A friend recently asked me to proofread/edit a brochure for a nonprofit.  Most of the changes that I made involved the serial comma.  To refresh, a serial comma is the comma used after the last item in a list of three or more items.  Think “eats, shoots, and leaves” vs. “eats shoots and leaves.” The serial comma is sometimes called the “Oxford comma” or “Harvard comma.”

In the most recent of judicial opinions that have turned on the presence or absence of a serial comma, the First Circuit has weighed in.  One of the categories of exempt employees in a Maine statute was described this way:

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.

How does that work?  Does it refer to packing as a single ground for exemption, regardless whether the packing is for shipment or distribution?  Or does it refer to two grounds of exemption – one for packing for shipment and a separate one for distribution?  The distinction was critical because delivery drivers are involved in distribution, but not in packing for distribution.

The First Circuit first analyzed the grammatical composition of the statute. That include a provision in the state legislation drafting manual against use of a serial comma.  Then the court turned to the legislative purpose of the statute.  Still unable to resolve the ambiguity, the court looked to the default construction principle to “liberally constru[] to further the beneficent purposes for which they are enacted.”  To that end, Maine has declared public policy “that workers employed in any occupation should receive wages sufficient to provide adequate maintenance and to protect their health, and to be fairly commensurate with the value of the services rendered.” On that ground, the court sided with the drivers.

A couple of points.

  1. When I was teaching eighth graders about gerunds and infinitives and participles, I wish I could have shown them this opinion. Yes, you will use knowledge of gerunds when you grow up, even if you grow up to be a federal judge.
  2. The opinion is a good reminder of many of the rules applicable to ambiguous language in a statute. I will keep it in a folder to remind me when I next have a case addressing ambiguities.
  3. This is not the only time that discussion of the serial comma has been used to determine the meaning of a text. The consistent use of a serial comma seems to me to be a very good way to avoid the dreaded ambiguity.  Yet everyone does not agree.  The Associated Press and other publications omit the serial comma unless necessary to avoid confusion.   Any use that is not consistent, however, seems to invite disagreement on meaning. Even though that keeps lawyers in business, I still prefer the serial comma, consistently.



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