In the previous post on “which”, “that”, Fowler and the jurisprudence of America, Rich Greenhill made an interesting observation in the comments about why the drafters of state laws seem to fight so shy of relying on commas to define non-restrictive clauses.
“They may have been influenced by lawyers’ traditional antipathy towards punctuation,” he writes. “In the UK, acts of parliament did not generally use punctuation (other than periods) until 1850; and even until recent decades the idea persisted that any punctuation should be ignored when construing laws. Much subordinate legislation continued to be drafted without punctuation until around the mid 20th century.”
Then I found this significant passage in Wisconsin’s Bill Drafting Manual:
I think Mr Greenhill is on to something. So, bearing that in mind, and for the sake of completeness, it’s probably worth sprinting through how the remaining states of the union handle the which/that issue.
Twenty states don’t make their legislative drafting manuals available online,* and another 12 don’t explicitly address the matter in their guidance.** Of the 18 that do, most seem to fall into one of three camps when it comes to Fowler’s rule.
The Wisconsin position Insisting on “that” for restrictive clauses and “which” for non-restrictive, and also insisting on the use of commas to set off non-restrictive clauses: Wisconsin, Arizona, Arkansas, Colorado, Indiana, Minnesota, Montana and Utah.
Special mention must go to Idaho, for this breezy but baffling advice:
and Oregon, which goes in particularly hard on the function of “which”:
“Introduces a parenthetic effect, even if not so punctuated”? Really?
But let’s end with a cheer for Washington, which offers descriptivist-friendly, pro-comma advice that might gladden the heart even of Professor Pullum:
“(ii) A nonrestrictive clause is set off by commas, but a restrictive clause, which is essential to the meaning of the word being modified, should not be set off by commas. Compare the following two sentences, which illustrate a restrictive clause and a nonrestrictive clause, respectively:
Men who hate football should stay home.
Men, who hate football, should stay home.”
* California, Georgia, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, Vermont, Virginia and Wyoming.