January 18, 2022

Should Your Lawyer Be a Grammar Nerd?

2 min

Sometimes, yes. At least that’s one takeaway from the argument in a recent U.S. Supreme Court case, Boechler, P.C. v. Commissioner of Internal Revenue.

If you’re a fan of grammar and usage quandaries, Boechler has a lot to like: parenthetical phrases, uncertain antecedents, and two uses of the word “such” in the same sentence.

The petitioner in Boechler sought Tax Court review of an IRS levy. But the relevant statute gave it just 30 days to do so, and the petitioner took longer. This is the key statutory language:

[A] person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).

The question before the Supreme Court was whether petitioner’s late filing meant that the Tax Court lost jurisdiction.

In this context, the Supreme Court would usually presume that jurisdiction still exists absent a “clear statement” to the contrary. The question in Boechler quickly became, “how clear?” And that’s where the grammar and usage debate began.

Because the statute’s jurisdictional provision applies “with respect to such matter,” the parties and the Justices spent a lot of time discussing what “such matter” meant. The problem is that the word “such” needs an antecedent—a word or phrase to which it refers. Is the antecedent here the determination? The petition? The entire clause that precedes the parenthetical?

The answer, according to the parties, turns on rules of grammar and usage. They relied on authorities like The Chicago Guide to Grammar, Usage, and Punctuation; The Oxford English Dictionary; and Garner’s Modern English Usage. They argued about things like the last-antecedent rule, pointing words, and auxiliary verbs.

I’m not sure how the Court will decide Boechler; it presents several difficult grammar and usage questions. But facility with grammar and usage is valuable in less complex cases too.

A quick search reveals dozens of recent federal and state court decisions that reference grammar and usage guides. Indeed, many judges work to interpret statutes or rules before they turn to presumptions or deference. Boechler’s treatment of the usual “clear statement” rule is just one example. Courts are increasingly apt to try textual interpretation before resorting to Chevron or Auer deference. Other times, a case simply turns on hard-to-parse contractual or statutory language.

When those situations arise, able advocates deploy grammar and usage rules to their client’s advantage. And it helps to be a grammar nerd.