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Milking a Comma for All It’s Worth

cow and milkThe case of the dairy drivers has captured the world’s attention. From The New York Times to The New Yorker and Language Log, the $10-million award granted (some say) because of a missing comma makes news in which we all — well, maybe not Oakhurst Dairy, in Maine — can delight.

Readers of Lingua Franca may well know the facts already. The workers’ guideline at issue noted that overtime pay would not cover “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.” Without a comma following the word shipment, the phrase packing for shipment or distribution can be read as a single item — in which case, since truck drivers do no packing, they are entitled to overtime pay. “For want of a comma,” the judge’s decision on appeal wittily begins, “we have this case.”

The lower court’s decision was both kinder to Oakhurst Dairy and, at first glance, more coherent. Why? Because taking the phrase packing for shipment or distribution as a single activity creates asyndeton — that is, a series without a final conjunction. Poets love asyndeton — take Shakespeare’s Julius Caesar, in which Antony proclaims, “Are all thy conquests, glories, triumphs, spoils, Shrunk to this little measure?”

We see it inadvertently used most often, I think, in sentences where the final item in a supposed series should actually be styled as a coordinate phrase or clause. For instance, a student might write, “We were tired, wet, cold, and rushed inside the hotel.” In this case, rushed, like were, is a verb following We; the student really wants to write “We were tired, wet, and cold, and we rushed inside the hotel” or perhaps “Tired, wet, and cold, we rushed inside the hotel.” He doesn’t mean to be using rushed as the final adjective in the series; neither is he aiming at asyndeton. He just doesn’t understand syntax very well.

The lower court considered, evidently, that Maine legislators did understand syntax and used distribution as the ninth in a series of nouns while omitting the serial comma (as, by the way, they had been instructed in the drafting guidelines). But on appeal, Judge David J. Barron pointed out more ambiguities than a serial comma can account for.

First there is Oakhurst’s contention that if the phrase were packing for shipment or distribution, the word distribution would be redundant; the items are packed, period, and it makes no difference whether they are packed for shipment or for distribution, since one activity essentially equals the other. Since legal parlance disdains redundancy, surely such phrasing cannot have been the Legislature’s intent.

Nay, said the drivers. For after all, if shipment and distribution were the same thing, why not write packing for shipment or shipment of?

Then there’s the ticklish subject of nouns. All the other items in the series are gerunds: nouns formed out of verbs. Distribution is a regular noun, argued the drivers — so what’s it doing in the series, if it’s part of the series? Makes much more sense for it to be, like shipment, the object of the preposition for.

The judge considered those arguments but still came up against the mysterious asyndeton that the drivers’ reading of the statute entailed. In their reading, Judge Barron pointed out, “the list is strangely stingy when it comes to conjunctions.” And so, given competing and compelling arguments from both sides, “The text has, to be candid, not gotten us very far.” Given that the state’s default position in ambiguous cases is that laws should “further the beneficent purposes for which they are constructed,” he reversed the lower court’s ruling and found in favor of the drivers.

The judge’s ruling is 29 pages long — so much depends on an absent comma! — but I recommend it for true fanatics of syntax. The question that lingers, of course, is not whether, but in what way, the Maine legislators screwed this one up. Did they really, like my student, neglect to place a conjunction before the word packing? Or did they neglect that little note in the legislative drafting manual’s advice against the serial comma? “Be careful if an item in the series is modified,” it says. Either way, they can’t just tell Oakhurst Dairy not to cry over spilt milk. They have some explaining — and revising — to do.

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