What’s So Compelling About Commas and Legal Disputes?

Yesterday I did this post about the recent First Circuit opinion in which lack of a serial (or Oxford) comma featured prominently.

That opinion prompted no end of articles in the established media (including this article in the New York Times) and no end of chatter on social media. And many of my readers rushed to tell me about it.

The last time a dispute over wording in a legal document generated such interest among people who don’t usually bother with such things was in 2006. That dispute was “the case of the million-dollar comma”—a dispute between two Canadian cable companies, Rogers and Bell Aliant. It’s described in this article in the New York Times. I had a front-row seat to that dispute, as I was expert witness for Rogers.

What is it with commas and legal disputes? Why do they capture the public’s imagination?

For one thing, the dispute can be expressed in a way that makes it elemental. The parties aren’t fighting over some abstraction, they’re fighting over a tiny thing—a comma! Of course, the underlying analysis can be convoluted. For example, see my article about what I call “the comma test under the rule of the last antecedent” (here); that was the judicial principle of interpretation that presumably underlay the dispute between Rogers and Bell Aliant.

And there’s narrative appeal to the idea of corporate dealings coming undone due to someone’s having failed to pay sufficient attention to a tiny detail.

It also didn’t hurt that the First Circuit’s opinion involved a serial comma. For one thing, the serial comma is legit, whereas the comma test under the rule of the last antecedent is massively bogus. (Go here for my 2010 post about the serial comma.)

But beyond that, the serial comma has somehow become a darling of the chattering classes. Here’s a random but representative bit of the flood of related chatter: “You can have my oxford comma when you pry it from my cold, dead, and lifeless hands.” The enthusiasm expressed is such that I’m inclined not to take it at face value, but instead to consider it the speaker’s way of demonstrating their writerliness, and without actually having to do any writing.

So I understand the appeal of disputes over a comma. But what makes these disputes compelling is exactly what makes me want to avoid having interpretation of a contract depend on a comma. I don’t want to be hanged on a comma. (For more on the phrase “hanged on a comma” and how it relates to Roger Casement, see this post by @IPDraughts.)

And now, as further evidence of the odd significance of the serial comma, here’s a goofy pop song called “Oxford Comma”:

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.