Court fight over Oxford commas and asyndetic lists

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Language Log often weighs in when courts try to nail down the meaning of a statute. Laws are written in natural language—though one might long, by formalization, to end the thousand natural ambiguities that text is heir to—and thus judges are forced to play linguist.

Happily, this week's "case in the news" is one where the lawyers managed to identify several relevant considerations and bring them to the judges for weighing.

Most news outlets reported the case as being about the Oxford comma (or serial comma)—the optional comma just before the end of a list. Here, for example, is the New York Times:

However, it wasn't quite that simple.  The appeals court's decision explicitly considers several competing tidbits of evidence in much the same way that natural language understanding software tries to do. Humans usually manage this subconsciously, effortlessly, and successfully: most sentences are easily understood despite being formally ambiguous. But sometimes even humans hit a tricky case—or a case with $10 million at stake.

75 truck drivers delivered perishable dairy products.  Were they entitled to overtime pay?  In Maine, overtime pay does not apply to

(a) 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 appeals court essentially considered whether statute (a) should be read as (b) or (c).  In other words, when listing activities in (a), were the legislators omitting (b)'s final comma or (c)'s final conjunction?

(b) The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distribution of …

(c) The canning, processing, preserving, freezing, drying, marketing, storing, or packing for shipment or distribution of …

Under (b), "distribution" is exempt from overtime, so the dairy needn't pay the truck drivers extra.  But under (c), it's only "packing for distribution" that is exempt, so they must pay.

Bayes' Theorem tells us that to evaluate the plausibility of (b), we should consider both whether the legislature would have wished to make rule (b) and also whether someone who wished to make rule (b) would have phrased it as (a).  Any other reading, such as (c), should be similarly evaluated.

The district court observed that Maine legislators might reasonably have intended (b), and that if so, they would very likely have phrased it as (a).  Indeed, "Maine statutes invariably omit the serial comma from lists"—just as the Maine Legislative Drafting Manual recommends.

The appeal lawyers argued that the legislators had actually intended (c). Here, the final category is "packing for shipment and distribution."  But this interpretation hits a hurdle that the news stories don't mention. While (c) might be equally sensible public policy, it's more of a stretch to suppose that the legislators would have phrased it as (a). That would mean they omitted a final conjunction rather than just a final comma. Maine legislators mainly include that final conjunction, just like the rest of us.  The appeal lawyers didn't find any Maine laws permitting citizens to "eat, drink, be merry" or calling for a flag of "red, white, blue"—a rhetorical device known as asyndeton.

Nonetheless the appeals court agreed that (c) was plausible enough to stay in the running. (I sort of agree, though I'd explain the missing "or" as more probably an editing error than a deliberate use of asyndeton.)

How did the court arrive at this reasonable doubt?  To bolster their case, the lawyers for (c) questioned whether (b) was so plausible after all.  If (b) had been the intent, they asked, would the legislators really have written it as (a)?  Why wouldn't they have used parallel construction and written (a'), with a list of all gerunds?

(a') The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment[,] or distributing of …

Now, the lawyers for (b) argued back that (c) wasn't so plausible either because shipment = distribution and therefore "packing for shipment or distribution" would have been redundant.  But the lawyers for (c) came back with evidence that shipment ≠ distribution.  They also noted that this sword cut both ways, since if shipment = distribution, then someone who meant (b) wouldn't have had to change the word, but could have written

(a") The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment[,] or shipment of …

In the end, the appeals court found that neither side had a knockdown argument on the question of whether (b) or (c) would be more likely to give rise to (a):

We are reluctant to conclude from the text alone that the legislature clearly chose to deploy the nonstandard grammatical device of asyndeton. But we are also reluctant to overlook the seemingly anomalous violation of the parallel usage canon that Oakhurst's reading of the text produces.

Nor was it clear from the legislative history whether the state had meant to enact (b) or (c).  With Bayes' Theorem not providing a clear winner, the judges fell back on an established tiebreaking mechanism.  They simply construed the statute in favor of the truck drivers because the broad purpose of employment law is to protect employees.

This back-and-forth might give you a sense of why it's so challenging for computers to understand or translate human language, or to use it as a basis for decisions!  It will be some time before we can automate judges and lawyers. In the meantime, however, technology might be able to provide some help to legislators. Grammar checkers could be extended to flag potentially consequential ambiguities when a bill is being drafted.  I don't know of much work on this problem, beyond the detection of puns, but here's a 2010 paper at least.

A final remark for those of you who came to this post because you have opinions on the Oxford comma.  Whichever comma convention we adopt, most sentences will be easy to interpret, and a few will be confusing.  But at least this legal case provides some variety in the example sentences.  When people argue that omitting the Oxford comma creates ambiguity, they usually adduce examples that are ambiguous because the conjunction "Y and Z" could be misread as an appositive.  (In the 3-element list "X, Y and Z" this reading involves no serial list.  In the 4-element list "W, X, Y and Z" it involves a serial list with asyndeton.)  The example in this legal case instead misreads "Y and Z" as the object of a preposition ("V, W, X for Y and Z").  Or perhaps it's not a misreading, if you agree with the truck drivers.

———

Update: Kevin Underhill's entertaining blog "Lowering the Bar" finds it laughable that the appeals court was willing to balance asyndeton against non-parallel usage. I agree that the former story seems orders of magnitude less probable. (Again, if you want to argue for (c), you're better off claiming that the omission of "or" was a drafting error—which escaped notice because of the subsequent "or"—rather than a rare literary device.  It's just that courts are averse to correcting the text of laws that it's not their job to write.)

In the comments below, Mats Rooth, Neal Goldfarb, and Guy explain why the non-parallel usage in (b) would be perfectly natural, while a_George explains why (c) would reflect a more coherent legislative intent.



20 Comments

  1. Mats Rooth said,

    March 19, 2017 @ 6:24 am

    There is another argument for the low-or reading that figures in the argument of the drivers, and in the opinion. On the high-or reading, "distribution" is a conjunct with the phrase headed by "packing", as well as the preceding conjuncts beginning with "canning". This is claimed to be inconsistent with a "parallel usage convention" on conjunctive constructions, because "packing" is said to be a gerund, while "distribution" is a noun.
    This reasoning is incorrect. The conjunctive phrase in the law has nominal syntax, as evidenced by the determiner "the" and the complement marked by "of". In this context it is possible to conjoin a noun (such as the derived noun "distribution) and an "-ing" form word derived from a verb. In fact the specific words "packing" and "distribution" occur frequently as conjuncts, including in formal language, legal language, and discussions of perishable foodstuffs. For instance at apples.ahdb.org.uk, one can find a discussion of "post-storage packing and distribution of fruit".
    This undermines the opinion, because in its concluding section IV, it balances the supposed parallelism violation in the high-or reading against the missing-conjunction problem with the low-or reading: "We are reluctant to conclude from the text alone that the legislature clearly chose to deploy the nonstandard grammatical device of asyndeton. But we are also reluctant to overlook the seemingly anomalous violation of the parallel usage canon that Oakhurst's reading of the text produces."

  2. Linda said,

    March 19, 2017 @ 7:51 am

    To me shipping and distribution are two different activities. Shipping implies taking a single load from point A to point B where the whole thing is unloaded. Distribution is carrying several part loads in a single vehicle for unloading at points C, D, E ……..

    So my instinctive reading was "packing for (shipment or distribution) of".

  3. Neal Goldfarb said,

    March 19, 2017 @ 2:06 pm

    Adding to what Mats Rooth says…Both Google ngrams and COCA show that the distribution of is very much more frequent than the distributing of.

    COCA has >2700 tokens of the distribution of, and none of the distributing of. And in Google ngrams, the frequency of the distribution of is several orders of magnitude larger than that of the distributing of. Presumably, the gerundive construction is preempted by the availability and frequent use of the nominalized construction.

    This seems to me to pretty much eviscerate the lack-of-parallelism argument (though props are nevertheless due to whoever first raised it, for above-average linguistic sophistication).

  4. Guy said,

    March 19, 2017 @ 4:43 pm

    Yeah, it's total nonsense to say that "distribution" should be "distributing" if it is outside the "for" phrase. These are all deverbal nouns (as shown by the "the", or maybe even more clearly, any native speaker should know that it could be "canning of X" in this context but could not be "canning X" in this context) and the other gerund-derived nouns don't have other (and more common) nominal forms like "distribution" does.

  5. a George said,

    March 19, 2017 @ 5:35 pm

    My impression is that overtime pay does not apply to stationary processes, such as those enumerated, including packing for whatever purpose. Drivers who either perform shipping or local (!) distribution are not stationary, and they are hence entitled to time overpay.

    There is no need to resort to "the broad purpose of employment law", and I am saddened by this argument.

    I am quite confident that language understanding software would be able to classify the individual terms correctly and bunch them accordingly. You just need to tell the software this once.

  6. Rubrick said,

    March 19, 2017 @ 6:13 pm

    In contrast with a George, I found this passage: They simply construed the statute in favor of the truck drivers because the broad purpose of employment law is to protect employees. to be the most heartening of the whole story (whereas the exclusion of meat packers et al from the statute itself was deppressing).

    It's interesting (and comforting) that no one seems to be contending that the statute should only apply to people who are handling all three of agricultural produce, meat and fish products, and perishable foods, which could theoretically be implied by the use of and rather than or in the final enumerated clause.

  7. Viseguy said,

    March 19, 2017 @ 7:42 pm

    My (language) hat's off to a George for the "stationary" observation. On the internal evidence of the statute itself (and absent legislative history indicating that truck drivers were intended to be included), this is the tiebreaker that the judges should have hung their hats on, IMO. Aside from appealing to common sense, it obviates the need for legal arguments about punctuation, which, here, border on the fatuous given the drafting manual's proscription of the serial comma. Asyndeton in the sausage factory? Give me a break.

    That said, I have a great deal of sympathy for Rubrick's point of view, the International Ladies' Garment Workers Union having helped put me through college. While I'm not "saddened" by the judge's reliance on the employee protection argument, the elegance of the "stationary" distinction would have left me gladdened.

  8. Michael Sullivan said,

    March 19, 2017 @ 11:29 pm

    A George's point is important from the viewpoint of statutory construction. There is a canon of statutory construction called "eiusdem generis," under which under which a recitation of multiple subjects of regulation that have one or more aspects in common means that ambiguity should be resolved by guidance from those common elements. For example, if a statute applies to "burglar's tools, including pry-bars, ladders, lockpicks, and grapnels," the canon would support inclusion of rope but not cybertools. The fact that all of the other actions were on-site, while distribution was not, militants in favor of "distribution" being construed as an aspect of "packing" that is performed on-site.

  9. Flex said,

    March 20, 2017 @ 6:49 am

    When I read the original ordinance the impression I get is that the key word in there is 'perishable'. With this in mind there is some redundancy in the list of products. Meat and fish are both perishable, as are many (but not all) agricultural products.

    So the intent I read in the legislation is that overtime pay need not be paid to people who's job requires working with goods which will degrade if they are not processed in time. E.g. a crop of tomatoes may require them to be harvested in a single day, and if a worker has to work 10 hours to get the job done then overtime need not be paid because the job cannot wait. Deliveries of bread may require overtime on the part of the driver to avoid it going stale.

    This is similar to what Michael Sullivan suggested, that ambiguity should be resolved in reference to the common elements. In this case, I could see the legislature intending the common element to be perishable goods. I'm not saying I agree with that interpretation of the statute, but I could see that intent.

    Of course this would muddle the court battle immensely. Some truck drivers would get overtime and others would not depending on how perishable the product is.

  10. Alan Gunn said,

    March 20, 2017 @ 7:31 am

    The court's tiebreaker principle that ambiguous rules should be interpreted in favor of liability strikes me as unfortunate (except for trial lawyers, of course). If the law doesn't clearly subject ones conduct to liability, liability should not be imposed. Saying that the law was intended to protect workers doesn't support liability, because it was plainly intended both to benefit some workers and to exclude others from receiving that benefit. The exception to the overtime rule is just as much a part of the law as the underlying rule itself.

  11. Gabe Burns said,

    March 20, 2017 @ 9:18 am

    I'm inclined to agree with Flex here. It would be interesting to see if the context gave any further indication of the purpose of the statute, but looking at it in a vacuum, the only justification I can come up with for exempting these particular tasks from overtime pay is the inherent urgency of dealing with perishable goods. I see no reason, as A George argues, that the stationary nature of the tasks should be the key consideration. In fact, most jobs are stationary, so why then should these particular jobs be exempted from overtime? The only reason I can see is that they have an inherent, unavoidable and, to a large extent, uncontrollable urgency to them. In that light, it's natural to include the truck drivers in this category, because their job has the same urgency.

  12. a George said,

    March 20, 2017 @ 11:07 am

    I do not know the legislative history of Maine, but like other commenters, I am allowed to speculate.

    I think that the statute is from an age where each of the steps in the stationary processes had refrigerating capacity available — overtime would not occur or would at least be very brief if it were necessary to store the perishable produce before resuming normal work. Even when packed for shipping and/or distribution the produce could go back to the refrigerated stores. However, trucks for shipping and distributing may not have had refrigerating capacity, and hence the truck drivers were forced to finish the job, which might create a large overtime that they had properly earned. It is not so any longer — refrigerating vans and trucks are all over the place. I am confident that the court knew all this, but the only way they could be made aware of it is if the parties inform the court.

    Hence, we need to know the stature in its proper context, and if it has been overtaken by development, it ought to be changed so that similar situations do not occur. But, then there will be other opportunities for conflict.

  13. Gregory Kusnick said,

    March 20, 2017 @ 1:02 pm

    George and Michael Sullivan: In what sense is marketing a "stationary" or "on-site" activity? I expect it involves a considerable amount of travel on the part of sales reps who visit retail stores to show samples and take orders.

  14. a George said,

    March 20, 2017 @ 1:50 pm

    Yep, sales reps really have to work hard, and no overtime, because the buyers in the retail stores go home early! And the perishables carried around look more and more sorry as the day goes. Certainly not the fun end of business. Perhaps they go into the refrigerating bays afterwards, just to cool off. All the while the marketing people sit on their F A and are very stationary.

  15. A. said,

    March 20, 2017 @ 2:11 pm

    Now, the lawyers for (b) argued back that (c) wasn't so plausible either because shipment = distribution

    I read it as (c) precisely because "shipment" and "distribution" are so similar that my brain interpreted that "or" to mean something like "also known as".

  16. DWalker07 said,

    March 20, 2017 @ 5:05 pm

    I am amazed that the time spent doing any, or all, of those tasks are exempt from overtime pay. Why in the world?

    If you are working in a canning factory, doing canning, you don't get overtime? The mind wobbles.

  17. DWC said,

    March 20, 2017 @ 7:40 pm

    Is there anything that says the asyndeton in c) has to be an OR? Since the conjunction isn't specified, couldn't it be an AND? And if it is an AND, then practically no workers would be exempt from overtime pay, since none of them do all those tasks. But then again, I suppose Bayes' theorem wouldn't allow an AND reading for the list.

  18. Jenny Chu said,

    March 21, 2017 @ 7:55 pm

    Because this is Language Log and not Orthography Log, I can't help but wonder about what this dispute would look like if it were put into a spoken-word context: how would this have turned out if the dispute were based on a recording of people making a verbal agreement? (Don't know if that even has legal weight but it probably could.) Or – not to be oralist about this – if it were a video of a signed agreement?

    Would there be disputes about an "Oxford pause"?

  19. Paul Kay said,

    March 22, 2017 @ 4:31 pm

    An odd thing about the Oxford comma dilemma is that it can't be solved by an individual. If one never uses the OC, "A, B and C " will risk this kind of ambiguity. But if one always uses the OC, "A, B and C" will also risk ambiguity unless one adds "I always use the Oxford comma."

  20. Mats Rooth said,

    March 25, 2017 @ 10:06 am

    DWC raises the question whether the null conjunction in the drivers' structure is a null AND or a null OR. I can read (i) as equivalent to (ii), but not as equivalent to (iii).

    (i) They reside in western Pennsylvania, upstate New York, Ohio.

    (ii) They reside in western Pennsylvania, upstate New York, and Ohio.
    (iii) They reside in western Pennsylvania, upstate New York, or Ohio.

    If we conclude there is no null OR morpheme, the null conjunction in the drivers' structure has to be AND. It does not necessarily follow, though, that that conjuction has narrow scope as in the reading mentioned by DWC. I guess the scope of the 'and' in (iv) is ambiguous.

    (iv) They prohibit the picking and transportation of wild blueberries.

    This leads to the possibility that the covert AND in the drivers' structure has wide scope, obviating DWC's objection. By the way, the wide scope 'and' in (iv) is equivalent to 'or'. This and the law statement are among the many constructions where 'and' and 'or' can be read as equivalent. This accounts for the temptation to identify the null conjunction as OR, if indeed anybody did that.

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