Saturday, March 25, 2017

On Appeal

Once again, the courts have to weigh in from the very geographical edges of our country. Once again, on a matter affecting a particular group of people, those in a position of power have tried to bend things to their point of view. And once again, the outcome hinged on the written record and the very particular language and formulation used, and, at least at this point, upended what the writers of the law thought was a straight ahead argument.

Immigration? Yeah, I heard there was news about that, but we're talking something else. Hawaiian court? No, I was looking east, not west. Muslims? Uh, no, I was talking about dairy delivery drivers. And while it's possible some of them are indeed followers of Islam, it really has nothing to do with this case. (Though I hear that that association is the same argument there are using in this immigration thing, whatever that is all about).

No, we're talking about is a case in Maine were it all comes down to a comma. An Oxford comma, to be specific. Regular readers of this space might remember an exploration of that very subject (GA #978: "Punctuation Wars") where this writer was taken to task for not being among the Oxford faithful. For those of wondering what incredibly useless English-nerd minutia we're talking about, the Oxford comma is the one that you insert before a conjunction in a list of three or more. It is supposed to make it clear that the final items are separate parts of a list, rather than a final phrase, with the most famous example being the book dedication "To my parents, Ayn Rand and God." Adding the Oxford comma would have made it clear that the author's parents, while worthy of praise, were not so well known.

In the case at hand, a group of delivery drivers in Maine at the Oakhurst Dairy went to court against the company, claiming that they are not exempt from the state's overtime laws and should receive the pay they were denied. The basis for their claim? The state law enumerating the acts that are ineligible for overtime is written this way: "The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: Agricultural produce; Meat and fish product; and Perishable foods."

All well and good. But as written, the implication is that "packing for shipment or distribution" only encompasses the literal act of packing a truck for shipment. In court the drivers argued that they don't physically pack the trucks; they only distribute the items inside. So even though the dairy argued that the intent of the law was to keep "distribution" as a separate act, it didn't read that way. Had it been written "packing for shipment, or distribution" it might have been interpreted differently. But that's not how the court ruled. They said that since drivers don't pack, they aren't exempt from overtime pay.

At least in The Pine Tree State, the decision of the First Circuit has justified not just the careers of lawyers but of English majors. In fact, all of Maine's laws are written without the Oxford comma, as prescribed in a state-issued style guide on legislative drafting. And indeed, Oakhurst's attorneys had cited just that point in their defense. But the judges picked up on a following paragraph in the same guide: "Be careful if an item in the series is modified." It then sets out several examples of how lists with modified or otherwise complex terms should be written to avoid the ambiguity that a missing serial comma would otherwise create. Net-net: this might not be the last Oxford comma case that winds up in court.

As with most states, you can argue that some of the laws on the books in Maine are strange or need to be updated. To be sure, the statewide statute that says that shotguns are required to be taken to church in the event of a Native American attack, or that you may not step out of a plane in flight could use a reexamination. But they should add to that a major statewide punctuation review. Or as a wonderful book on the topic is named, it will lead locals to wonder if an animal at the zoo is guilty of murder if, as the sign on its cage says, it "eats, shoots and leaves."


Marc Wollin of Bedford generally plays fast and loose with English. His column appears regularly in The Record-Review, The Scarsdale Inquirer and online at, as well as via Facebook, LinkedIn and Twitter.

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