A tipster with a sense of humor sent me a link to an opinion of the Minnesota Court of Appeals, Borth v. Borth, No. A21-0571, 2022 WL 90612 (Minn. Ct. App. Jan. 10, 2022) (here).
This dispute involves our old friend, syntactic ambiguity. I’m not about to go into the details, because to stay sane, I have to ration the time I devote to the confusion that can reign when judges wrestle with ambiguity. Just a year and a half ago I did this blog post about another Minnesota Court of Appeals opinion, so it’s too soon to revisit their work in any detail.
But this latest case allows me to offer a general principle for assessing a court’s attempts to interpret confusing text, whether of statutes or contracts.
In Borth, the court refers to “application of the well-accepted rule of grammar known as the ‘last-antecedent rule.'” The rule of the last antecedent is not remotely a rule of grammar, whatever that might be. Instead, it’s a principle of interpretation. (To repeat what I say in this 2016 blog post, those who favor principles of interpretation are prone to calling them “canons,” presumably in the hope that the ecclesiastical-law origins of that word give principles of interpretation a sanctified glow.)
If courts mistake principles of interpretation for rules of grammar, that tells us two things. First, it suggests that those courts aren’t aware that in applying principles of interpretation, courts are relying on rough notions of probability as an expedient alternative to the usually hopeless task of trying to figure out what the drafters intended. It follows that principles of interpretation can be shaky.
Regarding the frailty of the rule of the last antecedent, see Joe Kimble’s article The Doctrine of the Last Antecedent, the Example in Barnhart, Why Both Are Weak, and How Textualism Postures (PDF here). And if you want to see where the rule of the last antecedent really goes off the rails, check out my article Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp. (PDF here). (Both articles are in the same issue of The Scribes Journal of Legal Writing.) And more generally, there’s the well-known jest that for every principle of interpretation, there’s another principle of interpretation that says the opposite.
But if you call them “rules of grammar,” well, that might make them sound somehow more reliable, more time-hallowed. You can turn a blind eye to the expediency, the frailty.
The second thing we learn is that if a court thinks principles of interpretation are rules of grammar, we can assume that they’re largely strangers to actual grammar and linguistics.
So here’s my general principle: If a court says that principles of interpretation are rules of grammar, don’t expect much from their textual interpretation, in that opinion and others. Among the courts that have indulged in the rules-of-grammar thing is the U.S. Supreme Court; see this 2021 blog post.
The only way to fix this would be to offer commentary on, and training in, textual interpretation that’s authoritative enough, and accessible enough, to drown out the confusion and misinformation.
6 thoughts on “Principles of Interpretation Aren’t “Rules of Grammar”!”
In my view, the canons fit into an overall process of interpretation. The process involves answering three questions:
First, is the text ambiguous or otherwise unclear (for simplicity, ‘ambiguous’)? If not, any interpreter should give the text its plain meaning.
Answering this first step can make for a mighty brawl. If the ‘not ambiguous’ side wins, there are no more steps.
Second, if the text *is* ambiguous, will the application of one or more canons remove the ambiguity?
The answer could easily be ‘no’, either because no applicable canon exists or because two or more applicable canons produce conflicting results.
To the objection that it would be wrong to use canons to produce a result not intended by the parties, the rebuttal is twofold:
(1) If the parties themselves failed to make their intention clear, they cannot complain if interpreters use pre-existing default rules to assign meanings, and
(2) The objection begs the question. (I.e. how can the ‘canonical’ meaning violate the parties’ intent when the reason for *applying* the canons is that the parties’ intent is unknown?)
Third, if applying one or more canons does not resolve the ambiguity, what is to be done?
What to do depends on various factors like background law, other parts of the contract (partial invalidation provision), whether the ambiguous text is trivial or non-trivial, and other things beyond the present scope.
In Venn diagram lingo, the rules of grammar and the canons are different circles, but they partly overlap. In addition, the canons are neither magic problem solvers nor utterly useless. They’re just tools, like many legal rules.
In a conversation with a Chinese lawyer, I asked her whether she approved of the ability of the Chinese Communist Party to step in and alter a judicial ruling. She said yes, because it is the duty of the Party to safeguard the well-being of the people, and the Party would be remiss if it did not correct judge’s rulings that left uncorrected might harm the well-being of the people.
To me, the canons are (imperfect) neutral principles of interpretation, and to devalue them categorically in favor of a judge’s wide-open search for what parties intended who failed to make it clear in their contract is a bit of a drift from the rule of law toward the rule of what ‘makes sense’ to certain powerful people (judges).
It would of course be a good thing if judges were better trained in the canons of statutory construction, contract drafting, contract interpretation, grammar, linguistics, semantics, statutory interpretation, and much else. But the fact that they are only as knowledgable as they are doesn’t discredit the canons. It just increases the load on the drafters to draft so that ‘even a judge’ can understand the contracts without resort to extracontractual resources.
Try this formulation: “Parties’ best protection against the vagaries of the canons is for their drafters to follow MSCD.” Ounce of prevention, nip in bud, etc. –Wright
I was also involved in a case regarding statutory intepretation and the rule of last antecedent, Rogers v. State, 60 NE 3d 256 (Ind. Ct. Appeals 2016), trans. denied.
The issue in the case, whether there is a privilege for communications with an unlicensed social worker, turned on the following definition: “‘[C]ounselor’ refers to a social worker, a clinical social worker, a marriage and family therapist, a mental health counselor, an addiction counselor, or a clinical addiction counselor who is licensed under this article.”
We represented the defendant and argued that the trailing modifier, “who is licensed under this article,” applied to each of the six types of counselors listed, including social workers, leading to the result that there is no privilege for unlicensed social workers.
The State argued that, because no comma appeared between the last item in the series and the trailing modifier, the rule of last antecedent dictated that “who is licensed under this article” applied only to the last item.
The Indiana Court of Appeals disagreed with the State, holding that the trailing modifier applied to each item in the list and that there is no privilege for unlicensed social works. The Indiana Supreme Court held oral argument and denied transfer without opinion.
It was the only time I’ve ever argued in front of the Indiana Supreme Court, maybe the only time I ever will, and I was litigating a comma. Such is the glamorous professional life of an attorney.
P.S. If I recall correctly, I cited your article, “Bamboozled by a Comma…”
Before I got to your last sentence, I was thinking, “I hope he cited my article!”
Assuming the Court of Appeals correctly divined the legislature’s intent (and I think it did), a better way to draft that definition is, “‘Counselor’ refers to any of the following persons who are licensed under this article: a social worker, a clinical social worker, a marriage and family therapist, a mental health counselor, an addiction counselor, or a clinical addiction counselor.”
Of course, that’s not the only way to do it. My contracts make liberal use of tabulation and enumeraton, both to make them easier to read and to avoid ambiguities such as the one in that statutory definition, like this:
“Counselor” refers to:
(a) a social worker;
(b) a clinical social worker;
(c) a marriage and family therapist;
(d) a mental health counselor;
(e) an addiction counselor; or
(f) a clinical addiction counselor
who is licensed under this artilce.
What are your thoughts? Is the tabulation enough to ensure that a judge reads the clause as intended?
Oops. When I wrote that, I put spaces in front of the lines with letters so those lines were tabulated over a bit. There were no spaces in front of the last line, so it aligned with the first line. The leading spaces were deleted when it was posted. So please use your imagination to put them back in.
I don’t think the spacing glitch makes a difference. And yes, those are two ways of eliminating confusion, but I’m lukewarm on the second, as the last part is “dangling text.” See MSCD for more on that.