This is a guest post by Janeen Williams, legal reference librarian at the Law Library of Congress.
Grammar enthusiasts have long debated the utility of the Oxford comma. In the past, authors have been advised that usage of Oxford commas (also known as serial commas) is an issue of style and will be determined by the style manual preferred by the publication’s editor. However, courts may have a different opinion. The recent ruling in O’Connor v. Oakhurst Dairy serves as a reminder that failing to use the Oxford comma in legislation could have severe implications, in this case pecuniary (No. 16-1901 (1st Cir. 2017)).
In O’Connor, the court examined Maine’s overtime statute and the related statute that explains which types of workers are considered employees for the purposes of overtime. The overtime statute provided that workers were not entitled to overtime if their jobs involved “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 plaintiffs who distribute milk but do not pack it argued that “packing for shipment or distribution” referred to one activity. They added that all the words in the list were gerunds with the exception of “shipment” and “distribution.” The court ultimately held that the dairy delivery drivers were not exempt from being categorized as employees; thus, the drivers were covered by the overtime law. The Court determined that the lack of a comma in this instance rendered the statute ambiguous.
Legal writing experts and legislative drafters emphasize the importance of clarity and precision because ambiguous language in legal documents can have such grave implications. According to the authors of the Legislative Drafter’s Desk Reference, who had both spent decades as drafters in the Office of Legislative Counsel for the House of Representatives, punctuation can affect the court’s interpretation of the law. In order to ensure a law is clear and unambiguous, the authors advise that “when setting forth a series of items in a sentence… the last two items in the series, like the earlier items, should always be separated by a comma…” (p. 271). They warn that though use of the final comma may be discouraged in popular writing, failure to include the final comma in legislative drafting could lead to a misreading of the statute. Other guides to legislative drafting also recommend usage of the serial comma to avoid a misreading of the statute (see Legislative Drafter’s Deskbook: a Practical Guide by Tobias A. Dorsey). It is worth mentioning that the Maine Legislative Drafting Manual generally advises against the use of the serial comma.
Following judicial interpretation of a statute, the legislative branch has the opportunity to re-write laws that in their view have been misinterpreted by the courts. A 1991 empirical study of congressional overrides of Supreme Court decisions found that 124 United States Supreme Court decisions were overridden between 1967-1990. More recent studies have found that congressional overrides of court statutory interpretation have steadily declined since the 1990s (see Amanda Frost, Academic highlight: Congressional overrides of Supreme Court decisions, SCOTUSblog (May. 30, 2014, 2:56 PM)). One can only wonder if the decision in the O’Connor case will prompt action by the Maine State Legislature.