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

I’ve written an article entitled “Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp.” It analyzes an April 2013 opinion of the Second Circuit.

The article will be published by The Scribes Journal of Legal Writing, but not until 2014. I can’t bear to wait that long, and I know you can’t either! So go here for a PDF. (I might put it on SSRN, but this is fine for now.)

This is the first time I’ve gone public with a forthcoming article. I’m doing so because I think this article is really interesting. Here are the first two paragraphs:

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.

I’ve previously done battle with this bogus principle of construction when I acted as expert witness in “the case of the million-dollar comma.” (Go here for my 2007 article about that dispute.) Thanks to the Second Circuit’s misconceived analysis, this article provided me with the opportunity to put a stake through the heart of that principle of construction.

This article is different from my usual stuff in that it addresses statutory interpretation. But contract drafters might nevertheless find it relevant: demonstrating the sort of mess that courts can get into when interpreting legal texts should give drafters even more incentive to be clear.

I’m pleased that the article has found a home in Scribes. It’s too long for my usual outlets, too short for law reviews, and too pointy-headed for general-interest legal publications.

[Update: To see what Judge Richard Kopf had to say about this article, go to this post on his blog Hercules and the Umpire. And go here to see the WSJ Law Blog's item about this article.]

Posted in My Articles | 7 Comments

  • Alan Adamson

    I need to think about this some more, but isn’t your (and the court’s) discussion of relative clauses inapposite? The “either directly” isn’t a relative clause–its a complex, compound adverbial phrase. Relative clauses, such as the court’s basketball example and your lawyer/accountant example, have a subject (or implied subject) and most importantly a verb.

    The analysis should be focused on which verb the adverbial phrase is modifying. Because “arising” is the only verb in the italicized language, and therefore is the antecedent verb for each of the three clauses, shouldn’t the grammatical interpretation be that “either directly” should be treated as if it appeared immediately following “arising”, which implies that it is modifying all 3 phrases. It seems to me that perhaps the court reached the right conclusion for the wrong reason. I don’t own Sutherland, but in the description of the rule of the last antecedent it apparently refers to the last “noun or phrase”, suggesting that that rule shouldn’t be applied to an adverbial phrase.

    • http://www.adamsdrafting.com/ Ken Adams

      Alan: Thank you for this. I finalized this article a couple of months ago, and now isn’t the time for me to reimmerse myself in it, so I’ll turn to your ideas down the road.

      Regarding things linguistic, I had the great benefit of being able to bat ideas around with Rodney Huddleston, so I’m very confident of my analysis. But I’m always prepared to eat crow!

      Ken

      • Alan Adamson

        Understood. I’ll look forward to exchanging thoughts in the future. Regardless of whether you end up eating crow based on my thoughts (a result that I’m by no means certain will come to pass!), I certainly concur with your ultimate point–that is, the introduction of expert testimony on linguistic interpretation is warranted.

        Alan

  • Mark Anderson

    Ken, interesting and persuasive article. If I were the court, I might have focused more on the “acting” argument. My sense of the flow of the sentence is “arising… either directly or…” which for me pulls in all of the words in between “arising” and “either directly or” and makes those words subject to the “either directly or” qualification. There is, no doubt, a better way of expressing this in linguistic terms!

  • AWrightBurkeMPhil

    The case in favor of canons of construction is that they give fair warning to drafters of what courts will do if drafters aren’t clear — they supply default values.

    The same case can be made for “judicial rules of punctuation,” as long as they’re adequately promulgated and not just precipitated from the air ad hoc.

    If the “last antecedent” rule is only a default rule, the objection is demurrable that it lacks roots in popular or elite English usage.

    If a drafter dislikes the rule, let her draft so that no judge has the occasion to apply it.

    But good luck finding universally recognized neutral principles of statutory construction or punctuation. Aren’t you an avid critic of the Scalia/Garner effort?

    It was strange to read your commentary on a case without a passage to the effect, “I have no interest in whether the decision was right or wrong, but only in how the drafters of the statute could have avoided the occasion for litigation.”

    • http://www.adamsdrafting.com/ Ken Adams

      I’m not about to pick a fight with the notion of principles of construction generally, beyond observing that they’re arbitrary. (I refuse to use the word “canon,” with its bogus ecclesiastical overtones.)

      Instead, my beef is with this principle of construction, precisely because it’s “precipitated from the air ad hoc.”

      And yes, I made a point of omitting my customary statement of intent. That’s because for once my aim was to set judges straight instead of suggesting how drafters can stay out of trouble.

  • Westmorlandia

    One note on this in passing – this dispute is talked of in various places as a dispute over grammar. In a sense that is true, but we should be clear that punctuation itself is not grammar. Punctuation are markers used in written text to indicate how the sentence is constructed syntactically. They are signposts.
    This may or may be slightly academic, but it does have a meaningful consequence. While some grammar is inherent in the language, all punctuation is convention. Some are rock solid – full stops at the end of sentence – and some are not – like the Oxford comma. Punctuation has also changed wildly over time. In the 18th century, they seemed to use twice the amount we do today. That is not a grammatical change, but a change in how the written word is presented.
    Interestingly, when Milton wrote Paradise Lost (or rather dictated it – he was blind), he did not specify the punctuation to be used. All editions therefore use different punctuation in order to bring out the meaning as the editor thinks works best.