Legal Writing

The Oxford Comma: You Should Use It

Oxford, home of the comma (image: me)

In Maine, an employee is not entitled to overtime pay if he or she is engaged in:

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.

Delivery drivers distribute perishable foods but do not pack them. Do they get overtime?

Explain your answer.

Now, are you still interested in going to law school?

Explain that answer.

That first question was the one in O’Connor v. Oakhurst Dairy, which the First Circuit decided on March 13. The answer, and probably a fair amount of money, turned out to depend on a comma.

Because the drivers want overtime—or because they actually believe it’s the right answer, or maybe even both—they argued that because there’s no comma after “shipment,” the exempt activity is “packing for shipment or distribution”; that is, packing for either of those purposes. They don’t pack anything, they said, so the exemption doesn’t apply to them.

Because their employer didn’t want to pay overtime—or because it actually believes it’s the right answer, or maybe even both—it argued that the phrase defines two exempt activities: “packing for shipment” and “distribution.” The drivers may not pack, but they definitely distribute, so the exemption does apply to them.

What do you think?

Interesting. Well, you are either obviously right, or obviously wrong. Probably, if you did explain your answer in some way, it didn’t take you too long. If you were weird enough to write it out, it probably took maybe a paragraph. So you might be surprised to hear the First Circuit’s explanation was 22 pages long.

Here’s how it starts:

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.” But each side also contends that the exemption’s text has a latent clarity, at least after one applies various interpretive aids. Each side then goes on to argue that the overtime law’s evident purpose and legislative history confirms its preferred reading.

Got that? Both parties recognize it isn’t clear. But both parties also argue that it is clear. More specifically, at least somebody’s arguing it has a “latent clarity.” What the hell is that?

In law school you learn about “latent ambiguity,” which is when words seem clear but aren’t because of some external facts. For example, if my will says “I leave my house to my dog,” that seems clear, but if it turns out I had two houses (or two dogs), now there’s a problem. But I’d never heard of a “latent clarity,” and I think it makes no sense. For legal documents, at least, if the meaning is clear then you do what the words say. If they’re not clear, then you can look at external evidence; otherwise, you can’t. The external evidence might answer the ultimate question, but that doesn’t magically make the original words “clear.” So I don’t think this is a thing.

I just ran a search, and in fact this is the first time that phrase has ever been used in any published decision in this country. So, it is not a thing.

And not too surprisingly, the court never finds any clarity here, latent or otherwise. Its analysis takes 22 pages because courts usually don’t just wing it, they try to make decisions by applying rules, and here the court applies what lawyers call “canons of interpretation.” Such as: the “rule against surplusage” (every word should count), the “parallel usage convention” (all elements in a parallel series should have the same function), noscitur a sociis (words in a list should be given related meanings), something called “asyndeton” (apparently the practice of leaving out conjunctions between things in a list), and the role of the serial or “Oxford” comma.

None of this helps at all.

Except in the sense that because the court has decided the text isn’t clear, it can look at some of that external evidence, like other documents or legislative history, or maybe consider policy arguments. That spans another six pages, which I’ll spare you because guess what? It doesn’t help, either.

So then what? Well, the court finally turns to yet another rule of interpretation, the one saying that some laws “should be liberally construed to further the … purpose for which they are enacted.” Wage-and-hour laws are enacted to help employees, so, the court concludes this law should be construed in the employees’ favor. In other words, it’s a tiebreaker rule; if the court thinks it’s a close call—or it has no idea what the legislature meant—the employees win. That’s what happens here.

Of course, this is wrong. For that to be the right answer, the “or” would have to be in front of “packing.” (The contrary argument is that “asyndeton” thing nobody’s ever heard of.) Usually the “or” in a list comes right before the last item, and here it’s right before “distribution.” True, there is no comma setting off that last item, but there we’d apply the rule of construction called We Know People Don’t Use the Oxford Comma When They Should, and pretend there is one. That’d be even more appropriate here because as the court notes (p. 10), astoundingly, Maine’s Legislative Drafting Manual expressly tells drafters not to use the serial comma. That’s crazy talk, but to me it’s consistent with the Rule of Or: the legislature meant to exclude employees who “distribute” from overtime pay; it just has a comma problem. But the court refuses to read the omitted comma into the statute.

Maybe it wants to shame the legislature into doing the right thing and using serial commas like civilized people do. As it points out (fn. 5), if there were a serial comma after “shipment,” the meaning would be perfectly clear. But there isn’t. That turned out to be good for the drivers, and I suppose it was also good for the lawyers who got paid to argue about it.

Although whoever came up with “latent clarity” should have to give back some of that money.