Remember ejusdem generis? It’s the principle of interpretation that holds that if general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class.
Joe Kimble’s excellent article on ejusdem generis (here) reminded me of the following assertion in Scalia and Garner’s Reading Law: The Interpretation of Legal Texts:
The truly knowledgeable interpreter (and drafter) knows the ejusdem generis canon; it has become part of the accepted terminology of legal documents. Any lawyer or legislative drafter who writes two or more specifics followed by a general residual term without the intention that the residual term be limited may be guilty of malpractice.
All that matters for purposes of this post is that this extract got me wondering how you determine whether someone is a “truly knowledgeable drafter,” as regards their ability to say clearly and concisely whatever needs to be said.
I propose that the only way to measure competence is against a set of guidelines. Traditional contract drafting doesn’t offer a set of guidelines; it offers chaos.
[Update 1 December 2016: Hey, I remembered this post from 2014, What It Takes to Be a Great Contract Drafter.]
Chaos, and Latin!
Amen, brother!
If the ‘truly knowledgeable drafter’ is one who has read Professor Kimble’s fine article, we’d all draft around ejusdem generis, as we should.
My working version of ejusdem generis is: When general words apply to stated and unstated items, the unstated items belong to the same kind or class as the stated ones.
Under ejusdem generis, ‘pets, including [without limitation] cats and dogs’ means ‘cats and dogs and other pets of the same kind or class’.
If that’s what you mean, you’d be foolish to rely on the rule to get there. Better to say ‘cats and dogs and similar pets’.
If that’s not what you mean, kill ejusdem generis: ‘cats and dogs and similar and dissimilar pets’.
The classic context for ejusdem generis has the general word at the end. And I wouldn’t do similar. So no.
Professor Kimble’s article notes that the apparent justification for applying ejusdem generis ‘one way’ (only when the general word is at the end) is that if ejusdem applies ‘both ways’ (whether the general word is first or last), it becomes redundant of another canon (noscitur a sociis) that says essentially the same thing but applies both ways.
But even treating ejusdem as one-directional, the drafter can still nullify the canon by words that, well, nullify the canon. If ‘similar’ is for some reason (why?) objectionable as a synonym for ‘of the same class or kind’, don’t use it: ‘cats and dogs and other pets, whether or not of the same class or kind’.
The message to the court and other like and unlike readers remains the same: ‘ejusdem doesn’t apply here’. (Works for noscitur, too.)
Ken:
This kind of thing drives me up a wall. I often want to do two things in a definition: (1) state abstractly what the term means and (2) help identify the border between things that are in and out of the defined term by way of examples, typically using “includes” and “does not include.” But the fact that I’m defining one border using examples doesn’t mean that everything covered by the defined term is along the border!
Chris
If you play your cards right there shouldn’t be any risk of that.
“Update 1 December 2017” ? Mr. Adams now tackles time travel? :)
Oh gawd, it’s that time of year when I play “what the heck year is it anyway”. *Fixed*