Monday, April 9, 2018
Supreme Court decisions often leave me scratching my head, but not usually because of Justice Kagan’s use of English. But there’s a first time for everything, and I read with some surprise a passage in a recent opinion authored by her:
But that view cannot be squared with the except clause’s wording for two independent reasons. To start with, the except clause points to “section 77p” as a whole—not to paragraph 77p(f)(2). Cyan wants to cherry pick from the material covered by the statutory cross-reference. But if Congress had intended to refer to the definition in §77p(f)(2) alone, it presumably would have done so—just by adding a letter, a number, and a few parentheticals.
Cyan, Inc. v. Beaver Cty. Emples. Ret. Fund. No, despite the caption, Cyan’s not an employment case; and, no, you don’t have to understand what statute she’s referring to in order to appreciate my confusion: shouldn’t Kagan have written “parentheses” instead of “parentheticals”?
One of my colleagues had the same initial reaction, but concluded that Kagan was probably right, “because she’s referring not simply to adding the punctuation, but to adding material inside parentheses— parentheticals. They are very short parentheticals, but I think still parentheticals.”
Another colleague begged to differ: “she separately refers to the letter and number inside the parentheses, so isn't she just referring to the punctuation? And she says ‘a few,’ when, in fact, she is only talking about two parentheticals (but four parentheses).”
And it’s not as if Kagan is a stranger to parentheticals: she’s been described as the “Master of the Parenthetical Aside” by Josh Blackman. Still, Homer nodded (so why not Justice Kagan?).