Of the sixty-odd articles I’ve written, one is an actual turkey: Revisiting the Ambiguity of “And” and “Or” in Authorized Drafting, printed in 2006. It flubs the evaluation of or.
I used to be subsequently rescued by Rodney Huddleston, titan of linguistics (see this 2020 put up), so in A Guide of Model for Contract Drafting, the evaluation of ambiguity related to or is smart. I’d just like the 2006 article to vanish down a reminiscence gap, however it’s nonetheless on the market. Specifically, 9 courts have cited it. In an opinion issued 4 days in the past, the Supreme Courtroom of Colorado cited it. Kulmann v. Salazar, No. 22SC135, 2022 WL 17748017 (Col. 19 Dec. 2022). I do know 9 citations isn’t quite a bit, however it’s sufficient to be annoying.
Why do courts cite my 2006 article regardless that the remedy in MSCD is method higher? As a result of the 2006 article is on Westlaw and Lexis and so is out there to anybody with a subscription plan who searches for articles with ambiguity within the title. Against this, citing MSCD requires that you understand about it, know that it addresses the paradox related to or, and both purchase it or observe it down in a library. That’s a much bigger hurdle. This is likely to be extra of a problem with authorized analysis in comparison with analysis within the humanities (English, historical past, spiritual research, philosophy, and artwork historical past)—due to the cash sloshing round within the authorized trade, it’s cost-effective to have an enormous proportion of the literature accessible on-line.
So what to do? We may put MSCD on Westlaw or Nexis. (I appear to recall that years in the past it was briefly on Westlaw.) However the thought doesn’t excite me. It’s not an effective way to learn a reference work that you simply seek the advice of often, with loads of flipping forwards and backwards. Books on Westlaw and Nexis are usually treatises that value a whole bunch of {dollars} or extra, so that you’d be unlikely to purchase one. And being on Westlaw or Nexis doesn’t assure being observed.
I’d fairly work to make MSCD higher identified to judges. I plan on sending assessment copies to some judges. If you understand of an influential decide who would recognize my method to contract language, let me know.
However maybe the easiest way to make judges conscious of MSCD can be to cite it in pleadings! It appears from her opinion in Pelopidas, LLC v. Keller (see this weblog put up) that Decide Kelly C. Broniec of the Missouri Courtroom of Appeals realized about MSCD from the appellant’s pleadings.
