Why Policymakers Need to Study Grammar
Back in August, I explained the odd situation that had led to "swipe fees" -- the fees that merchants pay when customers use credit and debit cards -- spiraling out of control rather than being restrained by competition. The Dodd-Frank law's Durbin Amendment had directed the Fed to cap those fees for debit cards, but merchants had alleged the Fed's cap was too high, and a district court had agreed.
An appeals court has now sided against the merchants. There's a lot to the decision, but here I'd like to highlight an aspect with an important lesson for policymakers in general: Be careful with your language to prevent misreadings.
Here's the law explaining how the Fed should set the cap (emphases added):
[The Fed must] distinguish between . . . the incremental cost incurred by an issuer [i.e., bank] for the role of the issuer in the authorization, clearance, or settlement of a particular debit transaction, which cost shall be considered . . . , [and] other costs incurred by an issuer which are not specific to a particular electronic debit transaction, which costs shall not be considered.
The first bolded portion refers to "ACS costs" -- the authorization, clearance, and settlement of the specific transaction. But what does the second bolded portion mean? Does it refer to all other costs, period, creating two categories of costs total? Or can there be costs that don't fall into either category -- costs that are not ACS costs and yet are "specific to a particular electronic debit transaction" -- where the Fed has discretion?
The Fed took a three-category approach and raised the cap to account for costs that fell into the third category. Naturally, merchants did not like this.
As the judge nicely explains, the question boils down to whether the clause introduced by "which" is restrictive or descriptive:
As their labels suggest, descriptive clauses explain, while restrictive clauses define. To illustrate, consider a simple sentence: "the cars which are blue have sunroofs." Read descriptively, the clause "which are blue" states a fact about the entire class of cars, which also happen to have sunroofs. Read restrictively, the clause defines a particular class of cars -- blue cars -- all of which have sunroofs. Although often subtle, the distinction between descriptive and restrictive clauses makes all the difference in this case.
Typically, commas make the distinction clear: "The cars which are blue have sunroofs" means that, of the cars we're talking about, all the blue ones have sunroofs (while non-blue cars may or may not); "The cars, which are blue, have sunroofs" means that all the cars we're talking about both are blue and have sunroofs.
Modern American readers, however, may notice that "The cars which are blue have sunroofs" sounds stilted. This is because of a strong trend toward using "that" instead of "which" for restrictive clauses -- in fact, many teachers and style guides treat the distinction as a hard rule. This gave the merchants an in: They could claim that the grammar of the second bolded clause above was inconclusive, because the drafters had used the restrictive rule for punctuation but the descriptive rule for the choice of "that" or "which."
The judge, correctly in my view, saw the punctuation as the key factor. The "that/which rule" is really just a style guideline, whereas the punctuation rule is well established as necessary for correct grammar. As the linguists Rodney Huddleston and Geoffrey K. Pullum note in A Student's Introduction to English Grammar -- which all editors and writers should read, by the way -- restrictive "whiches" have been appearing in "impeccable English" for hundreds of years: "Render therefore unto Caesar the things which are Caesar's" (King James Bible, 1611); "a date which will live in infamy" (FDR, 1941).
As Pullum wrote on the blog Language Log:
The rule is a fiction, invented during the 19th century by men who thought it would be nice to clean English up a bit -- men like the Fowler brothers (though at least they were well enough versed in grammar to realize that the rule would have to have a whole slew of exceptions). Yet E.B. White stuffed a dogmatic assertion of the rule into The Elements of Style in 1959, and altered the text of the rest of the book to conceal the fact that his old mentor William Strunk knew nothing of it and had never obeyed it (Jan Freeman discovered this; I discuss the matter in this recent article).
That's not to say the law's drafters are without blame, though. Whether they intended to create two categories or three, they could have written the rule much more clearly. The words "all other costs incurred by the issuer" could have been used to create two categories, or the drafters could have explicitly spelled out the third category and said that the Fed could include or exclude those costs at its discretion.
And whether or not the "that/which" distinction is a rule, it's certainly a usage trend -- by the first time I saw it presented as a rule, I'd already picked it up on my own. Statistically, while British speakers tend to divide their restrictive clauses about 50/50 between "that" and "which," American speakers use "which" only about 20 percent of the time. By this point, to a lot of us, a restrictive "which" really does sound a little off.
If you're concerned about the beauty of language, you might want to stand up for restrictive "which." Written law is purely practical, though. I suspect that the drafters were not aware of this alleged rule -- and that if they had been, they would have written the sentence differently, even if they thought the rule was nonsense.
Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen