Oxford comma plays dramatic role in $10m lawsuit

At last, a legal case I can get excited about. That hasn't happened since the OJ Simpson trial more than 20 years ago but the decision in this one is even more sensational. A recent court case in Maine turned on something far more dramatic than a bloody glove: a comma. Or, to be pedantic, and if nothing else this blog is about pedantry, the lack of a comma.

I warned you it was exciting. Before we get down to the details though you need to know that this comma (or lack of a comma) wasn't any old comma. It was the mighty Oxford comma, the much-maligned Richard III of the grammar world (and not because it’s a funny shape).

What’s an Oxford comma, you ask? I’ll get to that but first you need a bit of background.

The case was brought in Maine by a group of drivers against their employer, Oakhurst Dairy, for overtime pay. The company argued that no overtime was due because Maine state law says overtime does not apply to certain activities. Specifically, it excludes "the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of" perishable goods.

This is the bit where you need to concentrate. The case hinged on the last words, "packing for shipment or distribution". The court had to determine if these were two separate activities – "packing for shipping" and "distribution" – or one activity, "packing for shipping or distribution".

The drivers argued the latter and that they were entitled to overtime pay for work that involved "distribution" on the basis that this wasn't an excluded activity. The court agreed (in a 29-page judgement), and 75 drivers have been awarded a share in $10m worth of unpaid overtime.

Now back to the Oxford comma (sometimes called the serial comma). It is a comma used to separate the last item in a list of three or more items in order to avoid ambiguity. It’s an optional comma, though, and its use depends on the context.

In the sentence, "I like cricket, cycling and long walks in the country" you wouldn't use a comma after the word "cycling" as it is unnecessary.

But, there's a world of difference between saying "I want to thank my parents, Justin Bieber, and Helen Mirren" and, "I want to thank my parents, Justin Bieber and Helen Mirren”. The latter sentence, without the Oxford comma, implies that the parents are Justin Bieber and Helen Mirren. Unlikely.

Despite this, some people argue that the Oxford comma is an unnecessary affectation – like James Bond and his shaken, not stirred, martinis.

This argument arouses great passion. American rock band Vampire Weekend released a single called Oxford Comma in 2008, the opening line of which asked: "Who gives a fuck about an Oxford comma?"

Clearly, many people do. There was a furore six years ago when it was reported that Oxford University had committed grammatical infanticide by dropping the Oxford comma from its style guide. This had the grammar stormtroopers goosestepping all the way to the letters pages of the Times and the Telegraph, although it turned out the reports were erroneous. (The Oxford comma had only been banned by Oxford University for press releases and internal memos.)

In the Maine drivers’ case, an Oxford comma after the word "shipment" would have made it clear that the distribution of perishable foods was excluded from overtime. Whoever wrote the clause should have taken heed of the grammar bible The Elements of Style by Struck and White, (the Lennon and McCartney of grammar, or would be if they had had more than one hit).

Despite its catchy title, The Elements of Style isn't much of a read but it is clear about where it stands on the Oxford comma: "In a series of three or more terms with a single conjunction, use a comma after each term except the last. Thus … 'red, white, and blue'." 

"That comma would have sunk our ship," said David G. Webbert, the lawyer who represented the drivers. As it was, there was enough uncertainty for the decision to go in his client’s favour.

So what next for the Oxford comma? Who knows, but this decision will have reverberated through the pages of grammar textbooks around the world. I can only imagine the semicolon is seething. Twice the ink of an Oxford comma yet no one ever mentions it except to say they have no idea what it does.

If the OJ trial is anything to go by, in 20 years time we’ll all be glued to the latest Netflix mini-series, Oxford Comma, hopefully starring Justin Bieber and Helen Mirren. I, for one, can’t wait.