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Million-Dollar Commas

Grammarians of the world, unite! Lawyers of all punctuation persuasions are discovering the revolutionary potential of the humble comma.

How would you resolve these three recent disputes?

Guns N’ Commas

When the D.C. Circuit struck down the District’s gun-ban law under the Second Amendment, America’s usage mavens got busy.

According to Judge Laurence Silberman, because the Amendment’s second comma divides the Amendment in two, the first half is just throat-clearing verbiage. What remains—the second half—reflects the “right of the people,” which Silberman deems to be an individual right:1

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Not so fast on the trigger, counter the gun-ban’s proponents. When the Constitution was drafted, commas were more popular than they are now. And when some states ratified the Second Amendment, their version contained only two commas, not three.

Both sides can give the Supreme Court plenty of ammunition as it resolves this comma conundrum. Will the Justices resurrect the English-law principle that punctuation doesn’t matter in statutes, or perhaps even in constitutions? If not, the Court will face a grammar dispute even more enticing than its recent spat over how to make words ending in -s possessive.

Canada’s Million-Dollar Comma

In a recent Canadian contract dispute over stringing utility poles, the stringer—Aliant Inc.—wanted out of the deal after the price of pole stringing skyrocketed. Under the contract, the stringer first had to give a year’s notice—but could it give notice before the contract’s first term ended?

More than $2 million Canadian were at stake. And you guessed it, the case turned on a single comma.

According to Aliant, the following provision gave either party the right to terminate at any time as long as it first provided a year’s notice:

This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.

Aliant argued that because the highlighted comma set off the second five-year term, the notice provision applied to both five-year terms—not just the second. The other side, Rogers Communications, countered that like it or not, Aliant was stuck with at least five years of pole-stringing duty.

In the resulting tumult, the parties parried punctuation rules against the Rule of the Last Antecedent and other canons of construction. Also weighing in were drafting guru Kenneth Adams, who filed a 69-page pro-Rogers affidavit that was mostly about commas, and Lynne Truss of Eats, Shoots, and Leaves fame, who sided with Aliant.

In the end, an appellate body resolved the dispute in an Only-in-Canada Moment: It relied on the French version of the contract and found for Rogers.2

The Explosive Alabaman Comma

When Alabama reprinted its state code several years ago, an editor added a serial comma to the state’s definition of “gasoline.” This seemingly innocent gesture sparked yet another million-dollar dispute.

Consider the reprint, in which I’ve highlighted the new comma:

Definition of Gasoline. Gasoline, naphtha, and other liquid motor fuels or any device or substitute therefor commonly used in internal combustion engines . . .

A taxpayer pounced on the change: He would owe an extra $1 million in taxes if all naphtha were taxed rather than only the naphtha used in combustion engines. So he argued that the original comma-free version should apply. The dispute wound up at the Alabama Supreme Court, which reverted to the original version but read in the serial comma all the same:

The section defines “gasoline” in three parts: “[1] gasoline, [2] naphtha and [3] other liquid motor fuels or any device or substitute therefor commonly used in internal combustion engines.”3

Not to ignite more controversy, but this case provides fuel for those of us who believe that serial commas can help avoid ambiguity: Four Usage Fights.

_____

  1. Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).
  2. Telecom Decision C.R.T.C. 2007-75, [2007] Reference: 8662-R28-200612326 (Aug. 20, 2007).
  3. Ex parte State Dep’t. of Revenue, 683 So. 2d 980 (Ala. 1996).

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