How to Use Legislative History to Teach Grammar

Anyone teaching the importance of legislative history in legal research need only point to a single punctuation mark: the mighty comma.  As a disclaimer, I strive to put my years of Latin classes to good use, but do not profess to be punctuationally-perfect.  (Interestingly, the Romans did not use modern punctuation, but I digress…)   One thing I do know, however, is that other people’s grammatical shortcomings sure can wreak a lot of havoc… making them a great teaching tool.

This past week, I was researching a state statute that, among many other things, imposed conditions on persons who had committed a “felony or misdemeanor crime of domestic violence.”  At first blush, one would read this to mean that the conditions apply to persons involved in domestic violence felonies and misdemeanors.  Get this:  That provision actually governs anyone who commits either a “felony” or a “misdemeanor crime of domestic violence.”  In other words, we should really be reading a comma into the statute between “felony” and “misdemeanor” where the legislators neglected to put one!

Uncovering the latent comma was not easy.  News articles referred to the imposition of the conditions on felons, but without citing the supporting statutory clause.  Secondary sources referred to conditions emanating from the “domestic violence clause” of the statute, failing to illuminate that the clause also covers all felonies.  Case law cited the statute as creating certain conditions, but decided matters on other grounds.

The best recourse was to trace the historical progression of the clause, which I was able to do through older versions of the statute and the legislators’ own analysis.  Earlier iterations made no reference to domestic violence whatsoever, as the clause originally pertained to persons who had committed any felony.  Years later, the legislature added “or misdemeanor crime of domestic violence,” but failed to demarcate this clause with a comma that would have resolved ambiguity.  If the legislators had simply written “any felony, or misdemeanor crime of domestic violence,” I would have spent fifteen minutes on a project that instead took five hours!  (Note:  I do not require legislators to bold, italicize, or underscore the comma; any font or stylization will do!)

Do you have any grammar-related teachable moments you’d like to share?  We’d love to hear them and pass them along to our classes.  To that end, I particularly enjoyed Prof. Susan J. Hankin’s “Statutory Interpretation in the Age of Grammatical Permissiveness:  An Object Lesson for Teaching Why Grammar Matters,” which references recent literature on the subject and also offers some great case law examples to use in class.

Why Grammar Matters

A fascinating new article appears in the Loyola University Chicago Law Journal,  “Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions,”  by Robert C. Farrell (Fall 2008).

The article opens with a series of questions [see if you know the answers]:

“Does it matter that the editors of thirty-three law journals, including those at Yale and Michigan, think that there is a “passive tense”?  Does it matter that the United States Court of Appeals for the Sixth and Eleventh Circuits think that there is a “passive mood”?  Does it matter that the editors of fourteen law reviews think there is a “subjunctive tense”?  Does it matter that the United States Court of Appeals for the District of Columbia Circuit thinks that there is a “subjunctive voice”?

There is, in fact, no “passive tense” or “passive mood.”  The passive is a voice.  There is no “subjunctive voice” or “subjunctive tense.”  The subjunctive is a mood.”

Does it really matter?  The article attempts to show that a knowledge of verb forms “is a very useful tool in the arsenal of legal argumentation.”