Tipster extraordinaire Glenn West let me know about the Texas Supreme Court’s opinion in U.S. Polyco, Inc. v. Texas Central Business Lines Corp., issued yesterday (here).
Here’s the language at issue (emphasis added):
1.1 TCB Infrastructure Improvements. As used in this Agreement: “TCB Infrastructure Improvements” will mean the following improvements agreed to and shown generally in Exhibit X attached and incorporated into this Agreement by this reference (“Preliminary Layout”): . . . (3) various concrete and ground surface improvements, including without limitation slabs for truck scales and racks, tank and appurtenant structures to house personnel, oil heating and steam generation equipment, curbs and planters for parking areas, and other items in or adjacent to the Designated Areas as are agreed upon by TCB and [Polyco] in writing. All TCB Infrastructure Improvements constructed or provided for under this Agreement will be the sole property of TCB upon completion and are intended for the primary use of TCB in the conduct of its railroad operations.
The question was whether “as are agreed upon by TCB and [Polyco] in writing” modifies just “other items in or adjacent to the Designated Areas” or modifies everything preceding it in clause (3).
I’m not interested in exploring whether the court was right in holding that the modifier modifies just what’s next to it. (I think it was, but don’t hold me to it.) Instead, I want to focus on a disconcerting aspect of the opinion.
Regarding the absence of a comma before “as are agreed upon by TCB and [Polyco] in writing”, the court said “That is why the court of appeals—again, correctly—determined that, in this context, the punctuation of Section 1.1(3) favored the last-antecedent canon’s application.” It went on, “The omission of an Oxford comma here only reveals the lack of anything else in the text or context that supports the notion that the parties intended the ‘in writing’ requirement at the end of Section 1.1(3) to govern everything in that section.”
There are two problems with that. First, if there had been a comma before “as are agreed upon by TCB and [Polyco] in writing”, it would not have been an Oxford comma! It would have been just a regular comma! An Oxford (or serial) comma is the comma before an and or or in a list of three or more. As in cake, cookies, and ice cream. That’s not what’s going on here. Perhaps the court was swept up by the odd enthusiasm for the serial comma in pop culture. (There’s even a song about it.) You want an Oxford comma? Well, the comma before “and other items in or adjacent to the Designated Areas” is an Oxford comma.
And second, the court says that presence of a comma before “as are agreed upon by TCB and [Polyco] in writing” would have suggested that the modifier doesn’t just modify what’s next to it but instead reaches back to the beginning of the chain. In other words, the court is buying into what I call “the comma test under the rule of the last antecedent.” I debunked that notion in this law review article.
Although the court went on to consider the broader context, these two problems show that the court doesn’t understand syntactic ambiguity. (That’s the kind of ambiguity that arises out of the order in which words and phrases appear and how they relate to each other grammatically.) For those attuned to syntactic ambiguity, the court might as well have announced that the earth is flat.
But the Texas Supreme Court isn’t alone. For example, in a case involving syntactic ambiguity, the U.S. Supreme Court described a canon of construction as a “rule of grammar,” thereby showing that they, too, are semantically inept. (See this 2021 blog post.) “Canon of constructions” is a pompous term for quick-and-dirty principles of interpretation invented to help courts resolve disputes over confusing contract language. They are not rules of grammar.
This sort of misunderstanding is pervasive. Yet another case involving syntactic ambiguity prompted me to write this 2020 blog post, entitled Many Judges Are Bad at Textual Interpretation. What Do We Do About It?
What explains this ineptness? Until recently, no one has bothered to write a clear and well-informed overview of syntactic ambiguity. And U.S. courts consider resolving ambiguity to be a matter of law, so they generally hold that expert testimony is inadmissible for resolving ambiguity. Thanks to those two factors, when it comes to syntactic ambiguity, courts are free to make stuff up.
So what’s to be done? In my 2020 blog post, I say that offering to judicial personnel an intensive online training program in textual interpretation would be the best corrective. Meanwhile, if you’re in the business of interpreting (whether as a drafter, reviewer, litigator, or judge) text that might feature this kind of ambiguity, do yourselves a favor and go here and buy my book A Manual of Style for Contract Drafting. By several orders of magnitude, it contains more about ambiguity than anything else in law or linguistics. As I explain in this 2020 blog post, in analyzing ambiguity I was helped by the great Rodney Huddleston, co-author of The Cambridge Grammar of the English Language (although any remaining flubs are my own).
If I could make just one recommendation regarding syntactic ambiguity, it would be, Don’t rely on commas! Judges don’t understand commas, and people who work with contracts don’t understand commas, so don’t rely on a comma to express your intended meaning. Find some other way to say what you want to say. (For more about that, see this 2017 blog post.)
While I’m at it, how would I have avoided the dispute in this case? It would have made sense to have addressed the “as agreed upon” concept elsewhere, in a section addressing how to handle changes.