I know you thought I was more than a little crazy when I started class with a little grammar exercise and I opined that grammar really does matter. Here is a Colbert report which shows the value of a mere hyphen:





Which leads to the United States Supreme court decision on Tuesday in United States v. Hayes, http://www.supremecourtus.gov/opinions/08pdf/07-608.pdf.


Play the scenario: be the lawyer and tell your client, “Hey, I think we have a great chance to win your criminal case in the U.S. Supreme Court on a narrow point of grammar.”


Here are the operative headnotes:

                        (1) As an initial matter, §921(a)(33)(A)’s use of the singular word “element” suggests that Congress intended to describe only one required element, the use of force. Had Congress also meant to make the specified relationship a predicate-offense element, it likely would have used the plural “elements,” as it has done in other offense defining provisions. See, e.g., 18 U. S. C. §3559(c)(2)(A). Treating the specified relationship as a predicate-offense element is also awkward as a matter of syntax. It requires the reader to regard “the use or attempted use of physical force, or the threatened use of a deadly weapon” as an expression modified by the relative clause “committed by.” It is more natural, however, to say a person “commit[s]” an “offense” than to say one “commit[s]” a “use.”

                        (2) The Fourth Circuit’s textual arguments to the contrary are unpersuasive. First, that court noted, clause (ii) is separated from clause (i)—which defines “misdemeanor”—by a line break and a semicolon, while clause (ii)’s components—force and domestic relationship—are joined in an unbroken word flow. Such less-than meticulous drafting hardly shows that Congress meant to exclude from §922(g)(9)’s prohibition domestic abusers convicted under generic assault or battery laws. As structured, §921(a)(33)(A) defines “misdemeanor crime of domestic violence” by addressing in clause (i) the meaning of “misdemeanor,” and in clause (ii) “crime of domestic violence.” Because a “crime of domestic violence” involves both a use of force and a domestic relationship, joining these features together in clause (ii) would make sense even if Congress had no design to confine laws qualifying under §921(a)(33)(A) to those designating as elements both use of force and domestic relationship. A related statutory provision, 25 U. S. C. §2803(3)(C), indicates that Congress did not ascribe substantive significance to the placement of line breaks and semicolons in 18 U. S. C. §921(a)(33)(A). Second, the Fourth Circuit relied on the “rule of the last antecedent” to read “committed by” as modifying the immediately preceding use-of-force phrase rather than the earlier word “offense.” The last-antecedent rule, however, “is not an absolute and can assuredly be overcome by other indicia of meaning.” Barnhart v. Thomas, 540 U. S. 20, 26. Applying the rule here would require the Court to accept the unlikely premises that Congress employed the singular “element” to encompass two distinct concepts, and that it adopted the awkward construction “commi[t]” a use. The rule, moreover, would render the word “committed” superfluous, for Congress could have conveyed the same meaning by referring simply to “the use . . . of physical force . . . by a current or former spouse . . . .”



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