Monday, November 9, 2009

Arguing Word Usage with Justice Scalia

On Tuesday, 11/3, the US Supreme Court heard oral arguments in Hemi Group, LLC v. City of New York (08-969). The case involves the issue of whether state and local governments have standing under the RICO statute to bring suit for recovery of uncollected taxes (and treble damages).

The Hemi Group sells cigarettes over the Internet, advertising that they are “tax-free.” It ships from low-tax sites, such as tribal lands. New York City imposes hefty taxes on tobacco products sold or used there. Of course, Hemi Group is not responsible for collecting the New York taxes; instead, New York customers are responsible for contacting the City and paying those taxes. Few customers, however, want to take that step. Recognizing the difficulty local governments would have in collecting these taxes, Congress passed the Jenkins Act in 1949. That act requires out-of-state vendors to report purchases to each customer’s state, which Hemi failed to do.

On behalf of Hemi Group, lawyer Randolph Barnhouse argued that New York had lost only an “opportunity” to collect taxes, an “inchoate interest” not amounting to property under RICO. In response to a hypothetical, Barnhouse referred to a “choate” interest in property, leading to this exchange with Justice Scalia (as reported by the online weekly ABA Journal):
“There is no such adjective,” Scalia said. “I know we have used it, but there is no such adjective as ‘choate.’ There is ‘inchoate,’ but the opposite of ‘inchoate’ is not ‘choate.’ "

As Barnhouse tried to move on, Scalia offered an example. “It's like 'gruntled,' " he said.

“But I think I am right on the law, Your Honor,” Barnhouse offered, but Scalia wasn’t done.

"Exactly. 'Disgruntled,' " Scalia said. Some people mistakenly assume the opposite of “disgruntled" is “gruntled,” he explained.
It would certainly be a bit embarrassing to be caught by a Justice using a “non” word. But is Justice Scalia correct? The Oxford English Dictionary (OED), which is available online through the UW Libraries, describes “choate” as an “An erroneous word, framed to mean ‘finished’, ‘complete’, as if the in- of inchoate were the L. negative.” It then gives examples of its use by Oliver Wendell Holmes and Winston Churchill. The OED seems to have less of a problem with “gruntled,” which it simply defines as “Pleased, satisfied, contented.”

What about legal dictionaries? Black’s Law Dictionary, checked on Westlaw, includes these definitions of “choate:”

1. Complete in and of itself. 2. Having ripened or become perfected.

That also is the general sense of the more complete discussion of the word in A Dictionary of Modern Legal Usage found on LexisNexis, though there it is referred to as an “invented” positive form of “inchoate.” Both dictionaries point to “choate” as a term used for a type of lien. Here is part of that discussion from A Dictionary of Modern Legal Usage:
The word has become more or less standard in the phrase choate lien, corresponding to inchoate lien . . . . Although the word is the product of incorrect etymology, is ugly and illogical, it would be futile to call for its obliteration from the legal vocabulary. It has supplied a name for a fairly arcane legal doctrine, which is unlikely to be renamed. Choate is recognized in legal literature as "an illegitimate back formation" (Plumb, Federal Liens and Priorities, 77 Yale L.J. 228, 230 [1967]), but it is used even by those who deprecate its origins.
Neither Black’s nor the legal dictionaries in LexisNexis included “gruntled.”

By the way, if you would like more details about the issues in the Hemi Group case, check out this preview from the SCOTUSblog.

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