“For want of a comma, we have this case.” Thus begins the opinion in O’Connor v. Oakhurst Dairy, a 1st Circuit case decided in March that has rekindled a long-standing debate: Should the Oxford comma be used or not?
The Oxford comma—also known as the serial comma or the Harvard comma—is the comma between the penultimate and final items in a written list. For example, in the sentence, “The American flag is red, white, and blue,” the comma after “white” is an Oxford comma. Punctuation purists insist that the Oxford comma should always be used; but other constituencies argue that it is usually superfluous and unnecessary and should be reserved for sentences in which the absence of the comma would create ambiguity.
It was just such ambiguity that gave rise to the O’Connor case, in which the parties disagreed as to the meaning of a Maine overtime law excluding employees involved in “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” various perishable products. The absence of the comma between “shipment” and “or” was the chief point of contention. The employer argued that “distribution” was a separate activity from “packing for shipment”—a construction that would prevent drivers engaged in distributing products from getting overtime pay. The drivers argued that “distribution” was modified by “packing for” and was not a separate activity from packing—a construction that would bring them within the protection of the overtime law.
The absence of a comma after “shipment,” said the court, created an ambiguity that, under the required liberal construction of wage and hour laws, could support the drivers’ argument, thus preventing the court from affirming summary judgment for the employer. Noting that Maine’s legislative drafting manual is one of only a few such manuals disfavoring the Oxford comma, the court weighed in on the great debate: “We would be remiss not to note the clarifying virtues of serial commas that other jurisdictions recognize.”
Those on both sides of the Oxford comma debate can cite authority supporting their positions. The Chicago Manual of Style, Strunk and White’s Elements of Style, most authorities on American English and Canadian English, and some authorities on British English (for example, Oxford University Press and Fowler’s Modern English Usage) recommend using the Oxford comma. But many prominent newspaper style guides, including those published by The New York Times, The Los Angeles Times, the Associated Press, The Times newspaper in the United Kingdom, and the Canadian Press, recommend against using the Oxford comma, “possibly for economy of space.”
Apparently, this same divide exists in America’s general populace. In 2014, Nate Silver’s FiveThirtyEight blog partnered with Survey Monkey Audience to poll 1,129 Americans, asking them whether they preferred to use the Oxford comma or omit it. Fifty-seven percent responded in favor of the Oxford comma, a result the surveyors called “hardly a clear victory for the Oxfordians.” Interestingly, those who favored the Oxford comma also tended to rate their own grammar as “excellent” or “very good,” while those who disfavored it tended to rate their own grammar as only “good” or “fair.” The surveyors suggested that advocates of the Oxford comma may simply be adhering to a rule that they learned well and that their teachers rewarded them for using.
Even Microsoft seems to have weighed in on the Oxford comma debate. Word 2016 automatically flags its absence, but users no longer have the option to change the default so that its presence is flagged or to turn off the feature altogether.
So what should we legal writers make of these latest volleys in the Oxford comma war? Does the result in the Maine case resolve the debate in favor of always using the Oxford comma in legal writing, as some commentators have suggested? In my humble opinion, yes.
As a legal writing teacher who daily stresses how important precision and clarity are to legal readers, I favor using (correctly) any convention of grammar or punctuation that removes ambiguity, and the Oxford comma often does just that. And the “economy of space” rationale for omitting the Oxford comma has never seemed compelling to me, especially outside of the newspaper setting. (Commas are tiny little things, right?) In short, I see no benefit, only the potential for great detriment, from omitting the Oxford comma in legal writing.
Of course, no column of mine would be complete without a reference to the Aspen Handbook for Legal Writers. (The Fourth Edition just landed on my desk, by the way—it’s so beautiful!) On the subject of the Oxford comma, the Aspen Handbook brooks no debate: “Although the [Oxford comma] is optional in most writing and is omitted in newspapers (to save space), in legal writing it is required. . . . Because the omission of [the Oxford comma] can cause ambiguity, always include it to show readers that each item is separate. Its use is never incorrect.” This last sentiment is echoed by Bryan Garner, who recently tweeted his take on the Oxford comma: “[O]mitting the final comma may cause ambiguities, whereas including it never will.”
I know reasonable minds can differ, and I look forward to hearing from those of you who disagree with my position. I’m sure we can have a discussion that is lively, intelligent, and civil. (See what I did there? A lovely Oxford comma!)
Laura Graham, Director of Legal Analysis, Writing & Research, is a professor of legal writing at Wake Forest University School of Law, where she has taught for 19 years. She welcomes email from readers at firstname.lastname@example.org.
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