I’ve been seeing a lot of article-editorials recently attacking originalism as an approach to interpreting the Constitution. I plan to address constitutional interpretation at length someday, but not today. What I want to address in this post are interpretive questions (primarily of statutes) that could be avoided if the legislature were only clearer.
Early on in this blog I wrote about a Supreme Court case Yellen v. Confederated Tribes of Chehalis Reservation where the Supreme Court had to decide “[w]hether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are ‘Indian Tribe[s]’ for purposes of the CARES Act.” I took no position on the outcome, but I was critical on Congress’s sloppy drafting that led to the question’s being unclear and its failure to settle the question by a clarifying amendment before the case got to the Court.
Recently a New Jersey statute was brought to my attention. It prescribes a certain rule unless a and b or c. Generally, the word and is conjunctive. If the statutory framework were a and b and c, then all three conditions would have to be true to invoke the “unless.” Conversely, or is disjunctive, so if the statutory framework were a or b or c, then the “unless” would apply if any one (or more) of the three conditions were true.
Use of parentheses helps show the two different interpretations:
- (a and b) or c
- a and (b or c)
Apparently, there is a sort of order of operations for logical expressions (and I read “logical” to refer to computer logic) whereby and is applied before or such that “(a and b) or c” would be the way to read this statute, but I am aware of no authority to apply (computer) logical rules to reading statutes.
But by mixing the conjunctions, the Legislature created confusion. Laws do not use parentheses to show the order of operations, but the statute would be clearer if the alternatives were more clearly outlined:
Provision applies, unless
1. a. a, and
b. b; or
2. c.
OR
Provision applies, unless
1. a, and
2. a. b or
b. c.
Jay Bohn
October 20, 2022