Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, January 2, 2021

More Support for Oxford, or Serial, Commas

Many of my younger students come from collegiate writing programs which do not use Oxford commas.  These students sometimes need convincing they should add what seems like an “extra” comma between the last two items in a series of three or more.  This comma, known as a serial or Oxford comma, can change meaning.  Therefore, I include the comma on my grading rubric and try to make my lessons about the comma connect to real-world examples as much as possible.

The dairy delivery drivers who won overtime pay because of a missing Oxford comma provide a great example of the comma’s utility.  See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html.  Many of us are familiar with the dairy drivers’ case, and their 2018 $5,000,000 settlement.  The dairy's delivery contract clause on overtime wages did not include a serial comma, and thus did not limit the drivers' eligibility for some overtime pay.  Along with a few fun, albeit morbid, memes about eating children and other relatives—"Let’s eat children” vs. “Let’s eat, children,” for example—I use the dairy case to help show the need for precision and punctuation.  (For more laughs, really, I highly recommend one of my family’s favorite books:  Lynne Truss, Eats, Shoots and Leaves:  The Zero Tolerance Approach to Punctuation (2003), https://www.lynnetruss.com/books/eats-shoots-leaves/.)

Recently, Kelly Gurnett, an admitted “diehard Oxford comma loyalist,” updated her piece on the dairy drivers.  Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/.  As Gurnett explains, “For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’”  Id. 

While modern courts sometimes say they want to use more holistic and less formal language, we still must be precise and clear in contracts and legal writing.  As Gurnett concludes:  “if there’s one thing writers can agree on, it’s the importance of clarity. In some cases, an extra comma matters.”  Id.

Last week, Pocket republished Chris Stokel-Walker’s article on serial commas.  Chris Stokel-Walker, The Commas That Cost Companies Millions (July 22, 2018), https://getpocket.com/explore/item/the-commas-that-cost-companies-millions?utm_source=pocket-newtab.  In the BBC Worklife piece, Stokel-Walker discusses the dairy drivers and other historic Oxford comma litigation, and notes the often-debated meaning of commas in insurance policies.  As Stokel-Walker says, “for some, contentious commas can be a path to the poor house.”  Id.  He provides great examples to remind us about the need for precision.

First, Stokel-Walker cites the United States Tariff Act.  As originally drafted in 1870, the Tariff Act exempted “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation,” from import tariffs.  However, “for an unknown reason, when revised two years later, a stray comma sneaked in between ‘fruit’ and ‘plants,’” and “[s]uddenly all tropical and semi-tropical fruits could be imported without any charge.”  Id.  Congress ultimately revised the language, but the US lost $2,000,000 in tariffs (now about $40,000,000) in the meantime.  Id.

Unlike my memes showing the errors in comma-less clauses about eating children or cooking grandpa, in the most extreme example Stokel-Walker cites, debate over comma placement was at the heart of a real-life death-penalty trial.  Id.  In 1916, the British government hanged Roger Casement, an Irish nationalist, under the 1351 Treason Act.  Casement “incited Irish prisoners of war being held in Germany to band together to fight against the British.”  Id.  As Stokel-Walker explains, the case revolved around “the wording of the 14th Century Treason Act and the use of a comma: with it, Casement’s actions in Germany were illegal,” but if the court would read the act without the possibly-mistaken comma, Casement would be free.  Id.  Casement’s argument at trial was that “'crimes should not depend on the significance’” of commas, and if guilt for a hanging offense really depended on a comma, then the court should read the statute for the accused, and not the Crown.  Id.  Unfortunately for Casement, the court applied the comma and ordered him executed.

Whether we use the dairy drivers, memes, or Roger Casement’s matter, those of us teaching and mentoring new legal writers should do our best to convince them the Oxford comma is not “extra,” and can dramatically change meaning.

Happy new year!

https://lawprofessors.typepad.com/appellate_advocacy/2021/01/more-support-for-oxford-or-serial-commas.html

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