Tuesday, October 8, 2013

For want of a comma, jurisdiction was lost

In this forthcoming article, drafting expert Ken Adams criticizes the so-called rule of construction employed by the Second Circuit that when a series of nouns, noun phrases or clauses in a sentence is followed by a modifier that is preceded by a comma, the modifier applies to everything in the series. 

Not so says Mr. Adams.  Indeed, no such rule exists in modern English usage and the court's reliance on Fowler's 2d to the contrary in finding that an obscure federal statute from 1933 called the Edge Act did not support federal jurisdiction in the case was incorrect.  The court decision at issue is called American International Group and Mr. Adams' "tour de force" critique of that court's erroneous rule of construction regarding a modifier's supposed application to all items in a series can be found here.

Hat tip to the Wall Street Journal Blog.



| Permalink


But is a statute the same as a contract? I don't think they are drafted or interpreted in quite the same way. As a legislative drafting expert myself, I think at first blush at least that the Second Circuit got it right.

Posted by: Toby Dorsey | Oct 9, 2013 1:50:41 PM

Post a comment