The Oxford Comma: Great For Listing, Pontificating, And Winning Court Cases~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
March 16, 20171:24 PM ET
by Colin Dwyer
Surely, Oakhurst Dairy would have done well to heed the immortal words of the ‘80s hair band Cinderella: “Don’t know what you got (till it’s gone).”
The milk and cream company based in Portland, Maine, likely never appreciated the serial comma — also known as an Oxford comma — so much as it did Monday, when the lack of that little curved stroke cost the company an appeals court ruling that centered on overtime rules for drivers.
Specifically, the ruling in favor of Oakhurst delivery drivers came down to Maine state law, which dictates that the following activities are not subject to overtime protections:
“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 trouble rests with “or.” The presence of that tiny conjunction without a comma as a companion makes for some muddled meanings: Is “packing for shipment or distribution” exempt from overtime regulations? Or are both “packing for shipment” and “distribution” exempt?
These aren’t idle questions for the five delivery drivers who sued Oakhurst, because as Quartz notes, “the drivers do distribute, but do not pack, the perishable food.” In other words, one interpretation of the law’s list would make the drivers eligible for overtime pay; the other would mean they won’t get those extra dollars for extra time on the job.
Enter the appeals court judges. In the opinion, 1st Circuit Judge David Barron writes that the lack of a comma renders the whole phrase too ambiguous to agree with Oakhurst — and the district court that originally ruled in its favor — that the drivers don’t get rights to overtime pay:
“The District Court concluded that, despite the absent comma, the Maine legislature unambiguously intended for the last term in the exemption’s list of activities to identify an exempt activity in its own right. ... But, we conclude that the exemption’s scope is actually not so clear in this regard.”
Even making allowances for the fact that Maine’s legislative style guidance eschews the Oxford comma, Barron argued that the ambiguity of the sentence “must be construed liberally” — and so adopted “the drivers’ narrower reading of the exemption.”
Case closed ... for now, at least. With the district court ruling in favor of Oakhurst reversed, Quartz reports the case can now be heard in a lower court.
Now, as adherents of the great and terrible AP Stylebook — which also eschews the Oxford comma — we must admit the moral of this story flies in the face of everything (or one thing) NPR’s own sentences stand for.
But we offer the above fable as a reminder that every punctuation mark deserves a fair hearing, a glimpse into the glories of grammar(,) and a quiet rebellion against the tyranny of copy editors everywhere.*
*Just a joke, NPR copy desk! Please don’t break out the red pen.
Note from the copy chief: While NPR does generally follow the AP Stylebook, we on the copy desk take a more liberal approach in deciding when a series is complex enough to warrant the comma’s use.
The final note from the copy chief puts me in mind of the sage advice from the original, non-Burchfield Fowler’s on the split infinitive.
In all fairness, the judge’s ruling does not rely on the ambiguity being entirely caused by the missing comma. As the Quartz article and others note, there is also the fact that all of the other elements in the list are given as gerunds (canning, processing, … packing), while that final action putatively meant to be exempted from overtime pay (distribution) is not. I would say that what won the drivers their appeal is the lack of both the serial comma and the parallel noun form.
Update, 21 March:
Mary Norris’ New Yorker article from half a week ago (St. Paddy’s Day, actually) reports that there is also a third grammatical element at issue in the ambiguity, asyndeton.
Judge David J. Barron’s opinion in the case is a feast of subtle delights for anyone with a taste for grammar and usage. Lawyers for the defense conceded that the statement was ambiguous (the State of Maine specifically instructs drafters of legal statutes not to use the serial comma) but argued that it had “a latent clarity.” The truck drivers, for their part, pointed out that, in addition to the missing comma, the law as written flouts “the parallel usage convention.” “Distribution” is a noun, and syntactically it belongs with “shipment,” also a noun, as an object of the preposition “for.” To make the statute read the way the defendant claims it was intended to be read, the writers would have had to use “distributing,” a gerund—a verb that has been twisted into a noun—which would make it parallel with the other items in the series: “canning, processing,” etc. To the defendant’s contention that the series, in order to support the drivers’ reading, would have to contain a conjunction—“and”—before “packing,” the drivers, citing Antonin Scalia and Bryan Garner, said that the missing “and” was an instance of the rhetorical device called “asyndeton,” defined as “the omission or absence of a conjunction between parts of a sentence.”
Read the rest of that article. It’s quite nice. And note that the paragraph quoted above contains a link to the actual opinion.