Uncommon Comma

By Douglas Mah Winter 2015

That’s something else that gives me a royal pain. I mean if you’re good at compositions and somebody starts talking about commas. Stradlater was always doing that. He wanted you to think that the only reason he was lousy at writing compositions was because he stuck all the commas in the wrong place.

Uncommon Comma

Salinger’s The Cat­cher in the Rye was a lit course staple in my day. I like Holden Caulfield’s wry and world-weary commentary, like the one above disdaining his roommate’s belief that what separates good writing from bad is the placement of commas.

Kenneth Adams, a contract drafting expert from Long Island, had his own Holden Caulfield moment last year when he laid some serious smack on the U.S. Court of Appeals Second Circuit for what he saw as smug pontification on the meaning of a comma in AIG v Bank of America.

The case was about whether state or federal courts had jurisdiction over a fraud action involving offshore banking. At issue was the significance of a comma in a provision of an obscure 1933 commercial statute. The comma separated an antecedent list of entities from a modifying phrase. The proper jurisdictional forum depended on the meaning of the com­ma, which meaning dictated whether the modifier applied to all or only the last item.

Leval, J., speaking for the court, invoked a grammatical canon known as The Rule of the Last Antecedent, to wit: if a comma separates the modifier from preceding list, then it applies to everything in the list. If there is no comma, the modifying phrase only modifies the last antecedent. To illustrate this doctrine, the court constructed the following example:

… [T]he statement, “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.

Adams, in a scathing published critique of the decision entitled Bamboozled by a Com­ma: The Second Circuit’s Misdiagnosis of Ambiguity in AIG v Bank of America, remarked that the court engaged in result-oriented adjudication by relying on an arbitrary rule that has no basis in English usage. He constructs counter-examples to show the rule doesn’t really exist:

She was accompanied by the lawyer and the accountant who were advising her on the revision of her will. (No comma and modifier applies to both.)

She was accompanied by her father and her sister, who was now seven months pregnant. (Comma but modifier only applies to her sister.)

Quoted in the Wall Street Journal, Adams contends that “judges often use principles of construction as a shortcut for sorting out ambiguities in legal texts. But the rules only work when they’re grounded in how people actually write.”

The Rule of the Last Antecedent arises vampire-like in sporadic U.S. court cases. Adams said he was trying to “drive a stake through the heart of this particular principle of construction” once and for all.

I have some sympathy for Adams because I’m a syntax guy and I believe language rules should be applied rationally for the purpose of enhancing communication. I like subject-verb agreement and when reviewing written work, I agonize over each comma.

But I’m not yet convinced that legal texts should reflect how people actually use language, for we might get:

The minimum term of imprisonment for a conviction under this section is five years, lol.

In Canada, the comma came under scrutiny by our highest court in Nanaimo v Rascal Trucking Ltd, 2000 SCC 13. In dispute was the municipality’s power to declare a pile of soil a nuisance. The statutory grant of declaratory power was over physical structures, watercourses “or other matter or thing” and what with a missing comma, it was uncertain if the quoted phrase referred only to watercourses or constituted a new category on its own.

The court did not invoke a Rule of Last Antecedent, stating, “It is not reasonable to believe that the legislature in­tended to subscribe such importance to the missing com­­ma, namely that such minor punctuation should ­render null the specific items listed before.” Not that it mattered much. The court also found the pile of soil to be a physical structure and therefore capable of being declared a nuisance.

So much for commas. In conclusion, I’d like to dedicate this column to LeBron James and Kate and Ed, who are my children. 

@DouglasRMah is an Edmonton lawyer.

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