Tipster extraordinaire Glenn West let me know concerning the Texas Supreme Courtroom’s opinion in U.S. Polyco, Inc. v. Texas Central Enterprise Strains Corp., issued yesterday (right here).
Right here’s the language at subject (emphasis added):
1.1 TCB Infrastructure Enhancements. As used on this Settlement: “TCB Infrastructure Enhancements” will imply the next enhancements agreed to and proven usually in Exhibit X hooked up and included into this Settlement by this reference (“Preliminary Format”): . . . (3) numerous concrete and floor floor enhancements, together with with out limitation slabs for truck scales and racks, tank and appurtenant buildings to accommodate personnel, oil heating and steam era gear, curbs and planters for parking areas, and different objects in or adjoining to the Designated Areas as are agreed upon by TCB and [Polyco] in writing. All TCB Infrastructure Enhancements constructed or offered for beneath this Settlement would be the sole property of TCB upon completion and are supposed for the first use of TCB within the conduct of its railroad operations.
The query was whether or not “as are agreed upon by TCB and [Polyco] in writing” modifies simply “different objects in or adjoining to the Designated Areas” or modifies every little thing previous it in clause (3).
I’m not excited about exploring whether or not the court docket was proper in holding that the modifier modifies simply what’s subsequent to it. (I believe it was, however don’t maintain me to it.) As a substitute, I wish to give attention to a disconcerting facet of the opinion.
Concerning the absence of a comma earlier than “as are agreed upon by TCB and [Polyco] in writing”, the court docket mentioned “That’s the reason the court docket of appeals—once more, accurately—decided that, on this context, the punctuation of Part 1.1(3) favored the last-antecedent canon’s software.” It went on, “The omission of an Oxford comma right here solely reveals the shortage of the rest within the textual content or context that helps the notion that the events supposed the ‘in writing’ requirement on the finish of Part 1.1(3) to control every little thing in that part.”
There are two issues with that. First, if there had been a comma earlier than “as are agreed upon by TCB and [Polyco] in writing”, it will not have been an Oxford comma! It will have been only a common comma! An Oxford (or serial) comma is the comma earlier than an and or or in a listing of three or extra. As in cake, cookies, and ice cream. That’s not what’s happening right here. Maybe the court docket was swept up by the odd enthusiasm for the serial comma in popular culture. (There’s even a tune about it.) You need an Oxford comma? Nicely, the comma earlier than “and different objects in or adjoining to the Designated Areas” is an Oxford comma.
And second, the court docket says that presence of a comma earlier than “as are agreed upon by TCB and [Polyco] in writing” would have advised that the modifier doesn’t simply modify what’s subsequent to it however as an alternative reaches again to the start of the chain. In different phrases, the court docket is shopping for into what I name “the comma check beneath the rule of the final antecedent.” I debunked that notion in this legislation evaluation article.
Though the court docket went on to contemplate the broader context, these two issues present that the court docket doesn’t perceive syntactic ambiguity. (That’s the type of ambiguity that arises out of the order through which phrases and phrases seem and the way they relate to one another grammatically.) For these attuned to syntactic ambiguity, the court docket would possibly as nicely have introduced that the earth is flat.
However the Texas Supreme Courtroom isn’t alone. For instance, in a case involving syntactic ambiguity, the U.S. Supreme Courtroom described a canon of development as a “rule of grammar,” thereby displaying that they, too, are semantically inept. (See this 2021 weblog put up.) “Canon of constructions” is a pompous time period for quick-and-dirty ideas of interpretation invented to assist courts resolve disputes over complicated contract language. They’re not guidelines of grammar.
This type of misunderstanding is pervasive. One more case involving syntactic ambiguity prompted me to write this 2020 weblog put up, entitled Many Judges Are Unhealthy at Textual Interpretation. What Do We Do About It?
What explains this ineptness? Till not too long ago, nobody has bothered to put in writing a transparent and well-informed overview of syntactic ambiguity. And U.S. courts think about resolving ambiguity to be a matter of legislation, so they often maintain that skilled testimony is inadmissible for resolving ambiguity. Due to these two components, with regards to syntactic ambiguity, courts are free to make stuff up.
So what’s to be finished? In my 2020 weblog put up, I say that providing to judicial personnel an intensive on-line coaching program in textual interpretation can be the very best corrective. In the meantime, for those who’re within the enterprise of deciphering (whether or not as a drafter, reviewer, litigator, or decide) textual content that may characteristic this sort of ambiguity, do yourselves a favor and go right here and purchase my e-book A Handbook of Model for Contract Drafting. By a number of orders of magnitude, it accommodates extra about ambiguity than the rest in legislation or linguistics. As I clarify in this 2020 weblog put up, in analyzing ambiguity I used to be helped by the nice Rodney Huddleston, co-author of The Cambridge Grammar of the English Language (though any remaining flubs are my very own).
If I might make only one advice concerning syntactic ambiguity, it will be, Don’t depend on commas! Judges don’t perceive commas, and individuals who work with contracts don’t perceive commas, so don’t depend on a comma to precise your supposed which means. Discover another solution to say what you wish to say. (For extra about that, see this 2017 weblog put up.)
Whereas I’m at it, how would I’ve prevented the dispute on this case? It will have made sense to have addressed the “as agreed upon” idea elsewhere, in a piece addressing learn how to deal with modifications.