For Want of a Comma

–by Ian Ludd

Citations: Daniel Victor, Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute, N.Y. Times (Mar. 16, 2017) https://www.nytimes.com/2017/03/16/us/oxford-comma-lawsuit.html?_r=1; O’Connor v. Oakhurst Dairy, No. 16-1901, 2017 U.S. App. LEXIS 4392 (1st Cir. Mar. 13, 2017); Maine Legislative Drafting Manual, 1st Ed. 1990, Revised Aug. 2009.

Abstract: The lack of a serial comma (or oxford comma) in a Maine wage and hours law created an ambiguity that compelled the First Circuit to rule in favor of the plaintiff delivery drivers in O’Connor v. Oakhurst Dairy. The Maine Legislative Drafting Manual specifically urges legislators to avoid the use of such commas. However, the ambiguity created by the absence of a serial comma raises questions of whether or not the convenience of their exclusion is worth the cost.

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“For want of a comma, we have this case,” wrote Circuit Judge Barron in delivering the First Circuit’s opinion on a labor dispute. On March 13, 2017 the First Circuit ruled in favor of the delivery drivers of Oakhurst Dairy and Dairy Farmers of America, Inc., finding the lack of a serial comma within a state statute determinative in its decision.

The Appellate Court’s analysis in interpreting the scope of an exemption from Maine’s overtime law focused on the lack of a “serial comma,” or “Oxford comma” within the statute. The relevant portion of the statute states:

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.

The lack of a serial comma between “shipment” and “or” within the text of the statute created sufficient ambiguity that the Circuit Court overturned the District Court’s findings.

The Maine Legislative Drafting Manual specifically advises drafters to avoid using serial commas. As the manual states, do not write “trailers, semitrailers, and pole trailers” – instead, write “trailers, semitrailers and pole trailers.” However, this did little to ease the Circuit Court’s concern regarding the ambiguity inherent with the lack of the comma.

While the delivery drivers “distribute” perishable foods, they do not package perishable foods for shipment or distribution. As Justice Barron stated, “[I]f that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform.” However, under Maine law, any ambiguity within the state wage and hour laws must be liberally construed so as to accomplish their remedial purpose. The remedial purpose of the statute was to reward workers with wages. For this reason, the First Circuit adopted the drivers’ liberal interpretation of the exemption and awarded them overtime pay.

The First Circuit’s reliance on the importance of the comma is far from unique within legal history. From a $1 million dispute between Canadian companies in 2006, to a tariff law from 1872, to varying interpretations of a comma in the Second Amendment, commas have a storied past in legal interpretation and analysis.

The Maine Legislative Drafting Manual is hardly unique in its distaste for the “oxford comma.” The Associated Press and most major American new organizations instruct their writers not to use the additional comma. Exceptions are made only to resolve ambiguity. The comma is however widely embraced within book and academic publishing. The Chicago Manual of Style and the Oxford University Press style both use the serial comma, as it serves to resolve ambiguity.

The adoption or condemnation of the oxford comma within Legislative Drafting Manuals has far reaching implications for future legislation. One wonders why legislatures would resist the use of a comma that so often functions to clarify. Does the convenience of the lack of the comma truly outweigh the clarity that the serial comma provides? While critics of the additional comma may say it is redundant, is the extra effort of a comma truly more burdensome than the potential ambiguity its absence may create? For the Dairy Companies who lost this case, the lack of the comma could prove to cost an estimated $10 million. Perhaps legislatures should value the clarity of a serial comma over the convenience of its exclusion. Whether the Maine legislature will rewrite the statute in a way that resolves this ambiguity remains to be seen.

Posted in Legal Pulse, Statutory Interpretation