Home » For Lawyers » Links & Resources » Alaska Bar Rag (Quarterly Newspaper) » Featured Bar Rag Articles--2000 to 2007 » 03-03 May/June 2003 Featured Bar Rag Articles » Counsel, Beware of those headnotes, advises The Editor

Beware of those headnotes

By Thomas Van Flein, Editor

Everyone remembers a law professor warning about relying upon or referring to headnotes. A few years ago I was in a Los Angeles court appearing for oral argument on a commercial litigation case, and my opposing counsel, who was capable and, judging by his briefing, a very able researcher, tried to save time by referring to a headnote in a case he had attached. But he got snarled up with the judge like this:

The Court: Where is that in the decision?

Counsel: Well, if you look at Headnote 5...


The Court: Any lawyer who comes into my courtroom and starts citing headnotes is going to have real problems. Headnotes aren't the law. The court's opinion sets forth the law, and even most of that is dicta. Headnotes are written by lawyers who couldn't pass the bar and had to take a job with a publishing company...

Counsel: I know, your Honor, I was just, for expediency...

The Court: You are going to have to read the decision and cite something the court wrote, not some editor...

So, the classic law school admonition came back to haunt this lawyer, even though the headnote in that case correctly summarized the court's decision on that point.

But what if a headnote was wrong? And what if a court relied on an incorrect headnote, and that headnote took a life of its own and changed history? Well, that is claimed to be how corporations in America gained legal status as "persons" for constitutional protections in 1886 instead of "artificial entities," a classification that had existed for a century or more and did not provide constitutional protections. Of course, if one has legal status as a "person," one has constitutional protections, including freedom of speech (lobbying and political contributions), Fifth Amendment privilege, due process, etc. An artificial entity would have no such constitutional protections.

This is not to say that corporations did not at that time or before have "person" status under statutes or in court to sue and be sued. Cf. J. Angell & S. Ames, "A Treatise on the Law of Private Corporations Aggregate" p. 4 (rev. 3d ed. 1846) ("The construction is, that when "persons" are mentioned in a statute, corporations are included if they fall within the general reason and design of the statute"). But apparently they lacked constitutional protections.

Professor Richard W. Behan writes that "Orthodoxy has it the Supreme Court decided in 1886, in a case called Santa Clara County v. the Southern Pacific Railroad, [118 U.S. 394 (1886)] that corporations were indeed legal persons. I express that view myself, in a recent book. So do many others. So do many law schools. We are all wrong."

Thom Hartmann writes in his book "Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights" that The Supreme Court decision in Santa Clara County vs. The Union Pacific Railroad never made any such holding. Instead, the Recorder of the court, a man named J. C. Bancroft Davis, wrote into his commentary–the headnote—that the court had said that "corporations are persons" under the law. Specifically, the headnote said "The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws."

But the decision itself said no such thing. Apparently the headnote writer was aware it did not say this. Researchers have found a handwritten note in the J.C. Bancroft Davis collection in the Library of Congress, from Chief Justice Waite to the headnote reporter, explicitly saying, "we did not meet the constitutional issues in the case." Nothing in the text of the decision mentions this headnote principle. The reporter may have taken this from a statement made before the oral argument, where apparently Justice Morrison Waite pronounced before the beginning of argument in the case that the "court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations." It is said that he also said—orally—that "we are all of opinion that it does." But the decision never addresses this.

The damage was done. By incorrectly writing a headnote stating a principle of law that was not in the body of the opinion, a reporter, not the Supreme Court, issued a proclamation of law that, according to Mr. Hartmann, would change history and give corporations enormous powers that were not granted by Congress, and not even granted by the Supreme Court. Davis' headnote was taken as precedent by generations of lawyers (including later decisions by the Supreme Court) who followed the headnote, but not the actual decision.

There is one other twist. Some believe the reporter inserted the erroneous language on purpose. The question of whether corporations were "persons" under the constitution was hotly litigated for over 20 years prior to this decision, mainly by railroads who sought such status—but perpetually lost in court. Professor Behan notes the reporter was a former railroad lawyer who had unsuccessfully tried to get the courts to establish the point he wrote into the headnote. Professor Behan believes that the reporter sought "to achieve by deceit what corporations had so far failed to achieve in litigation."

The genie is out of the bottle now. We all take it as a given that corporations have status as "persons" under the constitution. To achieve this status in 1886—before women, Native Americans, and most African Americans achieved this—is even more of a coup. And all because of a headnote.


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