Buzzing around the news this past week was a story of a court case that allegedly hinged on the use of an oxford comma. This type of soft news nonsense, like the hiccuping girl or the Clock Boy, makes its way around all the major news outlets like a clickbait tornado.
You can tell how good a news organization’s unpaid interns are by when they pick up on the story. Smaller outlets ran the story on March 15, the Times obviously read the initial reports and ran with it the next day, and then USA Today read the mass outlets and posted it the day after that. If California fell into the ocean, the New York Times wouldn’t know about it until they read about it from another paper first, and then USA today would have to wait another full day until they read about it in the Times. Reporting is dead.
The oxford comma case was a surefire internet sensation, because the only thing people on social media love more than recycled George Takei memes is the oxford comma. Every dating app girl just wants to find a partner in crime to grab their passport (one of the things they could never do without!) in order to run around the world inserting oxford commas into lists across the globe.
So it is no surprise that the oxford comma case went viral; but when you actually look at the facts of the case, its ruling doesn’t hinge on the oxford comma. The case was decided, as are an increasing number of cases, based on the judge’s politics.
The basic facts of the dispute involved truck drivers suing for overtime pay. Maine law reads that the following occupations involved in the following activities are not entitled to overtime:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
The controversy centered on the fact that while the truck drivers in question distributed food, they did not pack food. So the case hinged on whether or not the above statute exempts (i) people who are either (a) packing food for shipment or (b) distributing food, or (ii) people who are either (a) packing food for shipment or (b) packing food for distribution.
The court ruled that the meaning of the statute was ambiguous, and under Maine law that meant the truck drivers were entitled to get the overtime pay they were suing for.
But this is the wrong result. While the court is correct that an oxford comma after the word “shipment” would have made it clear that the statute applied to the distribution of food, the law was already perfectly clear on that point as written.
First, the Maine legislature has its own drafting guidelines, and those guidelines instruct lawmakers not to use an oxford comma. I personally have not written a guidebook on my grammar preferences, but if I did, and my use of a comma came into question, I would be pretty angry if people completely ignored my grammar manifesto. It’d be like a court saying there is no way we could know if rapper Pitbull liked to party, despite him releasing hundreds of songs about his love of partying.
The court’s opinion is also incorrect because if you were to adopt the truck drivers’ reading, there would need to be another “or” in the sentence (since you are including the current “or” in the sentence as part of the list). Per the court’s ruling, you would have to believe the list reads: “A, B, C, D, E, F, G, H:”
That means that in order to be exempt, you’d have to be doing all of canning, processing, freezing, drying, etc. – making for a very busy food worker. It’s much more logical to side with the defendants and read the conjunction as part of the larger list, so it reads: “A, B, C, D, E, F, G, H or I”.
The truck drivers’ reading doesn’t make sense for a lot of reasons. Why would the statute be careful to exempt both packing for shipment and packing for distribution? It’s the same thing. Are we to believe that there was some indignant food worker, who screamed, “How dare you say that I pack for shipment! I only pack for distribution! I’m not an animal!”
While this grammar analysis may appear to be trivial, it highlights that the case was not about a comma, it was about politics. The judge wanted to rule in favor of the low-paid truck drivers rather than the corporation – so he disguised his bias using dubious oxford comma logic.
Are other courts doing the same thing? Making rulings based on their personal politics, rather than the law – perhaps on even more high profile decisions? The dissenting judge in the recent travel ban decision certainly had some choice words about judges overstepping their bounds:
“Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress.”
Judges do have a duty to say what the law is. But more and more, they are having trouble distinguishing the text and case law from their personal politics. And unfortunately, judges are very good at making the wrong answer seem right – even by tricking people into thinking it was all due to a missing comma.