U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

'For Want of a Comma, We Have This Case'

What a difference a comma can make. In a recent case out of Maine, a missing comma in the state's overtime law decided a dispute between a dairy company and its delivery drivers, where, literally, for want of a comma the case was lost.

Of course, writers, grammarians, lawyers, and the like (wordsy, rulesy people, all) love to debate the value of commas. And few comma issues are as divisive as the Oxford, or serial, comma. This passion for punctuation has kept books on the bestseller list (remember "Eats, Shoots & Leaves"?), prompted public polling, and inspired endless online think pieces.

Sometimes those battles are fought in courtrooms, as was the case in O'Connor v. Oakhurst Dairy, the Maine overtime dispute decided by the First Circuit yesterday.

Comma Commotion

The dispute centers around dairy delivery drivers (yes, milkmen and women) who were seeking overtime pay. Maine requires time and a half pay for work in excess of 40 hours a week, but exempts many employees involved in food production. Specifically, the law does not apply to the "canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution" of certain food products.

Here's where the Oxford comma comes in -- and where the case ends. ("For want of a comma, we have this case," Judge David J. Barron writes in the first sentence of his opinion.) If distribution was meant to be exempted, an Oxford comma would clearly separate it from packing: "packing for shipment, or distribution." But if packing was meant to be a singular activity, applying both to packing for shipment and packing for distribution, no comma would be needed, and delivery drivers would not be exempted.

Canons of Interpretation, Ambiguity, and Liberal Interpretations

The law as written clearly excludes drivers from the exemption, requiring overtime pay, the drivers argued. The dairy took the exact opposite interpretation. Both trotted out canons of construction to bolster their side. The rule against surplusage requires reading distribution as a separate activity, the dairy argued. So too does the use of a conjunction between shipment and distribution.

But the drivers had plenty of interpretative arguments on their side as well: the subtle differences in the meaning of shipment and distribution; similar, separate treatment of the two words in other statutes; the non-gerundness of both phrases. One side points to Bryan Garner and Antonin Scalia, another to Maine's legislative style guide.

"The text has, to be candid, not gotten us very far," the Court admits, and the legislative history did little to help.

The lack of a clear, unambiguous interpretation, then, decided the case. Faced with an ambiguous statute, the court applied "the default rule of construction" for Maine's wage and hour laws: a liberal interpretation constructed "to further the beneficent purposes for which they are enacted." That led the court to embrace the drivers' more narrow reading, keeping Maine's delivery drivers covered by the state overtime law.

So, next time you're considering the judicious use of commas, or facing accusations of being a grammar pedant, keep the Maine dairy industry and this case in mind.

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