Bench Memos

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Re: An Implausible Ruling for ACORN


My original post has become somewhat unwieldy, as I’ve added an update and a clarification to it.  So I’ll add this further observation here:

In response to the first obvious difference between Section 163 and the provision at issue in Lovett—namely, that Section 163 applies to an organization, not to individuals—one reader wonders whether the Second Circuit’s decision in Consolidated Edison Co. v. Pataki, 292 F.3d 338 (2002), renders the difference immaterial.  I certainly don’t think so.  In Consolidated Edison, the Second Circuit did hold that corporations are protected under the Bill of Attainder clause (a holding that I don’t dispute).  But it expressly recognized that the protections afforded corporations might differ from those afforded individual persons:

Whether a government action is punishment varies depending on context. There may well be actions that would be considered punitive if taken against an individual, but not if taken against a corporation.  [292 F.3d at 354.]

In other words, on the inquiry whether a law amounts to punishment for purposes of the Bill of Attainder clause, the Second Circuit’s ruling invites a careful consideration of the difference between organizations and individuals, a consideration that Judge Gershon failed to undertake.

(A rather oddly formatted version of the Con Ed opinion is available online here; the passage quoted above is from the paragraph numbered 55.)

Tags: Whelan


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