In Which We Weigh In On a Dispute "Among" Lawyers Over the Uses of "Between" [Updated 11/7/03]

Mike O'Sullivan of Corp Law Blog is wrestling with the relative merits of using "between" and "among" in drafting contracts. Mike posits the problem here and reports on reader response (endorsing "between") here.

Having had the dispute brought to my attention via a back channel communiqué from David Giacalone (the Conscience of Us All), and being a longtime proponent of the proposition that good legal writing must first simply be good writing, I ran to my copy of The Grammatical Lawyer, which provided this additional insight:

The prepositions between and among have distinct uses. Between (originally by twain) is used when only two items are being considered -- 'The choice is between nolo contendere and a plea of guilty' -- and among, when there are more than two -- 'The files were divided among the five lawyers.'

The rule governing the use of between, however, is subject to one notable exception: between is correctly used even when more than two elements are involved if the elements are closely associated and, though considered individually, are related to one another. To illustrate: 'The Constitution regulates trade between the states.' 'Agreements were reached between the five nations.'

That last example persuades me that Mike and his readers who favor "between," even in contracts involving 3 or more parties, are in the right, and I so rule.

Update: The discussion of this issue is ongoing, and currently resides most prominently at Ms. Scheherazade Fowler's Stay of Execution, a site that makes for good reading even when lexicography is not the order of the day. Ernie Svenson is also monitoring the situation closely.

Comments

[David Giacalone]

Mike O'Sullivan responded to my e-mail and suggested that trying to argue with opposing counsel over "between" and "among" could create bad blood AND waste lots of attorney time. That's probably why, as Prof Bainbridge pointed out today, we often see contracts using "between and among". Perhaps this discussion will save clients a few dollars in fees AND improve the profession's grammar.

Meanwhile, "formerly conscientious" would be a better description of my status these days than CoUA. If I ever were the profession's conscience (no wonder I burned out!), it was in the first meaning of the word, rather than the second, according to the American Heritage Dictionary -- http://www.bartleby.com/61/86/C0578600.html :

1. The awareness of a moral or ethical aspect to one's conduct together with the urge to prefer right over wrong.

Not [usually], 2. A source of moral or ethical judgment or pronouncement.

with all due humility,
dag

[John Rosenberg]

Well, I'm a stick-in-the-mud formalist who regrets seeing nice, and traditional, distinctions lost. The trouble with allowing the "between the states" etc. exception to the general rule that among should be used for more than two parties is that the exception will kill the rule and the two words will become indistinguishable, ending the ability economically to make the distinction they now allow.

But, as I say, that's pretty formalist. Here's a practical (even pragmatic) reason for holding on to traditional grammatical niceties: if you don't, you will make people who care about such things (of whom there are, for better or worse, quite a few) think either that you don't know much about grammar or that you don't care about it. This will lower you in their estimation. On the other hand, people who in fact neither know nor care will not even be aware that you're using the language correctly.