Q: Do corporations have "personal privacy"? A: No.

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Today the U.S. Supreme Court issued its (unanimous) decision in FCC v. AT&T. The key issue was whether  corporations are entitled to a right of personal privacy. Specifically, the Freedom of Information Act exempts “law enforcement records the disclosure of which 'could reasonably be expected to constitute an unwarranted invasion of personal privacy.'”

CompTel, a trade association, submitted a FOIA request for documents AT&T had provided to the Federal Communications Commission Enforcement Bureau during an investigation of that company. The Bureau found that Exemption 7(C) applied to individuals identified in AT&T’s submissions but not to the company itself, concluding that corporations do not have “personal privacy” interests as required by the exemption. The FCC agreed with the Bureau, but the Court of Appeals for the Third Circuit did not. It held that Exemption 7(C) extends to the “personal privacy” of corporations, reasoning that “personal” is the adjective form of the term “person,” which Congress has defined, as applicable here, to include corporations.

For some interesting background and discussion, see Neal Goldfarb's post on the decision at LAWnLinguistics. You should also take a look at his post from January 19, "Personal privacy ≠ corporate privacy", in which he discusses the amicus brief that he filed in the case.

A key feature of Neal's brief was the use of corpus evidence:

[W]e will rely on evidence of the kind that lexicographers have increasingly come to rely on: the analysis of electronic text collections called “corpora” (the plural of “corpus”).  A corpus is like Lexis on steroids. It is a database of texts gathered from a variety of real-world sources (books, newspapers, magazines, transcripts of spoken language) that has been processed in ways that enable one to search for and analyze patterns in the language. So if one wants to find out, say, which nouns are most commonly modified by personal, it is possible to generate a list of those words, ranked by frequency. This provides powerful evidence of what the word can mean; as this Court has noted, “the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.”  Lexicographers follow much the same principle.

As Neal explained in his Jan. 19 post,

The brief relied on three corpora: the Corpus of Historical American English (COHA), the Corpus of Contemporary American English (COCA), and the TIME Magazine Corpus, all of which are the handiwork of Prof. Mark Davies at Brigham Young University. What we did was to search for the string personal [NOUN], in order to find out what words most frequently filled the NOUN slot.

The results, as we said in the brief, “decisively sup­port the conclusion that per­sonal has developed a spe­cialized meaning such that it is used with regard to human beings, not corp­orations.” For instance, here are the most frequent pairings in COHA for the 1970s (which was when the current version of the exemption was enacted):

personal life, personal income, personal prop­erty, personal interest, personal experience, per­sonal relationship, personal problem, per­sonal rea­son, personal injury, personal thing, personal ap­pearance, personal contact, personal matter, per­sonal friend, personal power, personal opinion, personal fortune, personal gain, per­sonal history, personal letter, personal use, per­sonal view, per­sonal question, personal tragedy, personal phy­sician

Neal's March 1 post makes a good case that "the opinion was influenced by the brief in several respects". In addition to the corpus evidence, his brief "challenged the appeals court’s conclusion that the meaning of personal is controlled by the statutory definition of person":

To begin with, personal is not the “adjectival form” of person. The suggestion that an adjective can be a form of a noun makes little sense; presumably what AT&T means is that personal is derived from person. But that is wrong as a matter of etymology: personal entered the English language separately from the word person. Both were borrowed from French, where they had evolved from the Latin words personalis and persona, respec­tively. And al­though those Latin words had a com­mon origin, that fact does not provide any reliable clue as to what the English word personal means now.

Moreover—and more important—in the 700 years since the first attested use of personal in English, the word has evolved on a semantic trajectory of its own. It is therefore a mistake to treat the meaning of per­sonal as nothing more than the sum of the meanings of its parts: the noun person plus the suf­fix –al. It is clear from both from dictionary definitions and actual usage that there is more to the mean­ing of personal than sim­ply “of or pertaining to a particular person.” The word’s meaning—as revealed by the con­texts in which it is used—is such that it seems to be used exclusively with reference to human beings.

It's nice to see an important court decision that "reflects a rather nuanced appreciation of meaning", as Neal puts it.  And it seems likely to me that in the future, we're likely to see many more applications of corpus evidence in legal arguments about meaning and usage. This is partly because such evidence can be very persuasive, and partly because it's becoming increasingly easy to get.


The linguistic analysis in the decision includes some pointed observations about the possible non-compositionality of adjective-noun combinations:

AT&T’s argument treats the term “personal privacy” as simply the sum of its two words: the privacy of a person. Under that view, the defined meaning of the noun “person,” or the asserted specialized legal meaning, takes on greater significance. But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. “Personal” in the phrase “personal privacy” conveys more than just “of a person.” It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T.

During the oral argument of the case, which took place on January 19, there were some other notable examples of linguistic reasoning. Thus at 39:04 of the recording, Chief Justice John Roberts observed:

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Counsel, your central argument is that because "person" is defined to include corporation, "personal" in the same statute must include corporate.
I tried ((to)) sit down and come up with other examples where the adjective was very different from the root noun
((and)) it turns out it is not hard at all.
You have craft and crafty.
Totally different.
Craft- crafty doesn't have much to do with craft.
Squirrel, squirrely? Right? I mean,
pastor — you have a pastor and pastoral.
Same root, totally different.
So I don't understand the-
I don't think there's much to the argument that because "person" means one thing,
personal has to be the- the same relation.

Update — Lyle Denniston's discussion at SCOTUSblog is worth reading ("Analysis: A word game over 'privacy'").  It starts this way:

In 12 pages of teacher-like explanation of the varying meaning of words, the Supreme Court on Tuesday told business companies organized as corporations the sad news that they are not entitled to the same privacy as human beings enjoy, at least when it comes to records that corporations have handed over to federal government agencies.  But, at the end of the 12 pages, in what read like an intentionally clever gesture to make the ruling easier to accept, Chief Justice John G. Roberts, Jr., actually  implied that corporations do have feelings, and are therefore capable of being offended. “We trust,” the concluding line said, “that AT&T will not take it personally.”  In fact, that seemed contradictory to the ruling itself.



41 Comments

  1. Boris said,

    March 1, 2011 @ 3:36 pm

    I don't know the legal background of what "personal" refers to, but in law, every word has a precise definition that may or may not coincide with language in general. For example, I, as a non-lawyer would never call a corporation a person. I am surprised that "personal property" does not have a very exact and precise legal definition, but if it does not, one would fall back on the legal definition of "personal" (and, for that matter, "property"). If even that does not exist, one would look for the occurrence of the word "personal" in legal contexts. I don't see how linguistics figures into this at all, unless "personal property" is a newly coined idiom which does not equal the sum of its parts. This is clearly not the case here.

    [(myl) This case case was about the meaning of "personal privacy", not "personal property". In general, comments that reflect such careless reading and careless thought will be deleted -- I'm leaving this one up to make this point and to urge other would-be commenters to take it to heart.

    To Boris: If you feel strongly about your idea, you can look at AT&T's briefs in the case, and its side of the oral argument. You'll find an attempt to make a somewhat-related point, and you'll also find the court's response.

    As for "how linguistics figures in this at all", do you really mean to exclude from linguistics the process of characterizing meanings from patterns of usage?]

  2. GeorgeW said,

    March 1, 2011 @ 3:56 pm

    Very interesting and well done.

  3. q said,

    March 1, 2011 @ 4:01 pm

    Hm, personal property is an interesting counterpoint. Corporations can and do hold personal property. Of course, the "personal" in that phrase is probably just operating as a way to contrast "real property," i.e. land, buildings and fixtures.

  4. q said,

    March 1, 2011 @ 4:04 pm

    Professor Liberman, I think your response to Boris was a little stronger than necessary. His point is not necessarily wrong, in that terms of art are often exhaustively defined in statutes to avoid any ambiguities that may arise from common usage of the term.

    [(myl) But if this term had been "exhaustively defined in statutes", I think that we can count on the various lawyers and courts involved to have noticed the fact and brought it into the discussion. Indeed, the specific question of whether there is any statutory background to the term "personal privacy" is discussed at some length in the court's opinion, which Boris obviously didn't bother to read.

    In a comments thread that's read by thousands of people, it's a massive waste of everyone's time — and thus rude — to sound off on a topic that you know little or nothing about, without at least spending a few minutes looking into the question of whether your opinion has any coherent foundation. In the interests of increasing signal-to-noise ratio in our comments, I'm planning to start deleting such empty and irrelevant contributions, at least when I have time to hunt them down. Rather than do this silently, I thought it would be polite to let people know. It's true that it's impolite to tell someone that (s)he's commenting in a careless and ignorant way, but that price has to be paid.

    However, Congress doesn't always adequately define terms, and my out-of-my-ass guess is that "personal privacy" was not well-defined in the statute (nor well-defined in the case law). In which case, courts will often go with the common definition when interpreting the statute.

    [(myl) But you don't need to talk "out of your ass". You could read (or even skim) the court's 12-page opinion, where you would find the question discussed on p. 8, in a section beginning

    Despite its contention that “[c]ommon legal usage” of the word “person” supports its reading of the term “personal privacy,” AT&T Brief 9, 13, 18, AT&T does not cite a single instance in which this Court or any other (aside from the Court of Appeals below) has expressly referred to a corporation’s “personal privacy.” Nor does it identify any other statute that does so.

    LL commenters often provide solid and interesting information, based on their own background knowledge or on research done on the spot. That (along with the occasional excellent joke) is why I oppose the view of some of my colleagues, who think that comments are a waste of electrons. But if all comments consisted of out-of-the-ass guesses on issues that are easily settled by a minute or two of research, I'd have a different opinion.]

  5. Boris said,

    March 1, 2011 @ 4:08 pm

    OK, I may have been too quick to post without proofreading what I wrote. The first time, I mistyped privacy as property, and then I kept doing it looking back at what I have already written. When I said "how linguistics figures in this at all" it was not intended as an attack on your post due to it being off topic. I was referring to the case and asking why linguistics should figure into the legal decision.

    I do not feel strongly that AT&T deserves the right to personal privacy. I am expressing surprise at the argument found in the legal decision. I do now see in the linked documents that the key point is "When a statute does not define a term, the Court typically give[s] the phrase its ordinary meaning.” I'm just surprised that such a set phrase does not in fact have legal definition, especially when the concept of "invasion of personal privacy" is discussed.

  6. J. W. Brewer said,

    March 1, 2011 @ 4:13 pm

    The Roberts opinion also covers that fixed NPs can and do have idiomatic meanings that are not strictly compositional, such that "personal" need not mean exactly the same thing in "personal X" and "personal Y." The specific context there was not that corporations can and do own "personal property" but that we lawyers speak of corporations as well as natural persons as being (or not being) subject to the "personal jurisdiction" of a particular court. This usage did not establish that "personal" in "personal privacy" also encompassed corporations.

  7. Jon Weinberg said,

    March 1, 2011 @ 4:17 pm

    @Boris "in law, every word has a precise definition" —

    Would that it were so. My own favorite legal word definition is found in the National Labor Relations Act: "The term 'employee' shall include any employee . . . ." In law, words sometimes have particular definitions in particular contexts, and more often have a range of possible meanings, many of which (yes) diverge from the ways the words are typically used in common discourse.

  8. Dan Lufkin said,

    March 1, 2011 @ 4:18 pm

    This is good news to those of us who've watched the march of personification of corporations in free speech (campaign contributions) and have been edgily awaiting corporate rights under the Second Amendment, such as the Pullman Corp. used to have.

    Bad news, though, to those of us who use the plural corpuses, for "collections of utterances, as spoken or written sentences, taken as a representative sample of a given language or dialect and used for linguistic analysis". We reserve the Latin plural for "large or complete collections of writings" or "bodies of animals or persons, esp. when dead" or "masses of body tissue that has a specialized function". My guide here is the Random House Webster's Dictionary. I am looking at the 1992 edition. Is it possible that this useful distinction has been lost? O tempora! indeed.

    [(myl) A search of the ACL Anthology turns up 1,000 documents containing the string "corpora" -- and I believe that 1,000 is simply the maximum number of hits that the search software will return. A search for "+corpuses" yields only 49 hits. So I believe that Norma Loquendi has already rejected Random House on this point.]

  9. Jonathan Mayhew said,

    March 1, 2011 @ 5:00 pm

    The linguistic issues are quite interesting here, and the decision is worth reading in full as a nice piece of analytical reasoning. I liked this part:

    "We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring 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."

  10. Tom said,

    March 1, 2011 @ 5:24 pm

    "That (along with the occasional excellent joke) is why I oppose the view of some of my colleagues, who think that comments are a waste of electrons."

    But Professor Liberman "in law, every word has a precise definition," is the most absurd and hilarious thing I've read all day. Or do the jokes have to be intentional to be worthy of their electron use?

    [(myl) Touché.]

  11. Rubrick said,

    March 1, 2011 @ 5:29 pm

    I'm mildly surprised that Scalia would agree with an opinion based in part on the notion that the meanings of words can be determined by linguists analyzing corpora, rather than by Scalia.

    Also: @myl: (along with the occasional excellent joke)
    Whew. At least it'll give me a way to tell whether Prof. Liberman likes a given one of my jokes.

  12. John said,

    March 1, 2011 @ 5:34 pm

    For another post, no doubt:

    What's the history of the pronunciation of "amicus" in "amicus curiae"?

    The Latin would be accented on the middle syllable, but I seem to always hear the legal term accented on the first (which pains me). The OED says it's on the middle too and pronounced long, like a-MY-kus, to use the English word "my" there. This is how I would expect the Latin to come into English.

    Ignorant modern Americans?

  13. J. W. Brewer said,

    March 1, 2011 @ 5:40 pm

    For a specialized corpus search, you can go to http://uscode.house.gov/search/criteria.shtml and find the various other places the string "personal privacy" appears in different federal statutes. (Just searching "personal" seems to turn up a lot of false positives, and I can't quickly figure out how to strain those out of the search results.) The word "personal" as distinct from "person(s)" does not seem to appear at all in the U.S. Constitution and its various amendments, although it does appear in the Northwest Ordinance (in the personal-as-distinguished-from-real property sense).

  14. army1987 said,

    March 1, 2011 @ 6:24 pm

    @Dan Lufkin:
    I use "corpora", because I don't want to risk that which would happen if I tried to type "corpuses" but failed to activate the U key of my keyboard for whatever reason.

  15. Charles Gaulke said,

    March 1, 2011 @ 6:35 pm

    army1987: Yes, that would be unfortunate. Unless you were studying a dead language.

    It isn't immediately clear to me from the decision; is the precedent here that in determining whether to analyse the phrase as a whole as they have done or the individual words as AT&T wanted, where the phrase as a whole doesn't have a specific legal sense the existense of a common or fixed expression in ordinary English means it must be the former? Or is that determination more or less at the discretion of the judiciary?

  16. Jean-Sébastien Girard said,

    March 1, 2011 @ 7:32 pm

    As a more general point regarding "precise meaning", I have yet to find a single specialty without terminological disagreements (my personal passion is plant science, and after 300 years we still can't describe the shape of a leaf with consistent terms!). Linguistics (including, ironically enough, terminologists and lexicographers of all things!) are constantly gripping with issues of how to define and circumscribe the terms of arts they use all the time.

    Back to law, famous legal cases hinging on the meaning of common words include Toy Biz, Inc. v. US (248 F.Supp.2d 1234, 2003) regarding whether "action figures" are "toys" or "dolls", and the notorious Nix v. Hedden (149 U.S. 304, 1893) stating that tomatoes are legally "vegetables", not "fruit" (which they botanically are).

  17. Belial said,

    March 1, 2011 @ 7:52 pm

    Back to law, famous legal cases hinging on the meaning of common words include Toy Biz, Inc. v. US (248 F.Supp.2d 1234, 2003) regarding whether "action figures" are "toys" or "dolls", and the notorious Nix v. Hedden (149 U.S. 304, 1893) stating that tomatoes are legally "vegetables", not "fruit" (which they botanically are).

    Strictly speaking, those cases hinged on the categorization of common words (as between two or more possibilities which presumably carried different legal consequences), not their meaning.

    [(myl) I'm reminded of a passage in Eben Moglen's "Anarchism Triumphant", discussed in an early LL post:

    No one can tell, simply by looking at a number that is 100 million digits long, whether that number is subject to patent, copyright, or trade secret protection, or indeed whether it is "owned" by anyone at all. So the legal system we have ... is compelled to treat indistinguishable things in unlike ways.

    Now, in my role as a legal historian concerned with the secular (that is, very long term) development of legal thought, I claim that legal regimes based on sharp but unpredictable distinctions among similar objects are radically unstable. They fall apart over time because every instance of the rules' application is an invitation to at least one side to claim that instead of fitting in ideal category A the particular object in dispute should be deemed to fit instead in category B, where the rules will be more favorable to the party making the claim. This game - about whether a typewriter should be deemed a musical instrument for purposes of railway rate regulation, or whether a steam shovel is a motor vehicle - is the frequent stuff of legal ingenuity. But when the conventionally-approved legal categories require judges to distinguish among the identical, the game is infinitely lengthy, infinitely costly, and almost infinitely offensive to the unbiased bystander.

    I commented at the time that "large numbers seem as at least as distinguishable to me as large collections of elementary particles are", but of course I'm not a lawyer.]

  18. Ellen K. said,

    March 1, 2011 @ 9:01 pm

    @Belial: But doesn't the categorization of actions figures as either "toys" or "dolls" rest on the meanings of the words "toys" and "dolls"? Although, in this case, not on their meaning as ordinary words, but on their meaning as non-overlapping categories, apparently, if I'm understanding that correctly. (Or are there people who don't consider dolls as being a type of toy, but rather something distinct?)

  19. Rick Sprague said,

    March 1, 2011 @ 10:18 pm

    I disagree with Lyle Denniston that the last line of the decision "seems contradictory to the ruling itself." Although I agree that Chief Justice Roberts was being "intentionally clever", I don't believe that "We trust that AT&T will not take it personally" was intended as a "gesture to make the ruling easier to accept."

    To me it sounds more like a sardonic quip designed to reinforce the decision by pointing to another word that, like "personal", shares an ancient root with "person" but in common use is quite awkward for describing the reaction of a corporation. In fact, it strikes me as rubbing AT&T's nose in it just a bit. (Note: I hereby explicitly deny any intention to suggest or promote the legal fiction of corporate doghood.)

  20. Hermann Burchard said,

    March 2, 2011 @ 1:42 am

    @Rick Sprague: Great point, which I was about to make. He, Chief Justice Roberts, was poking fun at AT&T (for some reason I never learnt to use "sardonic" perhaps in my circles we used "mokant", German translation offered by Google).

  21. maidhc said,

    March 2, 2011 @ 5:14 am

    The Supreme Court decision that started the personification of corporations was Santa Clara County v. Southern Pacific Railroad in the 19th century. At the time that the decision was published, the Chief Justice was dying, and it's strongly suspected that the clerk who actually wrote up the decision was bribed by the railroad to insert this clause, knowing that the Chief Justice was likely too sick to ever read it.

    Despite this, there are still many respects in which corporations are not treated as persons, for example they cannot be drafted into the armed forces. Also corporations pay income tax at a different rate than individuals. So whether a corporation should have the same free speech rights as a person (the right to tell lies, for example) is perhaps not so straightforward as we generally assume.

  22. a George said,

    March 2, 2011 @ 5:57 am

    We must expect law texts upon which we make constructions to have the meaning that was implied at the time of drafting. The reason is that the law language intends to identify phenomena of human behaviour and to express society’s view of them. It would do no good to permit modern construction to rely on a meaning that is current, because meanings shift over time, at least in general language use. For this reason the only valid argument is that presented in the Opinion of the Supreme Court at p. 8, line 17ff :

    “…………treatises in print around the time that Congress drafted the exemptions at hand reflect the understanding that the specific concept of “personal privacy,” at least as a matter of common law, did not apply to corporations “

    Any corpus analysis that includes material post-drafting must be faulty as a legal argument. Although I have only read the Amicus brief by Neal Goldfarb cursorily, I am deeply impressed with its quality as a documentation of the development of language, and I have preserved it for later perusal. Obviously, also post-1970 development is of interest, but it must not influence how a law text is construed.

  23. Henning Makholm said,

    March 2, 2011 @ 7:45 am

    @a George: An opposite point would be that the words should be taken to mean what legislators understood them to mean the last time they read over the law and decided that it was still good and didn't need changing.

  24. Joe said,

    March 2, 2011 @ 9:10 am

    Perhaps it's due to some misunderstanding, but it seems that the use of corpus evidence to define rights of a particular entity is a bit disturbing. For example, the SCOTUS would have been correct in deeming Dred Scott as "private property" and not as part of the citizenry if the corpus had been consulted to define "slave". I think that (with the benefit of historical hindsight, admittedly) the SCOTUS was wrong in this particular case.

    The corpus interpretation would have changed, of course, and would have allowed Dred Scott to be overruled later on. This is the second thing that's disturbing: Could the corpus be deliberately be changed to somehow dillute the current meaning of "personal" to include non-humans? Now that seems kinda crazy, but not far-fetched. For example, media companies have been trying (successfully, I think) to equate "copyright" with "intellectual property" and I'd be willing to bet that the corpus would reflect that shift as well.

    Perhaps in my lifetime we'll be reviewing these precedents when we start looking at the person-ness of other entities such as machines. Those future discussions will be contentious–unless, of course, the machines start corrupting the corpus to show no distinctions between "person" and "robot" (they have the advantage at this point–you can't look up the corpus without consulting a machine). And, at that point, we would peacefully welcome our robot overlords rather than fight them.

  25. CWV said,

    March 2, 2011 @ 10:24 am

    While I agree with the Court's conclusion and am impressed by its "rather nuanced appreciation of meaning," I'm not sure that I find the linguistic reasoning entirely persuasive. In particular, I'm skeptical of the weight that the Court attaches to the fact that "we do not normaly" use the word personal in connection with corporations. That's certainly true, but it's also true of the word person. If the CEO of a corporation approaches the CFO and says, "There's a person that I want to tell you about," we would not assume that the CEO was about to talk about a corporation.

    In this case, the speaker (Congress) has adopted a definition of person that departs from normal, everyday use. The question is whether that definition also applies to the same speaker's use of personal. I agree with the Court's rejection of what it calls "the grammatical imperative" that the two terms *must* be understood in tandem. But I wonder if the question shouldn't be something more like this: Given that Congress used the word person to include corporations, is it more likely than not that it also intended the word personal to include corporations? The etymological history is interesting, but arguably beside the point. If Congress believed that personal was simply the adjectival form of person and that defining one meant defining the other (as it may well have), then wouldn't that fact be relevant (and perhaps determinative) regardless of whether Congress had its etymology correct?

    Of course, this case might be best understood as an illustration of Judge Posner's view that tough cases should be resolved not by formalistic, fine-grained parsing of specific words, but by pragmatism and consequentialism. What are the consequences of granting personal privacy rights under FOIA to corporations? What is the purpose of the exception for documents whose release could constitute an invasion of personal privacy, and would that purpose be advanced by reading the statute to include corporations? Arguably, the Court's sardonic last line might come the closest to this type of analysis. It suggests that the personal privacy exception is meant to protect people from feelings of embarrassment, anger, shame, etc., which corporations lack the ability to experience.

  26. Charles Gaulke said,

    March 2, 2011 @ 10:36 am

    @Joe: I'm not even sure where to begin.

    The definition of the word "slave" was never at issue in any of the Dred Scott proceedings, and was not the basis for any of the decisions. Nor has that definition actually changed much since that time; social attitudes toward slavery have.

    Some words, such as "copyright" or "person", do have specific legal definitions. The issue in this case was that a particular word, "personal", and in fact a particular phrase, "personal privacy", did not, and it needed to be determined whether that definition should or could properly be derived from the legal definition of "person" rather than from the ordinary sense of teh phrase (which the court sensibly decided it could not). If we all start using "personal privacy" differently now, it won't call into question this precedent or require it to be overturned. The phrase effectively does have a legal definition, now, and your terifying vision of a world ruled by Protean dictionaries will not come to pass.

  27. a George said,

    March 2, 2011 @ 10:45 am

    @Henning Makholm: I think that this is the approach of common-law countries, such as the United Kingdom and the USA. The law/act is fixed, and case law determines how the fixed act is to be construed in a given situation, and precedence as to facts rules. You could say that in this way a flexible convergence is aimed at. Landmark cases are those where a complete concept gets a review. However, in the present case, it was desired to find out what a particular official text had intended when it was drafted.

    @CWV: "person" would not have been formally wrong, but unsuited for communication about a corporation, because we have the term "legal person" to sum up some of the things that a corporation is. So, it is clumsy merely to say "person", and "legal person" does not come far behind in normal spoken exchange between two individuals.

  28. J. W. Brewer said,

    March 2, 2011 @ 1:39 pm

    @Joe, leaving aside the question of whether corpus evidence is reliable (both in general and in the specific sense that it hasn't been tampered with, which I suppose could be a problem with any source of evidence), the way you would avoid getting tripped up by genuine changes in usage is by making sure the corpus evidence being relied on shows the usage at the time the particular language was enacted by the legislature, not at some latter point in time. Unless you want to argue the meta-question of whether (and if so how and under what circumstances) subsequent changes in the common meaning of particular words affect the meaning of the statute, in which case the answer to that meta-question would tell you what corpus evidence is and is not relevant.

  29. blahedo said,

    March 2, 2011 @ 3:12 pm

    There's a great epilogue to this story, too. Roberts wrote the majority (unanimous) opinion, and closed it with this remark:

    "The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally."

    Awesome.

    (HT Dahlia Lithwick http://www.slate.com/id/2286923)

  30. Neal Goldfarb said,

    March 2, 2011 @ 3:16 pm

    @a George: “Any corpus analysis that includes material post-drafting must be faulty as a legal argument.”

    While I certainly understand the concern you raise, I don’t think that post-enactment usage should be categorically excluded from consideration. For all that the English language is constantly changing, there’s also a great deal of stability. That’s what makes it possible for us to understand the Constitution more than 200 years after it was written. So post-enactment usage of a particular word does shed some light on how the word was used at the time of enactment.

    In the brief I relied on both pre- and post-enactment corpus data because the 20th-century pre-enactment data was substantially smaller than that for the period covered by COCA (1990s to date). COHA has about 20 million words for each decade, so to get a sample that’s even one-quarter the size of COCA, it’s necessary to go back 50 years before enactment, to the 1920s. Thus, there’s a tradeoff between looking at a large sample and focusing on a relatively narrow time frame. I tried to deal with this by offering several different time-slices: 1900s-1970s, 1950s-1970s, and 1990-present. For each slice, the pattern of usage was the same (albeit with a different mix of words): personal was used in connection with reference to human beings.

    There’s also a more fundamental reason not to categorically exclude post-enactment corpus data, which is that whenever judges interpret statutes, they have no choice but to rely on (or at least start out from) their present-day knowledge of the language. So the ideal of interpreting the statute only in light of usage at the time of enactment is unattainable in any event. (Although the problem can be mitigated by looking at pre-enactment dictionaries or the historical treatment in OED, that’s not a complete solution.)

  31. KevinM said,

    March 2, 2011 @ 3:19 pm

    personal life, personal income, personal prop­erty, personal interest, personal experience, per­sonal relationship, personal problem, per­sonal rea­son, personal injury, personal thing, personal ap­pearance, personal contact, personal matter, per­sonal friend, personal power, personal opinion, personal fortune, personal gain, per­sonal history, personal letter, personal use, per­sonal view, per­sonal question, personal tragedy, personal phy­sician

    I happen to agree with the decision, but do these pairings really demonstrate that "personal" must refer to a human individual? For most, the word "corporate" could be substituted for "personal" and the phrase would still be meaningful. Corporations have interests, property, relationships, etc.

    The grammatical and linguistic issue, while interesting, is no substitute for the legal issue. Corporations partake of the rights of human persons for some purposes, but not others; they can't vote or marry (mergers don't count!), for example. Whether right or wrong, that's a grammatical decision; it's a policy decision.

  32. Jonathan said,

    March 2, 2011 @ 4:00 pm

    @ KevinM: But you mistake the question: The *only* legal question here was: "What is the ordinary language meaning of personal privacy?" There was no decision, or even discussion, of the question of whether corporations *should* have privacy rights of any sort. Thus, in this case, the legal issue *was* the linguistic issue, which would have been avoided had Congress defined what they meant by "personal privacy" in the legislation in question. Since they did not, the Supreme Court used their inferences as to the meaning at the time it was enacted.

    @ Rubrick: Why are you surprised that Scalia signed on? I would think he would be among the most likely to sign on to this modus operandum. The only one more likely is Thomas, who is far more consistent than any other Justice in fidelity to the principle of ordinary language meaning at the time of the adoption.

  33. Hermann Burchard said,

    March 2, 2011 @ 8:36 pm

    @MYL: "large numbers seem as at least as distinguishable to me as large collections of elementary particles are"

    Indeed, and more so, if I may refer to (mathematical) formal language theory or equivalently, Turing machines. A suitable Turing machine can detect the identity or distinctness of two numerals printed on its input tape, even large ones. For large "collections of elementary particles" we need a laboratory, in the physical chemistry department. With two colletions in separate beakers, a graduate student might be involved quite some time in an attempt to determine their separate or common identities.

  34. Hermann Burchard said,

    March 3, 2011 @ 1:28 am

    @Jean-Sébastien Girard: "I have yet to find a single specialty without terminological disagreements"

    Have you tried mathematics? After the foundational squabbles have been behind us for decades by now, almost the only time we disagree is if a purported proof is incomplete or may not have been clearly or correctly formulated. Those cases are rare however, or are quickly resolved, with some notable exceptions that can take years as was the case with Andrew Wiles' proof of the Fermat conjecture.

  35. Hermann Burchard said,

    March 3, 2011 @ 1:36 am

    @Jean-Sébastien Girard: "Linguists (including, ironically enough, terminologists and lexicographers of all things!) are constantly gripping with issues of how to define and circumscribe the terms of arts they use all the time."

    No doubt this remarkable fact (which I was glad to see formulated by you) has to do with linguistics being the only science in which the map is the territory: In all sciences is human verbal language the ever improving map by which we explore & travel its erstwhile poorly known territory, some part of nature of society, but only in linguistics is language also the territory itself.

  36. Chris Waters said,

    March 3, 2011 @ 8:02 pm

    @Hermann Burchard: regarding the consistency of mathematical terminology, "the author has followed the usual practice of contemporary books on graph theory, namely to use words that are similar but not identical to the terms used in other books on graph theory." — D. Knuth, The Art of Computer Programming, Vol I, 3rd ed.

  37. Hermann Burchard said,

    March 3, 2011 @ 10:09 pm

    @Chris Waters: Using non-identical words need not imply disagreements.
    Are the definitions the same and merely the names different? Or are different words used for non-identically defined concepts? And if non-identical, maybe still equivalent. A topological space can be endowed with suitable filter bases of neighborhoods or with the collection of open sets. There's no disagreement in that. Now if I don't like "open" and use another word, let's say "wind-swept" that would be silly.

  38. Wednesday round-up | theConstitutional.org said,

    March 4, 2011 @ 9:18 pm

    [...] the Washington Post), Bloomberg, the PBS NewsHour, the Christian Science Monitor, LAWnLinguistics, Language Log, Courthouse News Service, and JURIST all have coverage of the opinion, as [...]

  39. LAWnLinguistics said,

    March 5, 2011 @ 3:27 pm

    [...] attention is being paid to the legal uses of corpus analysis (e.g., on at The Atlantic and on Language Log) is a nice bit of [...]

  40. Podcast | Episode 84 – Days of Our Gitmo said,

    March 8, 2011 @ 11:44 pm

    [...] Picks of the Week Brian's Pick Arrested Development 3 Please contact me if you know anything about incorporating a 501(c)(3) and grant writing RadioNed's Pick Free Bradley Robin Police's Pick Q: Do corporations have "personal privacy"? A: No. [...]

  41. Hermann Burchard said,

    March 20, 2011 @ 12:14 am

    Today on BBC news, Europe:
    "A French judge has filed preliminary manslaughter charges against European aircraft maker Airbus over a crash in 2009."
    Not clear to me if this is possible under U.S. law. Should Airbus take this personally?

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