Did the 2nd Circuit wrongly interpret a comma? Expert takes aim at 'arbitrary principle'

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A federal appeals court has been “bamboozled by a comma,” according to a new critique by the author of a book on contract drafting.

Kenneth Adams, an ABA Journal Legal Rebel, argues the 2nd U.S. Circuit Court of Appeals got it wrong when it said a modifier phrase after a comma applied to the entire series of phrases before it. The Wall Street Journal Law Blog and the blog Hercules and the Umpire noted Adams’ analysis (PDF). The case before the New York City-based court concerned whether a suit by the American International Group against Bank of America could be removed to federal court.

The 2nd Circuit used this example:

“This basketball team has a seven-foot center, a huge power forward, and two large guards, who do spectacular dunks,” differs from the statement, “This basketball team has a seven-foot center, a huge power forward, and two large guards who do spectacular dunks.” The first statement conveys that all four players do spectacular dunks. The latter statement conveys that only the guards do so.”

But Adams says the meaning is ambiguous and not based on the way people actually write. He advocates using expert testimony to assist the courts in determining when language is ambiguous. “Though plenty of courts have invoked the comma test, they cannot justify doing so and henceforth should reject it,” Adams writes.

Adams says the relevance or irrelevance of the comma in the court’s example can be shown by adding “both” after “who” in the first example and “all” in the second example. “In the first example, that would result in the modifier having narrow scope, despite the comma; in the second example, that would result in the modifier having broad scope, despite absence of the comma. So the only conceivable basis for the court’s explanation is expediency. … But a principle of interpretation that has no basis in English usage is worse than useless—it’s a travesty.”

Adams told the Law Blog that the court’s grammar lesson “fell apart” when it relied on an “arbitrary principle.”

“I was determined to drive a stake through the heart of this particular principle of construction,” he told the Law Blog.

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