Thursday, March 3, 2011

Wearing Robes is so Grammarous (Federal Communications Comission. v. AT&T Inc.) T

Long time readers know I've come around to the thinking that corporations (including unions) maybe shouldn't have the same rights as people, the legal fiction known as Corporate Personhood, links below.

The Supreme Court recently decided a case, FEDERAL COMMUNICATIONS COMMISSION ET AL. v. AT&T INC. ET AL that contained some arguments based in part on corporate personhood.

While the decision did not advance my position it is worth a read just for the explanation of grammar and the etymology of words.
I must admit I am a junkie for a well written opinion. In the same way that I get a kick out busting stock frauds I get a kick out of judges (usually Federal, District) who can versify or reference Thucydides or as in this case,"talk good English".

From the Supreme Court of the United States, the opinion, written by the Chief Justice:
...Like the Court of Appeals below, AT&T relies on the argument that the word “personal” in Exemption 7(C)incorporates the statutory definition of the word “person.”

See Brief for Respondent AT&T 8–9, 14–15 (AT&T Brief);582 F. 3d, at 497. The Administrative Procedure Act defines “person” to include “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U. S. C. §551(2). Because that definition applies here, the argument goes, “personal” must mean relating to those “person[s]”: namely, corporations and other entities as well as individuals. This reading, we are told, is dictated by a “basic principle of grammar and usage.” AT&T Brief 8; see id., at 14–15; see also 582 F. 3d, at 497 (citing Delaware River Stevedores v. DiFidelto, 440 F. 3d 615, 623 (CA3 2006) (Fisher, J., concurring), for “[t]he grammatical imperativ[e]” that “a statute which defines a noun has thereby defined the adjectival form of that noun”). According to AT&T, “[b]y expressly defining the noun ‘person’ to include corporations, Congress necessarily defined the adjective form of that noun—‘personal’—also to include corporations.” AT&T Brief 14 (emphasis added).

We disagree. Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read,” Webster’s Third New Interna-tional Dictionary 527 (2002); “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” id., at 509, which has little to do with “corn,” id., at 507 (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of anaxis bent at right angles,” “cranky” can mean “given to fretful fussiness,” id., at 530.

Even in cases such as these there may well be a link between the noun and the adjective. “Cranky” describes a person with a “wayward” or “capricious” temper, see 3 Oxford English Dictionary 1117 (2d ed. 1989) (OED), which might bear some relation to the distorted or crooked angular shape from which a “crank” takes its name. That is not the point. What is significant is that, in ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. The FCC’s argument that “personal” does not, in fact, derive from the English word “person,” but instead developed along its own etymological path, Reply Brief for Petitioners 6, sim-\ply highlights the shortcomings of AT&T’s proposed rule.

“Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically“give the phrase its ordinary meaning.” Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 4). “Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy asreferring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.

Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, “I have something personal to tell you,” we would not assume the CEO was about to discuss company business. Respondingto a request for information, an individual might say,“that’s personal.” A company spokesman, when asked for information about the company, would not. In fact, we often use the word “personal” to mean precisely the oppo-site of business-related: We speak of personal expenses and business expenses, personal life and work life, per-sonal opinion and a company’s view.'

Dictionaries also suggest that “personal” does not ordi-narily relate to artificial “persons” such as corporations. See, e.g., 7 OED 726 (1933) (“[1] [o]f, pertaining to . . . theindividual person or self,” “individual; private; one’s own,” “[3] [o]f or pertaining to one’s person, body, or figure,” “[5]...MORE

The opinion ends:

We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase“personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it wouldconstitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.
The judgment of the Court of Appeals is reversed.

On Corporate Personhood
Oct. 2009
Rentseeking Cubed: ""Green" economy needs targets, free trade: GE" and "GE takes new stakes in clean technology start-ups"
Lobbying Congress and the Executive is not just allowed but encouraged by the right to petition.

I've slowly been coming to the position that this right is abused by corporations. The legal thinking that treats corps. like natural persons can be argued on a few different grounds, one of which is that natural persons expire while, theoretically at least, corporations can live forever. It might be time to revisit the idea of putting a finite lifetime on corporations, as the early corporate charters did.

Another possibility is the Supreme Court revisiting "Santa Clara County v. Southern Pacific Railroad", the 1886 case which established the precedent of treating corporations as individuals.
This isn't a far-fetched notion. You will be hearing about "corporate personhood" when the court decides the case of “Hillary: The Movie.’’ later this session....
Oct. 25, 2010
"JPMorgan Chase Prevails in Lobbying Battle of Big Banks" (JPM; BAC; C; WFC; USB)

Nov. 3, 2010 
Time to Get Corporations and Unions Out of Politics