This review is presented by the national law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors : www.charlesjeromeware.com, (410) 730-5016, (410) 720-6129.
AMERICAN INTERNATIONAL GROUP, INC. (AIG) v. BANK OF AMERICA CORP.,
U. S. Court of Appeals for the Second Circuit, Docket No. 12-1640-cv, Decided April 19, 2012.
In his new book on contract drafting, word miser Kenneth Adams attacks the 2nd Circuit 's opinion in the abovereferenced AIG v. BOA case , in which the court essentially invokes the principle of writing construction that if in a sentence a series of nouns, noun phrases, or clauses is followed by a modifier and the modifier is preceded by a comma, the modifier applies to the series, not just the final element in the series.
In a nutshell, in his critique of the opinion Adams opines that the appeals court was " bamboozled by a comma".
Kenneth Adams argues the 2nd Circuit court got it wrong when it said a modifier phrase after a comma applied to the entire series of phrases before it : " ...as the opinion inadvertently demonstrates, that principle of construction [ used by the court in its opinion] has no foundation in English usage; as such, it should be rejected. The opinion also serves as a reminder that judges cannot be counted on to understand how ambiguity operates; courts should permit expert-witness testimony on ambiguity. " [ The Scribes Journal of Legal Writing (Forthcoming 2014), " Bamboozled by a Comma: The Second Circuit's Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp. ]
The 2nd Circuit used this example to demonstrate its point:
" This basketball team has a seven-foot center, a huge power forward, and two large guards, who do spectacular dunks," differs from the statement, " This basketball team has a seven-foot center, a huge power forward, and two large guards who do spectacular dunks." The first statement conveys that all four players do spectacular dunks. The latter statement conveys that only the guards do so."
Adams, however, says the relevance or irrelevance of the comma in the court's example can be shown by adding " both " after " who " in the first example and " all " after " who" in the second example. Says Adams : " In the first example, that would result in the modifier having a more narrow scope, despite the comma; in the second example, that would result in the modifier having a more broad
scope, despite absence of the comma. So the only conceivable basis for the court's explanation is expediency. But a principle of interpretation that has no basis in English usage is worse than useless --- it's a travesty." Adams asserts that the 2nd Circuit's grammar lesson " fell apart" when it relied on an " arbitrary principle".
[http://www.abajournal.com/news/article/10-9-2013; A Manual of Style for Contract Drafting, Kenneth A. Adams ( ABA 3d ed. 2013) ]
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