In an opinion issued this week, O’Connor v. Oakhurst Dairy, No. 16-1901, 2017 WL 957195 (1st Cir. Mar. 13, 2017) (PDF here), the First Circuit considered the meaning of the following:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
Did “packing for shipment or distribution” refer to two kinds of packing, or did it refer to packing and distribution as separate elements? (You can consult the opinion for the background.)
At first I thought that as an example of syntactic ambiguity, this case is nothing special, but inevitably something caught my eye. Consider the first paragraph:
For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine’s overtime law. 26 M.R.S.A. § 664(3). Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law’s protection. But, as it happens, there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.
Yes, we’re dealing with the serial comma (otherwise known as the Oxford comma). This case caused rejoicing on social media at further proof of the power of the serial comma.
I beg to differ. Wherever possible, I prefer not to rely on a comma to ensure that one meaning prevails over an alternative meaning: if I were the drafter, I wouldn’t fix this sort of problem just by adding a serial comma. I have two reasons for that.
The Limited Power of the Serial Comma
My first reason is that the disambiguation power of the serial comma is limited.
What if another item (say, canning) had followed distribution? The language at issue would have ended packing for shipment, distribution, or canning of. You now have a comma after shipment, but you still have the potential for the same fight that prompted this dispute. This relates to a limit to the serial comma’s power to disambiguate, one that I’ve not seen expressed anywhere. Here’s how I’d phrase it: A serial comma no longer serves to make it clear that what follows the serial comma is a separate element if you add an additional item after the serial comma.
Here are two examples that illustrate that:
I went to the Oscars after-party with my children, Meryl Streep [,] and Denzel Washington.
The serial comma would help a reader unfamiliar with the movies to understand that Meryl and Denzel are not in fact my children.
But let’s add an extra item:
I went to the Oscars after-party with my children, James Franco, Meryl Streep [,] and Denzel Washington.
Behold, the serial comma has lost its power! Because I now have three names, a serial comma after Meryl Streep can be explained as just pertaining to those three names. It has nothing to tell us about how those three names relate to my children.
We can add this limitation to an issue I wrote about in MSCD 12.61 and this 2013 blog post: the serial comma can also create ambiguity. (Yesterday @saBEERmetrics pointed me to this Business Insider item that makes the same point.)
So if you’re in the habit of relying on the disambiguation power of the serial comma, you might be surprised to find that in a given instance that power has deserted the serial comma.
People Fight Over Commas
My second reason for not relying on the serial comma is that many people, including judges and litigants, don’t understand commas. And disgruntled contract parties are prone to arguing over the significance of a comma, even if the meaning is clear to reasonable readers.
In this case, if the intention was to have packing and distribution as separate elements, I would have moved packing for shipment to the end of the language at issue, so that the last part reads distribution, or packing for shipment.
But if that were to create confusion, with some readers thinking that everything in the sequence modifies for shipment, then I’d move packing for shipment to the front, so it starts with The packing for shipment, canning ….
But if that too were to create confusion, with some readers thinking that The packing for modifies everything that follows, then I’d … do something else.
Constant paranoia, the contract drafter’s friend.
(By the way, don’t think that I’m somehow against the serial comma; I use it in my own writing. Instead, it’s just a matter of being aware of its limitations.)
I never understood why the serial comma, which is taught in grade school, disappeared when I got to law school and law practice. And then the broke me of the habit of using it. I’m trying to get it back.
I remember thinking my law school taught that it was Blue Book proper to use the Oxford comma, but I hear that’s changed in recent years.
I remember thinking my law school taught how to write effectively, but I hear that’s also changed in recent years.
Ken:
It is also useful to think beyond the fairly limited set of punctuation marks that lawyers use. In particular, lawyers seem to fail to use the dash, even though it can serve the same function as commas or parentheses. Anyway, another possibility to help reduce ambiguity here would have been this:
The canning, processing, preserving, freezing, drying, marketing, storing, packing (for shipment) or distribution of
Chris
Yes, parentheses can be a good option, as noted somewhere in MSCD.
I like this idea. Seems the problem is with parellelism in the series list. “Packing for shipment” doesn’t look like the others and creates the problem wherever it’s placed.
You may have heard that Roger Casement was “hanged by a comma”, with the English court reading a comma into the original unpunctuated Norman-French text of the Treason Act 1351:
“if a Man do levy War against our Lord the King in his Realm or be adherent to the King’s Enemies in his Realm giving to them Aid and Comfort in the Realm or elsewhere …”
Does “or elsewhere” just expand the location where “aid and comfort” can take place? Or does it expand the locations where the actions (levying war, or being adherent) can take? That is, is the offence limited to actions taking place in the realm, or can they take place elsewhere?
In your case, perhaps the use of format (like parenthesis suggested above) to group or separate concepts: for example:
“(i) canning, (ii) processing, (iii) preserving, (iv) freezing, (v) drying, (vi) marketing, (vii) storing, (viii) packing for shipment or (ix) distribution”
versus
“(i) canning, (ii) processing, (iii) preserving, (iv) freezing, (v) drying, (vi) marketing, (vii) storing, (viii) packing for shipment or distribution”.
Andrew:
Does Britain not have the rule of lenity?
Chris
Well, I admit, I’d not heard of the rule of lenity until you mentioned it, and I can’t see it being referred to at all on the cases reported at BAILII. I’ll check on Lexis. But then I am not a criminal lawyer. I believe it is a concept inherited from 18th century and earlier English common law. I think the way it might be expressed today is asking whether conduct falls within the clear words or the plain meaning of the statute. The Casement case was decided in a specific context: I’m not sure if it would go the same way today.
Relevantly, see this, on Lockhart v. US: http://languagelog.ldc.upenn.edu/nll/?p=24322
Sorry, it has taken me a while to get back to this.
Here is a quote from a 2008 article in what was then Justice of the Peace magazine (now Criminal Law and Justice Weekly):
“In most criminal codes the principle of strict interpretation of criminal law is considered as implicitly included in the principle of legality (eg, the rule of lenity in the American case-law). However, there is no equivalent to these principles within English statutory criminal law or a consistent jurisprudential development, apart from few obiter dicta in specific cases.”
The full citation is (2008) 172 JPN 532. The article goes on to say that the courts sometimes favour a strict construction (influenced by the concept of “in dubio pro reo”), and sometimes a more purposive construction.
Otherwise, I’m struggling to find a mention of the rule of lenity in any UK sources.
In the post after this one I link to Mark Anderson’s post about Roger Casement.
Yes, enumeration is another way the ambiguity could have been eliminated; it too is mentioned in the MSCD chapter on syntactic ambiguity.
The one thing that bothered me about the opinion was the court’s dismissal of the employer’s argument (on page 10) about the legislative drafting manual. According to the opinion, the Maine legislature had a long history, embodied in an official legislative drafting manual, that legislation writers were not supposed to use a comma to separate the penultimate and ultimate items in a list.
If that’s true, it would seem like the absence of a comma at that spot in a list shouldn’t be a basis for interpretation of the list.
Of course, I suppose one could argue that a drafter could (and should) have used a comma there regardless if it would avoid some potential ambiguity, and I guess that’s how the court looked at it, but still.
I confess that as usual, I didn’t pay much attention to how the dispute should have been resolved. I focus on how to avoid disputes.
If you look more closely at the reasons for judgement, you’ll see that it wasn’t simply the absence of a comma that led to the Court’s conclusion. The use of the word “distribution” rather than “distributing” was at least as important a factor.
One of the most sadly underused (and greatly misunderstood) punctuation marks is the semicolon. It is perhaps the single most useful tool in disambiguating a series. Take, for instance, a case I filed not long ago, one not unlike many others before it:
Barney Rubble,
Plaintiff
v.
Wake County Department of Social Services, Fred Flintstone, Director,
Defendant.
The law more-or-less requires that I sue a government agency through its current Director, so the caption may change over the life of the case. For reasons I never understood, OC kept referring to “the defendants,” though there was clearly only one. Obviously (to me), had there been two defendants, it would have been:
Barney Rubble,
Plaintiff
v.
Wake County Department of Social Services; and Fred Flintstone, Director,
Defendants.
When items in a series contain commas (as corporate identities almost always do) or modifying clauses or phrases, it is common (proper?) to separate the elements of the list with semicolons, allowing commas to isolate internal elements. E.g.,
Jane Doe,
Plaintiff
v.
Big Corporation, Inc.; Oppressive Subsidiary, LLC; and Employment Agency, P.A., d/b/a Wage Slaves 4U,
Defendants.
As to the ambiguous list in the case discussed, your rewrite certainly solves the problem, but semicolons instead of commas would have made it clear that the “and” was conjunctive as to the whole series, but disjunctive as to those two particular list elements.
Yep, let’s add semicolons to the ways ambiguity could have been eliminated.
Here’s an interesting and detailed take from a blog on language. http://languagelog.ldc.upenn.edu/nll/?p=31653
Thanks. Language Log always has an interesting take on things, although not always from the contract drafter’s perspective.