By accident, I ran across a court order (see 337 F.3d at 1024) that the following footnote be added to an earlier opinion:
We do not confront here a claim of failure to exercise discretion or manifest injustice.
No-one will be actually confused by this, of course; but at least on first reading, it might strike people the wrong way, as “We do not confront here a claim of failure to exercise (discretion or manifest injustice)” (borrowing the mathematical and computer language meaning of parentheses). The very absurdity of “failure to exercise … manifest injustice” will prevent actual confusion, but it might cause an odd reaction at first. It might have been better to say,
We do not confront here a claim of failure to exercise discretion or of manifest injustice.
Alternatively, if the order of the options wasn’t rhetorically significant, the court could have said,
We do not confront here a claim of manifest injustice or failure to exercise discretion.
But this too might be a bit ambiguous (though perhaps not relevantly so), since it might be interpreted either as
We do not confront here a claim of (manifest injustice or failure to exercise discretion).
or as
We do not confront here (a claim of manifest injustice) or (failure to exercise discretion).
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