Words and punctuation matter! Be precise in, and be careful with, the words you speak and write, and the words you’re hearing and reading. There is much attention being placed on machine learning and artificial intelligence, both of which require computer coding that is precise. We must have the same attention paid to precise language and precise punctuation. Let me give you a few examples.
In the First Circuit Court of Appeals case of O’Connor et al v Oakhurst Dairy et al, 1st Cir. CA 16CV1901 (March 13, 2017), the Court wrote a 29-page decision on whether “packing for shipment or distribution” meant “packing for shipment” and the separate activity of “distribution”. The drivers of a Portland, Maine dairy company, Oakhurst Dairy, were suing to recover $10 million in overtime pay. They argued that driving, or distribution, was not covered by a Maine law that sought to exempt certain activity in the perishable foods industries from overtime pay. That law required overtime pay except for “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” certain products, including dairy products. The drivers argued that “packaging for shipment or distribution” didn’t include “distribution”. The Court of Appeals agreed and remanded the case back for a determination of the amount of overtime owed. In February 2019 the parties settled on $5 million.
The Oakhurst Dairy case is also known as the “Oxford Comma” case because it deals with a punctuation style for serial lists of like items that is espoused by the Oxford University Press (apparently with strong opposition from the Associated Press). The decision, which is 29 pages long and begins with “[F]or want of a comma, we have this case”, includes an interesting footnote on page 16. There, the Court notes that Maine’s Legislative Drafting Manual provides “when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series.” So the law as written followed Maine’s drafting style. But the Court noted that Maine is one of only seven states to conform to that style, and both the House and Senate follow the “Oxford comma” style (both the House and Senate have an Office of Legislative Counsel and Manual on Drafting Style and Legislative Drafting Manual, respectively.
Both words and punctuation were found lacking in a section of a speech given by former US Attorney General, Jefferson Beauregard Sessions in August 2018:
“We know all too well that drugs are killing record numbers of Americans – and almost all of them come from overseas.”
This is a good example of a poorly written sentence that is begging for clarity. The phrase “almost all” means very little: at least 51% and less than 100%. Second, do “almost all” drugs come from overseas, or do almost all Americans come from overseas? And finally, Mexico is the source country for 90% – 94% of heroin entering the US, and the final transit country for 90% of the cocaine entering the US. I checked on a map, and Mexico isn’t actually overseas from the US. (any more than Canada was the first overseas country visited by First Lady Melania Trump).
The meaning of the word “and”
Even the simplest words can end up being the subject of judicial interpretation. In the case of Pulsifer v United States, 143 S. Ct. 978 (2024), the US Supreme Court was asked to decide the meaning of the conjunction “and” in the context of a list of three conditions that a court could consider when deciding whether to disregard the mandatory minimum sentencing provisions for drug convictions. In this case, a court could disregard the mandatory minimum if the defendant could satisfy five criteria. One of the five criteria was:
(1) if the defendant does not have
(A) more than four criminal history points …;
(B) a prior three-point offense …; and
(C) a prior two-point offense.
Federal appeals courts in three districts took a “conjunctive” view, seeing that the word “and” meant the defendant had to possess all three criteria to be ineligible for relief. This seems to make sense: it is the “tall, dark, and handsome” logic, where a young man needs to possess all three attributes to make the grade, as opposed to “tall, dark, or handsome”, where a young man need only possess one or some of the three attributes. Appeals courts in four districts took a different “disjunctive” approach (an approach Justice Gorsuch described as “a fancy way of saying that ‘and’ means ‘or’.”), seeing that the word “and” meant the defendant was ineligible if they had any one of the three criteria. The Supreme Court 6-3 majority adopted the “disjunctive” approach, holding that the purpose of the provision was to make ineligible anyone who was a recidivist (subparagraph (A)), or had been found guilty of a serious offense (subparagraph (B)), or had been found guilty of a violent offense (subparagraph (C)). The three dissenting justices, in an opinion written by Justice Gorsuch, began with this:
“At the heart of today’s dispute lies no specialized term but perhaps the most ordinary of words: Everything turns on what work the word “and” performs in paragraph (f )(1), where a sentencing court is tasked with determining whether “the defendant does not have” three traits—A, B, “and” C.”
Justice Gorsuch then took a (not so) subtle dig at the majority:
“Consider the mother who tells her child, “If you do not have any homework left, you can go play with your friends.” The child would understand that he could play with his friends unless he had homework left to do. Now apply those observations to paragraph (f)(1). Given the meaning of “and,” an ordinary reader would naturally understand that a defendant is eligible for individualized sentencing if he “does not have” trait A, trait B, together with trait C … the statute indicates that a court may issue an individualized sentence unless the defendant has all three traits listed in §3553(f)(1).”
Justice Gorsuch’s dissenting opinion is worth reading, if not for its impressive discussion of the word “and”, but of his somewhat lengthy discussion of the children’s story “The Hungry Caterpillar”, by Eric Carle, which an Appeals Court had relied on. Justice Gorsuch artfully makes his case using the very hungry caterpillar that ate through “one sausage, one cupcake, and one slice of watermelon.”
Modifying words are dangerous – very dangerous!
In addition to punctuation and grammar, pay attention to modifiers – adjectives and adverbs. In Weyerhaeuser v. US Fish & Wildlife Service, (USSC 17-71, slip opinion November 27, 2018), the US Supreme Court had the occasion to discuss adjectives at some length as they decided whether the phrase “critical habitat” required any habitability. In a unanimous opinion written by Chief Justice Roberts, the Court wrote (at page 8): “Our analysis starts with the phrase “critical habitat.” According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat.’ Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality. It follows that ‘critical habitat’ is the subset of ‘habitat’ that is ‘critical’ to the conservation of an endangered species.” See https://www.supremecourt.gov/opinions/18pdf/17-71_omjp.pdf accessed December 6, 2018.
This case reminded me of advice I received as a young barrister in Canada in the late 1980s. My mentor – a Queen’s Counsel who later became a judge – taught me to always pay attention to modifiers: adjectives and adverbs. Remember the movie “A Few Good Men” starring Tom Cruise and Jack Nicholson? Colonel Jessup (Jack Nicholson) was on the witness stand being cross-examined by Lieutenant McCaffrey (Tom Cruise). Lieutenant McCaffrey asked “were the men in danger? Grave danger?” And Colonel Jessup replied in “is there any other kind?” A great line! Most modifiers are unnecessary, and many are redundant (e.g., end result, first began, twelve noon, and revert back). Whether necessary or not, when writing in a business setting you should be very aware of both your use of adjectives and adverbs, and when reading others’ use of adjectives and adverbs. When confronted with any modifier, ask yourself (i) why is that modifier being used? (ii) is it being used correctly? (iii) does it change the meaning of the sentence in a way that is unintended? (iv) is it being used consistently with other modifiers? And (v) could it limit or prevent us in the future?
Another example of the importance of clear language recently came from an interagency joint statement on “Innovative Efforts to Combat Money Laundering and Terrorist Financing” (December 3, 2018) (see https://www.occ.gov/news-issuances/news-releases/2018/nr-occ-2018-130a.pdf). In that statement, the four banking regulatory agencies and FinCEN wrote, in part:
“… pilot programs that expose gaps in a BSA/AML compliance program will not necessarily result in supervisory action with respect to that program. For example, when banks test or implement artificial intelligence-based transaction monitoring systems and identify suspicious activity that would not otherwise have been identified under existing processes, the Agencies will not automatically assume that the banks’ existing processes are deficient. In these instances, the Agencies will assess the adequacy of banks’ existing suspicious activity monitoring processes independent of the results of the pilot program. Further, the implementation of innovative approaches in banks’ BSA/AML compliance programs will not result in additional regulatory expectations.”
The modifiers “necessarily” and “automatically” are important: the agencies did not write that “pilot programs that expose gaps in a BSA/AML compliance program will not result in supervisory action with respect to that program” or “the Agencies will not assume that the banks’ existing processes are deficient”. They left the door (wide) open for taking regulatory action against institutions where innovative pilot programs reveal gaps in their existing anti-money laundering programs.
Red Flag Words – they are primarily intended to be implemented
In addition to punctuation and modifiers, also be careful when using or reading some common words and phrases that are “red flags” for compliance and risk management professionals. Two examples are:
- Intended, as in “this product is intended to be sold only to medium-sized businesses”. When read critically, this phrase also means “although this product is intended to be sold only to medium-sized businesses, there are no controls stopping us from selling it to whatever customer class we want …”. Intent is only that: intent.
- Primarily, as in “this product is primarily sold to mid-size businesses”. With “primarily” comes “secondarily”: “this product is primarily sold to mid-size businesses, but we’re also selling it to whoever will buy it.”
And make sure you understand words and phrases that are now commonly used but may not be commonly understood. Examples include “machine learning” and “artificial intelligence” – honestly now, do you really know what those things mean? And then there’s vague words such as “implement” (which I see all the time in Action Plans), “solution” (most solutions are simply tools), “agile development” (caution – that can mean lack of testing), and my favorite: “paradigm shift”.
It is important to be aware of how you and others use punctuation, adjectives, and adverbs. If not, your career could be in danger. Grave danger.