Last year saw the Million Dollar Comma Case.
This year may become The Year of the Adverb, and not just because the Chief Justice shifted “faithfully” in the Presidential Oath of Office.
In a decision just handed down, whether an accused identity thief faced two years in prison depended on how the Supreme Court construed the adverb “knowingly.”
As soon as Justice Breyer used the words “a transitive verb has an object,” I knew the opinion would be a writing consultant’s dream.
But it also offers lessons for drafters of all stripes:
An immigrant made up a social security number to get a job. The government wanted to prosecute the immigrant for identity theft. To prevail under the statute, which carries a mandatory consecutive two-year prison term, the government had to prove that the immigrant “knowingly . . . used . . . a means of identification of another person.”
So did the immigrant need to know that the made-up number belonged to someone else—or simply that he was making up a false number?
In ordinary English, said Justice Breyer, an adverb such as “knowingly” applies not just to the verb (“uses”) and not just to the verb’s immediate object (“means of identification”). Instead, the adverb applies to the verb’s entire object (“means of identification of another person”). That reading here meant victory for the immigrant.
Breyer’s example: “Smith knowingly transferred the funds to the account of his brother.” According to Breyer, this sentence suggests that Smith knew he was transferring money to his brother’s account, not just that he knew he was transferring money. The same applies, Breyer says, to “John knowingly discarded the homework of his sister,” even though the government claims that this example is ambiguous: did John really know that the homework belonged to his sister?
Scalia’s and Alito’s concurrences
Scalia mainly objected to the use of legislative history to support the Court’s new Adverb Rule.
Alito, for his part, thought that Breyer’s rule was too broad: an adverb such as “knowingly” does not necessarily modify the entire object. His example: “The mugger knowingly assaulted two people in the park—an employee of company X and a jogger from town Y.” Alito claims that in this sentence, the mugger didn’t necessarily know where the victims worked or lived. (Although Alito’s probably right about what the mugger knew, his example doesn’t disprove Breyer’s rule: the “employee” and “jogger” phrases are not objects of “assault.”)
To avoid these disputes, consider repeating your adjectives and adverbs:
“entire principal and interest” = “entire principal and entire interest”
“We have not knowingly represented that we have a debt that is not securitized” = “We have not knowingly represented that we have a debt that we know is not securitized.”