Commas and the Law
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UPDATED: Jun 24, 2017
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Ideally, lawmakers use words with precision, making their intent clear with language that everyone understands. In the real world, language is imprecise. Many words have multiple meanings. The way a sentence is structured might make its meaning uncertain. And sometimes, legislators use language that is deliberately ambiguous because the proposed law will otherwise not attract enough votes to pass.
Judges have the difficult task of discerning the meaning of a law when the language is unclear. They usually follow a set of rules to help them parse a statute’s meaning, including the cardinal rule that a statute should be interpreted to mean what it says when its language is clear. But whether language is clear, or is capable of more than one interpretation, often sparks disagreement.
Rules of grammar also inform a judge’s interpretation of a statute. And occasionally, as in a recent case that came before the Court of Appeals for the First Circuit, rules of punctuation play a role in the court’s analysis. That case involved something known as an Oxford comma.
The Oxford comma (also known as a serial comma) is the comma that writers may choose to use, or not to use, after the next-to-last entry in a list of three or more items, before the conjunction. In the sentence “I have a dog, a cat, and a turtle,” the second comma is an Oxford comma. It would be just as correct to write “I have a dog, a cat and a turtle” because whether to insert a comma before “and” is a matter of style. The rules of punctuation do not require or forbid the use of an Oxford comma.
The Oxford comma got its name because the editors at Oxford University Press adopted its use as a matter of style. The AP Stylebook, commonly followed by journalists, omits the Oxford comma. The Chicago Manual of Style, on the other hand, recommends it.
Sometimes the Oxford comma helps to clarify a sentence in a way that avoids misunderstandings. Those who dislike the Oxford comma suggest that clarity can best be achieved by rewriting the sentence.
Is use or omission of the Oxford comma important to judges when they interpret statutes? It shouldn’t be. Since the Oxford comma is used as a matter of whim, it is impossible to assume that the appearance or omission of an Oxford comma means anything at all.
Maine’s Overtime Statute
The difficulty of divining the meaning of an absent Oxford comma recently presented itself in a case that construed Maine’s overtime law. Three delivery drivers sued Oakhurst Dairy for unpaid overtime. The drivers claimed that the law of Maine, where Oakhurst employed them, classifies them as nonexempt employees and that they were thus entitled to overtime. The dairy countered that Maine’s overtime law exempts employees who distribute the products that the dairy produces.
The law in question provides that employees are not entitled to overtime when their job involves the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” certain foods and agricultural goods. Note the absence of a comma after the word “shipment.”
The statute might mean that employees who pack goods for shipment and employees who distribute those goods are exempt. Or the statute might mean that employees who pack goods for shipment or distribution are exempt while those who actually distribute the goods are not exempt.
The insertion of an Oxford comma after the word shipment would have made the first meaning clear. However, since the Oxford comma is optional, its omission does not compel the reader to adopt the second interpretation. The statute is thus ambiguous.
Oxford Commas in the Drafting of Statutes
The Maine Legislative Drafting Manual instructs legislative staffers who write statutes to omit the Oxford comma. If the drafting manual had instructed scriveners to use the Oxford comma, courts construing the overtime law might see its omission as evidence that “shipment or distribution” should be read together, both relating to “packing,” not as describing the separate job duties of shipping and distributing.
Since drafters are told not to use the Oxford comma, its absence in the statute sheds no light on whether delivery drivers are exempt employees. The district court nevertheless decided that the legislative list of exempt activities made distribution a stand-alone task and thus “unambiguously” exempted employees who distribute dairy products from overtime laws. The court of appeals disagreed.
Competing Readings of the Same Statute
Oakhurst argued that “shipment” and “distribution” mean the same thing and that the legislature would not have used two words where one would do unless it meant to signal that “packaging for shipment” and “distribution” were different tasks. That argument has some appeal if “shipment” and “distribution” are synonymous, because “distribution” would otherwise be redundant, and one rule of interpreting statutes requires judges to assume that legislators intend each word to have a meaning and therefore do not include unnecessary words in a statute.
The drivers, on the other hand, argued that “shipment” means outsourcing delivery to a third-party while “distribution” refers to a supplier’s direct delivery to its customers. That argument also has some merit, as those separate meanings are consistent with dictionary definitions, which commonly guide courts when they interpret the meaning of words that are in ordinary usage. And if the words mean the same thing, why did the legislature use both words when it could have contented itself with one of them?
The drivers also relied on a rule of grammar known as “parallel construction.” The other nouns that describe work-related tasks (such as “canning” and “processing”) are gerunds — the end in “-ing.” Since “shipment” and “distribution” are the only words in the list that are not gerunds, the rule of parallel construction would suggest that they are both modified by the word “for” and thus should be read together as describing two purposes of “packing.”
Oakhurst’s best argument, according to the appellate court, is that the only conjunction (“or”) comes after “shipment” and before “distribution.” The grammatical convention is to use a conjunction to mark off the last word in a list, so the legislature may have intended “packing for shipment” and “distribution” to be separate tasks. Otherwise, Oakhurst argued, the legislature would have written “or packing for shipment or distribution.”
Resolving the Statute’s Meaning
In the end, the court concluded that, notwithstanding the district court’s opinion, the statute was ambiguous. Since rules of punctuation and grammar did not help the court understand the legislature’s intent, the court examined the purpose of the exemption, which was far from clear in the legislative history. Concluding that the legislature failed to make its intent clear, the court resorted to another rule, one that was directed by the Maine legislature.
The state’s overtime laws begin with the “declared public policy” that workers should receive fair and adequate wages. Paying overtime advances that policy. The court of appeals therefore decided it should construe the law liberally in the workers’ favor to protect their right to receive fair and adequate wages.
Of course, all of this trouble could have been avoided if Maine’s drafting manual championed the use of the Oxford comma. Perhaps the lesson to be learned is that optional commas should not be optional when precision is necessary.