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.