What is the Oxford comma?
Law360, Boston (March 14, 2017, 3:18 PM EDT) -- The First Circuit on Monday said the lack of a serial or Oxford comma in a Maine overtime statute made the law ambiguous, reviving a wage suit brought by a group of dairy delivery drivers.In a 29-page decision that carefully scrutinized the intersection of grammar and law, the First Circuit said that it"s not at all clear whether "packing for shipment or distribution" described one job or two. An oxford or serial comma, an optional comma that goes before the or or and at the end of a list, would have cleared it up. Instead, the First Circuit had to step in.
"For want of a comma, we have this case," Circuit Judge David Barron wrote for the panel.
The drivers had alleged that Oakhurst Dairy failed to pay them time and a half for more than 40 hours.
The dairy company argued in Maine federal court that the states overtime law didnt apply to the drivers. The law says it doesnt apply to people involved in food canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution.
The drivers read the last part to mean packing for shipment or distribution as one thing in other words, the law didnt apply to people who pack food for shipment or pack food for distribution. The drivers say they dont actually pack food.
The dairy company, however, said they were two separate ideas in other words, the law didnt apply to people who packed food for shipment, nor to those who distributed food. And the drivers, they said, certainly distributed food.
If the list had included a serial or Oxford comma, the dairy companys arguments would have won the day. The law would have exempted people involved in canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distribution.
Despite the lack of the comma, the district judge in Maine sided with the dairy company, finding the state legislature intended for them to remain two separate ideas. The legislatures drafting manual advises against using serial commas, and theyre typically not used in the states laws.
On appeal, the drivers pointed to the finer points of grammar. For example, the listed activities canning, freezing, drying, packing are gerunds, or verbs that function as nouns. But distribution, like shipment, is a non-gerund noun. That sets it apart, the drivers argued, from the activities that actually were exempt, making it clear that distribution only modified packing. The dairy companys argument would blow up a reasonable parallel construction, using one grammatical form throughout and then tossing in a completely different one at the end.
In their decision in favor of the drivers, the Circuit Court judges didnt quite say they were correct on the grammar question, nor did they explicitly rule that the law protected them. But there was too much confusion about the issue to decide right off the bat that the law didn"t protect them at all. Maine law says that in the event of ambiguity, courts should err on the side of the remedial purpose of the law, which was to provide overtime pay protection to employees.
The dairy companys best argument is that theres no conjunction before packing, the court said. Conjunctions link different parts of a sentence together, so if packing for shipment or distribution was really one idea, there should have been a conjunction before packing, the company said. If the drivers were right, the law should have said it doesnt apply to canning, freezing, marketing, or packing for shipment or distribution of food.
The only conjunction is the or, which appears before distribution, making the law strangely stingy when it comes to conjunctions, the court said.
The dairy drivers reliance on a legal text written by the late Supreme Court Justice Antonin Scalia wasnt quite convincing, the court said. Though Scalia and a co-author wrote that sometimes drafters leave out conjunctions in a technique called asyndeton, they also noted that drafters tend to avoid it.
We are reluctant to conclude from the text alone that the legislature clearly chose to deploy the nonstandard grammatical device of asyndeton, the court said. But we are also reluctant to overlook the seemingly anomalous violation of the parallel usage canon that Oakhurst"s reading of the text produces. And so there being no comma in place to break the tie the text turns out to be no clearer on close inspection than it first appeared.
The drivers are represented by David G. Webbert, Jeffrey Neil Young and Carol J. Garvan of Johnson Webbert & Young LLP.
The dairy company is represented by David L. Schenberg and Patrick F. Hulla of Ogletree Deakins Nash Smoak & Stewart PC
The case is O"Connor et al v. Oakhurst Dairy et al, case number 16-1901 in the U.S. Court of Appeals for the First Circuit.
Circuit Judges David Barron, Kermit V. Lipez and Sandra Lynch sat on the panel.
--Editing by Alyssa Miller.
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