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 surplus-age, 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).
Zachary A. Damir,
Disfavoring Statutory Parentheses (Except in Certain Circumstanaces),
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol99/iss1/7