Did you see the case in which a company lost millions for lack of a comma?
And did you hear the applause from people who insist that it proves the infallibility of the Oxford comma?
Not so fast.
A comma wouldn’t have saved the day for the losing company. Nor should writers take from this example that bad writing can be repaired with the right punctuation.
Turns out that, as with so many areas requiring complex skill sets, the answer is more complicated than you’d imagine.
In case you missed it, here’s what happened:
A dairy in Maine was sued by drivers who said they were owed overtime pay. The drivers maintained that “distributing” milk was not one of the activities excluded by statute from qualifying for overtime pay. The dairy said it was.
Here’s the relevant legal language:
The overtime provision 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 drivers said the lack of a comma between “shipment” and “or distribution” meant the legislation applied only to the single activity of “packing.” The company maintained that the people who drafted the law simply dropped a needed comma. If the comma had been included, “packing for shipment” and “distribution” would be considered two separate activities. That would mean the drivers were doing something the law intended when it said no overtime pay was required.
As I read the law, I think the drivers are right, but it takes a bit of work to get there. The person or people who wrote the law could have kept this from reaching the courts if they’d just written the sentence more carefully.
In other words, it’s not a case of a missing comma. It’s a case of weak writing.
The Great Oxford comma war
Here’s the complicating factor. There’s something of a religious war between people who think you should always include a comma before the conjunction at the end of a list of three or more items and those who consider such commas superfluous.
The comma in question is called either the Oxford comma (not due to the university, but to Oxford Press) or the serial comma. Its diehard fans insist that you would never write this:
I hate spiders, snakes and politicians.
Instead, they want you to write:
I hate spiders, snakes, and politicians.
Unless you think that snakes and politicians are basically the same thing, you probably aren’t confused with the lack of an Oxford comma in the first construction. But it can be useful in other instances. Imagine a book dedication:
To my parents, Beyonce and Jesus Christ.
Such a child would be interesting, no doubt, but the author probably meant to thank four entities here, not two:
To my parents, Beyonce, and Jesus Christ.
The Need to Rewrite
Following the Oxford comma automatically — that is, after the conjunction in a series — can add confusion:
I went to the party with my wife, the love of my life, and a nice bottle of Scotch.
You wonder he brought the Scotch due to the tension between his wife and the love of his life.
Removing the comma makes this read a little better:
I went to the party with my wife, the love of my life and a nice bottle of Scotch.
Still, I wouldn’t say it’s perfect. Better to rewrite:
I went to the party with my wife, who is the love of my life. I also brought a nice bottle of Scotch.
See how this works? You can’t rely on a comma or lack of one. You’ve got to pay attention to the context and the peculiarities of different sentences.
Why the Maine law needed to be rewritten
Let’s get back to the Maine dairy drivers and their schlepping milk all over the place without collecting overtime for it.
Again, here’s the provision in dispute:
“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.”
Is this a well-crafted sentence? No.
First, there’s no word that summarizes how these activities are connected and what related activities are excluded. My assumption is that they’re talking about all the work that goes into getting fresh food ready to be transported to stores for sale. Adding the word “production” (or some other relevant description) would clarify what we’re talking about. How about introducing the topic like this?
“The following activities in the production of meat and fish products, perishable foods and agricultural produce: …”
Still, one of the listed activities is ambiguous: “marketing.” I’d bet the people who wrote the law thought of “marketing” in the old sense of getting products to market. It doesn’t fit with the modern usage, which broadly includes everything connected to bringing a product to the attention of consumers. If that’s what they meant, presumably SEO experts couldn’t collect overtime trying to get people to click on links to free-range chicken offerings. So scratch marketing.
We’re down to six or seven activities, depending on whether you think distribution is or isn’t among them. The style guide that legislative types were supposed to follow when writing laws in Maine set out some principles about how to write:
Brief, concise drafting usually leads to clear, understandable language. Clarity should not, however, be sacrificed for the sake of brevity.
Given the need for clarity, I’d suggest using bullet points rather than commas. That makes it easy to group like items together. If the drafters meant it as the court eventually interpreted it, the specific activities would be:
- canning
- processing
- preserving
- freezing
- storing
- packing for shipment or distribution
If the dairy owners were right, the list would have separated those last two items, like this:
- canning
- processing
- preserving
- freezing
- storing
- packing for shipment
- distribution
Does that last word seem out of place? If the law was meant to apply to the drivers (and keep them from getting overtime), wouldn’t it be “distributing,” not “distribution?”
In other words, the comma itself is not the entire answer. The lower court’s decision to add one when it wasn’t there was wrong. That was a bad interpretation of a poorly written law.
Oxford comma champions may gloat and crow about the need for it, but their arguments don’t line up with the facts.
Look, I get the appeal of the Oxford comma. It’s an easy answer, and sometimes it’s needed. But good writers need to be flexible and adjust their writing to fit the situation. To cite an Oxford-comma-using aphorism attributed (somewhat inaccurately) to H.L. Menken:
“For every complex problem there is an answer that is clear, simple, and wrong.”
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