August 18, 2011
How long can the Supreme Court continue to avoid adopting a theory of the corporation?
While I have argued elsewhere (specifically, here and here) that the Supreme Court did in fact rely on a particular theory of the corporation to decide Citizens United, it failed to do so expressly and has been frustratingly inconsistent in doing so in the bulk of its cases dealing with corporations. I am certainly not alone in seeing this as a problem (see Bainbridge on this point here), and we get more of the same from Daniel Greenwood in his latest piece, "FCC v. AT&T: The Idolatry of Corporations and Impersonal Privacy." Writes Greenwood:
Our Constitution and our political debate often divide the world into two categories: state and citizen, public and private, collective and individual. Do the multinational publicly traded corporations belong on the individual, private side of this great liberal divide? … The Court’s opinion [in FCC v AT&T] is silent on this basic issue. Only a strong theory of corporate rights could lead a native English speaker to conclude, as the Third Circuit did, that a statute should be interpreted to mean the opposite of what its words ordinarily mean. The Supreme Court’s purely linguistic analysis, as arid as any Lochner-era formalist opinion, demonstrates its ability to use the dictionary, but fails to address the underlying legal issues. More disturbingly, it hides behind its formalism to avoid making even the slightest attempt to explain how this decision can be consistent with its many decisions that, like the Third Circuit opinion, invent corporate rights with no deference to plain meaning. Why is ordinary meaning important here, but irrelevant when corporations assert constitutional rights that the text grants only to human beings?
The entire piece is well worth a read.
On the other hand, over-arching theories can be the enemy of rational decision-making as lawyers and judges make a Procrustean bed out of an approach that may have been quite appropriate in its original use, but gets stretched beyond utility when applied to other cases.
Posted by: Arthur O. Armstrong | Aug 19, 2011 7:18:25 AM