The case of the missing comma: Court of Appeal judgment is all about the grammar

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By Polly Botsford on

Lack of the so-called Oxford comma leads to truckers’ victory in overtime payment case

A US Court of Appeal case has reminded lawyers why grammar matters.

The case — a dispute between trucker employees and their employing dairy company — involved a US state law relating to overtime payments and a missing comma.

The Oxford, or serial, comma is one which is put at the end of a long list of items before the “and” or “or”. There was no such comma at the end of the relevant clause relating to overtime payments in the law of Maine.

This clause says that employers have to pay employees one-and-a-half times their normal hourly wage for any work over 40 hours per week. But this overtime rate is not paid for certain activities relating to perishable goods. It reads that there are no overtime payments for, “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution” of perishable foods.

Spot the crucial missing comma.

The truckers argued successfully that what they did was solely “distribution”, not “packing for shipment and distribution”, and so the overtime payment exemption did NOT apply. The dairy company failed in its contention that “distribution” was a separate and distinct activity from the packing part and so, it believed, the exemption should apply.

The three circuit judges were persuaded by linguistic convention that without that crucial comma, “distribution” was not a separate element of the sentence.

As the full judgment eloquently puts it in its opening sentence:

For want of a comma, we have this case.

Grammarians and legal drafting experts have had much to say on the subject of commas. In a guide published by Eversheds Sutherland, the authors warn:

There are many pieces of litigation that turn upon the placing (or omission) of a comma in a statute or contract. There is no single or simple rule for avoiding all such problems…

Or perhaps law students shouldn’t worry about such things. In textbook Modern Legal Drafting, the authors quote law academic and judge Sir Robert Megarry, who once argued that we shouldn’t get too hung up on these matters: “Punctuation is the servant and not the master of substance and meaning.”

Read the judgment in full below:

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