Disfavoring Statutory Parentheses (Except in Certain Circumstances)

Zachary A. Damir*

Parentheses in statutes have been at issue in an increasing number of court cases, even at the Supreme Court. Parentheses have a slightly different story from other punctuation marks and they have been used consistently throughout legal history. The Federal Constitution, early statutes, and a large part of our modern state and federal law separate words from their sentences using parentheses. But if a parenthetical conflicts with the material outside of the parentheses, it is the current practice to discard the interior text as surplusage, even though the legislature may have had a reason to include that text in a statute.

Interpreters should instead determine what use the parentheses play in the statute. Should the parenthetical text include a definition or an exemption, the parenthetical should control. But if it serves a descriptive purpose, the parenthetical text should be disfavored. This Note proposes a canon of construction that articulates the presumption against using conflicting parenthetical text in statutes (except in certain circumstances).

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*J.D. candidate, Notre Dame Law School. Thanks to William K. Kelley, Jared Huber, Peter Allevato, Joseph Graziano, Fran Head, K’reisa Cox, Amanda Kelly, and Christopher Ostertag for their helpful comments.