An Oxford comma changed this court case completely
CNN
By AJ Willingham
15 March 2015

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What is an Oxford comma?
Also known as a serial comma, an Oxford comma is the comma between the penultimate and final items in a written list. Here it is, using a classic example from The Gloss:

We invited the strippers, JFK, and Stalin.
The comma between JFK and Stalin is the Oxford comma.

Proponents say it helps eliminate ambiguity. (For instance, without the Oxford comma above, would that mean JFK and Stalin were the strippers?) Critics say it is just cumbersome.

If you have ever doubted the importance of the humble Oxford comma, let this supremely persnickety Maine labor dispute set you straight.

A group of dairy drivers argued that they deserved overtime pay for certain tasks they had completed. The company said they did not. An appeals court sided with the drivers, saying that the guidelines themselves were made too ambiguous by, you guessed it, a lack of an Oxford comma.

This is what the law says about activities that do NOT merit overtime pay. Pay attention to the first sentence:
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.

That's a lot of things! But if we're getting picky, is packing for shipment its own activity, or does it only apply to the rest of that clause, ie the distribution of agricultural produce, et al?

See, all of this could be solved if there were an Oxford comma, clearly separating "packing for shipment" and "distribution" as separate things!

According to court documents, the drivers distribute perishable food, but they don't pack it.

Yes, this is the real argument they made. And they really won.

"Specifically, if that [list of exemptions] 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," the circuit judge wrote.

It did not, and since the judge observed that labor laws, when ambiguous, are designed to benefit the laborers, the case was settled.

"For want of a comma, we have this case," the judge wrote.

The dramatic irony in this ruling is, there are actual state guidelines on how Maine lawmakers draw up their documents. And they do NOT include Oxford commas! The humanity!

To be fair, there is also guidance on how to avoid unclear language that could, say, help an impressively pedantic group of drivers get what they were owed.

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Lack of Oxford comma costs Maine company millions in overtime dispute
Boston Globe—abridged
16 March 2017

Oxford comma, perhaps the most polarizing of punctuation marks.

What ensued in the 1st U.S. Circuit Court of Appeals, and in a 29-page court decision handed down Monday, was an exercise in high-stakes grammar pedantry that could cost a dairy company in Portland, Maine, 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 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.

Legal history is replete with cases in which a comma made all the difference, like a $1 million dispute between Canadian companies in 2006 or a very costly insertion of a comma in an 1872 tariff law.

Varying interpretations of a comma in the Second Amendment have figured in court decisions on gun laws, including a U.S. District Court overturning a Washington gun ordinance in 2007. (The Supreme Court later overturned the law in the case known as District of Columbia v. Heller.)

Most American news organizations tend to leave the Oxford comma out while allowing for exceptions to avoid confusion, like in the sentence: “I’d like to thank my parents, Mother Teresa and the pope.” Reporters, editors and producers at The New York Times usually omit the comma, but Phil Corbett, who oversees language issues for the newsroom, wrote in a 2015 blog post that exceptions are sometimes made:

“We do use the additional comma in cases where a sentence would be awkward or confusing without it: Choices for breakfast included oatmeal, muffins, and bacon and eggs.”

The Associated Press, considered the authority for most American newsrooms, also generally comes out against the Oxford comma.

But the comma is common in book and academic publishing. The Chicago Manual of Style uses it, as does Oxford University Press style. “The last comma can serve to resolve ambiguity,” it says.

A 2014 survey of 1,129 Americans by FiveThirtyEight and SurveyMonkey Audience found 57 percent in favor of the comma and 43 percent opposed.

Webbert, who said working on the case recalled his boyhood grammar and Latin lessons, scoffed at the idea that he was representing all those in favor of the Oxford comma. He was only representing the truck drivers, he said.

The drivers, who earned between $46,800 and $52,000 per year without overtime, worked an average of 12 extra hours a week, Webbert said. Though three drivers filed the class-action lawsuit in 2014, about 75 will share the money. Oakhurst, a longtime family business that was acquired by Dairy Farmers of America in 2014, employs about 200 people and has annual sales of $110 million, selling dairy products throughout New England, according to its website. Its president, John H. Bennett, did not return calls Wednesday and Thursday.

Webbert declined to take a personal position on the broader debate of using the Oxford comma. But he sounded like a lot of English teachers and writing coaches who offered an alternative suggestion: If there’s any doubt, tear up what you wrote and start over.

“In this situation, it did create an ambiguity, which means you have to either add a comma or rewrite the sentence,” he said.

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A few words about that ten-million-dollar serial comma
The New Yorker
By Mary Norris
17 March 2017

The case of the Maine milk-truck drivers who, for want of a comma, won an appeal against their employer, Oakhurst Dairy, regarding overtime pay (O’Connor v. Oakhurst Dairy) has warmed the hearts of punctuation enthusiasts everywhere, from the great dairy state of Wisconsin to the cheese haven of Holland.

Nothing, but nothing—profanity, transgender pronouns, apostrophe abuse—excites the passion of grammar geeks more than the serial, or Oxford, comma. People love it or hate it, and they are equally ferocious on both sides of the debate. Individual publications have guidelines that sink deep into the psyches of editors and writers.

The Times, like most newspapers, does without the serial comma. At The New Yorker, it is a copy editor’s duty to deploy the serial comma, along with lots of other lip-smacking bits of punctuation, as a bulwark against barbarianism.

While advocates of the serial comma are happy for the truck drivers’ victory, it was actually the lack of said comma that won the day.

Here are the facts of the case, for those who may have been pinned under a semicolon. According to Maine state law, workers are not entitled to overtime pay for the following activities: “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 issue is that, without a comma after “shipment,” the “packing for shipment or distribution” is a single activity. Truck drivers do not pack food, either for shipment or for distribution; they drive trucks and deliver it. Therefore, these exemptions do not apply to drivers, and Oakhurst Dairy owes them some ten million dollars.

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.”

Lest we lose perspective, this law on the books of the State of Maine applies to people who work with perishable foods, and the point is that pokey employees should not be rewarded for taking their sweet time getting the goods to market.

The case of the dairy-truck drivers’ comma has got several things going for it. It’s got David and Goliath in the story of the little guy sticking it to a corporate boss. It’s got men driving around in trucks with copies of Strunk & White in the glove compartment. And you know what else it’s got? Of course you do. It’s got milk. For all the backlash against the dairy industry—the ascendance of soy milk, almond milk, hemp milk (note the asyndeton), none of which, by the way, are really milk, because you can’t milk a hazelnut—there is something imperishably wholesome about cows and milk.


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