The Oxford Comma and the Law
The Oxford comma was in the news recently when a federal court interpreted a Maine statute regarding overtime pay for dairy truck drivers. In the case of O’Connor, et al. v. Oakhurst Dairy, the lack of a comma, or so the news stories would have it, resulted in a victory for workers’ rights. The Oxford comma (serial comma) is the comma after the penultimate item in a list, as in me, myself, and I; the Oxford comma is the one after myself.
The problem with the news reporting on this case is that the ambiguity does not rest solely with the lack of a comma. And, more importantly, the decision of the circuit court did not rest on the punctuation but rather relied on other methods to interpret the statute in question.
First, let’s get this out of the way: the Oxford comma is a style choice. It’s not a hard rule of punctuation. Whether or not one chooses to use it is optional. Those in favor of using it often argue that its use removes ambiguity, but that’s not necessarily the case. Its use can create ambiguity just as often as its omission. For every instance of ambiguity resolved by its exclusion, as in I’d like to thank my godparents, Jane Doe and John Smith (is the speaker thanking two people—Jane and John are the godparents—or four?), there is an instance like I’d like to thank Jane Doe, my aunt, and John Smith (again, is it two people—Jane Doe is the aunt—or three?). Both consistent use and consistent non-use of the Oxford comma will result in ambiguity at some point, and when faced with such ambiguity one must either be inconsistent, adding or deleting it as appropriate, or rephrase the sentence.
But back to the case at hand.
Maine law, 26 M.R.S.A. § 664(3), requires that workers be paid time and a half for work in excess of forty hours per week. But that law has several exceptions, one of them, subsection (F), being that the overtime rule doesn’t apply to:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
Oakhurst Dairy in Portland, Maine did not pay its delivery drivers overtime, and the drivers sued for the overtime wages they felt they were entitled to under the law. The lack of a comma after shipment created ambiguity—are packing for shipment and distribution one or two distinct activities? If they are one activity—the packing in preparation for delivery—then the drivers, who only deliver and do not pack, are owed overtime because the actual delivery is not exempt from the overtime rule. If they are two activities, the delivery (i.e., the shipment or distribution) is exempt, then they are not owed the money.
The Maine Legislative Drafting Manual dictates that statutes not use the Oxford comma and advises that the sentence should be rephrased if ambiguity results from its omission. And the practice in Maine follows this guideline; Oxford commas are just not found in its laws. This preferred style practice would lead one to conclude that packing for shipment and distribution are two distinct activities, both exempt from the overtime requirement. This interpretation is reinforced by the use of the synonyms shipment and distribution. If they are not distinct activities then the use of both is redundant.
Furthermore, there is no conjunction preceding packing. In such lists we normally expect a conjunction before the last item. If the law intended shipment and distribution to be a single activity, it would have read ...storing or packing for shipment or distribution.
And indeed, the federal district court for Maine followed this logic and interpreted shipment and distribution to be distinct and denied the drivers’ suit.
But it’s not that simple. The drivers appealed and argued before the circuit court that shipment and distribution are not redundant, that shipment refers to use of third-party carriers, while distribution refers to delivery by the employer’s own drivers. The drivers cited dictionary definitions, the use by Oakhurst Dairy in its in-house communications, as well as other Maine statutes that treat the shipment and distribution as distinct activities and not redundant to support this distinction.
The drivers also argue that since all the other activities in the list, aside from shipment and distribution, are gerunds (e.g., canning, processing, preserving), the grammatical rule of parallel construction would indicate that shipment or distribution is a modifier of packing and are not activities subject to the exemption. If they were intended to be distinct activities, the law would read ...storing, packing for shipment or distributing, rather than distribution.
And as for the lack of a conjunction before packing, the drivers point to the use of asyndeton, the deliberate omission of a conjunction from a list, as in I came, I saw, I conquered. But the use of asyndeton in law, and in Maine statute in particular, is rare, so the circuit court concluded that this particular rejoinder was not very convincing.
After all this, the circuit court concluded that any plain reading of the text was ambiguous, and that methods other than grammar had to be used to determine its meaning. Instead, the court relied on the general principle in interpreting Maine law that ambiguous provisions “should be liberally construed to further the beneficent purposes for which they are enacted.” And since the overtime rule was enacted to further the health and well-being of workers, the circuit court ruled in the drivers’ favor and reversed the district court’s ruling.
Now that the decision has been made that the drivers are not exempt from the overtime law, the case goes back to the district court for trial to determine if they did in fact work the overtime hours, and, presumably, that any such overtime did not involve packing. Or, of course, it could be settled out of court.
This case is far from the first where the comma has played a role in how a statute is interpreted. In 1872, the Tariff Act of 1870 was revised with devastating consequence to U.S. federal tax revenue. The original act had exempted from tariffs fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation. But the 1872 revision inserted a comma between fruit and plants. In the original act, the only thing that was exempt from tariffs were the fruit plants themselves. The fruit itself and other types of plants were subject to taxes. The addition of the comma, reading fruit, plants, tropical and semi-tropical, meant that all fruit as well as all plants were exempt from the tariff.
In 1989, in the case of United States v. Ron Pair Enterprises, Inc., the U. S. Supreme Court ruled that the comma did have interpretive weight. At question was the meaning of § 506(b) of Chapter 11 of the 1978 Bankruptcy Code. That law reads:
...there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.
The court ruled that the comma after interest on such claim, meant that the interest did not have to be part of the original agreement and that the holder of the claim could receive interest that accrued after the bankruptcy filing. The interest is contrast to reasonable fees, costs, and charges, which are only due if they arose as part of the original agreement prior to bankruptcy.
And, of course the commas in the Second Amendment to the U.S. Constitution have been the subject of endless controversy—which I don’t care to re-litigate here. That amendment reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
But these other cases do not involve the Oxford comma. To my knowledge, O’Connor, et al. v. Oakhurst Dairy is the first legal case that involves this particular use of the comma, and the courts ruled here that the punctuation is not dispositive. In other words, the Oxford comma cannot, at least in and of itself, be taken as determinative of meaning. In this, the news reports have been getting it wrong—whether or not one uses the Oxford comma just doesn’t matter all that much, in law or anywhere else.
Copyright 1997-2017, by David Wilton