The Weight of a Word How Legal Language Learned to Say Exactly What It Means

The sentence that cost a Maine dairy company five million dollars is short enough to read in a single breath. It is part of a state overtime law, and it lists the kinds of work that do not earn extra pay after forty hours. The exempt activities are canning, processing, preserving, freezing, drying, marketing, storing, and then a final phrase: packing for shipment or distribution of agricultural produce, meat and fish products, and perishable foods.

Look at that last phrase. Between the word "shipment" and the word "or" there is no comma. Everything turned on that gap.

The people affected were delivery drivers for Oakhurst Dairy. They picked up milk and other products and carried them to stores and warehouses. The drivers said they had been working overtime without being paid for it. The company said the law exempted them, because the exemption covered "distribution," and distributing dairy is exactly what drivers do.

The drivers read the sentence another way. With no comma after "shipment," the phrase "packing for shipment or distribution" can be understood as a single activity: packing for the purpose of shipment, or packing for the purpose of distribution. Under that reading, the exemption covers the people who box up the goods. It does not cover the people who drive them. If the legislature had put a comma after "shipment," then "distribution" would stand on its own as a separate exempt activity, and the drivers would be out of luck.

The case reached the federal appeals court in Boston, and the judges began their opinion with a line that has since been quoted in law schools and newsrooms: for want of a comma, we have this case. The court found the sentence genuinely ambiguous. It noted that Maine's own legislative drafting guidance discourages the serial comma, the comma before the final item in a list, which is the very tool that would have settled the question.