The Pesky Serial Comma

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2017 The eskyP Serial Comma Douglas E. Abrams University of Missouri School of Law, [email protected]

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Recommended Citation Douglas E. Abrams, The eP sky Serial Comma, 73 Journal of the Missouri Bar 212 (2017). Available at: https://scholarship.law.missouri.edu/facpubs/764

This Article is brought to you for free and open access by the Faculty Scholarship at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. -WIIGI IH THE PESKY SERIAL COMMA

I DOUGLAS E. ABRAMS'

ON MARCH 13, THE UNITED STATES context. The Tines generally omits the serial comma, but uses it "where a sentence would be awkward or confusing without it."I COURT OF APPEALS FOR THE 1ST The Associated Press Stylebook includes these standards for avoiding ambiguity: "Use commas to separate elements in a series, but do CIRCUIT DECIDED O'CONNOR V not put a comma before the conjunction in most simple series.... Include a final comma in a simple series if omitting it could make 2 OAKHURST DAIRY. THE DECISION, the meaning unclear . . ." In a 2014 poll, Nate Silver's FiveThirtyEight found Americans BORN OF STATUTORY AMBIGUITY, closely divided. Fifty-seven percent of respondents favored use of the serial comma and 43 percent were opposed. 1 MIGHT BE DUBBED "THE CASE OF

THE MISSING TEN-MILLION- Distinctive Missions National disagreement about whether to use DOLLAR SERIAL COMMA." the serial comma - perhaps sometimes driven by partisans' habits, academic interest, or personal preferences- should not sway lawyers and legisla- The "serial comma" - sometimes called the tive drafters. To enhance precision and clarity by "Oxford comma" or the "Harvard comma"- diminishing the prospect of ambiguit, the serial comes immediately before a conjunction that comma belongs in legal writing. separates the last of three or imore elements in a My recent book, Effective Legal Witing: A Guidejor series. For example, consider the trio "ready, will- Students and Practitioners proceeds from the founda- ing, and able." Consider too "win, lose, or draw." tion that "the English language knows only two The serial comma is the one immediately before types of writing good writing and bad writing. the "and" or the "or." Good legal writing is good writing about a legal In statutes or private arrangements, a comma's should strive E. Abrams subject."' Like other writers, lawyers presence (or, as in O'Connor, its absence) may hold Douglas for concise, precise, simple, and clear expression. high stakes for litigants. In an age dominated by No writer, lay or legally trained, should be news of national and international crises and discord, however, satisfied with anything less than puirsuit of this quartet. But commas ordinarily do not attract widespread attention in the legal writing's distinctive missions tolerate even less potential for popular media. O'Connor was different because, according to unclear, imprecise expression than might be passable in much lay the Associated Press, media coverage of the Ist Circuit decision writig in newspapers and elsewhere. Drafters of legislation (and "reignited a longstanding debate over whether the punctuation is of' accompanying administrative rules and regulations) establish necessar" standards of lawful conduct, and frequently prescribe civil or In O'Connor' immediate wake, The New Ybrker said that criminal sanctions for failing to heed these standards. In the pri- "[pIeople love [the serial comma] or hate it, and they are equally vate or public sector, lawyers serve as gtiairdians of their clients' ferocious on both sides of the debate."' The Ne brk Times called status, rights, and obligations. the serial comma "perhaps the most polarizing of punctuation Establishment and guardianship confer responsibility to take marks." reasonable measures to avoid foreseeable written ambiguity. One Lay writers and their readers have reached no consensus reasonable measure is to use the serial comma. Debates about about the serial comma, though weighty authority favors its the comma's use or ion-use might energize lay grammarians and general use.6 TIhe hicago fanual of Style, for example, "strongly other purists on both sides of the fence, but O'Connor demon- recommends [the] widely practiced" use of the serial comma strates that non-use in legal writing can exact substantial costs. because "it prevents ambiguity.""The New Qxford Style Manual concurs that "the [serial] comma can serve to resolve ambiguity O'Connor v. Oakhurst Dairy particularly when any of the items are compound terms joined O'Connor was a class action brought by delivery drivers who 8 by a conjunction." sought four years of back overtime pay, totaling about $10 mil- On the other hand, the New 'Trk Times explains that "news lion dollars, fiom their employer Oakhurst, a Portland, Maine writing has traditionally omitted the serial comma - perhaps dairy company. Maine's wage and hour law provides for overtime seeking a more rapid feeling in the prose, or perhaps to save time pay (the familiar time-and-a-half per hour) for employees who and effort in the old days of mianual typesetting."' work more than 40 hours in a week. ,Journalists have embraced rules of reason that depend on The drivers' class action turned on a statutory exception that

212 tnoba?.org denies overtime pay to employees who are engaged in this work: legal fees wasted, docket time consumed, and judicial ink spilled, "The canning, processing, preserving, freezing, drying, market- all (as the O'Connor panel put it) "for want of a comma." ing., storing, packing for shipment or distribution of: (1 Agri- cultural produce; (2) Meat and fish products; and (3) Perishable Endnotes foods."- 1 Douglas E. Abrams, a University of M\4issouri law professor, 111 written The phrase "packing for shipment or distribution" carried or co-written six books. Four U.S. Supreme Court decisions hase cited his law review articles. His latest book is EFFECTIVE LEGALWRi WsfNo: A GUiDi FOR STu- no serial comma between "shipment" and "or." The plaintiff DEiwS AND PRA CT ilONERS (W~est Academic Publishing 2016). delivery drivers concededly did not "pack" the perishable foods, Thank you to Ellen M. Henrion, MU Law Class of 2017, for her valuable but did "distribute" them. Does Maine's wage and hour law research on this article. exempt workers who only pack or workers who only distribute, as 2 851 Ed 69 (1st Cir. 2017). 3 Assoc. Press, Lack of Comma Sense Ignite DebateAfter Ruling in $10 A Suil, the employer Oakhurst contended? Or does the law exempt only lttp: //www.dailymail.co.uk/wires/ap/article-4325326/Lack-comina-scnse- workers who pack (whether for shipping or for distribution), as ignites-debate-ruling-10)M-suit.htm (Mar. 17, 2017). the delivery drivers successfully contended?' 4 Mary Norris, A liw Words About That Ten-Million-DollarSerial Comana, TiiiF In a 29-page opinion by Judge DavidJ. Barron, the 1st Circuit NEW YORKER, Mar. 17, 2017. 5 Daniel Victor, Lack if Oxford ('omma Could Cast Aaine Coapamr AMilios in Over in O'Connor held for the plaintiff delivery drivers, but only after a timeDispute, N.Y TIEs, Mar. 16, 2017. See also, e.g., BiRYn A. ARNEtR, GAREsRn's judicial trek through precedents, statutory language, legislative I)ICTIONARY OF MODERN A\IERICAN UsAGiE 676 (3d ed. 2009) ("whether to include history, and statutory context. the serial comma has sparked many arguments"); Hilary Hanson, A.MNissing Because none of these sources resolved the case, the court Oxford Comna Decided This Ruling On Overtimae Pay, HUietNt TON Post, http:// wwwhuiffingtonpost.com/entrv/oxford-comma-court-case-ruiling-overtime of appeals applied liberal construction. "[A] mbiguities in the us_58cad41 ae4b0ec9d29d9dd28 Mar. 16, 2017) ("There's not much that makes state's wage and hour laws must be construed liberally in order grammar and punctuation enthusiasts more hot and bothered than debates about to accomplish their remedial purpose" of assuring that work- Oxlird commas."); Merrill Perlman, Don't 1brk Overtime: The Final l4ind on the 0tford Coaa, COLUI.JotRN 5Ausm REv., https://wwxw.cjr.org/lang-uagccorner/ ers "receive wages sufficient to provide adequate oxford-comma.php (Mar. 21, 2017) (the serial comma "creates maintenance and to protect their health, and to be enemies out of best friends"); In re Enron CreditorsRecovery (snp., 380 fairly commensurate with the value of the services B.R. 307, 323 (S.D.N.Y 2008) 'calling the serial comma debate "one rendered."" The panel remanded for further pro- of the longest-standing and most hotly contested disputes in the ceedings, including possible trial, on the delivery IEnglish language"). 6 BROAN A. GARNER, THE 'INNING BRIEF 368 (20114 (citing au- drivers' multimillion-dollar claims. thorities); VWILLIAM STRUNK & E.B. Warr.E, TtE ELEMErS OF Styt 2 4th ed. 19991; THE NEW FOWER'S MnIDERN E'ausoit't UsA G, "For Want of a Comma" 162 (3d ed. by R. W Burchfield ed.) ("The 'Oxford commta' is fre- Leading legal writing experts are right that when quently, but in my view unwisely, omitted by many other publishers. Their preference is to omit it as a general rule ... but to insert it if drafting legislation or when writing for clients, there is a danger of misunderstanding."). lawyers should use the serial comma. "When a 7 THE CHICAGO MANtUAL OF StYLE § 6.18 at 312 (16th ed. 2010). sentence contains a series of three or more items 8 NEW OxORn STYLE MANUAL § 4.3.5, at 71 (2012). joined with one conjunction, put commas after 9 Philip B. Corbett, FAQs on Style, N.Y TxMESJune 23, 2015. 10 Id. each item except the last," instructs Professor 1I AP Stylebook, https://svww.apstylebook.com/missouri/ap-stylebook/con- Richard C. Wydick.'" Bryan A. Garner's advice? "Always use the ma-2 (visited June 7, 2017). serial comma." Garner explains that "[o]mitting it may cause 12 Walt Hickey, FiveThirtyEight, Elitist, Supefluous. Or Popular? lHd P/led Ameri- ambiguities, while including it never will.""' cans on the Oyfird Comma, httpis://fivethirtyeight.comn/datalab/elitist-superflutiots- osr-pIopular-we-polled-anericans-oi-the-oxforl-conma/ (June 17, 2014). Careful editing and rewriting may also overcome ambiguity 13 DotouIs E. ABRAMs, EFFECIVE LEGAL WXRITING: A GUiDE FOR STUDETS left by the absence of a serial comma. Reporting on O'Connor, AND PRACTrio NERs 9 (West Academic Publishing 2016), quotingJay Wishingrad the New) York Times provided this example: "I'd like to thank my & Douglas E. Abrams, The Laucnyer's Bookshelf N.YL.,J Dec. 12, 1980, at 2 (review- ing RiCHARD C. WYDICK, PLAIN ENGUsH FOR LAWtYERS (1st ed. 1979)). parents, Mother Teresa and the Pope."2 ' A serial comma could 14 HENRY WETOFEN, LEGAL WRTING STYLE 4, 8-104 (West 2d ed. 1980) (dis- enhance clarity and precision: "I'd like to thank my parents, cussing these four fundamentals), Mother Teresa, and the Pope." So could the addition of just a 15 O'Connor, 851 E3d at 71 (quoting 26 M.R.S.A. § 664(3)(F). few words. "I'd like to thank my parents, and also thank Mother 16 Id. Teresa and the Pope." 17 Id. at 70, 79 (quoting 26 M.R.S.A. § 661)). 18 RiCHARD C. WYDICK, PiAiN ENGISH FOR lxtWYERs 88 (5th ed. 2005) The Bar Association of San Francisco observes that "[o]f all 19 BRYAN A. GARNER, THE EtemENTs or LEGAL STYis. , § 2.1, at 15 (2d et. punctuation marks, the comma is the one most often debated in 2002). See alo MARK PAINTER, THE LEGAL WRITER: 40 Rtus FOR tit ARt OF LE- courthouses; its presence or absence in statutes and other legal GAL WRITING 90 2d ed. 2003) ("Using the serial comma never creates anbiguit. texts has determined the outcome of cases" for more than a leavitig it out sometimes does."). 2 20 BAN A. GARNER. TH EEMNTi-is oF, LEGAL STYiE, siupia note 19, § 2.1, at century." O'Connordemonstrates that unlike typical lay debates 15. Se alo MA1K PAINT ER, supra note 19, at 90 ("Using the serial conmta never in blogs, social media, or the popular press, "debates in court- creates ambiguity, leaving it out sometimes (loes."). houses" can impose expensive legal consequences. 21 Daniel Victor, supra note 5. 22 Sa-vannaht Blackwell, Legal W[iting Tip: SeriouslyF.7st Use the Serial (Coma, Sign on to Westlaw, Lexis, or another legal search engine, http://blog.slar.org/2017/05/23/legal-writinig-tip-seriously-just-use'-ithe-serial- engage the "Cases" file, and search for "serial comma." "Oxford comma/ (May 23, 2017). See also Mark Painter, supra note 19, at 89 ("Many cases comma," or "Harvard comma." Examine the reported federal discuss the problems created by leaving out the serial comma." 1 Legislativ t' and state decisions that, like O'Connor, grapple with ambiguities Council, Maine State Legislature, Maine LegislativeDrfting Manual 113 (2009) that legislative drafters or clients' lawyers might have prevented ("Comnmas are probably the most misused and mnisunderstod punctuation marks in legal drafling and, perhaps, the English language."). with foresight after careful deliberation. The decisions chronicle 23 O'Connor, 851 E3d at 70.

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