• Facebook
  • Twitter
  • Subscribe
  • RSS

Lack Of Oxford Comma In Maine Law Could Cost Millions Of Dollars

The lack of an Oxford comma in a Maine statute could end up costing a Maine dairy company millions of dollars:

A class-action lawsuit about overtime pay for truck drivers hinged entirely on a debate that has bitterly divided friends, families and foes: The dreaded — or totally necessary — Oxford comma, perhaps the most polarizing of punctuation marks.

What ensued in the United States Court of Appeals for the First Circuit, and in a 29-page court decision handed down on Monday, was an exercise in high-stakes grammar pedantry that could cost a dairy company in Portland, Me., an estimated $10 million.

In 2014, three truck drivers sued Oakhurst Dairy, seeking more than four years’ worth of overtime pay that they had been denied. Maine law requires workers to be paid 1.5 times their normal rate for each hour worked after 40 hours, but it carves out some exemptions.

A quick punctuation lesson before we proceed: In a list of three or more items — like “beans, potatoes and rice” — some people would put a comma after potatoes, and some would leave it out. A lot of people feel very, very strongly about it.

The debate over commas is often a pretty inconsequential one, but it was anything but for the truck drivers. Note the lack of Oxford comma — also known as the serial comma — in the following state law, which says overtime rules do not 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.

Does the law intend to exempt the distribution of the three categories that follow, or does it mean to exempt packing for the shipping or distribution of them?

Delivery drivers distribute perishable foods, but they don’t pack the boxes themselves. Whether the drivers were subject to a law that had denied them thousands of dollars a year depended entirely on how the sentence was read.

If there were a comma after “shipment,” it might have been clear that the law exempted the distribution of perishable foods. But the appeals court on Monday sided with the drivers, saying the absence of a comma produced enough uncertainty to rule in their favor. It reversed a lower court decision.

In other words: Oxford comma defenders won this round.

“That comma would have sunk our ship,” David G. Webbert, a lawyer who represented the drivers, said in an interview on Wednesday.

The language in the law followed guidelines in the Maine Legislative Drafting Manual, which specifically instructs lawmakers to not use the Oxford comma. Don’t write “trailers, semitrailers, and pole trailers,” it says — instead, write “trailers, semitrailers and pole trailers.”

The manual does clarify that caution should be taken if an item in the series is modified. Commas, it notes, “are the most misused and misunderstood punctuation marks in legal drafting and, perhaps, the English language.”

“Use them thoughtfully and sparingly,” it cautions.

In this case, the drafters weren’t cautious enough, thus creating an ambiguity that was sufficient to reverse a trial court ruling that granted summary judgment to the dairy based on the trial court’s reading of the statute. The case will now return to District Court for trial, and it will be up to the trial judge to attempt to resolve the ambiguity in the law, but it doesn’t look good for the dairy based on the First Circuit’s ruling on this appeal.

You can read the opinion here.

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. CSK says:

    They’ll take my Oxford comma from me when they pry it from my cold, dead fingers.

    The best illustration of the utility of the Oxford comma can be seen in this book dedication:

    “To my parents, George Bush and God.”

    Literally, that means the author was sired by George Bush and God, which is doubtless not what he intended to say.

    ReplyReply

    Like or Dislike: Thumb up 9 Thumb down 0

  2. al-Alameda says:

    The language in the law followed guidelines in the Maine Legislative Drafting Manual, which specifically instructs lawmakers to not use the Oxford comma. Don’t write “trailers, semitrailers, and pole trailers,” it says — instead, write “trailers, semitrailers and pole trailers.”

    I’ve always used the ‘Oxford comma,’ as @CSK:
    said:

    The best illustration of the utility of the Oxford comma can be seen in this book dedication:
    “To my parents, George Bush and God.”

    You’ve got to careful.

    ReplyReply

    Like or Dislike: Thumb up 4 Thumb down 0

  3. Gustopher says:

    Pity the poor dairy that will have to pay their workers overtime.

    ReplyReply

    Like or Dislike: Thumb up 6 Thumb down 0

  4. Robert in SF says:

    I prefer an Oxford commas in a list…but in this case, I don’t see any other terminal conjunctions within the list…which leads me to believe the natural reading means that the terms “shipment” and “distribution” are distinct entries, that the precedent phrase “packaging for” applies to only “shipment”.
    In a list like this, I would assume that no conjunction means the list is additive (all have to be true), but there is an “or” used, which leads me to believe that it makes each entry eligible for the scope set.

    To illustrate my reasoning, leave out those entries and their linking conjunction “or”:

    The canning, processing, preserving, freezing, drying, marketing, storing of:

    That doesn’t read well without either an “and” or an “or”. Certainly, without an “or” it would read that all have to be true for the overtime rule to apply. Clearly not a reasonable intent.

    ReplyReply

    Like or Dislike: Thumb up 0 Thumb down 0

  5. CSK says:

    The guideline in the Maine Legislative Drafting Manual advising against the use of the Oxford comma is stupid, precisely because it gives rise to just the kind of ambiguity legal writing is supposed to avoid.

    ReplyReply

    Like or Dislike: Thumb up 7 Thumb down 0

  6. @Robert in SF:

    I don’t disagree that this is a reasonable interpretation of the statutory language, but because of the ambiguity that the lack of a comma creates the Circut Court was limited in what it could do on an appeal of the Motion for Summary Judgment. It’s possible that one party or the other will be able to introduce evidence at trial that helps to resolve the ambiguity, but that’s a legal argument for another day.

    Nonetheless, this is why the law isn’t always as straight-forward as it seems. An ambiguous statute makes it hard for Courts to decide what to do without inappropriately replacing the plain language of the statute with their own, often subjective, opinion on how to interpret it.

    ReplyReply

    Like or Dislike: Thumb up 0 Thumb down 0

  7. JohnMcC says:

    Throwing this out without checking (always a bad thing for me to do) but wasn’t there a book fairly recently illustrating this and similar peculiarities of the English language: “Eats, Shoots and Leaves”? The sentence quoted partially was ‘the giant panda eats shoots and leaves.’

    ReplyReply

    Like or Dislike: Thumb up 1 Thumb down 0

  8. CSK says:

    @JohnMcC:

    Yep. The author is Lynne Truss, who also wrote Talk to the Hand.

    ReplyReply

    Like or Dislike: Thumb up 0 Thumb down 0

  9. Modulo Myself says:

    I @CSK:

    I’d go with: Highlights of his global tour include encounters with Nelson Mandela, an 800-year-old demigod and a dildo collector.

    ReplyReply

    Like or Dislike: Thumb up 1 Thumb down 0

  10. Mr. Bluster says:

    ON LANGUAGE; THE WICKED WHICH AND THE COMMA
    By William Safire
    Published: September 2, 1984

    Let’s hit that notion again, harder: ”He deep-sixed the evidence that was incriminating.” (Defining clause, beginning with that , no commas; it is ”the evidence” that was incriminating.)

    Try that sentence this way: ”He deep-sixed the evidence, which was incriminating.” (Nondefining clause, beginning with which , separated by a comma; it is the fact that he deep-sixed it, not the evidence itself, that was incriminating. You think grammarians are splitting hairs? A person could go to jail on the difference.)
    http://www.nytimes.com/1984/09/02/magazine/on-language-the-wicked-which-and-the-comma.html

    ReplyReply

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Kylopod says:

    My general philosophy when it comes to usage is that the most important thing is being understood; I’m not much impressed when people insist on rules for the sake of rules (and that’s not even getting into the fact that a lot of the “rules” that the grammar Nazis insist upon are dubious). Still, as this example illustrates, these things can have practical consequences.

    I’ve noticed that British writers tend to use commas a lot more sparingly than Americans. This sometimes drives me up the wall when reading British writing. For example, in one book I was reading, there seemed to be no commas to distinguish between restrictive and nonrestrictive clauses, and that led to ambiguity in one passage where I couldn’t tell whether or not the writer was making a sweeping generalization about an entire class of people. (It was along the lines of “I hate lawyers who lie” versus “I hate lawyers, who lie.”)

    ReplyReply

    Like or Dislike: Thumb up 2 Thumb down 0

  12. Franklin says:

    @Kylopod: Yup, the fact is they should have had at least two people carefully read the contract and note any ambiguities. In this case, I’m not sure a comma removes all the ambiguities, so rewrite the whole thing until it is exactly what you mean.

    /But if I had to choose, yes I am generally *for* the Oxford comma.

    ReplyReply

    Like or Dislike: Thumb up 1 Thumb down 0

  13. Just 'nutha ign'int cracker says:

    @Robert in SF: Well first of all, it wasn’t “packaging” it was “packing,” and second, I worked in the shipping and distributing business for 15 years–we shipped and distributed farm produce and food service products. “Shipping” and “distributing” are two separate activities both of which require product to be packed in order to be shipped or distributed. The difference between the two–and what made my branch of the company different from other branches–is that distributing happens when products are sent to individual customers of a company that supplies products. Shipping happens when producers of such products send them to businesses via common carrier, third parties, or on company owned transport. The branch that I worked at happened to do both while other branches either shipped or distributed, but not both.

    So in fact, the judge in this case was dead bang on point because “packing for shipping or distribution” constitutes one single category of activity (particularly because the “or” signals alternative actions). By my read–and IANAL, but IAAG(rammarian) [and professionally trained at that!]–the people working in the actual shipping or distribution are not covered by the clause at all–only the packers. (Of course, if packing and shipping overlap–which they often do–then those guys are SOL. Conversely, if the company can show that driver is not a discrete task from packing and shipping–which is difficult to do because in most businesses, drivers need special licensing or training not given to everyone–it is possible that the company can prevail on another appeal.)

    @ Gustopher: Me too, but you might want to be careful about expressing support for blue collar workers receiving benefits generally reserved for higher grade labor. On some threads here, that idea doesn’t seem to resonate that well.

    ReplyReply

    Like or Dislike: Thumb up 0 Thumb down 0

  14. Just 'nutha ign'int cracker says:

    @Just ‘nutha ign’int cracker: Furthermore, the Maine guide picked a poor example for when not to use a serial comma because “semitrailers” and “pole trailers” are both parts of the broader category “trailers” used at the head of the phrase. Note that all three of these phrasings are equally unambiguous (although I prefer the third):

    …trailers, semitrailers and pole trailers
    …trailers, both semitrailers and pole trailers
    …trailers, semitrailers, and pole trailers

    Note that grammatically the first and second are syntactically equal, but the second might be better if the continuation of the phrase were, for example “but not stake-side flatbeds, bottom dump trailers, or rail container trailers.”

    ReplyReply

    Like or Dislike: Thumb up 0 Thumb down 0

  15. Just 'nutha ign'int cracker says:

    @Kylopod: My experience studying grammar led me to believe that a primary difference between American and British punctuation is that Americans have adopted the practice of punctuating for tone and inflection more than the British have. It is possible that the punctuation evolution happened because American English is more tonal and inflective or because we work more on transmitting those qualities by our writing, but the question of why is beyond my level of study and interest in the question. I know that the difference makes reading scholarly work for both British and American speakers difficult on both sides. I’ve had British English speakers comment that having to decode for tone and inflection in American writing slows the reading and I know that having to determine what the inflection should be in British writing slows me down a lot. Particularly on those 6, 7, and 8 line sentences that scholars like to write so much.

    ReplyReply

    Like or Dislike: Thumb up 0 Thumb down 0

  16. DrDaveT says:

    Thank God there are no ambiguous commas in really important legal documents, like the Bill of Rights.

    ReplyReply

    Like or Dislike: Thumb up 2 Thumb down 0

  17. grumpy realist says:

    I think this may be one reason why so much of how Japan works is due to known-but-never-written-down-rules: the difficulty of writing a complex, unambiguous Japanese sentence.

    ReplyReply

    Like or Dislike: Thumb up 0 Thumb down 0

Speak Your Mind

*