By Josh S. Tatum, Plews Shadley Racher & Braun LLP; Stephen R. Creason, Office of the Indiana Attorney General
The U.S. Court of Appeals for the First Circuit handed down an opinion that interpreted the phrase “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution” to group “packing for shipment or distribution” together rather than as the last two items in the list. The court noted that a comma before “or,” known as the Oxford or serial comma, would have made the sentence clear. As a result of the ambiguity caused by the Maine legislature’s exclusion of a serial comma, the court held for a group of delivery drivers in the case involving overtime eligibility. The Maine legislature’s style guide, like the AP Style Guide, instructs drafters against using serial commas. But it also provides, “Be careful if an item in the series is modified,” before listing several examples of ambiguous language involving lists without the last comma. Read about the case here. Listen to the oral argument in the case here.
On a related note, the Indiana General Assembly's Bill Drafting Manual, Subchapter II(C)(25) explains the comma rules, and it sets an expectation that the serial comma is used in legislation so as to avoid this sort of ambiguity.
For more on the serial comma, see here. And for an educational infographic with explanations and examples, see here.
If you would like to submit content or write an article for the Appellate Practice Section page, please email Kara Sikorski at email@example.com.