No, the Oxford comma didn’t win in court
Despite what you’ve heard, O’Connor v. Oakhurst Dairy didn’t set a legal precedent for the serial comma.
“For want of a comma, we have this case.”
These are the opening words of O’Connor v. Oakhurst Dairy, a landmark court decision establishing a significant precedent.
But this isn’t a legal precedent, mind you. Instead, this decision confirms the bias of Oxford comma enthusiasts worldwide — that overzealous group of grammarians who cultishly worship the comma that follows the penultimate item in written lists. (For consistency, I will be referring to these people as Oxfordnistas. Also, I will avoid using the Oxford comma throughout just to be even more irksome to the Oxfordnistas.)
Unfortunately, so many people misunderstand and misconstrue this case. Even worse, more opportunistic people weaponize this legal decision as if it establishes the Oxford comma as the law of the land.
However, much to the chagrin of the Oxfordnistas, O’Connor v. Oakhurst Dairy does no such thing. In fact, this legal case demonstrates the limitation of this overly worshipped piece of punctuation.
First, to understand this decision, some background is necessary.
Background
Maine truck drivers Kevin O’Connor, Christopher O’Connor, James Cox, Michael Fraser and Robert McNally didn’t think their employer, Oakhurst Dairy, was paying them enough. Their long, cross-country deliveries often forced these drivers to work long hours, frequently surpassing the traditional 40-hour work week and thus qualifying them, in their opinions, for overtime pay.
Maine labor law grants the standard overtime time-and-a-half pay rate for employees working more than 40 hours a week. However, these drivers didn’t qualify for overtime pay due to a legal exemption granted by a Maine statute. The statute in question — Maine Revised Statutes Annotated Title 26, Chapter 7, Subchapter 3, Section 664, Subsection 3 (MRSA § 664[3]) — stated the following exemption for overtime pay (emphasis added):
The overtime provision of this section does 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.
In an emergency where food — especially perishable food — might become scarce, Maine lawmakers didn’t want money ever to be an issue; thus, they wrote and codified the exemption.
The drivers claimed that the statute was ambiguous due to a lack of an Oxford comma, contending that the punctuation (or lack thereof) doesn’t demarcate the list’s last items. As a result, this sentence, the truckers claimed, emphasized “packing” rather than “shipment”.
“We don’t pack the dairy products,” the truckers argue. “We just ship them.” Thus, the law, in their eyes, didn’t apply to them.
So they sued Oakhurst to collect unpaid overtime income.
After losing in a summary judgment by a district court, the truckers appealed the decision to the United States Court of Appeals for the First Circuit. In a 29-page decision written by Judge David Barron, the court sided with the truckers and reversed the initial summary judgment.
Instead of appealing the decision, the dairy agreed to pay a $5 million settlement, compensating 127 drivers.
For sure, the Maine law is indeed vague. And, as Justice Neil Gorsuch reminded us in United States v. Davis, “In our constitutional order, a vague law is no law at all.”
Moreover, this law is ambiguous as hell.
And considering the ambiguity of this, Judge Barron opted for the old-school baseball rule of tie goes to the runner — or, in this case, the trucker. Barron wrote:
And 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.
But there’s more to this decision that Oxfordnistas gloss over to advance their warped stylistic agenda.
What does the decision actually say?
Yes, the decision acknowledges the lack of a comma in the Maine legal exemption (thus, the opening sentence). Of course, the court must recognize this because it was the foundation of the truckers’ legal claim.
However, the comma was neither the entirety of the truckers’ legal claim nor the deciding factor for the court.
In fact, using an Oxford comma would be devastating to the truckers’ argument. The exemption would read as follows (emphasis added):
The overtime provision of this section does not apply to … The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distribution of…
The comma between “packing for shipment” and “or distribution of” would imply that these were two separate actions — one of which would apply to the truckers and exempt them from overtime pay.
Instead, the truckers claimed that the Maine law used asyndeton. Asyndeton is a literary device that purposefully omits conjunctions. Famous examples of this stylistic device include “veni, vidi, vici” and the Gettysburg Address (i.e., “And that government of the people, by the people, for the people, shall not perish from the earth”). Using asyndeton (as claimed by the truckers), the list would exempt the act of “packing,” not “distribution”.
The truckers, busting out their Oxford dictionaries, also argued that “shipment” and “distribution” aren’t synonyms:
They contend that “shipment” refers to the outsourcing of the delivery of goods to a third-party carrier for transportation, while “distribution” refers to a seller’s in-house transportation of products directly to recipients.
The court didn’t agree with this argument. “The drivers’ reading of the text is hardly fully satisfying,” said Barron.
“Hardly fully satisfying” is neither a ringing endorsement of the plaintiff’s argument nor a legal proclamation exalting the Oxford comma.
Despite the truckers’ tenuous grasp of grammar and style, the court agreed that the Maine law was ambiguous. But the primary grammatical issue wasn’t punctuation; it was parallel structure.
Parallelism, not punctuation
Barron wrote (emphasis added),
We are reluctant to conclude from the text alone that the legislature clearly chose to deploy the nonstandard grammatical device of asyndeton. But we are also reluctant to overlook the seemingly anomalous violation of the parallel usage canon that Oakhurst’s reading of the text produces.
The lack of parallelism, not punctuation, muddled the Maine law’s clarity.
As defined by the University of Lynchburg, parallelism means “using similar words, clauses, phrases, sentence structure, or other grammatical elements to emphasize similar ideas in a sentence.”
Parallel structure is essential in lists. The court cites the state legislature’s style guide, Maine Legislative Drafting Manual, which encourages lawmakers to use consistent formatting when writing lists:
When writing a series or list, be careful to keep similar ideas in similar or “parallel” form.
(Maine’s legislative guide also discourages using the Oxford comma, which I’ll address in the next section.)
The law in question primarily uses gerunds or past participle verbs that usually end with -ing (e.g., canning, processing, preserving). However, the last item in the list — “distribution” — is not a gerund.
So a reader can interpret two different meanings:
- “Distribution” is parallel with “shipment,” and both words modify “packing,” meaning this item is singular.
- The legislature intended “distribution” to parallel the other gerunds but made a mistake when codifying the law.
Of course, the truckers argued the former. But, as you’ll see in the next section, the latter is more likely.
How the legislature edited the law
Let’s go back to the Maine legislature’s style guide.
On the Oxford comma, the manual definitively rejects it:
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.
It doesn’t get clearer than that: The Oxford comma is, for all intents and purposes, literally against the law in Maine.
Despite the hemming and hawing of Oxfordnistas, the serial comma isn’t gospel. It’s a stylistic convention, not a grammatical one. So it’s common for style guides to differ on the matter. For example, the two most popular style guides — the Associated Press Stylebook and the Chicago Manual of Style — offer divergent guidance on the Oxford comma: The latter endorses its usage while the former does not require it.
The truck drivers point out that the Maine style guide isn’t absolute in this punctuation prescription. The style guide also 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?
Though this editorial critique is fair, the truckers didn’t cite the entire style guide entry. The style guide continued with the following recommended revision:
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.
Note that the style guide didn’t recommend adding a comma; instead, it recommended rewriting the sentence. In other words, when in doubt, rewrite.
And that’s precisely what the state legislature did.
When Maine’s legislature reformed this law, they stayed true to their style guide and avoided the Oxford comma. In 2017, Maine passed legislation that amended the statute.
How did they change it?
First, they changed “distribution” to “distributing,” creating the much-needed gerund and parallel structure for all the overtime-exempt activities.
Second, the legislators delineated the list’s items with semicolons.
MRSA § 664(3) now reads:
The overtime provision of this section does not apply to … [t]he canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
Is there such a thing as an Oxford semicolon? If so, that’s what Maine lawmakers used. It’s funny that, after all of this legal rigmarole and grammatical hullabaloo, the Maine legislature still refused to use the Oxford comma. It further proves that the serial comma isn’t the magic bullet Oxfordnistas claim.
But that certainly didn’t stop them from misinterpreting this court decision.
Stupid shit Oxfordnistas say
Oxfordnistas exalt O’Connor v. Oakhurst Dairy as self-evident proof that their preferred punctuation is the established law of the land. In any argument about their beloved serial comma, they’ll likely share some news article that ran with this — ahem — punctuated lead. Such examples of “I only read the article headline, not the actual court decision” include:
- “A lack of an Oxford comma cost dairy $5 million” (CNN).
- “Oxford comma helps drivers win dispute about overtime pay” (The Guardian).
- “Maine Dairy Drivers Settle Overtime Case That Hinged On An Absent Comma” (NPR).
After sharing one such article, Oxfordnistas will act as if their cultishly adored comma just dove into the endzone for a buzzer-beating touchdown to win the Super Bowl, making their beloved punctuation the undisputed champions of the world.
Oxfordnistas gushed online.
Erin Rhinehart, a lawyer and Oxfordnista, tweeted the following nonsense.
Responding to Erin’s tweet, Thea Pitzenn, another lawyer, showcased her ability for critical thought:
The headline says it all, right? No need to click and read, folks.
Here is some next-level stupidity from Aaron Rich Marketing.
Note the comma after reading. This is an example of a direct address or the vocative case, not the Oxford comma. With that comma, you are declaring your love of eating to your family and friends, not confessing to cannibalizing your loved ones. (Again, as I’ve written about before, Oxfordnistas often employ goofy tactics like this.)
I could go on and on with these examples. But the world needs another bad-faith argument like it needs — well — another comma.
In the meantime, stop claiming the courts affirmed the Oxford comma. Doing so makes you sound foolish, gullible and simple-minded. And if you still think the Oxford comma is the end-all, be-all form of punctuation, I have a trailer full of cheese for you to haul to Maine.
But wait — there’s more…
How I would edit the law
Not that anybody cares, but I didn’t like how the Maine legislature rewrote their law. So here’s how I would have edited it.
For starters, I’m not fond of the added semicolons. I prefer to use semicolons in lists if commas are necessary with each item, such as listing cities and states: Albuquerque, New Mexico; Denver, Colorado; and Salt Lake City, Utah. The semicolons in the updated law are, in my opinion, excessive.
My next recommendation is simple: Make the list parallel. Here, I agree with Maine lawmakers in changing “distribution” to “distributing.”
That leaves us with the following (bold to highlight edit):
The overtime provision of this section does not apply to … The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distributing of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
Though technically correct, the sentence is still clunky. For example, the modifier for packing (i.e., for shipment of) stands out like a red-headed Barbie doll. In a clear road of single-word gerunds, this multiword debris is forcing readers to swerve around it.
But is the modifier necessary? The other activities don’t have modifiers. For example, the list doesn’t say marketing for the sale of. What if we just deleted for shipment of? Would it substantively change the meaning of the sentence?
The truckers would argue, yes, this changes the sentence’s meaning. Their entire legal argument hinges on distribution not being a uniquely defined exemption but rather a murky modifier of packing. The more I separate distribution from packing, the worse their legal claim gets.
But, as revealed later after the court decision, that was exactly what the lawmakers originally intended when they wrote the law, so I have little interest in the truckers’ vested interest in this edit. As an editor, I need to side with my writers.
That said, I don’t think removing the excess modifiers to packing significantly changes the meaning of the sentence. Instead, it streamlines the list and removes the aforementioned debris, allowing a smoother ride for readers.
So, I would recommend this next round of edits:
The overtime provision of this section does not apply to … The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment of or distributing:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
Something is still wrong with this sentence. The trick to quality control in lists is to reread the list as individual items following the same parallel structure. The original list structure followed this MadLib template: “The [gerund] of [food item].” For example, the canning of agricultural produce, the processing of meat and fish products, etc. By removing the preposition of the template’s flow is broken. You can see the mistake by restructuring the first entry: The canning agricultural produce. That doesn’t make sense.
We can fix this by removing the article — the — and rewriting the structural template. Let’s change all those gerunds into present-tense action verbs because actions should be active. So, here’s the new template: “[present-tense action verb] [food item].”
The overtime provision of this section does not apply to … canning, processing, preserving, freezing, drying, marketing, storing, packing or distributing:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
This construction results in canning agricultural produce, processing meat and fish products and preserving perishable foods. That’s much better.
Finally, let’s cut “of this section” and the semicolons in the numbered list because they are excessive. Also, the Maine style guide doesn’t provide guidance on punctuating bullets. So, in the spirit of aggravating Oxfordnistas, I’ll defer to AP style, which recommends periods at the end of each bullet.
So, here is my final cleaned-up version:
The overtime provision does not apply to … [c]anning, processing, preserving, freezing, drying, marketing, storing, packing or distributing:
(1) Agricultural produce.
(2) Meat and fish products.
(3) Perishable foods.
This new construction is parallel and concise. Also, switching from gerunds to action verbs is a subtle yet significant improvement.
And, more importantly, I did it all without the Oxford comma.
