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Wednesday, September 29, 2004

Column: Comma Cause

True story: a few days ago, a partner handed me a mark-up of a brief I had written. His revisions drove me into an uncharacteristic fit of rage because of one unpardonable sin: he removed three commas.

Not just any commas, but serial commas. You know the serial comma. When you have a list of three or more things, the serial comma comes after the penultimate item.

For example, in the phrase “red, white, and blue,” the serial comma is the one after “white.” The Oxford University Press embraces the serial comma, which is, as a result, sometimes referred to as the Oxford comma, while others, including the New York Times, eschew it. In the world of legal writing, the status of the serial comma keeps many of us (well, me) up at night.

Comma Chameleon

Before you dismiss such talk with a brisk “get a life,” just remember that punctuation has decided many a lawsuit, and has even sent men to the gallows, as we shall see.

Take our friend, the serial comma. Linguist Peter Tiersma reports that most lawyers omit the serial comma, and he seems, if I may say, not the least bit worked up about it. In The Elements of Legal Style, Bryan Garner insists that good usage requires the serial comma. Meanwhile, in the recent book Eats Shoots & Leaves, Lynn Truss advises us not to be “too rigid” about the serial comma. Heretic!

Garner, of course, is correct. As he so pithily states in his book: “omitting [the serial comma] may cause ambiguities, while including it never will.” If your contract states that the vendor must deliver “eggs, milk and macaroni and cheese,” the serial comma will clarify whether the vendor is supplying pasta and cheese separately, or boxes of mac and cheese.

Can there be law without punctuation?

Legend has it that in the halcyon days of medieval England, statutes were entirely unpunctuated. As if castles, jousting, and giant tankards of ale weren’t reason enough to yearn for the past – imagine, a world without punctuation!

But alas, the late Professor David Mellinkoff disproved that theory through painstaking research – he even found a 2,400 year-old Greek city law with punctuation marks. What is true, however, is that for many centuries punctuation was not standardized. Some scriveners preferred to use dots or points, descended from Greek, while others tended to the Latin virgule (a forward slash).

When the English began printing their statutes in the 1480’s, the printers had to make sense of the stacks of indifferently punctuated laws. They did their best to tidy up the books with such novelties as section headings and consistent punctuation. It was in this context that lawyers began to assume that since printers had added punctuation, the original statutes must have been entirely unpunctuated. Well, that’s legal reasoning for you.

Once the age of printing got underway, legal English went from being a lightly punctuated affair to the enthusiastically punctuated creature we know today. The rise of punctuation went hand-in-hand with the law’s addiction to run-on sentences. The longer a sentence gets, the more it needs commas and semicolons to prop up its attenuated meaning.

Consider this: lawmakers are many times more long-winded than scientists. Whereas scientific prose has a mean sentence length of 27.6 words, just one penal statute from California consists of a single sentence of 150 words. The problem with criminal law, you might say, is that the sentences are too long.

Matters of Life and Death

From the very beginning, therefore, the task of statutory construction has involved deciphering punctuation. A 16th Century treatise on statutory interpretation discussed the thorny issue of matching up modifiers with their objects with the observation that “the poynctinge & parenthesinge is muche materiall.”

At times, punctuation has turned deadly. In U.S. v Palmer (1818), the Supreme Court upheld the death penalty for two Bostonians who had robbed a Spanish ship while on the high seas. The conviction turned on how to read the piracy statute, which defined piracy as “murder or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death.”

The defendants argued that, although they had committed robbery, it was not the sort of robbery that would have been punishable by death if committed within “any county” of the U.S. The prosecution countered that the bit about “punishable by death” only modified the phrase “or any other offence,” so that any robbery or any murder committed on the high seas should constitute piracy.

The majority agreed with the prosecution, evidently swayed by the statute’s artful use of commas, to which a horrified Justice Johnson said in his dissent: “singular as it may appear, it really is the fact in this case, that these men’s lives may depend upon a comma . . .”

The lesson, presumably, is that one shouldn’t depend on commas to save one’s life. But just 100 years after Palmer, the defendant in an English case made exactly the same mistake. During World War I, Sir Roger Casement sailed on a German submarine to Ireland, bent on fomenting a rebellion that might distract the British. He was caught, and duly convicted of treason. On appeal, his counsel argued that the trial court had misconstrued the Treason Act of 1351. The relevant language, translated from the Norman French, states: “If a man be adherent to the king’s enemies in his realm giving them aid and comfort in the realm or elsewhere …”

Casement argued that the act applied only to those who commit treason while in the King’s realm, whereas he had done his plotting outside of Britain. The prosecution, according to Casement, had misread the statute as though it included commas, whereas anybody who’s anybody knows that the original statute was unpunctuated (this was many years before Prof. Mellinkoff disposed of that canard).

Two of the appellate judges dutifully traipsed over to the Public Record Office, magnifying glass in hand, and examined the original statute. There they found, not commas, but their predecessor, the virgule, in just the right places. Casement was hanged.

Elusive Commas

The search for missing commas continues to this day. In 1997, Christopher Carroll appealed his conviction under a federal child pornography statute on the ground that the judge had failed to appreciate the significance of the absence of a comma in the statute.

The First Circuit conceded that the comma appeared to be missing in the U.S. Code Annotated version of the law. “But appearances often are deceiving,” observed Judge Selya, who then dryly added the citation “See Aesop, The Wolf in Sheep’s Clothing (circa 550 B.C.).” By tracking down the official version of the law in the Statutes At Large, the court was able to establish that the elusive comma had been there all along, and thus affirmed the conviction.

In a 1991 case, the Supreme Court interpreted the contours of the federal removal statute based, in part, on the placement of commas. The plaintiff in that case, the International Primate Protection League, brought suit in a Louisiana court seeking to enjoin the National Institutes of Health from using primates in medical research.

The NIH tried to remove the case to federal court on the strength of a law allowing removal of cases in which the defendant is “[a]ny officer of the United States or any agency thereof, or person acting under him.” The Supreme Court read the statute to mean that removal is allowed only when an officer of the United States, or an officer of any agency thereunder is the defendant in a lawsuit. Had Congress meant to include lawsuits where the agency itself is a defendant, the Court held, it would have put a comma after “United States.” Clearly the Justices were in no mood to monkey around with the law’s grammar. (Sorry.) Suffice it to say that this is an area of the law that is still evolving.

So, next time you have a brief to write, pay attention to those little punctuation marks. Just be careful not to fall asleep or, worse yet, lapse into a comma.

(This column originally appeared in the September 2004 issue of New York Law Journal Magazine).

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