The U.S. Supreme Court Fails a Syntactic-Ambiguity Test

Drafters can learn three things from courts screwing up analysis of ambiguity. First, you learn what ambiguous text looks like. Second, you learn that fights over ambiguous contract language are messy and expensive. And third, you learn that too many courts are incapable of analyzing ambiguous contract language in a way that makes sense; see this 2020 blog post for more about that.

Yesterday the U.S. Supreme Court issued its opinion in Facebook v. Duguid. Unfortunately, it allows us to learn, yet again, the third lesson.

This case involves syntactic ambiguity, namely uncertainty over what part of a sentence a phrase modifies, or what part of a phrase a word modifies. I have no interest in the details, because in this 2020 blog post I’ve already analyzed the language at issue. What’s of interest to me is the confusion, not who ultimately wins.

But I couldn’t help but notice this passage:

Under conventional rules of grammar, “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series,” a modifier at the end of the list “normally applies to the entire series.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012) (Scalia & Garner) (quotation modified).

What the court is referring to is rules of interpretation, also referred to, more grandly, as “canons of construction.” They offer quick-and-dirty ways for courts to short-circuit deliberations over ambiguity. The one thing they aren’t is “rules of grammar,” and those courts that can’t tell the difference are demonstrating that they don’t know grammar and linguistics.

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.