'A, B or C' vs. 'A, B, or C'—the serial comma and the law

From Tuesday's decision in O'Connor v. Oakhurst Dairy (1st Cir.):

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. 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.

The Maine overtime law excludes employees that are involved in "the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of" various perishable products. The question—should this be read as employees involved in

1. (a) canning, (b) processing, (c) preserving, (d) freezing, (e) drying, (f) marketing, (g) storing, (h) packing for shipment, or (i) distribution of those products—a broad interpretation, favored by the employer—or
2. (a) canning, (b) processing, (c) preserving, (d) freezing, (e) drying, (f) marketing, (g) storing, or (h) packing for shipment or distribution of those products—a narrow interpretation, favored by the employee drivers.

The court concluded that the provision was ambiguous:

[T]he drivers point to the exemption's grammar. The drivers note that each of the terms in Exemption F that indisputably names an exempt activity—"canning, processing, preserving," and so forth on through "packing"—is a gerund. By, contrast, "distribution" is not. And neither is "shipment." In fact, those are the only non-gerund nouns in the exemption, other than the ones that name various foods.

Thus, the drivers argue, in accord with what is known as the parallel usage convention, that "distribution" and "shipment" must be playing the same grammatical role—and one distinct from the role that the gerunds play. See The Chicago Manual of Style § 5.212 ("Every element of a parallel series must be a functional match of the others (word, phrase, clause, sentence) and serve the same grammatical function in the sentence (e.g., noun, verb, adjective, adverb)."). In accord with that convention, the drivers read "shipment" and "distribution" each to be objects of the preposition "for" that describes the exempt activity of "packing." And the drivers read the gerunds each to be referring to stand-alone, exempt activities—"canning, preserving …"

By contrast, in violation of the convention, Oakhurst's reading treats one of the two non-gerunds ("distribution") as if it is performing a distinct grammatical function from the other ("shipment"), as the latter functions as an object of a preposition while the former does not. And Oakhurst's reading also contravenes the parallel usage convention in another way: it treats a non-gerund (again, "distribution") as if it is performing a role in the list—naming an exempt activity in its own right—that gerunds otherwise exclusively perform.

Finally, the delivery drivers circle back to that missing comma. They acknowledge that the drafting manual advises drafters not to use serial commas to set off the final item in a list—despite the clarity that the inclusion of serial commas would often seem to bring. But the drivers point out that the drafting manual is not dogmatic on that point. The manual also contains a proviso—"Be careful if an item in the series is modified"—and then sets out several examples of how lists with modified or otherwise complex terms should be written to avoid the ambiguity that a missing serial comma would otherwise create.

Thus, the drafting manual's seeming—and, from a judge's point of view, entirely welcome—distaste for ambiguous lists does suggest a reason to doubt Oakhurst's insistence that the missing comma casts no doubt on its preferred reading. For, as the drivers explain, the drafting manual cannot be read to instruct that the comma should have been omitted here if "distribution" was intended to be the last item in the list. In that event, the serial comma's omission would give rise to just the sort of ambiguity that the manual warns drafters not to create.

Still, the drivers' textual points do not account for what seems to us to be Oakhurst's strongest textual rejoinder: no conjunction precedes "packing." Rather, the only conjunction in the exemption—"or"—appears before "distribution." And so, on the drivers' reading, the list is strangely stingy when it comes to conjunctions, as it fails to use one to mark off the last listed activity.

To address this anomaly, the drivers cite to Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts (2012), in which the authors observe that "[s]ometimes drafters will omit conjunctions altogether between the enumerated items [in a list]," in a technique called "asyndeton." But those same authors point out that most legislative drafters avoid asyndeton. And, the delivery drivers do not provide any examples of Maine statutes that use this unusual grammatical device. Thus, the drivers' reading of the text is hardly fully satisfying.

And, because of the ambiguity, the court held, the tie went to the employees: "Because, under Maine law, ambiguities in the state's wage and hour laws must be construed liberally in order to accomplish their remedial purpose," the drivers win and the exemption to the overtime rules is read more narrowly. A confusing matter, which, the court noted, could have been avoided if the legislature chose to use serial commas ("A, B, or C" rather than "A, B or C") as a drafting technique (contrary to Maine practice, which seems to cut against serial commas):

We would be remiss not to note the clarifying virtues of serial commas that other jurisdictions recognize. In fact, guidance on legislative drafting in most other states and in the Congress appears to differ from Maine's when it comes to serial commas. Some state legislative drafting manuals expressly warn that the absence of serial commas can create ambiguity concerning the last item in a list. One analysis notes that only seven states—including Maine—either do not require or expressly prohibit the use of the serial comma. … Also, drafting conventions of both chambers of the federal Congress warn against omitting the serial comma for the same reason.

And never forget the strippers, JFK and Stalin. Thanks to David Malmstrom for the pointer.