Thanks to Steven Sholk, I learned of an article by Ira P. Robbins, professor at American University’s Washington College of Law. The article is entitled “And/Or” and the Proper Use of Legal Language, and it will be published in the Maryland Law Review. (The SSRN page for the article is here.)
Professor Robbins’s view is a contrarian one—that we should use and/or. Here’s part of the abstract, to give you the flavor of his article:
And/or, however, is not ambiguous at all. It has a definite, agreed-upon meaning: when used properly, the construct means “A or B or both.” In most areas of law, there simply is no compelling reason to avoid using and/or. The term is clear and concise. It derives criticism mainly from the inability of people to use it correctly. …
Despite the few contexts in which and/or should be avoided, the construct should not be discarded simply because individuals occasionally misuse the term. After all, legal drafters and courts commonly struggle with using and interpreting “and” and “or,” words that are riddled with ambiguity. … As with many consistent errors in legal writing, the problem lies not with the term and/or itself, but with a lack of close attention to detail. Legal drafters should use it with the same level of care with which they use any other word or phrase.
There’s nothing wrong with being contrarian. Unless … you’re wrong. I suggest that Professor Robbins is mistaken.
His argument appears to be, “If only you dummies would use it properly, you’d see that the meaning of and/or is clear!” As a paradox, that’s comparable to “The beatings will continue until morale improves.”
Professor Robbins is correct that one problem is that drafters use and/or in ways that don’t make sense, as in Acme shall incorporate the Subsidiary in Delaware and/or New York. But the bigger problem is that readers are prone to being confused by and/or. And they use it as a stick in contract disputes. See, e.g., Redmond v. Sirius International Insurance Corp., No. 12-CV-587, 2014 WL 1366185, at *1 (E.D. Wis. 7 Apr. 2014), which I discuss in this 2014 post.
You don’t fix that problem with closer attention to detail. You fix it by replacing it with something clearer: instead of A and/or B, you say A or B or both.
As such, the confusion surrounding and and or is indeed relevant. You fix that problem, too, not with closer attention to detail, whatever that means, but by expressing whatever you want to say in a way that avoids ambiguity. Chapter 11 of A Manual of Style for Contract Drafting is full of examples of how to do that. But problems relating to and and or are gruesomely subtle. By contrast, fixing and/or is a piece of cake. And it comes at a negligible cost—a few extra characters.
Also, and/or is a source of confusion in a couple of other ways that Professor Robbins doesn’t mention. I discuss one of them in this 2012 post.
I find tiresome the righteous spittle-flecked invective directed at and/or, so I’m sympathetic to Professor Robbins’s thesis. But I disagree with it.
(By the way, in everyday English, when the stakes aren’t high, and/or can come in handy.)
1/ When the man who rehabilitated ‘shall’ talks about rehabilitating ‘and/or’, I pay attention.
2/ This is one of many problems that drafters can solve with a concise definition: ‘And/or’ means ‘one or more of the elements joined by it’. That approach may or may not be the best solution, but it is a solution. I prefer eschewing ‘and/or’.
3/ Too many writers are in love with the word and the idea of ‘nuance’, so it’s a joy to see a genuinely nuanced position like your gentle equanimity: (1) don’t use ‘and/or’ in contracts; (2) don’t direct ‘righteous spittle-filled invective’ at it, either; and (3) in everyday English, it can be handy.