The Last Word: When “And” Means “Or”

The Last Word Editor: Mark R. Parthemer, Glenmede, 222 Lakeview Avenue, Suite 1160, West Palm Beach, FL 33401.

After my annual physical, my doctor sent me to get a blood test and gave me strict instructions, “To take this test, do not eat, drink alcohol and smoke within 12 hours.” Ignoring the absence of an Oxford comma, do the instructions mean I can have steak and a martini so long as I abstain from tobacco?

“And” is a conjunction. Every reader of this column knows that, as a conjunction, it connects. If my partner asks me to go to the grocery store and the dry cleaners, I do not doubt that going to one or the other but not both will fall short of expectations. But “and” can be ambiguous. Suppose I returned to the office and my assistant told me to “call Bill and Sue.” Should I call one then the other, or should I call them jointly?

The Supreme Court in Pulsifer v. United States, 601 U.S. 124 (2024), concluded, interestingly, that although we understand that “and” is a conjunction, it sometimes may play the role of a disjunction.

The statute in Pulsifer related to a safety valve to minimum sentencing for certain crimes. Circuit courts were divided over what the word “and” meant. For thousands of defendants, eligibility for relief from mandatory minimum sentencing depended on whether “and” was written to conjoin requirements for reduced prison time. Under the statute, a defendant is eligible for relief if:

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.

18 U.S.C. § 3553(f)(1) (emphasis added); additional requirements exist but aren’t relevant to our discussion.

Mark Pulsifer had pleaded guilty to felony drug distribution with a prior conviction. His lawyers argued that he should be granted relief because “‘and’ is still conjunctive” after the negative “does not,” much like “Don’t drink and drive” would mean you could maybe do either but can’t do both. As Pulsifer read the subsection, the ”and” joins three features of a defendant’s criminal history into a single disqualifying characteristic.

Justice Kagan, for the majority, described the parties’ positions as follows:

Pulsifer . . . asks whether “the defendant does not have (A, B, and C).” Much as a student would solve “5(2 + 1)” by adding 2 and 1 and then subtracting the sum from 5, Pulsifer wants a court first to combine A, B, and C and then determine whether the defendant has the total. By contrast, the Government reads the statute without parentheses, and so arrives at a different conclusion. On its view, the “does not have” language operates on A, and on B, and on C consecutively, rather than on the three combined (so “5 - 2 + 1”). Or said another way, the test is met if the defendant does not have A, and also does not have B, and finally does not have C. If he has even one, he cannot complete the requisite checklist and so can not gain the safety valve’s benefits.

124 U.S. at 133-34.

We might refer to the transporting of “does not have” as distribution; that is, the introductory phrase “does not have” is distributed to each of A, B, and C. Here are two examples of distribution in legal writing:

1. “Under the terms of the agreement, the parties shall maintain confidentiality with respect to trade secrets, proprietary information, and financial data.” The introductory phrase, “Under the terms of the agreement,” applies to each item in the list and the obligation to maintain confidentiality applies equally to all three categories without needing to repeat the phrase for each item.

2. “I give, devise, and bequeath my personal property, including my jewelry, furniture, and artwork, to my children, Alice, Bob, and Charlie, to be divided equally among them.” The introductory phrase, “I give, devise, and bequeath,” applies to the entire list of personal property items, making it clear that each type of personal property is included in the bequest. In addition, the phrase “to my children, Alice, Bob, and Charlie” applies equally to all items in the list.

Imagine you are finishing dinner when the waiter says, “For dessert, you can have cake and ice cream.” You get excited and think you’re about to feast on both. But then the waiter brings just one of them, explaining, “Oh, when we say ‘and,’ we mean ‘or.’”