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.