The Texas Supreme Court Doesn’t Know from Commas

Yesterday I saw a post on LinkedIn that mentioned Sullivan v. Abraham, a 2016 opinion of the Texas Supreme Court (PDF here). The LinkedIn post mentions that the opinion involved a serial comma, so of course I had to check it out. Unfortunately, this opinion offers another example of a court that’s inept at textual interpretation. As such, it’s worth looking at, even five years on.

Here’s the statute language at issue, with the relevant components highlighted:

I’ll spare you the background. The question was whether as justice and equity may require modifies just other expenses incurred in defending against the legal action or also modifies court costs and reasonable attorney’s fees. In other words, this sentence exhibits syntactic ambiguity—uncertainty over what part of the sentence a component of the sentence modifies.

The Lack of a Comma Is Irrelevant

If you strip away what’s extraneous, the court offered two arguments in favor of the interpretation it favored. Here’s the court’s first argument:

[T]he insertion of a comma before “as justice and equity may require,” would have indicated that the phrase was to modify the entire series. … Similarly, the Legislature could have inserted a comma after “other expenses” to indicate that the phrase “incurred in defending the legal action as justice and equity may require” was to modify all items in the series. But the statute does not include a comma after “other expenses” or after “legal action,” and their absence indicates an intent to limit the justice-and-equity modifier to the last item in the series.

In suggesting what the effect of a comma before as justice and equity may require would have been, the court is invoking what I call “delimiting commas in coordination” (see this 2020 blog post). This phenomenon involves offsetting commas, and it’s on display in a sentence used by Scalia and Garner in Reading Law: The Interpretation of Legal Texts and quoted by the court: You will be punished if you throw a party, or engage in any other activity, that damages the house.

But it doesn’t make sense to say that a comma before as justice and equity may require would have made it clear that the phrase modifies everything that precedes it. The sentence would have read better with a comma there, and that has nothing to do with offsetting the preceding commas: if you omit everything from clause (1) before other expenses, a comma is still appropriate. Although a subordinate clause at the end of a sentence normally doesn’t take a comma at the front—as justice and equity may require is a subordinate clause—in this case a comma is appropriate, because the relevant verb isn’t the closest one, defending, but instead is remote, award. So the break afforded by the comma is appropriate and doesn’t require intuiting that it’s intended to offset commas after court costs and reasonable attorney’s fees.

Late last night (US Eastern Time) I asked on Twitter whether, in a sentence with the first two of the three elements in the series stripped out as well as clause (2), people prefer including or omitting a comma before as justice and equity may require. (Here’s that sentence: If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party other expenses incurred in defending against the legal action [,] as justice and equity may require.) One third of those who voted preferred to include the comma, suggesting that the issue wasn’t a clear cut as the court suggested. But linguistics isn’t a democracy, so I was more interested to note what Neal Goldfarb had to say:

I would include it, b/c it lessens the possibility that “as justice may require” is misunderstood (even if only for a moment) as modifying “defending the action” rather than “award costs”.

There is nothing ungrammatical about the including the comma.

— Neal Goldfarb (@NealGoldfarb) March 18, 2021

In addition to being a litigator, Neal is, unlike me, something of a student of linguistics, so I consider it significant that his take was exactly the same as mine. I’m comfortable deeming it the informed take.

The Serial Comma Is Irrelevant

Here’s the court’s second argument in favor of its opinion:

Sullivan further points to the use of the Oxford comma as indicative of legislative intent to limit the justice-and-equity modifier. The Oxford or serial comma is the comma placed immediately before the coordinating conjunction in a series of three or more terms. See, e.g., THE CHICAGO MANUAL OF STYLE § 6.19, at 245 (15th ed.2003). Here, it is the comma placed after the phrase “reasonable attorney’s fees” and before the coordinating conjunction “and,” which separates the second and third terms in the series. Sullivan submits that had the Legislature intended for there to be an equitable-and-just relationship between reasonable attorney’s fees and other expenses, it would have omitted the Oxford comma. Although the use of the Oxford comma is not definitive, we agree that its use here together with the inclusion of the word “other” and the absence of the other comma, as in Scalia & Garner’s example above, indicate the Legislature intended to limit the justice-and-equity modifier to other expenses.

The serial comma—the comma before an and or or between the final two items in a list of three or more—has nothing to do with what’s going on in the sentence at issue. More specifically, MSCD ¶¶ 12.57–.76 describes three kinds of confusion that could be remedied by a serial comma: inadvertent combined elements, inadvertent apposition, and inadvertent object of preposition. To give you a sense of this confusion, here’s some of what MSCD says about inadvertent apposition:

Consider this book dedication: To my parents, Ayn Rand [,] and God. With the serial comma, the dedication tells the reader that the book is dedicated three ways. Without the serial comma, the reader could think either that the book is dedicated three ways or that the book is dedicated to the writer’s parents, who happen to be Ayn Rand and God. The latter meaning is obviously ludicrous, but change the elements and real confusion could result.

By contrast, a serial comma would be irrelevant for purposes of determining what is modified by an element that is remote from the series. That the court would entertain the petitioner’s suggestion to the contrary is disconcerting, as it shows that the court is unaware of the actual significance of serial commas. That other courts are similarly ill-informed—see for example this 2015 blog post—doesn’t make the Texas Supreme Court any less wrong.

Why This Is Bad

So the court offers no basis for resolving the syntactic ambiguity. That doesn’t mean it should have held that the sentence was ambiguous: who knows what alternative analysis the court might have come up with if they had set aside their mistaken arguments.

You can add this opinion to those I mention in this 2020 post, in which I consider recent instances of courts screwing up analysis of syntactic ambiguity and ambiguity of the part versus the whole. Too many courts fail at this.

Why does such ineptness matter? Leaving aside broader rule-of-law issues, contracting requires access to justice. If courts fail at textual interpretation, they’re administering injustice, not justice.

And such ineptness is contagious. Most of us are inclined to assume that courts know what they’re doing. Explaining what courts get wrong takes time, and it doesn’t make for easy reading. It’s something of a thankless task—I’m not aware of anyone else who regularly does this sort of postmortem, instead of saving it for U.S. Supreme Court cases.

What’s the fix? As I suggest in my 2020 post on courts and textual interpretation, offer training to judges and their clerks, and to litigators too. And as I’ve said repeatedly, don’t rely on commas to say whatever you want to say! In other words, don’t create syntactic ambiguity then look to commas to keep you out of trouble. People who work with contracts don’t understand commas, and courts don’t understand commas. Find some other way to say it.