The comma

Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp., by Kenneth A. Adams is a tour de force on an arcane but important question. What is the purpose and meaning of a comma when used with a series of nouns plus a modifier?

Read the following two sentences carefully. That is:  “This basketball team has a seven-foot center, a huge power forward, and two large guards, who do spectacular dunks” and  “This basketball team has a seven-foot center, a huge power forward, and two large guards who do spectacular dunks.”

Go ahead, make my day. For each of the foregoing sentences, tell me which player or players do spectacular dunks? Read the article to see why there is a good possibility that you (like the Second Circuit) are wrong. The author, a leading expert on contract drafting, sets the stage this way:

In its opinion in American International Group, Inc. v. Bank of America Corp., the United States Court of Appeals for the Second Circuit invoked the principle of construction that if in a sentence a series of nouns, noun phrases, or clauses is followed by a modifier and the modifier is preceded by a comma, the modifier applies to the entire series, not just the final element in the series. But as the opinion inadvertently demonstrates, that principle of construction has no foundation in English usage; as such, it should be rejected. The opinion also serves as a reminder that judges cannot be counted on to understand how ambiguity operates; courts should permit expert witness testimony on ambiguity.

Who should read this article:

* The Scalias and Garners of the world. Sometimes rules of construction are entirely arbitrary and serve no useful purpose.

* Judges who think that English usage can always be understood without expert testimony.

* Any lawyer who drafts contracts.

* Any judge who must read, understand, and apply contract language.

* Anyone who suffers from an unusually strong and perverse attraction to commas.

RGK

16 responses

  1. Pingback: My Forthcoming Article, “Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp.” « Adams on Contract Drafting

    • Rachel,

      Thanks for your comment. By the way, for those like me who only have a vague notion of the Oxford comma, see here for the details.

      My law clerk’s accuse me of inventing the “Kopf comma” which, roughly stated, occurs when you stick a comma where it certainly does not belong. Somewhat like responding to a question with “So, blah, blah”– meaningless words and commas relax the mind while providing the illusion of learning. So, I am all, for it.

      All the best.

      RGK

  2. Rich, I generally aim for there being no debate about my meaning. Depending on what I meant, I’d either write: “This basketball team has a seven-foot center, a huge power forward and two large guards. All of them do spectacular dunks.” If I wanted the other meaning, I’d change the last sentence to “The guards do spectacular dunks.” I teach a lot of cases in Civil Procedure and Conflicts in which lawyers manage to create fascinating questions about whether a two or three year statute of limitations applies (because of a borrowing statute or what have you). I tell them, let someone else create the interesting case law. File before any conceivable deadline has passed. Be a chicken. Even when these lawyers “win” these cases, they’ve invested considerable resources just to get to the starting line. Similarly, I advocate for being a chicken in things like this drafting problem. Why have it turn on whether a comma means that all of the nouns are modified or just the last? Cluck, cluck. Pat.

    • Pat,

      I agree. Make two sentences out of one. Be careful what you write. Stay out of court.

      However, when the meaning of the written word must be litigated, two things especially interest me about this article. First, one could argue that the highlighted article provides a perfect example of why Scalia and Garner place too much emphasis on hoary rules of construction. Second, it raises the very interesting question of why we frequently refuse to hear expert testimony from those who specialize in grammar and word usage when courts hear disputes about the meaning of contracts and statutes.

      All the best.

      RGK

  3. Pingback: "The comma" | Internet Tax Lawyers

  4. While the thought of briefing the issues related to, and listening to the testimony of, grammar experts makes my head hurt, I agree that they are probably necessary where these kinds of issues arise. I have a better than average grasp of grammar, but I have several friends who are professional editors and know more about grammar than I ever learned. Heck, many of the formal rules of grammar I actually learned while studying foreign languages. Perhaps unfortunately, it’s just not enough to have an intuitive grasp of grammar when it comes down to the minutiae of commas and the significant effects those little marks can have. This goes a little beyond “Eats Shoots and Leaves” and “The Elements of Style.” I think the problem is that people (including me) pride themselves on their grasp of a grammar and have a harder time admitting that they’re not experts in the English language as opposed to forensics or the finer points of industry or the dozens of other subjects on which experts are invited to expound in court.

    (On a slightly risque note, I was once tickled by two side-by-side funny drawings, which you can envision for yourself, that compared two sentences distinguished only by the Oxford comma. One said: “We invited the strippers, Stalin and Hitler.” The other said, “We invited the strippers, Stalin, and Hitler.”)

  5. The meanings of the two sentences are quite clear, as has been pointed out elsewhere. Which punctuation was intended in a particular case is another matter. Confusion arises only on the possibility that the commas were misused. For a court to attempt to ascribe a “correct” usage rather than to rule on basis of the text before them is for the court to engage in the same mind-reading exercise from which originalism suffers; the only difference is that the contract’s text is relatively contemporary.

    In the end, absent an ability to question the contract’s authors and signers about what they actually meant when they wrote it and what the other signers thought it meant when they signed it, the court is stuck with what the contract actually says–good/bad grammar and all (assuming the court is able to parse out the self-serving aspects of such testimony).

    If that produces a bad outcome, the participants should pay better attention next time. If the actual text of a contract has no role, and/or if a court i to “adjust” a contract’s language to comport with its own view of proper grammar, then it’s not possible to write contracts that have meaning past the moment one party decides the contract no longer is convenient to them. Consider, also, a contract between an American company and a British one, signed (for reasons of convenience) in Rio de Janeiro. Whose grammar rules must apply?

    Eric Hines

    • Eric,

      All great points. As you no doubt know, there are good rejoinders, but I am too worn out today to provide detailed responses. Suffice it to say, that you have nicely provided the other side of the coin. All the best.

      RGK

      PS. When I have a contract case, the hardest practical question I have to answer is this one: As between judge and jury, who does what when the contract is unclear?

      • Would not questions of grammar and of what the text of the contract says be matters of fact and not matters of law?

        And given what the contract says, would not questions of legality of any part of the agreement, or of the existence of circumstances sufficiently exigent to justify unilateral abrogation of it be matters of law and not of fact?

        That would, though, seem to upset the ordinary order of events: the jury would have to tell you the facts before you could rule on law, and then you’d have to return the matter to the jury for assessment “guilt” or “innocence” in this civil matter.

        Or am I misunderstanding the confusion (likely, since in my push to avoid overcomplexification, I have been known to oversimplify)?

        Eric Hines

        • Eric,

          Again, Bud, you should’a gone to that there law school. The “back and forth” you describe between the judge and jury in a contract case does indeed happen. It makes things very hard. As for whether something is a matter of law or something is a matter of fact when it comes to contracts (and, frequently, otherwise), we don’t have time (in this life) to address that question in any detail. But if you are still hungry, take a read through this for contracts, but merely as an example.

          All the best.

          RGK

  6. Rich, I did read the article and I read the case. I think the case had it right on the “context” argument, but I’m persuaded that the “comma” argument is a bad one. I get bad flashbacks to my Law Review days as to which relative pronoun (“which” or “that”) to use. We got into some nasty battles over that subject. Best, Pat.

Follow

Get every new post delivered to your Inbox.

Join 1,094 other followers

%d bloggers like this: