When the Supreme Court reviewed Kansas v. Marsh last term, the justices didn’t just split over whether to uphold a Kansas death-penalty statute.
They also disagreed over a usage issue that has driven many lawyers to blows: Whether to write “Kansas’ statute,” as Justice Thomas did in his majority opinion, or “Kansas’s statute,” as Justice Souter did in his dissent.
Battle of the “Esses”
Souter may have lost the substantive battle, but he won this stylistic war: Nearly all authorities agree that if you want to make a possessive out of a singular noun like Kansas that ends in an s, you need to add ’s at the end. Just call it “Ross’s Rule.”
Better yet, remember it as Strunk & White’s “First Rule,” which it’s been since that classic’s first edition:
Form the possessive singular of nouns by adding ’s.
Exceptions: Classical or biblical names, such as Moses, which take only an apostrophe: Moses’.
The Weight of the Authorities
I know some of you are still skeptical, so here’s where some well-known authorities stand:
- The Souter approach: Add ’s, unless biblical or classical.
Strunk & White, The Elements of Style
The Chicago Manual of Style
Bryan Garner, A Dictionary of Modern Legal Usage
Fowler’s Modern English Usage
U.S. Government Printing Office, Style Manual
- The Thomas approach: Add only an apostrophe.
Associated Press Stylebook
- The Libertarian approach: Either way is fine.
Wilson Follett, Modern American Usage
So at a minimum, Souter gets a 5-1 vote on the usage question. But he probably fares even better: When it comes to legal writing, the AP Stylebook holds little sway.
Even if you’re on board here, don’t expect an easy ride. “Feelings on [forming singular possessives] sometimes run high,” notes the Chicago Manual of Style. Indeed, you’ll find partisans on all sides of the debate.
During the Chief Justice’s confirmation hearings, for example, The Washington Post published an article entitled “The Case of Roberts’s Missing Papers.” The writer received many emails, “some more polite than others,” correcting his supposed “error.” (In case you’re wondering, the Post style guide endorses the final s.)
The Third Way: Scalia and the New York Times
I should add that Justice Scalia offers a more nuanced approach. He uses the possessive s in general, but appears to cut it if he wouldn’t pronounce it: He writes “Justice Stevens’ contention,” for example.
In making such distinctions, Scalia is like the writers at the New York Times, of all places. Just try to decipher the following excerpt from the Times style manual:
[O]mit the s after the apostrophe when a word ends in two sibilant sounds (the ch, j, s, sh, ts or z sounds) separated only by a vowel sound: Kansas’ Governor; Texas’ population; Moses’ behalf. …
When a name ends with a sibilant letter that is silent, [however,] keep the possessive s: Arkansas’s; Duplessis’s; Malraux’s.
As for me, I’ll take the Strunk-White-Garner-Chicago-Fowler-Government approach any day. To sum up, unless your clients have biblical or mythological names, use that final s with pride!