In the Writing Guidelines I distribute to students, I use the following example to illustrate the principle that “everything you put on the page matters”:
Everything – every word, every bit of punctuation, every decision to begin a paragraph with one sentence rather than another, every decision whether to use “shall” or “should” or “may” or “might,” or whether to use “since” or “because” or “thus” or “moreover” – matters. That may or not be true in other fields, but it is true in ours. This is less an objective fact than an attitude, an attitude that may or may not come naturally to you but which I urge you to start cultivating. Care about the words you put down on the page. Give a damn about them. They reflect who you are as a lawyer, and they are often the only reflection of who you are as a lawyer that your professional colleagues will get to see.
When Robert Frost’s Collected Poems was originally published, it contained these familiar lines (in “Stopping by Woods on a Snowy Evening”):
“The woods are lovely, dark, and deep
But I have promises to keep
And miles to go before I sleep
And miles to go before I sleep.”In fact, what Frost had written was:
“The woods are lovely, dark and deep
But I have promises to keep
And miles to go before I sleep
And miles to go before I sleep.”
In a recent conversation with some colleagues about this point, Mark Lemley pointed me to a wonderful legal example of this principle. In Stark v. Advanced Magnetics, 119 F.3d 1551 (CAFC 1997) the court had to construe section 256 of the Patent Act, which reads:
§256 Correction of named inventor
“Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Commissioner [of patents] may . . . issue[] a certificate correcting such error.”
The court – correctly, in my view – reads this to mean that there are two kinds of inventorship “errors” that the Commissioner may correct: misjoinder, i.e., naming a person incorrectly as the inventor, and (b) nonjoinder i.e., failing to name a person as an inventor. Misjoinder can be corrected whether the error arose through deception or not; nonjoinder, though, can only be corrected where the error arose “without any deceptive intention” on the inventor’s part.
So far, so good. But what elevates the case into true sublimity is this: there is another section of the same statute, sec. 116, that is identical to sec. 256 except it adds a single comma, and the court construes it to mean something entirely different. Sec. 116 deals with correction of inventorship during the process of patent prosecution (as opposed to after the patent has issued), and it reads:
“Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent, and such error arose without any deceptive intention on his part, the Commissioner [of patents] may permit the application to be amended . . .
Note the comma after the words “issued patent.” The court – again, correctly in my view – reads this as forbidding correction whenever an error of either kind (misjoinder or nonjoinder) arose with deceptive intention. So the two provisions taken together: after a patent issues, a misjoinder error that arose through “deceptive intention” can be corrected (256); before the patent issues, it cannot (116).
It makes no policy sense whatsoever, and was probably inadvertent on Congress’ part. But the court’s gotta do what the court’s gotta do, and the comma really does change the meaning of that sentence, and they have to give effect to it.
Alan Gunn says:
Why? They might instead take the sensible position that legislators, like other people, may be careless about things like this, and that their words should be interpreted in a way that makes sense.
There’s an old New York case in which a will left property to some people “as joint tenants and as tenants in common.” Read literally, this creates a tenancy in common, under the rule that co-ownership is by tenancy in common unless the instrument creating it says something else. But the court held that it created a joint tenancy, on the ground that the lawyer who drafted the will must have meant to use the standard phrase “as joint tenants and not as tenants in common” and failed to notice that the typist had left out a “not.” Makes sense to me.
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October 1, 2009, 12:17 pmA.S. says:
Agree with Alan Gunn. If the court can discern a typo, it should give effect to language as corrected, not as written.
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October 1, 2009, 12:27 pmtroll_dc2 says:
“The woods are lovely, dark, and deep” means something different from “The woods are lovely, dark and deep.”
In the first quote, they are three things. In the second, they might be three if you subscribe to the idea that there should not be a comma before the “and” in a series, but it is also quite reasonable to believe that the writer meant that the words are lovely and also dark and deep, using the last two adjectives to create a single mood picture.
Using the comma avoids ambiguity, which is why I always use it. When you avoid ambiguity, you keep the reader from having to stop to try to figure out whether there are two things or three things. Sometimes it does not matter, but in a compound or otherwise complicated sentence, it most certainly can.
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October 1, 2009, 12:31 pmDennis N says:
Grammatically, yes, there is a difference between the two clauses. But it flies in the face of logic that the same administrative action by the same Commissioner can be done after the patent issues, but not before the patent issues. He can correct the error after it is finalized, but not while it is in draft. Someone is being too pedantic there.
Now, if the difference between the clauses was reversed, that is if sequence of commas read that the error could be repaired before the patent issued but not after, I’d rule the other way. To do otherwise would be to truly second guess Congress.
Now, who’s being pedantic, I guess.
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October 1, 2009, 12:32 pmHouston Lawyer says:
I often find that I have to insert a comma where it is not strictly called for to enhance the clarity of a sentence. Too much is written in haste.
In legislation passed in thousand page bills submitted for approval only the day before, typos are the least of my worries.
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October 1, 2009, 12:41 pmJames T. Carrington says:
Eats shoots and leaves
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October 1, 2009, 12:49 pmTom Servo says:
Consider much of the confusion over the “meaning” of the 2nd Amendment until relatively recently. Much of that centered around the question of comma placement.
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October 1, 2009, 12:51 pmnot my leg says:
I think this might be different if there was a clear policy discernable from the statute, as in the tenancy in common problem, but I’m not sure what the court should do here instead. In the tenancy in common problem there is only one reasonable reading of what the drafter meant. Here, there are two reasonable meanings, misjoinder errors can never be corrected when caused by deception,or misjoinder errors caused by deception can be corrected before the patent issues, but not after.
Which should the court choose? I would argue it is better for the court to allow the rule to stand as written, rather than make its own policy determination (assuming there is not sufficient guidance to determine the agency’s intent.)
I am, however, generally a supporter of the position that the courts should not attempt to correct Congress’ mistakes, not because Congress is some great infallable body, but because Congress can fix the mistake on its own. (Same holds for rulemaking agencies of course). This is obviously different than a court interpreting a will, where an incorrect interpretation can’t be corrected by redrafting.
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October 1, 2009, 12:52 pmtroll_dc2 says:
I thought about that one, but decided not to. But here goes:
–eats, shoots, and leaves (three verbs)
–eats shoots and leaves (one verb and two nouns)
–eats, shoots and leaves (you get to guess)
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October 1, 2009, 12:53 pmLaura(southernxyl) says:
Eats, Shoots and Leaves
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October 1, 2009, 12:57 pmJMA says:
Actually, troll, the editor for the publication simply made the mistake of correcting an error (the omission of the Oxford comma) where there was no error. It is unwise to dictate that a writer must always include a comma before ‘and’ because there are instances where it is simply not called for and, therefore, would be incorrect. Even for items in series, it’s perfectly feasible for a sentence to include ‘and’ without a comma before it–as is the case in the poem, or, say, in a list of things to buy at the store (e.g. “milk, eggs, salt and pepper shakers, and broccoli”).
It would be most effective for newspapers to simply roll over and die and for the civilized world to forget that anyone was ever so miserly as to omit a comma to save space on a page, and for everyone to assume that any professional would have included the comma if they intended it.
...And, by extension, not to add it when a piece never included it in the first place.
:)
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October 1, 2009, 12:58 pmA.C. says:
In Australian slang, “to root” means what “to screw” means in American slang. Hence the following variation on the shoots and leaves thing:
How is an Australian man like a wombat?
Because he eats roots and leaves.
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October 1, 2009, 1:01 pmtroll_dc2 says:
So would you accept milk, eggs, salt and pepper shakers and broccoli?
What about milk, eggs, broccoli and salt and pepper shakers?
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October 1, 2009, 1:03 pmJeff R. says:
Also, the extra comma messes up the scansion. At least to my ear.
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October 1, 2009, 1:10 pmtroll_dc2 says:
In the poem yes. But otherwise (i.e., not in a poem), what is the objection?
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October 1, 2009, 1:25 pmSplunge says:
But the court’s gotta do what the court’s gotta do, and the comma really does change the meaning of that sentence, and they have to give effect to it.
Balls. Considering what the Court routinely makes up out of thin air, or at least deduces from amazingly subtle readings of the plain text of laws and the Constitution, the consistent and logical reading of an act, notwithstanding its misplaced commas, would be a very minor bit of “judicial activism,” and one actually justified by common sense.
Furthermore, your advice is poor. If everything matters, then practically speaking nothing does, or at best you have some chaos of time-varying and individual-varying priorities. No one has the time and resources to pay careful attention to every single word and punctuation mark he writes under every set of circumstances whatsoever. What students need is guidance in how to prioritize the demands their writing puts on their mental resources. You should have told them more about how to decide which words require more attention than others. They probably already understand that in the unlikely case they have nearly infinite time and energy, they should weigh each syllable and semicolon, but what they really need help with is how to allocate their time when it’s scarce.
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October 1, 2009, 1:28 pmJoshua Swink says:
This cannot mean one verb and two nouns. I don’t see any ambiguity. The lack of Oxford comma is grating but not problematic.
With the comma, we have a series of three words, each of which is about equal in weight. Without it, we have two descriptions to consider: “lovely”, and “dark and deep”. The difference is significant.
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October 1, 2009, 1:36 pmSara (Pal2Pal) says:
So those of us educated about commas in the fifties and sixties to believe that the last comma before the and in a string is comma optional and not necessary can have an effect on the law. Good grief.
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October 1, 2009, 1:43 pmtroll_dc2 says:
I agree. The problem is that the practice of some in omitting the second comma creates the ambiguity. You have to guess which comma-practice camp the author is in. If everyone put in the second comma to indicate that a series consists of three items, then its omission would be understood to mean that there are only two items.
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October 1, 2009, 1:46 pmNeal Goldfarb says:
I disagree with JMA about the significance of removing the comma mistakenly inserted in the Frost poem by the editor.
I don’t read the original as simply a three-part series that doesn’t include an Oxford comma, and in which each item (lovely, dark, deep) modifies woods. Rather, I read dark and deep as referring to lovely (which would have been clearer if Frost had used a dash rather than a comma after lovely). In other words, the woods are lovely, and at least part of what makes them lovely is that they are dark and deep.
Here’s what it says on this point in Robert Frost: The Work of Knowing by Richard Poirier:
On this interpretation, including the comma had a pretty big effect on the meaning, which I suspect is why David includes this example in his handout.
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October 1, 2009, 1:51 pmChrisTS says:
Exactly. Pity the poor panda.
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October 1, 2009, 1:53 pmNeal Goldfarb says:
One more point: Ya gotta wonder whether the ambiguity wasn’t intentional.
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October 1, 2009, 1:54 pmChrisTS says:
Which ambiguity? :-)
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October 1, 2009, 2:11 pmtroll_dc2 says:
So much discussion over the comma in the poem. If Frost had meant “dark and deep” to describe is concept of “lively,” he would have been better off, as Neal Goldfarb points out, using a dash. Then there would have been no question of a series at all.
Can it be suggested that maybe Frost was not such a good writer after all? What is the point of presenting readers with a word puzzle that interferes with their ability to understand the point sought to be made? (But, then, I am not much of a poetry fan.)
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October 1, 2009, 2:15 pmChrisTS says:
I recall a case I read, long ago, in which a midwestern court. upheld someone’s acquittal of the offense of ‘knowingly receiving stolen goods.’ The defendant owned a pawn shop and had purchased an entire truckload of televisions with the serial numbers defaced. Because the legislation read so as to include ‘knowingly’ as an element of the offense, and because the state could not prove he ‘knew’ the goods were stolen, he got off. I believe this was regarded as the court’s thumbing its nose at incompetent legislators, not as something it had to do.
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October 1, 2009, 2:19 pmegd says:
Just a minor point, but §§ 256 and 116 aren’t identical sections of the statute. § 256 deals with correction of an issued patent and § 116 deals with correction of a pending application.
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October 1, 2009, 2:42 pmArkady says:
It changes it, that’s for sure. But to my ear, it scans better with extra comma, and because of the pauses, slows the line down and underscores the deepness but, ...
It may be that the comma was put in by a copy editor following the serial comma rule, but I find that unlikely. No copy editor is going to screw with a poem without asking. My bet is on the compositor (remember, this was in linotype days), who just supplied the comma in setting the type, which was a matter of typing the ms. in on one of those godawful great hulking machines. (I was at a printer once years ago and saw one of those things in action — scared the crap out of me, with bars of lead and stuff melting in a vat and what not. Jesus.)
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October 1, 2009, 2:51 pmAllan Leedy says:
Ridiculous. “[W]ithout any deceptive intention on his part . . .” obviously refers anticipatorily to the Commissioner of Patents. In both versions.
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October 1, 2009, 3:08 pmDuffy Pratt says:
When are we going to eat, Dorothy?
When are we going to eat Dorothy?
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October 1, 2009, 3:09 pmRich says:
Eats, Shoots and Leaves is a good example especially if you have read the book. The story is a perfect illustration of the fallacy of always putting in the comma before the “and”. Doing so for the panda changed it from what he eats; shoots and leaves vs. he eats, he shoots and then he leaves.
Commas always get students messed up and many adults.
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October 1, 2009, 3:28 pmneurodoc says:
How about the referent of “his”? (“...such error arose without any deceptive intention on ‘his’ part, the Commissioner...”) The Commissioner would never do anything with “deceptive intention,” so “his” must refer to the inventor, even if the inventor is a woman? Why not “inventor” rather than “his” (or “her”) and avoid any possible confusion?
[And what am I getting wrong here with the tag(s) for italics?]
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October 1, 2009, 3:35 pmerp says:
We were taught that the comma before “and” isn’t a hard and fast rule. Leave it out if it’s just a simple list, but add it if the meaning isn’t clear.
Poets have a lot more latitude in language than the rest of us.
I agree with others who commented that Frost meant the forest is lovely and dark and deep, not that it’s lovely because it’s dark and deep.
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October 1, 2009, 3:40 pmJLR says:
This issue relates to the doctrine of the last antecedent, which provides that a “limited or restrictive clause contained in a statute is generally construed to refer to and limit and restrict an immediately preceding clause or the last antecedent.” (The use of a comma would be one way to avoid application of the doctrine, as in the case of section 116)
The doctrine has been applied in several Supreme Court opinions in the last decade.
For the most humorous example, check out Barnhart v. Thomas, 540 U.S. 20, 27–28 (2003), in which Justice Scalia treats the reader to a colorful real life example.
“Consider, for example, the case of parents who, before leaving their teenage son alone in the house for the weekend, warn him, ‘You will be punished if you throw a party or engage in any other activity that damages the house.’ If the son nevertheless throws a party and is caught, he should hardly be able to avoid punishment by arguing that the house was not damaged. The parents proscribed (1) a party, and (2) any other activity that damages the house. As far as appears from what they said, their reasons for prohibiting the home-alone party may have had nothing to do with damage to the house-for instance, the risk that underage drinking or sexual activity would occur. And even if their only concern was to prevent damage, it does not follow from the fact that the same interest underlay both the specific and the general prohibition that proof of impairment of that interest is required for both. The parents, foreseeing that assessment of whether an activity had in fact ‘damaged’ the house could be disputed by their son, might have wished to preclude all argument by specifying and categorically prohibiting the one activity-hosting a party-that was most likely to cause damage and most likely to occur.”
If you’re curious about the doctrine, I have an article coming out in the fall issue of the Southwestern Law Review on the history of the doctrine’s application in the Supreme Court.
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October 1, 2009, 3:46 pmmos says:
How the heck else would you construe that?
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October 1, 2009, 4:59 pmneurodoc says:
Does the “knowingly” really matter? Where would the mens rea be if there was no knowledge that the goods were stolen?
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October 1, 2009, 5:08 pmLaura(southernxyl) says:
Dashes aren’t really proper written English.
Also, “the woods are lovely — dark and deep” sounds like he’s defining “lovely”. He was simply making the points that the woods are lovely, and further, that they are dark and deep.
...My daughter’s favorite example of punctuational disambiguity:
Woman, without her man, is nothing.
or
Woman! Without her, man is nothing!
...
Neurodoc, I think html has it in for you!
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October 1, 2009, 5:23 pmTom says:
The only thing anyone needs to take away from this is that we are screwed. Courts of the future, assuming the nation holds together another 50 years, will be filled with countless challenges to laws. The endless loophole closing and unintended consequences will drive many to tune out news and exacerbate the problem.
We could initiate Obama’s plan for extending school days and/or lengthening the school year, but it would have no impact. They aren’t taught to think, to spell, to discriminate. They are shown Al Gore’s movie and others that seek to impart a specific ideology. They are told what to think and not to question authority, the state’s view of history. That is, they are if they bother to show up after seeing the alternatives to an education that are provided “free” by the government, such things as housing, food, and the other “safety net” types of programs that are more addictive then heroin.
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October 1, 2009, 5:47 pmMike G in Corvallis says:
My own favorite example of the importance of using commas for disambiguation is the book dedication:
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October 1, 2009, 6:36 pmNeal Goldfarb says:
Hey JLR: I’d be interested in seeing your article. Would you mind sending me a copy? You can find my email address by googling my name and clicking on the first result.
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October 1, 2009, 7:38 pmNeal Goldfarb says:
Sez who?
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October 1, 2009, 7:42 pmMarc in Asia says:
How about the Rogers Communication case?
The contract said:
Given the second comma (after “five (5) year terms”) the court ruled that the one year termination clause applied not just to renewals (as was almost certainly the intention) but to the original term. This allowed the counterparty to cancel the contract earlier than intended, costing Rogers C$1MM.
See this story from the NYT
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October 1, 2009, 7:50 pmeyesay says:
Mark in Asia, that’s a very interesting example, but aside from the question of the effect of the comma after “made,” there is, to me, significant ambiguity as to whether one-year notice can be made at any time (to take effect one year later) or whether the termination takes effect at the end of the 5-year period that ends at least one year after notice. I take it to mean the latter, because otherwise, effectively, the five year terms don’t mean anything. Put another way, is “one year prior notice” one year prior to the end of a five year period, or one year prior to any termination date? I think it’s prior to the end of a five year period. But Canada’s telecommunications regulator disagreed with my interpretation.
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October 1, 2009, 11:54 pmMaureen says:
The other question here is whether old laws, made in times when commas were used in entirely different grammatical ways, are being misconstrued by modern comma-users. Anything before 1850, for example.
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October 2, 2009, 5:28 amMaureen says:
As someone who once stepped out of a car at a CA scenic overlook and found out that the whole place was _surrounded_ by rattlesnakes (fortunately at a distance), I totally understand the above poster’s point! :)
My first assumption on seeing a holster would be that the guy was an off-duty police officer, followed by thinking it was a normal person with a proper license, or some kind of bodyguard if with someone and wearing a suit. “Evildoer” would be pretty low on the list.
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October 2, 2009, 5:37 amPersonFromPorlock says:
As I mentioned on a recent thread about the birthers, if we read the constitutional text exactly:
then no president since Martin Van Buren has been “eligible.” And it’s all because of the comma after “citizen of the United States.” If the matter ever got that far, I suspect the Court would be quite comfortable in distinguishing what the Congress meant from what it said.
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October 2, 2009, 5:37 amBZ says:
Wonderful guide.
There’s a typo in the Orwell’s List at the end.
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October 2, 2009, 7:51 ammarkm says:
Rich, “The panda eats, shoots and leaves,” should not have a comma at all. There is no comma between a verb and its object. That extraneous comma converts the rest of the sentence from the object of “eats” to a list of items grammatically equivalent to “eats”, that is verbs.
As for the comma before “and”, the story told about it back in the 1960’s was of a court interpreting a will that said, “My estate is to be divided equally between my sons John, Jim and Joe.” The court decided that this meant that it was first split between John and (Jim and Joe), 50% each. So John got 50% and his brothers 25% each.
The lesson I took away was that in a list of three or more, a comma before “and” is optional if you don’t care how others will interpret it.
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October 4, 2009, 6:00 pmСтолешницы says:
Fine work man ))
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November 17, 2009, 4:02 am