October 12, 2005

In the Nation, Morton Mintz argues that the Supreme Court ought to return to the original meaning of the word "person" in the Fourteenth Amendment, and therefore cut back on corporate rights. Kaimi Wenger suggests that Mintz is probably a fair-weather originalist (or should be).

But is it obvious that Mintz is even right on these specific grounds? Compare Bank of the United States v. Deveaux, 9 U.S. 61 (1809) (holding a corporation not to be a citizen under the diversity clause) with Bank of Augusta v. Earle 38 U.S. 519 (1839) (holding a corporation not to be a citizen under the Privileges and Immunities clause) with Louisville, Cincinnati, and Charleston R.R. v. Letson 43 U.S. 497 (1844) (reversing Deveaux) ("A corporation created by a state seems to us to be a person, though an artificial one . . . ."). The point is that at the time that the Fourteenth Amendment was ratified the judicial gloss on words like "person" and "citizen" was rather unclear (one version of that confusion is what led to some part of Dred Scott). But given John Bingham's attitude that when he used terms of art they should be interpreted in agreement with judicial opinions of the time, I would think it to be a quite open question-- as an originalist matter-- whether various 14th amendment rights of persons or citizens pertain to corporations.

In any case those rights clearly are possessed by the owners and employees of the corporation, and almost any action that injures the corporation will probably injure with the owners or employees enough to confer standing, right? So I am not entirely sure what Mintz really means to accomplish here.

UPDATE: I will add that when people rail against the evils of corporations I am almost always confused about whether they have an actual objection to the corporate form or whether they are just using "corporation" as shorthand for profit-making-enterprise-with-lots-of-money.


3159

The article to book problem

11:11 PM

Over at Crooked Timber, Henry Farrell discusses an article on the obsession with citation indexes in journals and the way in which they distort various decisions.

I found the discussion interesting in general, but it also brought to mind a dilemma for the honest and dishonest journal. I think the dilemma was originally brought to mind by some paper Jack Balkin and Sandy Levinson wrote about footnotes, but I forget the citation, ironically enough.

At any rate, the "problem" is that a number of very sharp legal academics write a series of very good ground-breaking articles that then essentially get spun into a very good ground-breaking book.

For some these articles end up being substantially overhauled, for some they are more or less appropriated and strung together, but in any case, there are many cases where the presence of the book pretty much renders the old articles obsolete. Of course, people will still stumble across the articles on LEXIS, where law reviews but not books are indexed, but they will almost always end up citing the book, not the articles, when they publish. Examples include John Hart Ely's Democracy and Distrust, David Currie's Constitution in Congress series, Akhil Amar's Constitution and Criminal Procedure, and so on (I presume that all of Ernie Young's federalism articles are going to turn into a good book sometime too).

So, the citation-maximizing editor has a dilemma when the latest brilliant article crosses his desk, if he thinks it's likely to become a book. How likely is the book to be published? How many times will the article be cited in the interim? And so on?

I take it one can argue that editors shouldn't worry about this aspect of their citations, that they should publish the best articles they get without fearing that people will cite the book and not the article later. But is this right? Should editors be indifferent between a brilliant article that will never be published any other way, and an idea that will be published in similar form a few years later?


3158

Quote of the Day

12:40 PM

William Shakespeare, King Lear:

CORDELIA: What shall Cordelia do?

Love, and be silent.

UPDATE: Not what you think, he added cryptically.


3157

Who's Counting?

01:04 AM

Below, PG notes that the University of Chicago has a particularly expansive theory of counting who has been affiliated with the university for purposes of totalling up its Nobel Prizes. But for the record, Cambridge, which ranks as the one university in the world with more Nobels, counts just as expansively. I discussed the issue more a few years ago.


3154


Proactive Solution  |  Proactive Acne Treatment   |  Proactive Acne Solution   |  Acne Medicine   |  Discount Pet Supplies   |  Web Directory   |  Austin Movers   |  Winsor Pilates   |  Core Secrets  |