Legal Rights and the Vicissitudes of a “Comma”

“For want of a comma, we have
this case”: thus began a judgment of the United States Court of Appeals For the
First Circuit rendered earlier this week in O’Connor v.
Oakhurst Dairy
. The punctuation mark in question was more specifically
the “Oxford
”, which has been referred to as “an optional comma before
the word ‘and’ at the end of a list”.
This case involved a law
enacted in Maine relating to payment of overtime wages to employees, who in
this case were delivery drivers. The specific dispute pertained the
applicability of an exemption from such law that would deny the payment
overtime to the delivery drivers. Specifically, Exemption F of the law “states
that the protection of the overtime law does not apply to:
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.”
The dispute in question was narrowed
to the expression “packing for shipment or distribution”. The contention of the
delivery drivers was “that, in combination, these words refer to the single
activity of “packing,” whether the “packing” is for “shipment” or for “distribution”.
Therefore, they argue the exemption ought not to apply to them as they were not
involved in packing. On the other hand, Oakhurst responded “that the disputed
words actually refer to two distinct exempt activities, with the first being “packing
for shipment” and the second being “distribution””, due to which the exemption
should apply to the delivery drivers, thereby denying them any entitlement to
overtime payments.
Consistent with general
principles of statutory interpretation, the Court began by examining the
literal meaning of the expression used, but it found that Exemption F is
ambiguous. In other terms, the words used in the statute did not render any
help to the Court in determining the dispute, due to which it noted that the “text
has, to be candid, not gotten use very far”. It found that “there being no
comma in place to break the tie – the text turns out to be no clearer on close
inspection than it first appeared.”
Therefore, the Court
disregarded the literal interpretation and turned to the purpose of the
exemption and the legislative history. Applying a purposive interpretation, the
Court found that in case of any ambiguity, the wage laws must be “liberally
construed to further the beneficent purposes for which they are enacted”. It
therefore held in favour of the delivery drivers by deciding that Exemption F
was not applicable to them, thereby entitling them to overtime payments. In
doing so, it reversed a lower court decision that had held in favour of the
The fact that the lack of an
Oxford comma in Exemption F saved the day for the delivery drivers is evident
from the following observations of the Court:
Given that the delivery drivers
contend that they engage in neither packing for shipment nor packing for
distribution, the District Court erred in granting Oakhurst summary judgment as
to the meaning of Exemption F. If the drivers engage only in distribution and
not in any of the stand- alone activities that Exemption F covers — a
contention about which the Magistrate Judge recognized possible ambiguity —
the drivers fall outside of Exemption F’s scope and thus within the protection
of the Maine overtime law.
In all, legal rights pertaining
to several million dollars of overtime payments hinged upon the lack of a
comma. More so, there is no uniformity in the necessity or use of the Oxford
comma, as this analysis
suggests. This poses several challenges for legislative drafters whose role it
is to draft laws in clear and unambiguous ways. Of equal importance is the  use of the Oxford comma (and other punctuation
marks) in corporate and commercial contracts. This episode suggests that the
lack of sufficient attention in the use of the comma could make a difference
amounting to significant sums of money for the clients who engage lawyers to
draft sophisticated contracts.

About the author

Umakanth Varottil

Umakanth Varottil is an Associate Professor at the Faculty of Law, National University of Singapore. He specializes in corporate law and governance, mergers and acquisitions and cross-border investments. Prior to his foray into academia, Umakanth was a partner at a pre-eminent law firm in India.



    This is a clear, blatant instance to infallibly demonstrate that "law is (/has always been!), an ass"; regardless of whatever that saying was originally intended to mean or imply !

    Whether or not whether, as sought to be made out, the 'oxford comma' could or should be rightly regarded to make all the or so much of the difference is mind boggling; rather brain teasing.

    A quick look through the so called well accepted and long settled 'principles of interpretation', as enunciated by courts in decided cases, do talk about/against the liberty of court to choose and adopt a liberal interpretation of an enactment being the 'edict' of the legislature; that of course, concerns the first and primary rule of construction that the intention of the legislation must be found in the 'words' used by the legislature itself.

    Be that as it may, going by the history of legislation in general, and use of the most appropriate word / words in particular, – the field reality is that by and large, inept and/or impulsive drafting has become the order, or rule not an exception ,- that is the overwhelming practice, of the day /times.That being so,the principle of 'purposive interpretation',- as done in the reported case,without being persuaded by the attempted quibbling about,- not the word but punctuation i.e. the 'oxford comma'-, has come to be predominantly adopted, so as to impute wisdom , albeit patently missing by default.

    An instance of the kind that instantly comes to mind is the raging controversy and fierce battle (war!) of wits, not fought long before, until the (Indian) tax law came to be amended just a couple of years ago. If itching to know more, may be pleased tolook up the published Indian tax Article – (2014)226 TAXMAN 143 (Mag).

  • "canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution"

    These words set out the entire supply chain process. Why would the legislature use shipment and distribution, when they denote the same meaning?

    I personally do not agree with the reasoning.

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