Monday, August 05, 2013

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (17): Avoid using “and/or”

[1] Louis-Philippe Pigeon, former Justice of the Supreme Court of Canada:

“And/or” seems to be used by writers whose main concern is to appear erudite. In my opinion, quite the opposite impression is created. Use of this conjunction which is not a conjunction is repugnant to the spirit of the language, English or French. (Drafting and Interpreting Legislation, 1988)
[2] Michigan Bar Journal, August 2003, by Scott P. Stolley:
The real problem with “and/or” is that it plays into the hands of a bad faith-reader. Which one is favorable? And or Or? The bad faith-reader can pick one or the other, or both -- whatever reading is better from that reader’s perspective.
[3] Bryan A. Garner includes “and/or” in his “Dirty Dozen” list of words and phrases that legal writers should avoid. Garner says: “American courts have ruled, as early as 1932, that ‘and/or’ is not part of the English language.”

[4] Some 1930's US cases condemning “and/or
  • Minor v. Thomasson, 236 Ala. 247, 182 So. 16, 18 (Ala.1938) (“the interloping disjunctive -conjunctive-conjunctive-disjunctive conjunction”)
  • Cochrane v. Florida East Coast R. Co., 107 Fla. 431, 145 So. 217, 218 (Fla.1932) (“one of those inexcusable barbarisms which was sired by indolence and dammed by indifference ... senseless jargon”)
  • Bell v. Wayne United Gas Co., 116 W.Va. 280, 281, 181 S.E. 609, 618 (W.Va.1935) (“a disingenuous, modernistic hybrid, inept and irritating”)
  • State ex rel. Adler v. Douglas, 339 Mo. 187, 95 S.W.2d 1179, 1180 (Mo.1936) (“meaningless symbol”)
  • American Gen. Ins. Co. v. Webster, 118 S.W.2d 1082, 1084 (Tex.Civ.App. 1938) (“the abominable invention”)
[5] Recent Australian cases condemning “and/or
  • Harrison Green vs. The Queen (2000)
  • Extraman et al vs. Blenkinship et al (2008)
  • Canberra Data vs. Vibe Construction (March 2010)
[6] Recent US cases condemning “and/or
  • In Re Estate Of Massey (Superior Court Of New Jersey, Chancery Division, Probate Part, Monmouth County, October 1998)
  • State of New Jersey vs. Zaair Tuck (Superior Court Of New Jersey Appellate Division, January 2006)
[7] Some Philippine laws using “and/or
  • RA 7192 Gender Equality, Section 4, par. (2)

    Include an assessment of the extent to which their programs and/or projects integrate women in the development process and of the impact of said programs or projects on women, including their implications in enhancing the self-reliance of women in improving their income;

  • RA 8972, Section 3, par. (4)

    Parent left solo or alone with the responsibility of parenthood due to physical and/or mental incapacity of spouse as certified by a public medical practitioner;

  • RA 9048 An Act Authorizing The City Or Municipal Civil Registrar Or The Consul General To Correct A Clerical Or Typographical Error And/Or Change of First Name Or Nickname In The Civil Register

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