A writing problem even Supreme Court justices disagree on

“You tell your scouts to find a defensive catcher, a quick-footed shortstop, or a pitcher from last year’s World Champion Kansas City Royals,” wrote Supreme Justice Sonia Sotomayor in a 2016 court decision.  The problem is, does “from last year’s World Champion Kansas City Royals” apply only to the pitcher, or do the catcher and shortstop need to come from that team as well?

I’ll get to the answer in a minute.  But the real problem is a grammar one.  Should a series of ideas followed by a limiting prepositional phrase or other modifier have that phrase apply to all the items in the series or to the last item only?

Here’s another example, this one from Supreme Court Justice Elena Kagan.  “Imagine a friend told you that she hoped to meet ‘an actor, director, or producer involved with the new Star Wars movie.’”  Do the actor, director and producer all need to be involved with the Star Wars movie or just the producer?

The Supreme Court needed to consider this grammar problem during this past term when deciding Lockhart v. U.S.  The text of a law important to the case’s outcome stated that people convicted of a previous crime for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward” needed to serve a mandatory 10-year sentence if convicted again.  But did “involving a minor or ward” apply to the whole series of crimes or only to the third one?

In the court decision, Justice Sotomayor’s opinion won:  the limiting prepositional phrase applied only to the last item in the series.  But a good case (no pun intended) can be made that all three items in the series are covered by the prepositional phrase.

Attorneys need to write laws clearly and precisely so that future attorneys and judges know exactly what the law means.  But the rest of us need to write clearly too.  How could the examples given above have been written to eliminate wiggle room?

  • You tell your scouts to find a defensive catcher or a quick-footed shortstop, or you tell them to find a pitcher from last years’ World Champion Kansas City Royals.
  • You tell your scouts that from last year’s World Champion Kansas City Royals they are to find a defensive catcher, a quick-footed shortstop, or a pitcher.
  • Imagine a friend told you that she hoped to meet an actor, director, or producer, and she hoped the producer was involved with the new Star Wars movie.
  • Imagine a friend told you that she hoped to meet an actor, director, or producer, any one of whom was involved with the new Star Wars movie.

For more on writing clear legal language, see an article in the July 9-10 issue of The Wall Street Journal on page A9.  “How to Write Like Antonin Scalia” discusses other textual considerations as well.

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