Ken Adams here. This is from this post on my blog. People are fascinated by fights over commas. Hey, I'm a fan too. I was an expert witness in "the case of the million-dollar comma" (described here), and I wrote this this long article about the principle underlying that dispute. But as interesting as such fights are, I'd rather avoid fights entirely. That something I discuss in this post.
In an opinion issued this week, O’Connor v. Oakhurst Dairy, No. 16-1901, 2017 WL 957195 (1st Cir. Mar. 13, 2017) (PDF here), the First Circuit considered the meaning of the following:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
Did “packing for shipment or distribution” refer to two kinds of packing, or did it refer to packing and distribution as separate elements? (You can consult the opinion for the background.)
At first I thought that as an example of syntactic ambiguity, this case is nothing special, but inevitably something caught my eye. Consider the first paragraph:
For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine’s overtime law. 26 M.R.S.A. § 664(3). Specifically, if that exemption 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. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law’s protection. But, as it happens, there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.
Yes, we’re dealing with the serial comma (otherwise known as the Oxford comma). This case caused rejoicing on social media at further proof of the power of the serial comma.
I beg to differ. Wherever possible, I prefer not to rely on a comma to ensure that one meaning prevails over an alternative meaning: if I were the drafter, I wouldn’t fix this sort of problem just by adding a serial comma. I have two reasons for that.
The Limited Power of the Serial Comma
My first reason is that the disambiguation power of the serial comma is limited.
What if another item (say, canning) had followed distribution? The language at issue would have ended packing for shipment, distribution, or canning of. You now have a comma after shipment, but you still have the potential for the same fight that prompted this dispute. This relates to a limit to the serial comma’s power to disambiguate, one that I’ve not seen expressed anywhere. Here’s how I’d phrase it: A serial comma no longer serves to make it clear that what follows the serial comma is a separate element if you add an additional item after the serial comma.
Here are two examples that illustrate that:
I went to the Oscars after-party with my children, Meryl Streep [,] and Denzel Washington.
The serial comma would help a reader unfamiliar with the movies to understand that Meryl and Denzel are not in fact my children.
But let’s add an extra item:
I went to the Oscars after-party with my children, James Franco, Meryl Streep [,] and Denzel Washington.
Behold, the serial comma has lost its power! Because I now have three names, a serial comma after Meryl Streep can be explained as just pertaining to those three names. It has nothing to tell us about how those three names relate to my children.
We can add this limitation to an issue I wrote about in MSCD 12.61 and this 2013 blog post: the serial comma can also create ambiguity. (Yesterday @saBEERmetrics pointed me to this Business Insider item that makes the same point.)
So if you’re in the habit of relying on the disambiguation power of the serial comma, you might be surprised to find that in a given instance that power has deserted the serial comma.
People Fight Over Commas
My second reason for not relying on the serial comma is that many people, including judges and litigants, don’t understand commas. And disgruntled contract parties are prone to arguing over the significance of a comma, even if the meaning is clear to reasonable readers.
In this case, if the intention was to have packing and distribution as separate elements, I would have moved packing for shipment to the end of the language at issue, so that the last part reads distribution, or packing for shipment.
But if that were to create confusion, with some readers thinking that everything in the sequence modifies for shipment, then I’d move packing for shipment to the front, so it starts with The packing for shipment, canning….
But if that too were to create confusion, with some readers thinking that The packing for modifies everything that follows, then I’d … do something else.
Constant paranoia, the contract drafter’s friend.
(By the way, don’t think that I’m somehow against the serial comma; I use it in my own writing. Instead, it’s just a matter of being aware of its limitations.)
Ken Adams is president of Adams Contracts Consulting LLC, author of A Manual of Style for Contract Drafting, and an advisor to LegalSifter.
