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”:

YouTube video

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.

4 thoughts on “What’s So Compelling About Commas and Legal Disputes?”

  1. There’s no need for disparagement; I hope you will discourage it. (“Chattering classes”? Surely you’re not belittling those who care!) Given the vagaries of the English language, there may not be one rule of usage that works in every single case. Can’t we just bear in mind that the goal is clarity, and that the Oxford comma enhances clarity in most instances and thus should not be dismissed absent some good reason why it advances that goal? Seems to me that the reason the Times and some other printed publications omit it as a matter of “style” is not the pursuit of greater clarity, but the omission of a character (though I agree that this would be a stronger argument if printers were still working with leaden type rather than digital characters) and perhaps the pursuit of a cleaner look. Yes, it’s a bit scary that a right to a large amount of money should turn on a small punctuation mark, but a decision like this one does serve to remind us of the importance of the written word, a very useful service in this era of casual if not sloppy written communication.

    • As regards disparagement, this is a blog, so I permit myself to shoot from the hip. “Chattering classes”? Well, I don’t think there’s any argument that there’s a whole lot of chatter going on these days.

      Regarding the merits of the serial comma, if you look at the end of the post before this one, you’ll see that I use the serial comma myself. My point relates to something else: the best way to avoiding disputes.

      And I believe you’re right about why newspapers don’t use the serial comma.

      • Fair enough–and sorry, I didn’t mean to sound like a scold. I am reminded with fondness of a memo I once wrote as a first-year summer associate that ran to thirteen pages and discussed, in large part, the significance of the absence of a comma in the text of a note allocating responsibility for a note among general and limited partners. Not a serial comma issue, but one in which a comma after the reference to general partners would have enhanced clarity and made it untenable to argue that ambiguity existed. As I recall, the memo helped bring about a good settlement. Sometimes a comma (or the lack of one) can affect a legal outcome even without being absolutely definitive.


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