Set out below is a selected list of cases, listed from oldest to most recent, where courts have been critical of and/or (note: many of the cases below were noted by either Garner or Dick in their books above; other cases I have come across. To me it is significant that the cases come from Canada, the United States, the United Kingdom, and Australia the criticism is widespread. I am somewhat mortified that the Ontario court of Appeal in the 1985 decision below suggests that there may be a role for and/or if properly used (however at the same time as being critical of the term). Of the criticisms below, my favourites are likely bastard conjunction, a bastard sired by indolence, and the much condemned conjunctive-disjunctive crutch of sloppy thinkers. You also cant go wrong with Janus-faced verbal monstrosity. Note: the cases that follow are by no means exhaustive. 1909: Clergue v vivian co (1909 41 scr 607 at 617 Although this case was not a case of and/or the court makes the point that these words, when used separately, are flexible enough to convey the intended meaning, in this situation to interpret the.
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Kenneth a adams alan. Kaye, revisiting the Ambiguity of and and or in Legal Drafting (2006) 80 St Johns Law review 1167. Bryan a garner, looking for Words to kill? Start with These (2006) 35 Student Lawyer. I also highly recommend Bryan Garners Legal Writing in Plain English: a text with Exercises (Chicago: University of Chicago Press, 2001) for the exercises he has for rewriting english sentences using and/or florida into sentences using proper English. Despite my conniption fits over and/or, i acknowledge it is not always obvious how to best replace and/or with either and or or or some other word or re-phrasing (there: I did it, three instances of or in a row in a sentence). But that is really the whole point of plain English in legal writing: figure out what you are trying to say and then use the most appropriate wording dont be lazy and simply use and/or when, without too much effort, you can derive better wording. I highly recommend the article by kermit Dunahoo (above) on the complexity of meanings of and and. Ruth Sullivan in Statutory Interpretation, 2d ed (Toronto: Irwin Law, 2007) at 81-82 also has a good discussion on the meaning of and and. case law Critical of And/Or Criticism of and/or is not limited to commentary in secondary resources. Judges have been vociferous in noting its ambiguity.
Lutilisation de cette conjunction, qui nen est pas une, est une chose qui répugne au génie de la langue, aussi bien en anglais quen français. Il faut prendre le temps de réfléchir et construire la phrase de façon à ne pas recourir à cet artifice. for additional commentary, see the following articles (from oldest to most recent An And/Or Symposium (1932) 18 aba journal 456, like 524, 574 (editorials). And/Or: Its Uses and Abuses (1935-36) 42 West va lq 235 And/or (1939) 1wt bie, ambiguous Language in Insurance policies (1945) Ins lj 653. And/or (1945) 154 alr 866. Worth Allen, literary Fraction And/or (1947) 24 Dicta 273. Dwight g mcCarty, that Hybrid and/Or (1961) 66 Com lj 280. Kermit l dunahoo, avoiding Inadvertent Syntactic Ambiguity in Legal Draftsmanship (1970-1971) 20 Drake l rev 137. Maurice b kirk, legal Drafting: The Ambiguity of And and Or' (1971) 2 Texas Tech Law review 235.
The word or usually includes the sense of and : no food or drink allowed. That sentence does not suggest that food or drink by itself is disallowed while food and drink together are. robert c dick, legal Drafting in Plain Language, 3d ed (Scarborough, on: Carswell, 1995 rule 10 at 107-11: never use "and/or." This linguistic aberration is dealt with harshly by the courts. The eye tends to trip and stumble over this symbol. It has been promulgated largely by those who either have not taken the trouble to decide, or cannot make up their minds, which of the two words they mean. Even in the French language, the phrase and/or appears to be an abomination. Robert Dick, in the book above (at 111 cites the following slogan French commentary against the use of and/or (from a jurist who later went on to become a supreme court of Canada judge louis-Philippe pigeon, redaction et interpretation des lois (Quebec: University of lavel, 1965).
A device, or shortcut, that damages a sentence and often leads to confusion or ambiguity. bryan a garner (with Jeff Newman and Tiger Jackson The redbook: a manual on Legal Style (St paul, mn: West Group, 2002 rule.80 at 43: The slash. Has few uses in formal writing except with dates and fractions. It is best known as the star character in two grammatical abominations: and/or and he/she. It is especially unfit for legal writing because it is inherently ambiguous. bryan a garner, The Elements of Legal Style, 2d ed (New York: Oxford University Press, 2002) at 103: and/or. Banish from your working vocabulary this much condemned conjunctive-disjunctive crutch of sloppy thinkers (citing raine v drasin, discussed below).
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Otherwise, the strongest support in favour of and/or that I have found comes from my copy. Fowlers Modern English Usage, 3d ed (London: Oxford University Press, 2000 where it is suggested that and/or was first recorded in the mid-19th century in legal contexts (hardly a reason to support its continued use). The phrase is described as a formula denoting that the items can be taken either together or as alternatives. The text further notes that it is still employed from time to time in legal writing but then notes it verges on the inelegant when used in general writing and that the more comfortable way of expressing the same idea is to use. In my opinion, the better view is to simply avoid and/or all together, as suggested by a number of leading authorities: chicago manual of Style, 16th essay ed (Chicago: University of Chicago Press, 2010 rule.220 at 266: and/or.
Avoid this Janus-faced term. It can often be replaced by and or or with no loss in meaning. Where it seems needed., try. Or both (take a sleeping pill or a warm drink or both). But think of other possibilities. william Strunk Jr eb white, elements of Style, 4th ed (New studies York: Longman, 1999) at 40: and/or.
And in case anyone from Redbook ever reads this, let me just say that while drawing slightly different versions of popular images on Pinterest may get you around the law, it certainly won't win you any respect from your readers. It's far better to credit - and credit freely - so that others can see you as the good guy, instead of just another content thief. note : i accidentally and incorrectly called good housekeeping "Better Homes gardens" in my original post. I feel like a complete idiot as a result, and I'm terribly sorry for the confusion. On the plus side: bh g just got a whole bunch of nice messages from you guys that they will no doubt be utterly confused.
I remain surprised at the number of intelligent, articulate, and well-read legal professionals who still use and/or in legal writing. I am therefore creating this post to document a fairly complete list of authorities that support what I think is the better (if not obvious) view: never use and/or in legal writing (or any writing). And yes, i said never. The Abomination that is And/Or, although there is some support for and/or, the weight of authority is against its use, primarily for two reasons: (i) its use can result in uncertainty, (ii) it is not a real word. I definitely fall into the camp of those who wax indignant over its use (these are ken Adamss words at p 109 of his. Legal Usage in Drafting Corporate Agreements (Westport, ct: quorum books, 2001). And even though Adams seems to tolerate on the same page the convenience of and/or as merely one of the more benign drafting evils (in appropriate circumstances where it does not result in ambiguity he tends to avoid using and/or in his own drafting (he. A manual of Style for Contract Drafting, 2d ed (Chicago: aba section of Business Law, 2008) at paras.56.60).
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(Please let me know in business the comments if you recognize them, so i can link sources.) And just to be clear, i've yet to see anyone do a different variation on my flip-flop hangers, so there should be no question that i am the original. (And an easily found source, i might add.). So my question is this: does. Redbook just assume all of these ideas came from lowly bloggers who don't have the audience or clout to protest when their ideas are stolen? They can't think this content simply appeared out of thin air, so that's the only conclusion I can come to: that the redbook staff think they're free to use our ideas and images just because they're bigger than. (This is also a good time to mention again how critically important it is to properly source your pins, although I doubt, redbook bothered looking for sources, anyway.) And finally, this may seem petty, but dangit, i'm going to mention it anyway: Redbook was the. It happened during the book release, lab and we all expected something positive, but instead they slammed me with a two sentence review, saying "you know the blog-to-book trend has gone too far when you find this title on shelves." so, yeah, i'm starting to think. I don't expect anything much to come of this, guys, although I do hope my bit in good housekeeping isn't jeopardized. However, if any of you would like to contact Redbook to remind them that properly crediting sources is just good manners, you can do so via their Facebook page, twitter, and/or e-mail at Obviously nothing can be done about this current issue, but a correction.
Good housekeeping for their Spring issue. (I was hoping to save it as a surprise, too. sigh now that they've been "scooped as it were, it's possible plant that. Good housekeeping may pull the feature, depriving Epbot and myself of both proper credit and Epbot's first mention in print, which i've been ridiculously excited about. The added exposure would be huge for this blog. Oh, and remember how I mentioned how popular my hangers are on Pinterest? Well, when you look at the rest of page 102, it's pretty obvious that's where. Redbook got all of their ideas: Any regular pinner will recognize these as being some of the site's most popular pins - and I see no credit for any of them, either. To be fair, the pillow case storage and bracelet rack are easily copied, so there are lots of versions out there, but I'd be curious to know if those reference photos are also copied from bloggers' photos.
e-mail. However, today reader Beth pointed me to a whole new low in my experience: Redbook magazine not only took my idea and printed it without credit, they also hired an artist to draw a picture from my photos to get around the copyright issue. The artist made a few differences - perhaps enough to hold up in court, i suppose - but it's blatantly obvious that my photos were used as a direct reference. Here are the photos from Epbot that I believe. Redbook used, originally posted back in April of 2011 on my flip-flop hanger tutorial : And this is on page 102. Redbook 's January 2013 issue, on shelves now: Those are pretty clearly my flip-flops, complete with the little side buckles, and it's even the same hanger shape and silver bar from my photo. Though the flats pictured are different, that idea was also mine, as you can see in another photo from my original post: Here's a side-by-side comparison of the flip-flops: even the shadows line. Again, i think it's pretty obvious where this drawing came from, even if the differences in the overall image may make it technically legal. (I honestly don't know, so if you do, feel free to weigh in in the comments.). As bad as this is, it gets worse: Just last week i agreed to have my flip-flop hangers featured.
Update : Redbook has since responded, and you can read the e-mail their executive editor sent me here. (In short, they stepped.) They have apologized, sent 500. Give kids The world at my request, and promised to add a correction notice in the next print issue. However, the damage eksempel is done: my feature. Good housekeeping has been pulled as a result. Redbook 's initial theft, so i won't be getting my first Epbot print credit after all. (Well, unless you count. Redbook 's correction.) you guys know that one of my most popular creations here on Epbot are my flip-flop hangers.
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