LEGITIMACY LAUNDERING

LEGITIMACY LAUNDERING

Federal jurisdictional doctrines have served as instruments of racial subjugation, territorial dispossession, and sanctioned violence. Yet this pattern is absent from how Federal Courts doctrine is taught. Leading casebooks exclude cases like the Chinese Exclusion Case, Lone Wolf v. Hitchcock, and Giles v. Harris from the political question canon. Reconstruction-era cases are taught without the Lost Cause narratives that imbue them, while Jim Crow exceptionalism wrongly implies that state-sanctioned racial oppression was uniquely Southern and historical rather than endemic and ongoing.

This Essay develops “legitimacy laundering” to describe how such erasures enhance doctrinal and institutional authority. Like money laundering, legitimacy laundering operates through placement (separating doctrines from problematic origins), layering (creating citational distance through complex applications), and integration (incorporating sanitized principles into mainstream jurisprudence as neutral precedent). And like evidence laundering, in which one officer passes tainted evidence to another to obscure its origins, doctrines get passed along without acknowledging their source.

Federal Courts’ distinctive features, its origins and persistent claims of neutrality, are especially conducive to this process. The field’s architects, including Felix Frankfurter and Alexander Bickel, crafted jurisdictional doctrines to avoid “sensitive” racial questions like school integration and interracial marriage.

This Essay concludes with diagnostics for identifying harmful pedagogical omissions: whether they perpetuate false narratives, conceal doctrine’s capacity for democratic exclusion, replicate designed subordination, or inflict posthumous harm. It argues that recovering erased voices, those whose resistance to injustice helped construct the jurisdictional tools we inherit, illuminates doctrine’s harmful capacities and its transformative possibilities.

The full text of this Essay can be found by clicking the PDF link to the left.

Introduction 1 This Essay is largely addressed to the legal academy and concerns Federal Courts pedagogy and scholarship. As such, it refers to numerous scholars (including law professors) throughout by first and last name without titles.

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. 2 See Fred O. Smith, Jr. & Peter O’Neill, The Forgotten Face of “Our Federalism”, 135 Yale L.J. 17, 26 (2025) [hereinafter Smith & O’Neill, Forgotten Face] (“Legitimacy laundering refers to circumstances in which the substantive content and ramifications of a case are veiled in ways that contribute to a doctrine or institution’s acceptance.”); see also Shirin Sinnar, The Lost Story of Iqbal, 105 Geo. L.J. 379, 384 (2017) (“When a procedural decision such as Iqbal is disseminated without sufficient critique of its substance, the decision can affect broader understanding of the legitimacy of the state practices at issue.”). Shirin Sinnar’s groundbreaking analysis focuses on how procedure legitimated the substantive practices challenged in Iqbal; the United States government was alleged to have detained individuals based on religion and race. Id. at 385. Forgotten Face “highlights the inverse relationship: how procedural doctrines themselves are legitimized through the erasure of their troubling contexts and consequences.” Smith & O’Neill, Forgotten Face, supra, at 95 n.554. A recent article, The Forgotten Face of “Our Federalism,” introduced the term “legitimacy laundering” to describe this phenomenon. 3 Smith & O’Neill, Forgotten Face, supra note 2, at 94–100. As observed there, “[c]ulpability for this kind of laundering can rest with courts, commentators, or both, and it can occur intentionally or negligently.” Id. at 26. Erasure facilitates acceptance by legal actors and the public. 4 See Mary L. Dudziak, The Case of “Death for a Dollar Ninety-Five”: Miscarriages of Justice and Constructions of American Identity, in When Law Fails: Making Sense of Miscarriages of Justice 25, 26 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2009) (writing that “the erasure of the person from the law is more than a hole” but also “aids in the forward-looking construction of ideas about the nature of American justice”); Kendall Thomas, Rouge et Noir Reread: A Popular Constitutional History of the Angelo Herndon Case, 65 S. Cal. L. Rev. 2599, 2688 (1992) (interrogating “structured absences”); see also Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 4–10 (1983) [hereinafter Cover, Nomos and Narrative] (providing a seminal discussion of the relationship between norms, narratives, and acceptance). And acceptance legitimates authority. 5 See Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation 24–26, 116 (2024) [hereinafter Balkin, Memory and Authority] (describing “[a]uthority-constructing” uses of history that “employ history to construct claims of legal authority”). For development of a similar concept in the context of Australian public art and monuments, see Odette Kelada & Dianne Jones, Mass Exposure: Memory Laundering, Racial Literacy and the Art of Truth-Telling, in Art and Memorialisation: Truth-Telling Through Creative Practice in Settler Colonial Australia 101, 101–02 (Genevieve Grieves & Amy Spiers eds., 2024) (contending that reverence in the public sphere for purveyors of horror is akin to dirty money). 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. 6 See Smith & O’Neill, Forgotten Face, supra note 2, at 30–69. 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. 7 See Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 672 (2013) (“Arguments from tradition claim that our traditions constitute our political life and offer normative direction to our endeavors. Arguments from national ethos claim that a constitutional interpretation that betrays the deepest meanings of America’s values and political traditions cannot be correct.”); Dudziak, supra note 4, at 26 (concluding that “narratives of justice and the rule of law aid conceptions of American identity”); Darrell A. H. Miller, Falsifying Tradition, 75 Duke L.J. 1311, 1334 (2026) (describing ways that tradition is used as a means of establishing national identity). 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, 8 See infra section II.A. 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, 9 See Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903) (holding that legislative actions altering or breaking treaties with Native Nations are political questions and thus exempt from judicial review); see also infra section II.A.2. race-based exclusion of Chinese individuals from the United States, 10 See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 609 (1889) (holding that complaints about the Chinese Exclusion Act “must be made to the political department of our government”); see also infra section II.A.1. and Black voter disenfranchisement. 11 See Giles v. Harris, 189 U.S. 475, 488 (1903) (holding that relief from a political wrong must come from “the legislative and political department”); see also infra section II.A.3.

Moreover, when canonical cases with racialized origins are taught, we have often traditionally stripped them of context. 12 See Charquia Fegins, The Untold History of Ex Parte McCardle 40–42 (Apr. 1, 2026) (unpublished manuscript) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5272790 [https://perma.cc/QLA8-X8YT] (contextualizing canonical Reconstruction-era cases by exposing their relationship to violent voter suppression); Helen Hershkoff & Fred Smith, Jr., Reconstructing Klein, 90 U. Chi. L. Rev. 2101, 2172 (2023) (urging that United States v. Klein be understood in its Reconstruction context and observing that jurisdictional doctrine’s “purported neutrality” can sustain racial stratification); Sinnar, supra note 2, at 384 (showing how Iqbal’s dissemination as neutral procedure legitimated the substantive detention practices it insulated); Smith & O’Neill, Forgotten Face, supra note 2, at 20–25 (resurfacing the racialized context of Younger v. Harris); see also Edward A. Purcell, Jr., The Particularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and “Federal Courts”, 81 N.C. L. Rev. 1927, 1934 (2003) (recovering Hans v. Louisiana’s origins in Louisiana’s repudiated Reconstruction bond debt and the era’s racial politics); Lauren Robel, Riding the Color Line: The Story of Railroad Commission of Texas v. Pullman Co., in Federal Courts Stories 163, 183–89 (Vicki C. Jackson & Judith Resnik eds., 2010) (offering a detailed historical account of the racial dimensions of Pullman). See generally Erwin Chemerinsky, Seth Davis, Fred O. Smith, Jr. & Norman W. Spaulding, Federal Courts in Context (2023) (situating cases and doctrines in their historical 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. 13 See infra section III.A.

Second, jurisdiction’s reputation for neutrality masks its substantive choices. 14 See Helen Hershkoff & Luke Norris, The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, 122 Mich. L. Rev. 1, 52 (2023) (“[I]t is precisely this false sense of apolitical neutrality that has aided the emergence of the oligarchic courthouse.”); see also Felix Frankfurter & James M. Landis, The Business of the Supreme Court 2 (1928) (“So-called jurisdictional questions treated in isolation from the purposes of the legal system to which they relate become barren pedantry. After all, procedure is instrumental; it is the means of effectuating policy. Particularly true is this of the federal courts.”). 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.” 15 Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1777 (1993). 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,” 16 Id. at 1777–78. 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, 17 Kultur und Gedächtnis 9–19 ( Jan Assmann & Tonio Hölscher eds., 1988), translated in Jan Assmann, Collective Memory and Cultural Identity, 65 New German Critique 125, 126 ( John Czaplicka trans., 1995) (defining cultural memory as knowledge that directs a society’s behavior and is maintained through “repeated societal practice and initiation”); see also Maurice Halbwachs, The Collective Memory 1–19 (Francis J. Ditter, Jr. & Vida Yazdi Ditter trans., 1st ed. 1980); Saidiya Hartman, Venus in Two Acts, 12 Small Axe 1, 11 (2008) (confronting the erasure of enslaved lives in historical archives and proposing “critical fabulation” as a responsive method). philosophical literature demonstrating that ignorance is often actively produced rather than passively accumulated, 18 See Charles W. Mills, White Ignorance, in Race and Epistemologies of Ignorance 13, 20–23 (Shannon Sullivan & Nancy Tuana eds., 2007) (introducing “white ignorance” as a socially produced, structural form of non-knowing rather than a passive absence of knowledge). and constitutional theory tracing the strategic deployment of history in legal interpretation. 19 See, e.g., Balkin, Memory and Authority, supra note 5, at 242 (“All legal theories beat the past into shape; they simply do it in different ways and for different ends.”); Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y 19, 21–23 (2022) [hereinafter Siegel, The Politics of Constitutional Memory] (arguing that interpreters continuously produce constitutional memory that “often excludes history, sometimes intentionally” and that memory is employed to legitimate authority). 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 20 See Shaun Ossei-Owusu, Criminal Legal Education, 58 Am. Crim. L. Rev. 413, 413 (2021) (identifying legal education as an overlooked input in the reproduction of the penal state’s brutality); Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631, 1689 (2020) (“[T]eachers and scholars have depicted criminal law as an exception to a general norm . . . . Exceptionalism is important to the story of how mass incarceration thinks, first because it inoculates criminal institutions from certain lines of critique, and second because it limits the scope of reform proposals.”). to Property’s disappearance of conquest 21 K-Sue Park, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, 131 Yale L.J. 1062, 1067–70 (2022) (demonstrating that conquest and slavery built the core institutions of American property law even as the field suppressed those histories). to Contract’s sanitization of slavery. 22 Brittany Farr, Warranting Violence, 78 Stan. L. Rev. 533, 537–41 (2026) [hereinafter Farr, Warranting Violence] (illustrating how contract doctrine regarding warranties of enslaved persons’ “soundness” obscured and reshaped the violence of slavery); Dylan C. Penningroth, Race in Contract Law, 170 U. Pa. L. Rev. 1199, 1202–11 (2022) (recovering the hidden presence of race and Black litigants across contract law’s development from the 1870s onward); Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79, 88–89 (2020) (showing how nineteenth-century law schools and treatises absorbed slave cases into neutral common law categories, treating them as ordinary property and commercial disputes); see also Brittany Farr, The Race Case in Contracts, 100 N.Y.U. L. Rev. 1070, 1073–75 (2025) [hereinafter Farr, The Race Case] (analyzing 129 Contracts casebooks to show how racialized “cultural scripts” have framed Williams v. Walker-Thomas Furniture Co.). In recent years, this scholarship additionally examines how entire legal systems and peoples vanish from view 23 Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1791–94 (2019) (arguing that public law’s slavery-and-segregation paradigm has obscured colonialism and Native Nations as constitutional subjects); Elizabeth A. Reese, The Other American Law, 73 Stan. L. Rev. 555, 560 (2021) (observing that the law of 574 federally recognized tribal governments is excluded from what counts as “American law”). and how doctrinal categories mask exploitation. 24 See, e.g., Janet Halley, What Is Family Law?: A Genealogy Part I, 23 Yale J.L. & Humans. 1, 2–5 (2011) (tracing how “family law exceptionalism” severed the household from market ordering and recast domestic labor as sentiment rather than economics (internal quotation marks omitted)); cf. Etienne C. Toussaint, The Purpose of Legal Education, 111 Calif. L. Rev. 1, 9 (2023) (“[T]he study of the way legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the purpose of legal education.”).

Before continuing, the nomenclature used in this Essay merits explanation. Why “legitimacy laundering” rather than, say, “memory laundering,” 25 See Kelada & Jones, supra note 5, at 102 (creating the phrase “memory laundering” to describe how commemorative historical practices erase colonial violence and sanitize historical figures (internal quotation marks omitted)). 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. 26 See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1792 (2005) [hereinafter Fallon, Legitimacy and the Constitution] (“[T]he Constitution qualifies as legitimate only under what I shall describe as ‘minimal’ (rather than ‘ideal’) theories of moral legitimacy.”). 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. 27 See Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court 127–32, 142–48 (2018) [hereinafter Fallon, Law and Legitimacy] (describing a range of variables that contribute to legal legitimacy). 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, 28 Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889). Lone Wolf v. Hitchcock, 29 187 U.S. 553 (1903). and Giles v. Harris 30 189 U.S. 475 (1903). 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. 31 See infra section II.B.1. 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, 32 Mills, supra note 18, at 29 (internal quotation marks omitted) (quoting Adam Hochschild, King Leopold’s Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa 295 (1998)). 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.