Of the sixty-odd articles I’ve written, one is a real turkey: Revisiting the Ambiguity of “And” and “Or” in Legal Drafting, published in 2006. It flubs the analysis of or.
I was subsequently rescued by Rodney Huddleston, titan of linguistics (see this 2020 post), so in A Manual of Style for Contract Drafting, the analysis of ambiguity associated with or makes sense. I’d like the 2006 article to disappear down a memory hole, but it’s still out there. In particular, nine courts have cited it. In an opinion issued four days ago, the Supreme Court of Colorado cited it. Kulmann v. Salazar, No. 22SC135, 2022 WL 17748017 (Col. 19 Dec. 2022). I know nine citations isn’t a lot, but it’s enough to be annoying.
Why do courts cite my 2006 article even though the treatment in MSCD is way better? Because the 2006 article is on Westlaw and Lexis and so is available to anyone with a subscription plan who searches for articles with ambiguity in the title. By contrast, citing MSCD requires that you know about it, know that it addresses the ambiguity associated with or, and either buy it or track it down in a library. That’s a bigger hurdle. This might be more of an issue with legal research compared to research in the humanities (English, history, religious studies, philosophy, and art history)—because of the money sloshing around in the legal industry, it’s cost-effective to have a big proportion of the literature available online.
So what to do? We could put MSCD on Westlaw or Nexis. (I seem to recall that years ago it was briefly on Westlaw.) But the idea doesn’t excite me. It’s not a great way to read a reference work that you consult regularly, with a lot of flipping back and forth. Books on Westlaw and Nexis tend to be treatises that cost hundreds of dollars or more, so you’d be unlikely to buy one. And being on Westlaw or Nexis doesn’t guarantee being noticed.
I’d rather work to make MSCD better known to judges. I plan on sending review copies to some judges. If you know of an influential judge who would appreciate my approach to contract language, let me know.
But perhaps the best way to make judges aware of MSCD would be to cite it in pleadings! It seems from her opinion in Pelopidas, LLC v. Keller (see this blog post) that Judge Kelly C. Broniec of the Missouri Court of Appeals learned about MSCD from the appellant’s pleadings.
