Are you tired of seeing articles about whether the absence of a comma changed the interpretation of a law or a contract? If so, look away now.
There seems to be a spate of cases and articles on this subject, many coming from the USA. IP Draughts has a confession to make: he hadn’t even heard of an Oxford comma until a few years ago. As far as he remembers, they weren’t discussed when he was taught grammar at school. Yes, he is old enough to have been taught the rules of grammar, or at least a version of the UK version of the rules as they existed before the UK joined the Common Market, adopted decimal currency and the SI system, and generally went to the dogs. Or not.
It seems that many people in the USA have been taught about the Oxford or serial comma, including many judges who are called upon to interpret legal language.
Consider the following instruction from the Maine Legislative Drafting Manual:
Although authorities on punctuation may differ, when drafting Maine law or
rules, don’t use a comma between the penultimate and the last item of a series.
Do not write: Trailers, semitrailers, and pole trailers
Write: Trailers, semitrailers and pole trailers
To IP Draughts’ eye, this advice is correct – it looks weird to put a comma after “semitrailers” (whatever they may be). But if you are going to use a comma there, it is known as an Oxford or serial comma. Or should that be an Oxford, or serial comma? Or Oxford, or serial, comma? Choices, choices…
The State of Maine’s legislative drafting hit the headlines recently, in the case of O’Connor v Oakhurst Dairy, heard in the United States’ Court of Appeals for the First Circuit. Starting his lead judgment, Judge Barron commented:
For want of a comma, we have this case.
The case was about whether delivery drivers were entitled to overtime payments under Maine legislation, or came within a statutory exemption. The relevant part of the legislation provided that overtime payments would not be required in the case of:
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 question before the court was essentially whether “packing for” qualified just the word “shipment” or also qualified “distribution”. In other words, was the exemption for “packing for distribution” or for “distribution” of the numbered items? The drivers argued that it was “packing for distribution”: as they didn’t do this work, the exception didn’t apply and therefore they were entitled to overtime.
In the words of Judge Barron:
Each party recognizes that, by its bare terms, Exemption F raises questions as to its scope, largely due to the fact that no comma precedes the words “or distribution.”
Even if this is true, the absence of a comma does not automatically mean that the exemption is for “packing for distribution”. In context, the wording is unclear. To make it clear(er), and without fundamentally changing the sequence, IP Draughts would have added an “or” before “packing” (but see also his further suggestions below).
Judge Barron’s judgment considers the linguistic arguments, but in the end he resolves the ambiguity in the drivers’ favour, unlike the courts below, by looking to the “remedial purpose” of the statute.
In IP Draughts’ view, if a dispute requires a court to consider the effect of an Oxford comma, the drafter has failed. Other drafting techniques should have been used to avoid getting to that point. In fact, this is also the view of the drafter of the Maine Legislative Drafting Manual. After the passage quoted above, the Manual states:
Be careful if an item in the series is modified. For example:Trailers, semitrailers and pole trailers of 3,000 pounds gross weight or less
are exempt from the licensing provisions.Does the 3,000-pound limit apply to trailers and semitrailers or only to pole trailers? If the limit is not intended to apply to trailers and semitrailers, the provision should read:Pole trailers of 3,000 pounds gross weight or less, trailers and semitrailers
are exempt from the licensing provisions.If the limit is intended to apply to all three, the provision should read:If a trailer, semitrailer or pole trailer has a gross weight of 3,000 pounds or
less, it is not required to be licensed.
Excellent advice! It is such a shame that the drafter of Exemption F to the Maine overtime law didn’t follow it, as the wording would then have become clear.
In this example, changing the word order removed the ambiguity. Other techniques that may be sometimes appropriate include numbering and indentation. Applying those techniques to the above example:
(b) semitrailers; and
(c) pole trailers of 3,000 pounds gross weight or less;
are exempt from the licensing provisions.
In the overtime case, adding more numbering would have been clunky, given the numbering already there in the extract quoted above. On balance, and to make sure that there was no ambiguity, IP Draughts might have been tempted to repeat the words “packing for”:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or packing for distribution of…
Clarity overrides elegance in contract drafting.
In summary, don’t rely on the Oxford comma. It is a feeble drafting technique, and liable to have sand kicked in its face. Oxford commas are for wimps!