Thursday, September 8, 2011

Legislative History – A Grammar Lesson

This post from Legal Research Plus  is a great example for students to see the importance of precision and proper grammar in legal writing.  Rachel Samberg at Stanford Law School posts this example of a missing comma in a statute that made for a great teaching tool.  She used the example to work through legislative history research with her students.

"This past week, I was researching a state statute that, among many other things, imposed conditions on persons who had committed a “felony or misdemeanor crime of domestic violence.”  At first blush, one would read this to mean that the conditions apply to persons involved in domestic violence felonies and misdemeanors.  Get this:  That provision actually governs anyone who commits either a “felony” or a “misdemeanor crime of domestic violence.”  In other words, we should really be reading a comma into the statute between “felony” and “misdemeanor” where the legislators neglected to put one!"

She also recommends the following article: Prof. Susan J. Hankin’s Statutory Interpretation in the Age of Grammatical Permissiveness:  An Object Lesson for Teaching Why Grammar Matters.

Do you use any similar examples or exercises in your class?


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How about "misdemeanor crime of domestic violence or any felony”?

Posted by: David Raeker-Jordan | Sep 10, 2011 12:49:42 PM

I don't think that adding a comma makes it clearer, and it certainly wouldn't make the sentence more grammatical. What is needed is parallelism, and in this case, that's accomplished by adding an article:
"a felony or *a* misdemeanor crime of domestic violence"

Posted by: Coleen Barger | Sep 9, 2011 5:38:03 AM

There's no comma "missing" from the statute. Adding a comma arguably resolves an ambiguity in the text, but does it through what is, even more arguably, a grammatical error: the addition of a comma where one does not (grammatically) belong. The appropriate fix is not the addition of a comma but the deletion of two needless words and a slight rearrangement of the remaining ones to read, "felony or domestic violence misdemeanor." How can we teach "proper grammar" when we ourselves don't know what it is and can't distinguish it from textual ambiguity?

Posted by: Andy Starkis | Sep 9, 2011 5:32:08 AM

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