Why a US Court of Appeals thinks this comma is worth millions

Did a US Court of Appeals accidentally settle a long-raging grammatical debate? 

Dinesh Ramde/ AP/ File
In this Dec. 4, 2012, file photo, Jim Mitchell selects a gallon of milk at a Milwaukee grocery store.

Oxford comma fans may have a new feather in their cap: legal precedent.

A close reading of Maine’s overtime legislation may have the Oakhurst Dairy company crying over a lack of spilt ink. The US Court of Appeals for the First Circuit upheld the appeal of five truck drivers, agreeing that a point of grammatical pedantry renders overtime rules ambiguous, possibly entitling them to back pay.

The $10 million dollar punctuation mark? The ever-contentious Oxford, or serial, comma.

For want of a comma, we have this case,” read circuit judge David J. Barron’s decision.

The confusion arose from the following description of activities that do not merit overtime pay under Maine law:

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.

With those activities covering the majority of the milk production and distribution business, it’s easy to see why Oakhurst felt confident in not shelling out. However, the drivers took issue with the final element in the list, interpreting it as “packing for shipment” or “packing for distribution.” Since their work involves distributing milk, but not packing it for distribution, they want the company to pay up. 

They argued that for Oakhurst’s hoped-for reading to be ironclad, it should have read “...marketing, storing, packing for shipment, or distributing of:”. And the judge agreed.

“Because, under Maine law, ambiguities in the state's wage and hour laws must be construed liberally in order to accomplish their remedial purpose, we adopt the drivers' narrower reading of the exemption,” Mr. Barron wrote.

As a result, the case will return to a lower court, who will decide whether the drivers are grammatically entitled to their roughly $10 million payday, which would be shared by dozens of drivers, according to The New York Times.

Long a topic of debate amongst those passionate for punctuation, rarely has the serial comma, also known as the Oxford comma for its endorsement by Oxford University, featured so prominently in a matter of consequence.

Proponents of the Oxford comma, which precedes the last item in a list, point to examples where its omission suggests odd, or even disastrous interpretations: “I’d like to thank my fans, the academy and God,” for example, or “Dear, when you go to the supermarket please pick me up a tasty dessert, pickles and cream cheese.”

But others complain it’s visually displeasing, unnecessary, and can cause confusion of its own – as in, “This book is dedicated to my favorite musician, Louis Armstrong, and Neil Armstrong.” How many people is the book dedicated to? It depends on the identity of the author’s favorite musician. A blind use of the serial comma leaves this case ambiguous.

What’s an grammar enthusiast to do? Unfortunately, there are no easy answers. The Associated Press style guide joins The New York Times and The Guardian eschew it, while Strunk’s classic “Elements of Style” and "The Chicago Manual of Style" favor the mark.

The popular vote splits evenly down the middle as well. The statistics blog 538 asked more than one thousand Americans whether the sentence “It’s important for a person to be honest, kind and loyal,” was grammatically preferable to “It’s important for a person to be honest, kind, and loyal,” and found that 57 percent liked the latter, comma-heavy version.

But why does such a minor debate divide so deeply? "I don't know, but I suspect it comes down to what people were taught and when," Merrill Perlman, an adjunct professor at the Columbia Graduate School of Journalism and a 25-veteran of The New York Times, told the blog. "Most of us learned grammar as rules, often accompanied by raps on the knuckle when an ungrammatical sentence escaped our mouths. That can really instill deep loyalty to the rule."

Rather than a blind adherence to the rules of yet another societal tribe, Ms. Perlman preached a common-sense approach to grammar that prioritizes communication: "It's not a matter of grammar at all; it's a matter of clarity," she summed up. 

It’s a sentiment the Maine Legislative Drafting Manual seems to support.

“Commas are probably the most misused and misunderstood punctuation marks in legal drafting and, perhaps, the English language,” it laments. “Use them thoughtfully and sparingly.”

While it does take a clear stance against the Oxford comma (write “trailers, semitrailers and pole trailers” not “trailers, semitrailers, and pole trailers”), it goes on to warn lawmakers of dangerous ambiguities with the following example: “Trailers, semitrailers and pole trailers of 3,000 pounds gross weight or less are exempt from the licensing provisions.”

To which vehicle class or classes does the weight limit apply? If it’s just the pole trailers, the author can sidestep the entire comma debate entirely by sticking the phrase “pole trailers of 3,000 pounds gross weight or less” first in the list.

In the spirit of the manual’s full context, perhaps grammar lovers too can find some space to bridge the divide, and interpret the court’s decision as not so much for the Oxford comma as it is against muddled writing.

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