confirmations on later federal grants as “not inconsistent with the framework I described”). ↑
12.  I articulated this concern in my original article, too. Ablavsky, supra note 3, at 348 (expressing concern about “attempt[ing] to cram the past into present-day jurisprudential assumptions”). ↑
13.  A Short History of ‘Retcon,’ Merriam-Webster, https://www.merriam-webster.com/word‌play/retcon-history-and-meaning [https://perma.cc/YH3X-VHH3] (last visited Sep. 30, 2026). ↑
14.  Id. ↑
15.  Id. ↑
16.  Nelson, supra note 8, at 725. ↑
17.  Id. at 681. ↑
18.  Id. at 665. ↑
19.  Gregory Ablavsky, Sovereign Metaphors in Indian Law, 80 Mont. L. Rev. 11, 40 (2019) (“[T]he language of exception and anomaly does more: it smuggles in ideas about legitimacy.”). ↑
20.  Overviews of non-Article III courts appear in William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511 (2020); Laura K. Donohue & Jeremy McCabe, Federal Courts: Article I, II, III, and IV Adjudication, 71 Cath. U. L. Rev. 543 (2022); John M. Golden & Thomas H. Lee, Congressional Power, Public Rights, and Non-Article III Adjudication, 98 Notre Dame L. Rev.
    

    1113 (2023);

    James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 Harv. L. Rev. 643 (2004). On military courts, see Stephen I. Vladeck, Military Courts and Article III, 103 Geo. L.J. 933, 939–45 (2015); David A. Schlueter, The Court Martial: An Historical Survey, 87 Mil. L. Rev. 129, 145–50 (1980). On international tribunals, see Marco Basile, Lincoln’s Commissioners on the International Slave Trade Courts at Sierra Leone, 10 J. Civ. War Era 160 (2020); Eugene Kontorovich, The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals, 158 U. Pa. L. Rev. 39, 43–44 (2009); Jenny S. Martinez, International Courts and the U.S. Constitution: Reexamining the History, 159 U. Pa. L. Rev. 1069, 1075–80 (2011); Henry Paul Monaghan, Article III and Supranational Judicial Review, 107 Colum. L. Rev. 833 (2007). On the consular courts, see Donohue & McCabe, supra, at 601–02; Eugene Kontorovich, Essay, Three International Courts and Their Constitutional Problems, 99 Cornell L. Rev. 1353, 1375–76 (2014). On territorial courts, see Gary Lawson & Guy Seidman, The Constitution of Empire: Territorial Expansion and American Legal History 139–50 (2004). On federal commissioners under the Fugitive Slave Act of 1850, see Baude, supra, at 1555; Jeffrey M. Schmitt, The Antislavery Judge Reconsidered, 29 Law & Hist. Rev. 797, 803–09 (

    2011).

    On non-Article III adjudication in federal enclaves, see Stephen I. Vladeck, Petty Offenses and Article III, 19 Green Bag 2d 67, 74–78 (2015). ↑

21.  See Denezpi v. United States, 142 S. Ct. 1838, 1849–51 (2022) (Gorsuch, J., dissenting) (recounting the late nineteenth-century creation of the courts and querying “how an executive agency can claim the exclusive power to define, prosecute, and judge crimes”). On the history of these courts, see William T. Hagan, Indian Police and Judges: Experiments in Acculturation and Control (1966); Alexandra Fay, Courts of Indian Offenses, Courts of Indian Resistance, 124 Mich. L. Rev.
    

    777

    (2026). In my research on the history of federal Indian law, I have in fact encountered other non-Article III tribunals that arguably adjudicated private rights, most notably the Department of the Interior’s tribunal to adjudicate Native allottees’ probate rights, see Hallowell v. Commons, 239 U.S. 506 (1916). Whether the Choctaw-Chickasaw Citizenship Court involved private rights seems a closer question. See Wallace v. Adams, 204 U.S. 415, 422–23 (1907) (suggesting that in determining citizenship the court was not deciding a “vested right” but merely “privileges”). ↑

22.  Amalia D. Kessler, Inventing American Exceptionalism:
    

    The Origins of American Adversarial Legal Culture, 1800

    –1877

    , at 263–322 (2017); John M. Bickers, The Power to Do What Manifestly Must Be Done: Congress, the Freedmen’s Bureau, and Constitutional Imagination, 12 Roger Williams U. L. Rev. 70, 75, 84 (2006); Bernice B. Donald & Pablo J. Davis, “To This Tribunal the Freedman Has Turned”: The Freedmen’s Bureau’s Judicial Powers and the Origins of the Fourteenth Amendment, 79 La. L. Rev. 1, 16–17 (2018); Zachary Newkirk, A Brief Moment in the Sun: The Reconstruction-Era Courts of the Freedmen’s Bureau, 101 Judicature, no. 4, 2017, at 49,

    52.

    ↑

23.  I had long been surprised by the absence of substantial attention to the Fugitive Slave Act in this context—and then, while I was crafting this response, two important articles appeared. A student note explored the Act’s implications for the public rights doctrine, noting that the Act authorized non-Article III federal commissioners to finally adjudicate “an individual’s liberty and a slaveholder’s asserted property right.” Scott Jones, Note, The Fugitive Slave Act of 1850: A Public-Rights Paradox, 135 Yale L.J. 1768, 1811 (2026). And a forthcoming law review article suggests that Justice Curtis’s opinion in Murray’s Lessee was motivated partly to vindicate the Fugitive Slave Act’s adjudicatory provisions. Ryan C. Williams, Murray’s Lessee, Non-Article III Adjudication, and the Fugitive Slave Act of 1850, 102 Notre Dame L. Rev. (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7541683 [https://pe‌rma.cc/L8FY-S7W8]. ↑