Revisiting When an Hour Ends, Thanks to Kanye’s Political Campaign

I was tickled to note this article in the Milwaukee Journal Sentinel regarding Kanye West’s deranged political campaign. Here’s the relevant bit:

West’s campaign is arguing he belongs on the presidential ballot in Wisconsin even if his campaign turned in his nomination signatures 14 seconds after the 5 p.m. deadline Aug. 4.

The 23-page document, filed Monday, says a state Elections Commission staffer told a West campaign aide that she turned in the nomination papers 14 seconds after the deadline. State law says the papers had to have been filed by “not later” than 5 p.m.

“The statutory provision does not distinguish between minutes and seconds,” lawyer Michael Curran of Spring Green said in the filing.

“For the average observer, arriving before 5:01 p.m. is arriving ‘not later’ than 5 p.m. The phrase ‘not later’ is particularly instructive in that it indicates the presumption that the seconds from 5:00:00 to 5:00:59 are inclusive to 5 p.m. As the statute states ‘5 p.m.,’ for something to be filed later than ‘5 p.m.’ it would have to be filed at 5:01 p.m.”

Wouldn’t you know it, I happen to have written about exactly this issue, in this 2009 blog post. For purposes of Kanye’s dispute, here’s the key point I make in that post:

[A]ny given time of day isn’t a period of time, but simply the boundary between blocks of time. For example, 9:00 a.m. is the boundary between the eight-o’clock hour and the nine-o’clock hour.

A Manual of Style for Contract Drafting ¶ 10.40 picks up the story:

So if a contract states that a deadline is midnight at the end of a given day, the deadline will pass once the last second of the 11:00 p.m. hour expires and the first second of the next hour begins. Midnight is the boundary between those two seconds.

It seems that some drafters aren’t convinced of that. For example, included in contracts filed on the U.S. Securities and Exchange Commission’s EDGAR system are plenty of contracts that use 5:01 p.m. to state a point in time. The implication is that when you state a time of day, you’re referring to a minute-long period of time, so 5:00 p.m. constitutes a period of time that isn’t over until 5:01 p.m.

That suggests that although drafters might use 12:01 a.m. and 11:59 p.m. to avoid the ambiguity in midnight (see 10.38), it’s likely that some who use 12:01 a.m. and 11:59 p.m. are doing so because they think that a time of day refers to a minute-long period of time.

Arguing that a time of day lasts a minute is a good example of being too clever for one’s own good. (Otherwise known as being legalistic.) Kanye’s camp says that 5:00 p.m. lasts until 5:01 p.m. How about if the time were instead stated 5:00:00 p.m.? I could use the Kanye camp’s logic to argue that 5:00:00 lasts for a full second. How about if the time were instead stated as 5 p.m.? I could use the Kanye camp’s logic to argue that 5 p.m. lasts for a full hour. That way lies madness.

The only sensible option is to recognize that an hour begins at the beginning of the first second of the first minute and expires with the last second of the last minute. Thankfully, contract performance usually doesn’t involve margins of less than a minute, so there’s little point in trying to draft in a way that precludes the Kanye camp’s misconception, perhaps by using an internal principle of interpretation. (I once started drafting such an internal principle of interpretation, but it was so cumbersome as to be laughable.)

But the blog post I link to above accepts that if you say that something must be done at 5:00 p.m., it’s understandable that you’d give someone the first minute of that hour to do it. But the bigger point is that you should never use at to specify a deadline for submitting bids or taking any other contract action.

By the way, note how that blog post begins:

A few weeks ago, while driving my daughter Sydney somewhere in Garden City, I laid the following observation on her: If you have to take some action at a specified time, you’re likely going to be early or late, to a lesser or greater extent.

Ah, my long-suffering daughter (then 12 years old), having to listen to this sort of stuff!

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.