3

My question is also about this legal language structure in general: "This law applies to a person if they X and Y."

I read this as a strict and, that the law applies only if the person satisfied both criteria. Is that the most common interpretation? Clearly it is a correct natural language interpretation, but is still somewhat ambiguous. E.g. "if the person is armed and in possession of an illegal substance then they get 10 years" means that the person must be both armed and in possession of an illegal substance to have that penalty apply. Of course, in this last example, there might be a separate specific distinct penalty that is stated for when the person is only in possession of the illegal substance (but not armed - without stated this about being unarmed specifically though). I can also imagine that there might be different standards that apply in criminal vs other types of law too. What are those various standards, if any?

The specific law I am interested in is Texas Medicaid law and specifically the Medicaid Estate Recovery Program. The relevant statutes are in RULE §373.103:

(a) A Medicaid Estate Recovery claim may be filed against the estate of a deceased Medicaid recipient for covered Medicaid services if the recipient:

(1) Was age 55 years or older at the time the services were received; AND

(2) Initially applied for covered Medicaid long-term care services on or after March 1, 2005, the effective date of these rules.

My question is about the emphasized AND in there (my added bold and capitalization). Would the most common interpretation be that the recipient should satisfy both criteria in order for the law to apply to them?

Obviously, this is my first post here, so maybe asking about a specific question in a way that sounds like seeking legal advice isn't allowed. I am not asking for legal advice! I can delete the specific law though and make the question just the first part, about the general structure. I am more curious about the specific legal language structure and where else it might exist and how it has been interpreted.

I was just reading this: https://adamsdrafting.com/downloads/Ambiguity-And-Or.pdf and realized that in almost every example included I had my own interpretations that seemed obviously correct, while still seeing how it can actually be ambiguous.

1
  • 1
    Your specific example is unambiguous due to the use of a singular “the recipient” which has attribute A and attribute B. It is not possible to interpret this as different recipients that only have a subset of these attributes. It would be unclear if it talked about multiple recipients with attribute A and recipients with attribute B.
    – amon
    Apr 8 at 22:51
6

In the example given, both elements must be established.

This is the most common meaning of the word "and" in a statute or rule or contract or other writing, but there are times when "and" does not have that meaning.

One must always determine the meaning from context on a case by case basis. Words do not have a single universal meaning in all contexts for legal purposes.

This variation by context in the meaning of words for legal purposes is especially frequent in countries with common law legal systems based upon the English legal system such as the U.S., Canada, New Zealand, Australia, and India to have situations where a word often means one thing in one legal context and another thing in different legal contexts. This is because the governing statutes and case law are written on a piecemeal basis by many different people with no one in charge of maintaining stylistic uniformity, over a very long period of time (often centuries).

In countries like those of Continental Europe, Latin America and much of Asia and Africa, which have what are called "civil law" systems, that are based on European civil codes, there are comprehensive codifications of the basic laws of the land that are drafted by experts all at the same time, and amended only with great deliberation and care, and these codes tend to use a word more consistently in most contexts than common law legislatures and judges do, although even then, this principle is not absolute.

1
  • Thank you for this perspective! I didn't know the distinction between civil law and common law. It is helpful to know that this is the most common interpretation of "and" even though there will still be some variation at times.
    – jdods
    Apr 9 at 11:00

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.