Introduction
Law’s authority rests, in part, on what it has learned not to say. When doctrines are taught and discussed without their historical origins, certain legal practices seem more acceptable or justified than a more complete accounting would yield.
A recent article, The Forgotten Face of “Our Federalism,” introduced the term “legitimacy laundering” to describe this phenomenon.
Erasure facilitates acceptance by legal actors and the public.
And acceptance legitimates authority.
This Essay develops that framework, bringing it to bear on Federal Courts pedagogy. The earlier article introduced legitimacy laundering through a single case, the buried origins of Younger v. Harris, recovering the racialized history of surveillance, censorship, and police violence that had washed away from the canon.
But while a single case can establish the phenomenon, it cannot show whether laundering is the idiosyncrasy of one celebrated decision or a recurring feature of how an entire field reproduces and justifies itself. This Essay supplies the larger canvas. It traces the phenomenon across the Federal Courts canon and, in the process, lifts legitimacy laundering from the reconstruction of one case’s buried origins into a general theory of both how legal knowledge is sanitized and how to guard against the resultant harm.
Erasure shapes doctrinal authority through two mechanisms. First, the cleansing of institutional memory aligns doctrine with prevailing norms. When we encounter a legal principle divorced from the harms it enabled, we lose crucial information about that doctrine’s capacity—and perhaps even propensity—for harm. Second, cleansed memory entrenches new norms; practices outside the sanitized narratives may appear aberrant or outside the boundaries of the nation’s tradition-laden ethos.
Recovering doctrines’ genealogies, then, can disrupt these two mechanisms by inviting critical scrutiny instead of rote acceptance.
Yet in the field of Federal Courts, the legal academy’s pedagogical choices systematically deny students and practitioners this knowledge. Through missing cases and context, federal jurisdiction pedagogy erases past harms, perpetuating legitimacy laundering. Casebooks and treatises systematically omit cases rooted in historical atrocities,
while key doctrines are taught without acknowledging how they enabled injustice. Starkly, the political question doctrine is presented without examining how judicial deference facilitated broken treaties with Native Nations,
race-based exclusion of Chinese individuals from the United States,
and Black voter disenfranchisement.
Moreover, when canonical cases with racialized origins are taught, we have often traditionally stripped them of context.
And importantly, some of these contextual absences reflect broader patterns of neglected sociopolitical context in the field’s canonical narratives about both Reconstruction and Jim Crow. Lost Cause narratives persist with insufficient critical reflection, while Jim Crow exceptionalism creates the misleading impression that federal jurisdictional limitations adequately protect against systemic rights abuses.
These narratives are further reinforced by a jurisprudential tradition that treats comity—the preservation of harmonious federal–state rel-ations—as a paramount neutral virtue, privileging institutional harmony between governments while dismissing the disharmony experienced by those left without meaningful remedies. Together, these narratives bolster the legal and sociological legitimacy of those doctrines and of the federal judiciary itself.
Beyond identifying erasure as pervasive in the field of Federal Courts, this Essay argues that two distinctive features of the field aid in institutional forgetting and resultant legitimacy building. First is the field’s origin story. Federal Courts emerged during a period of significant public anxiety about the expanding role of the federal judiciary in American life, particularly on matters of race. Some of the early debates about justiciability, abstention, and the political question doctrine centered on the propriety of avoiding contentious questions like the legality of racial segregation and bans on interracial marriage.
Second, jurisdiction’s reputation for neutrality masks its substantive choices.
Cheryl Harris argued in Whiteness as Property that law “masks what is chosen as natural” and “obscures the consequences of social selection as inevitable,” rendering “existing inequities . . . nearly invisible.”
Federal jurisdiction exemplifies this phenomenon. Its rules rely on unacknowledged value choices. While concepts like comity and judicial independence are framed as neutral, values like antisubordination are labeled substantive—despite all being contested constitutional principles. Just as Harris observed that an unequal “existing state of affairs” becomes “part of the natural order of things that cannot legitimately be disturbed,”
jurisdictional rules naturalize their substantive choices through claims of neutrality.
This Essay engages diverse bodies of scholarship to examine the harm that attends forgetting and ways to avoid that harm. It draws on memory studies scholarship showing that collective memory survives through institutional repetition,
philosophical literature demonstrating that ignorance is often actively produced rather than passively accumulated,
and constitutional theory tracing the strategic deployment of history in legal interpretation.
The analysis also builds on a growing body of legal pedagogy scholarship that has exposed patterns of erasure across the curriculum—from Criminal Law’s elision of mass incarceration
to Property’s disappearance of conquest
to Contract’s sanitization of slavery.
In recent years, this scholarship additionally examines how entire legal systems and peoples vanish from view
and how doctrinal categories mask exploitation.
Before continuing, the nomenclature used in this Essay merits explanation. Why “legitimacy laundering” rather than, say, “memory laundering,”
given that institutional memory is what is being erased? The term “legitimacy laundering” captures a specific transactional process: Dirty origins are cleansed in ways that produce clean authority. Memory serves as the medium through which this transaction occurs, but legitimacy constitutes the asset being generated and accumulated. Just as money laundering transforms illicit funds into apparently legitimate capital, legitimacy laundering transforms troubling historical foundations into doctrinal authority that faces less scrutiny than it otherwise might. What emerges from this process is a manufactured sense that these doctrines deserve deference facilitated, in part, through their untainted appearance.
In this model, legitimacy operates not as a binary—legitimate or illegitimate—but as a spectrum of acceptance and deference. Legal doctrines accumulate or shed legitimacy through ongoing processes of justification, application, and memory-making. A doctrine need not be wholly legitimate to command authority; it need only possess sufficient legitimacy to escape serious challenge.
This understanding reveals why legitimacy laundering proves so effective: Even partial cleansing can shift a doctrine along the spectrum from contested to accepted, from provisional to permanent, from political choice to neutral principle.
To be sure, legal doctrine’s legitimacy depends on multiple variables, including contemporary consequences, internal coherence, and administrability.
But it also depends on alignment with current values, and—this Essay’s focus—institutional memory of the doctrine’s historical origins.
Pedagogical omissions inflict concrete harms by perpetuating false narratives about doctrinal development, concealing jurisdiction’s capacity to facilitate democratic exclusion, obscuring when doctrines continue serving original subordinating functions, and violating dignity interests of those whose struggles undergird inherited frameworks. By exposing how institutional memory operates as an essential legitimacy variable, this Essay reveals how selective forgetting prevents the informed assessment that doctrinal legitimacy should require.
Part I develops the theoretical framework of “legitimacy laundering” to describe how jurisdictional doctrines increase legitimacy and gain authority by obscuring their troubling origins. The framework rests on two analogies that capture two distinct mechanisms. First, drawing an analogy to money laundering, this Part demonstrates how legal principles undergo placement (separation from problematic contexts), layering (creation of distance through successive applications), and integration (absorption into mainstream jurisprudence as neutral precedent). This analogy best describes the laundering of a case that remains in the canon. The decision stays in view, taught and cited, while the context that would compromise it is washed away until the holding reads as neutral. The second analogy is “evidence laundering” in policing, in which a tainted source is concealed by passing its product through a cleaner officer. Here the originating case drops out of the canon altogether, and the principle it produced is carried forward through later, more neutral citations, until it reaches contemporary doctrine with its source out of view.
Part I further examines how legal and sociological legitimacy sustains the authoritative power of legal doctrines. Part I then examines the moral economy of authority—showing how a case’s incompatibility with evolving normative values can transform it from influential to notorious, diminishing its precedential capital even as its doctrinal innovations persist through other channels. The analysis reveals how jurisdictional doctrines can maintain authority even when their originating cases become too morally tainted to cite directly, with their principles laundered through intermediate cases that obscure the problematic source.
Part II documents the systematic exclusion of race-salient cases from Federal Courts pedagogy, examining what gets taught, what gets omitted, and the narratives that frame what remains. Through analysis of leading casebooks, this Part reveals striking patterns: Landmark cases involving racial subordination like the Chinese Exclusion Case,
Lone Wolf v. Hitchcock,
and Giles v. Harris
are routinely excluded from discussions of the very doctrines they helped establish and construct. And when Reconstruction-era cases appear, they are often presented through Lost Cause narratives that obscure their role in dismantling civil rights protections.
The Part further critiques “Jim Crow exceptionalism”—the tendency to treat state-sanctioned racial oppression as uniquely Southern and historical rather than endemic and ongoing—showing how this framing enables contemporary erasures.
Part III examines why federal jurisdiction proves especially susceptible to legitimacy laundering, analyzing two distinctive features of the field that facilitate erasure. First, the field’s origins in an era of explicit racial avoidance—when architects like Felix Frankfurter and Alexander Bickel consciously crafted doctrines to sidestep “sensitive” racial questions—established foundational norms that persist in contemporary practice. Second, the field’s persistent claims to procedural neutrality mask substantive choices about whose rights deserve protection and whose harmony counts when courts invoke “comity” to decline jurisdiction.
Part IV develops diagnostic principles for identifying when pedagogical omission becomes harmful legitimacy laundering. Guided throughout by Charles Mills’s insight that in societies structured by domination, manufactured ignorance is an “active deed” in facilitating that domination,
it offers four considerations. These are whether exclusions perpetuate false narratives shaping doctrinal development; whether they conceal doctrine’s capacity for facilitating democratic exclusion; whether the doctrines enable the subordination they were designed to serve; and whether they amount to complicity in dishonoring the dignity and legacy of individuals who experienced and resisted atrocity and erasure. Drawing on parallel patterns of strategic erasure identified in Criminal Law, Property, and Contracts scholarship, this Part provides a framework for distinguishing when curatorial choices are most apt to cause harm.