The Oxford Comma and the Law.

I wasn’t going to post about this, but everybody and their brother (and my brother, for that matter) sent me links about it, so I guess I have to. Fortunately, Dave Wilton of Wordorigins.org has done an excellent post on the topic that begins:

The Oxford comma was in the news recently when a federal court interpreted a Maine statute regarding overtime pay for dairy truck drivers. In the case of O’Connor, et al. v. Oakhurst Dairy, the lack of a comma, or so the news stories would have it, resulted in a victory for workers’ rights. […]

The problem with the news reporting on this case is that the ambiguity does not rest solely with the lack of a comma. And, more importantly, the decision of the circuit court did not rest on the punctuation but rather relied on other methods to interpret the statute in question.

It ends:

To my knowledge, O’Connor, et al. v. Oakhurst Dairy is the first legal case that involves this particular use of the comma, and the courts ruled here that the punctuation is not dispositive. In other words, the Oxford comma cannot, at least in and of itself, be taken as determinative of meaning. In this, the news reports have been getting it wrong—whether or not one uses the Oxford comma just doesn’t matter all that much, in law or anywhere else.

And in between are all the details you could want, unless you want enough details to go to the decision itself (the third link — the second is to the NY Times story). Much as I would like to see a victory for the Oxford comma (in the same way I like to see the Mets or Huskies win), this is not such a victory. It’s just another labor dispute. (Insert your own joke about truckin’ or spilt milk.)

Comments

  1. Does anyone think that the statute is ambiguous? It seems to me completely clear that “packing for shipment” and “distribution” are two different items in the list. The absence of a conjunction before “packing” seems dispositive to me. I would use a comma myself, but its absence in this case does not create any significant ambiguity in my mind.

  2. Having a Doctorate of Law, and having taken a course on writing and interpreting legislation…this is not the first case involving the Oxford Comma. We were told that, as a rule, judges are the final arbiters on comma placement in statues. It happens frequently.

    If you look at the law in question, it is clear that the Oxford Comma is not a significant factor.

  3. Dave Marks says:

    Hi languagehat. Here’s my response to the comment you left on “Difficult languages and easy languages” on LanguageLog:

    @languagehat:
    Hmm…I’ve been accused of trolling numerous times, but I can’t remember ever actually doing it. It seems like something I might’ve done when I was 9. But that was a looooong time ago. I don’t know if I’d find that activity very enjoyable now. I’m insulted by the question TBH, but I’ll forgive you I guess. Other people here really don’t seem to want this information to get to you for some unfathomable reason, but I hope it does. Have a nice day.

    The moderator(s) over at Language Log are fricking crazy! I left many comments similar in tone to the one above, but every single one got deleted. I guess I’m not allowed to respond to people’s questions in a civil manner over there. It’s almost maddening. I will now start following this blog as a result of my experience over there. Congratulations, you have a new follower.

  4. “the grammatical rule of parallel construction would indicate that /shipment or distribution/ is a modifier of /packing/ …
    If they were intended to be distinct activities, the law would read /…storing, packing for shipment or distributing/, rather than /distribution/.”

    Rule of parallel syntactic construction, not of parallel style. This is a style guideline, and to my ear a nitpicky one. I don’t notice my lexicon has a semantic distinction between “distributing” and “distribution” as isolated words, and this style rule doesn’t add a semantic difference that I hear.

    I would wish courts would attempt corpus methods for their stabs at linguistics, except I’m afraid that would make things worse with unrigorous methods.

    Also what Ken said, this seems like a slam dunk from the start, we even said Maine doesn’t use asyndeton. That argument is strong, the parallelism argument can’t stand up to it.

  5. David Marjanović says:

    I’m weirded out by the hyper-Oxford comma in the name of the case.

  6. Hi languagehat. Here’s my response to the comment you left on “Difficult languages and easy languages” on LanguageLog

    Hi Dave, nice to see you here! I apologize for implying you might be trolling; I was very irritated by your comment, but I should have confined myself to disputing its argument and not have let myself descend to that lazy form of attack. Thanks for being reasonable about it, and I’m sorry you ran into the Log’s Buzz-saw of Deletion — they’re a lot less tolerant of digressions and random conversation than we are here at the Hattery.

  7. Athel Cornish-Bowden says:

    Many years ago I noticed that a contract from an insurance company that I needed to sign had no punctuation at all apart from full stops between the sentences. I took this to mean that a contract should not rely on punctuation to resolve ambiguity.

  8. Alas, commatitis can affect even the criminal law: Roger Casement was hanged on a comma, as I have noted here before.

    David M.: the comma after O’Connor is a mere error by Wilton: the opinion makes it clear that there is no comma before et al., as indeed there never should be. I tried to register at wordorigins to make a comment to this effect, but their CAPTCHA mechanism is broken.

  9. January First-of-May says:

    Thanks for being reasonable about it, and I’m sorry you ran into the Log’s Buzz-saw of Deletion — they’re a lot less tolerant of digressions and random conversation than we are here at the Hattery.

    I don’t think I ever had any of my Language Log comments deleted, and they were rarely directly about the article’s topic. It does somewhat explain why they so often didn’t seem to be followed on, however.

    That said, am I now understanding correctly that the (baseless, and retracted) accusation will have to stand, while the responses to it cannot? If that’s right, in your place I’d have sent an email to the LL post’s author explaining the situation, so that it could be fixed in some way.

  10. The author of the post was pissed off by Dave’s comment too, so he’s not likely to care that I may have gone a bit far.

  11. The comma before et al. is another style choice. I’m not a lawyer and don’t know the standard practice in legal writing, but MLA style, which I’m immersed in on a daily basis, uses a comma before et al.

    The CAPTCHA problem on wordorigins.org is a transient issue. If you email me at daveATwordorigins.org I can add you to the site so you can comment.

  12. @David Marks [on Language Log] Am I the only one who finds most of the responses here to be boringly predictable?

    I found the subject boring. I had nothing to add. So I did not comment. Did your comment add anything?

    I could have predicted ease of learning would depend on a learner’s native language(s). (There’s plenty of research to confirm that.) And typical readers of LLog would not be a representative sample, I suspect. So their input would be anecdotal at best. Not so sure that makes the topic “predictable”.

    But lots of readers didn’t find the topic boring/predictable. The evidence is Victor got ~150 comments. (Far more than the average.) So
    a) all you offered was a personal opinion;
    b) you added no information/expertise/research;
    c) your comment was meta, not on-topic.

    Like @January FIrst-of-May, I’ve never had a comment on LLog rejected. But LLog does have a policy. Link to it from their front page. Both your initial comment and your response to Hat would fall foul of it, I think. (Not that I’m the judge.) I think it was judicious interpretation of that policy to let your initial comment and Hat’s response stand, but close the discussion thereafter — it would only get more meta.

    As Mark Liberman is wont to point out: if you’re unhappy with your treatment, you can unsubscribe and LLog will refund double your subscription.

    Hat’s blog is more tolerant of going off-topic, which I appreciate. Though I feel with this post I am presuming on his tolerance, and by now over-staying my welcome.

  13. No, no, comment away! You have to work pretty hard to presume on my tolerance (this is Liberty Hall).

  14. Marja Erwin says:

    “the opinion makes it clear that there is no comma before et al., as indeed there never should be.”

    And why shouldn’t there? If you’re going to use commas at all, then why use them to separate some items and groups in a list, but not others, and object to using them to separate certain others?

    “Does anyone think that the statute is ambiguous?”

    Yes.

    “It seems to me completely clear that “packing for shipment” and “distribution” are two different items in the list.”

    No. If they intended to treat “packing for shipment” as one item, and “distribution” as another, then they didn’t make themselves clear.

    Also, do you think the law covers shipment, or packing for distribution…? If not, where do you think they draw the line between shipment, and distribution?

  15. David Eddyshaw says:

    Although Language Log can include formidably technical stuff at times, it often features material which is more accessible than Hat’s to people who are not … well… confirmed language nerds. I think from the outset it has deliberately been more of a Spreading the Word operation than Preaching to the Choir. There’s abundant room for both, and a crying need for spreading the word given the fact that even basic linguistic facts don’t figure as part of our culture’s common knowledge even among the supposedly educated, despite great general interest in Language in general.

    LH is also more prone to branching out into the great world of what gets *said* in language: literature, history, culture.

    But why choose when you can have both?

    Also, it behooves us to be respectful of those who haven’t had our advantages/don’t share our obsessions … how will we propagate our kind if we alienate potential assimilees?

  16. @Marja Erwin
    “Also, do you think the law covers shipment, or packing for distribution…? If not, where do you think they draw the line between shipment, and distribution?”

    This is one of the points that was argued in the case. The company said that shipment and distribution were synonyms. The drivers said that shipment meant sending the goods through a third party and that distribution meant delivering it themselves.

    Maybe they only have to pack the goods when they are being shipped through a third party, and they just load them into the truck for distribution themselves. The opinion did not address this, but there was evidence that these were terms that were understood in the industry.

  17. MLA style

    This page on MLA author citation style gives “Franck et al.” as an example, and that is what I’ve always seen in scholarly articles. A fter all, we do not put a comma in “A and B”, and a fortiori not in “A et alii” either.

  18. Yes, as a longtime copyeditor I can assure you there should not be a comma before et al.

  19. David Marjanović says:

    It must have crept in from a case where et al. was used as an insertion into a sentence: “O’Connor, and also others, against Oakhurst Dairy”…

  20. Athel Cornish-Bowden says:
    “Many years ago I noticed that a contract from an insurance company that I needed to sign had no punctuation at all apart from full stops between the sentences. I took this to mean that a contract should not rely on punctuation to resolve ambiguity.”

    This sort of legal drafting stems from the olden times, when printing errors were common and punctuation was not very standardised. As a result all legal documents were written in such a way so that punctuation was disregarded. Very often such documents would read as one very long sentence.

    In Australia, the Plain English movement took root in the 1980s and 1990s. Australian contracts and legislation are now written in plain English. They can still be very complicated, but are easier to read and to understand. Compare, for example the rewritten capital gains tax rules (Main residence exemption) in Subdivision 118-B of the Income Tax Assessment Act 1997 to the language used when these rules were originally enacted in 1986 (see the now repealed section 160ZZQ of the Income Tax Assessment Act 1936).

    My experience has been that US lawyers tend to still cling to the old-fashioned way of drating legal documents, and they are still wary of the Plain English documents.

  21. I think it is quite clear from reading the opinions of the lower court magistrate judge and the law court itself that if a serial comma had been used, the case would never have gone to court because there would not have been any ambiguity to argue about. Even the lawyers for the plaintiffs agree that they would have no case in that case.

    It’s true that in the absence of the comma the case was decided on other grounds, but saying that the presence or absence of the comma didn’t have any bearing on the outcome is a strange way to look at it.

  22. Dave Marks says:

    @ AntC:

    Thank you for your thoughts, Ant. I know blogs aren’t democracies and moderators can do what they want, but I just wanted to answer a simple question. But never mind. I will write no more about it here. You’ll see occasional on-topic comments from me here in the future. From this point on, I’ll try to follow the rules everyone else here does.

  23. Jonathan D says:

    I agree with Lars. The case suggests that the absence of the comma is not determinative of meaning, but the implication in the news reports that the presence of the comma would have been enough for the employers seems fair enough.

  24. David Marjanović says:

    I will write no more about it here. You’ll see occasional on-topic comments from me here in the future. From this point on, I’ll try to follow the rules everyone else here does.

    AntC’s comment was about Language Log, not about here.

  25. Yeah, there are no rules here except for not insulting people egregiously. Comment with an easy mind.

  26. Dave Marks says:

    @ David: …uhh…I thought I had already broken a rule here by posting the most OT comment of my life so far, but now LH tells me that there is only 1 rule here. But I still don’t want to get ridiculously OT here in the future anyway, because…what would be the point of that?

  27. My rule is, if you can’t say something directly relevant to the topic, say something anyway. As long as it’s interesting.

  28. January First-of-May says:

    Since we’re going (on about) off-topic anyway, might as well ask it here…
    Anyone knows the original (English, Scottish, or whatever) text of the Peggy song?
    And it it really doesn’t exist, does anyone feels like writing one?

    You know, the famous Russian Peggy song…

    У Пегги жил смешной щенок –
    Он танцевать под дудку мог.
    Ах, до чего ж смешной щенок!
    Спляшем, Пегги, спляшем!

    And so on (the canonical version has three verses; everything else is made up by fans – I especially like the one about the giraffe).
    It’s supposed to be a Scottish folk song, but I’ve never seen the original (in any language, aside from Russian), and my attempts to find it only got me assorted blog posts about how nobody else had ever seen the original either (and one obviously machine-translated article about the Russian version).

    I thought that the audience of Language Hat has about the best chance of actually finding the original, if it really existed (I’m not sure it did, but I’m not yet sure it didn’t either).
    And if it does turn out that the Russian text isn’t based on any actual Scottish song, it would be nice to actually have an English version anyway – in which case, again, Language Hat is one of the best places to ask for it.
    So, any ideas? 🙂

    (…I wasn’t sure where to post this, because it wasn’t really connected to the topic anywhere, but then I saw this discussion about off-topicness (and especially Y’s comment), and decided it was a perfect opportunity.)

  29. But I still don’t want to get ridiculously OT here in the future anyway, because…what would be the point of that?

    The point around here is basically to have interesting discussions, hopefully enlightening and/or funny; my posts are just jumping-off points. One of my favorite threads of all time is this one, which went off in all sorts of crazy directions and made me laugh quite a lot.

    And I hope someone can answer Jan. May 1’s question, because now I’m interested too!

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