The Last Word

The Last Word Editor: Marie Antoinette Moore, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., 909 Poydras Street, Suite 2800, New Orleans, LA 70112, (504) 2992100.

The Valuable Oxford, Harvard, Serial Comma

I don’t understand the reluctance of American lawyers (well, the outright refusal of many American lawyers) to use the comma that Sister Mary Particular taught me to place before the last item in a list—the serial, aka Oxford, aka Harvard comma. It’s a simple, clarifying tool that costs us nothing. See Marie A. Moore, Practical Punctuation (Part 3): The Comma Law, 29 Prob. & Prop. 64 (May/June 2015). Professor Bryan Garner observes, “It is never incorrect, but omitting it sometimes results in awkwardness, miscues, or even ambiguities.” Bryan A. Garner, The Redbook: A Manual on Legal Style 4 (3d ed. 2013). Strunk & White, our law school grammar bible, also prescribes serial commas. William Strunk, Jr. & E.B. White, The Elements of Style 2 (4th ed. 2000). Yet, I recently had a heated dispute with one of my well-respected law partners on the value of these commas. Let’s look at the considerations.

Wikipedia—that universal “authority” on conventional wisdom that my law partner cited—tells us that British usage (except, of course, the usage prescribed by the Oxford Style Manual) does not favor the Oxford comma, but “[a] majority of American style guides mandate the use of the serial comma.” Serial Comma, Wikipedia, https:// en.wikipedia.org/wiki/Serial_comma (last updated July 13, 2022). As the arguments against the serial comma, this “authority” lists the inconsistency of a serial comma with conventional practice and its introduction of ambiguity and unnecessary bulk. Id. The conventional practice and unnecessary bulk reasons are excuses, not reasons—just because everyone does something is not a reason to do it, and a comma as bulk, really? Ambiguity would be the only real reason for omitting the serial comma, but Wikipedia’s sole example assumes that in “To my mother, Ayn Rand, and God,” the reader would assume that Ayn Rand was the author’s mother. On the other hand, this authority’s list of reasons for using the serial comma also includes conventional practice and avoiding ambiguity, and it gives many examples of possible ambiguities created by omitting serial commas, not just one example.

A few years ago, the First Circuit gave a prime and notorious example of the ambiguity that may stem from the omission of a serial comma. In O’Connor v. Oakhurst Dairy, a Maine statute requiring that employees be given overtime pay excluded workers engaged in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” certain food products. 851 F.3d 69, 71 (1st Cir. 2017) (emphasis added). The delivery drivers asserted that this law exempted only workers that were engaged in “packing for . . . distribution,” not delivery drivers engaged in “distribution” alone. Id. The court held that this language was ambiguous and that this ambiguity required an interpretation that furthers the law’s purpose—providing overtime to workers. Id. at 80–81. It also observed that had a comma been inserted after “shipment,” there would have been no ambiguity, and the result would have favored the employers. Id. at 72.

In his 2018 The Last Word contribution addressing the Oakhurst decision, Joshua Stein opined that the court imposed an ancient, unnecessary construction on the statutory phrase— but the court’s interpretation seems perfectly understandable to a literal reader like me. Joshua Stein, An Expensive Dispute about Serial Commas, 32 Prob. & Prop. 64 (May/June 2018). Other legal commentators correctly pounced on this case to support the invariable use of serial commas, particularly in laws and agreements. See, e.g., Harrison M. Rosenthal, Kill the Comma? A Case for Punctuation Preservation, 87 J. Kan. B.A. 25 (Feb. 2018); Douglas Abrams, The Pesky Serial Comma, 73 J. Mo. B. 212 (July-Aug. 2017). In his article championing the use of serial commas, commentator David A. Marcello observes that the use of serial commas and other plain-language drafting techniques, such as listing a series of items in a vertical list, not only aids the reader’s understanding that the last two listed items are separate, but also help the drafter analyze what his or her clause is communicating; for example, when the drafter uses a serial comma, he or she must think through whether, in the Oakhurst example, the drafter means “packing for shipping” and “distribution,” separately, or a joined reference to “packing for shipping and distribution.” David A. Marcello, The Case of the Serial Comma: What Can Plain-Language Drafting Tell Legislative Drafters?, 19 Scribes J. Legal Writing 127, 133–35 (2020). So, the serial comma is better for readers and drafters alike!

Sure, my law partner and others were taught not to use that extra comma—that it’s not good style. But as contract drafters, our goal is not style; instead, what we need is clarity. And American grammar gurus and Oakhurst both make clear that if we want clarity, we must use the serial comma. 

Probate & Property, November/December 2022