This week, The Volokh Conspiracy blog published my latest article, Comma Mischief from the Florida District Court of Appeal. The closing section explains that many judges are bad at textual interpretation. It ends with a rallying cry—the only fix would be to offer training to judges and their clerks, ideally from a center at a law school.
The only way to achieve that would be with money. If you value what I do and have money available to devote to achieving this goal, email me at kadams@adamsdrafting.com. As I say in the closing line of the article, “Nothing gets better unless we work to make it better.”
Meanwhile, here’s that closing section:
The Upshot
What explains the failed textual interpretation on display in Treasure Coast? Evidently, the court was uninformed. In particular, it might have succumbed to a legalistic urge to make mischief with commas. That urge is at large in the legal profession. For example, I’ve done battle with the notion 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. That’s nonsense too. See my 2015 article.
Why was the court uninformed? It’s the result of our expecting judges to be equipped to interpret legal text, just by virtue of being judges. The prevailing view is that no expert testimony is admissible for purposes of determining whether contract language is ambiguous. See this 2009 blog post.
But in my years of dipping into caselaw, what I’ve found suggests that many judges aren’t up to the task. See this 2020 blog post. It’s unrealistic to expect they would be.
What’s the fix for defective textual analysis? For one thing, courts could admit expert witness testimony on ambiguity. But the same effect could be achieved if law firms were to retain to advise them, behind the scenes, experts who have demonstrated semantic acuity and familiarity with relevant principles of linguistics.
A broader fix would be to offer in-person and online training to judges and their clerks, perhaps from a center based at a law school. That center could also submit amicus briefs in cases where the public interest is at stake.
Nothing gets better unless we work to make it better.
