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The Serious, Serious Comma

The Serious, Serious Comma

February 25, 2020 By Yashmyn Jackson

To prevent ambiguities, we editors correct or otherwise comment on less-than-careful punctuation—the comma, in particular.

But we don’t often get to point to actual cases (pun intended) in which those ambiguities fuel lawsuits between disputing parties.

At last year’s ACES conference, I presented a session called “The Serious, Serious Comma: Legal Cases Featuring Serial, Non-Serial, and Nonexistent Commas.” We looked at legal cases in which the use or omission ofa comma influenced—or (despite the losing party’s best arguments) failed to influence—a court’s construction of text.

I’m an editor now, but I used to be a practicing lawyer. If you want to take a quick dip into what used to be my world, have a look at the case descriptions below. For each case, determine whether you agree with the court/majority or with the dissent. Then, try rewriting the relevant text so that it most clearly has either the meaning determined by the majority or the one asserted by the dissent.

Your rewrites won’t affect these already closed cases, but they may help you understand just how important the placement of one tiny piece of punctuation can be.

O’Connor v. Oakhurst Dairy (1st Cir. March 13, 2017)

Case background

A Maine dairy and its drivers disagreed about whether the drivers were exempt from the state’s overtime statute (the relevant portion of which appears below). The drivers indisputably engaged in distribution. Despite the omission of a serial comma before “distribution” in the statute—where a serial comma would have made clear that distribution was a stand-alone exempt activity under the law—the district court interpreted distribution to indeed be a stand-alone exempt activity anyway. So it held that the drivers fell outside the overtime statute’s scope. The drivers appealed the decision to the appeals court.

Relevant text

Employees engaged in any of the following excluded activities are not covered by the overtime statute: “[t]he 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.”

(26 M.R.S.A. § 664(3)(F))

Question for the court

Does “packing for shipment or distribution” refer to the single exempt activity of “packing,” whether the “packing” is for “shipment” or for “distribution”? Or does it instead refer to two distinct exempt activities: “packing for shipment” and “distribution”?

Key grammatical factor(s) considered

Court’s decision

The appeals court would have held for the dairy if the statute had included a serial comma before “or distribution”; but the omission of that serial comma was not by itself the reason that the appeals court reversed the district court’s ruling. The appeals court also didn’t fully accept the drivers’ argument that the reason no conjunction appeared before “packing” —when a conjunction would have made clear that “packing” was the final general item in the list of exempt activities—was that the Maine Legislature had simply employed asyndeton here. Further, the appeals court wasn’t convinced that the lack of parallel construction (referring to the use of “distribution” instead of “distributing”) was enough to make it rule that “distribution” was a stand-alone exempt activity.

Still, the appeals court did reverse the district court’s ruling—because the provision was ambiguous. Typically, that court interpreted statutes that had a specific remedial purpose (which, in this case, was to provide overtime pay protection to employees) but that were ambiguous, in such a way that the remedial purpose was served.

Dissent; other notes

3M Innovative Properties Co. v. Tredegar Corp. (Fed. Cir. Aug. 6, 2013)

Case background

3M, a manufacturer of elastomeric laminates such as baby diapers and adult incontinence products, sued a competitor, Tredegar, for patent infringement. Before any infringement (or lack thereof) could be decided, the court needed to determine which features fell within the scope of the patent, based in part on the patent claim that appears below. It was to 3M’s benefit for as many features as possible to fall within the scope of the patent.

Relevant text

One in-scope feature was “[a]n elastomeric laminate consisting essentially of at least one elastomeric layer and at least one continuous microtextured skin layer over substantially the entire laminate.”

Question for the court

For this feature to be within the scope of the patent, must the microtexturing itself (vs. only the skin layer) be continuous across substantially the entire surface area of the laminate?

Key grammatical factor(s) considered

Even though neither the word “coordinate” nor the word “cumulative” actually appears in the opinion (and even though it’s rare for the same pair of adjectives to potentially qualify as both coordinate and cumulative):

Court’s decision

The court treated “continuous microtextured skin layer” as a phrase consisting of two cumulative adjectives (“continuous” and “microtextured”), meaning that the “microtextured skin layer” had to be continuous (or substantially continuous). Treating these adjectives as cumulative resulted in less patent coverage than treating them as coordinate would have. A “coordinate adjective” reading would have meant only that the skin layer had to be both microtextured and continuous—the microtexturing itself wouldn’t need to be continuous.

Dissent; other notes

A partially dissenting opinion and 3M itself made an argument that was similar to one made by a participant in the ACES session: The omission of a comma between “continuous” and “microtextured” is irrelevant to the meaning of the phrase. The adverb “continuously” instead of the adjective “continuous” would have been used if the patent had been intended to apply to a skin layer that was microtextured across the entire surface, the dissent argued. (The majority, although it recognized this argument, was satisfied that its own reading was reasonable.)

Kasischke v. State of Florida (Fla. July 10, 2008)

Case background

A registered child sex offender was found to have possessed a pornographic videotape during his parole. The videotape contained no references to children. His parole agreement, which identified the items he was prohibited from possessing, included the provision that appears below.

Relevant text

The offender is prohibited “from viewing, owning or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.” (As subsequently renumbered, § 948.30(1)(g), Fla. Stat.)

Question for the court

Does this provision prohibit possession of all obscene, pornographic, and sexually stimulating materials? Or only those that are “relevant to the offender’s deviant behavior pattern”? Specifically, which earlier part of the sentence is modified by that quoted phrase?

Key grammatical factor(s) considered

Rule of the last antecedent—a doctrine by which a qualifying/modifying phrase is read as limited to the last item in a series when the phrase follows that item without a comma (so that in the expression “the cars, the bicycles, and the scooters, parked in the garage,” the phrase “parked in the garage” would likely be read to apply to all three of the preceding items, but in an expression that omitted the comma before “parked,” would be more likely to be read to apply only to “the scooters”).

Court’s decision

The court found the statute ambiguous, finding four possible interpretations (as quoted from the opinion):

(1) as prohibiting all obscene, pornographic, or sexually stimulating material as well as any telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern …; (2) as clarifying that “telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern” are within the ban on “obscene, pornographic, or sexually stimulating” material …; (3) as prohibiting only such material that was relevant to the offender’s deviant behavior pattern; and (4) as prohibiting all obscene and pornographic material but prohibiting sexually stimulating visual or auditory material only when relevant to the offender’s deviant behavior pattern.

Because it considered the statute ambiguous, the court applied the rule of lenity (under which, when a criminal statute is ambiguous, the court construes it in the manner that’s most favorable to the accused).

Dissent; other notes

The dissent argued that there was no ambiguity—that is, that the rule of the last antecedent means that the “that are relevant to” clause applies only to the phrase “including … computer services,” not to the text before it.

Interestingly, later in the same statute, the prohibition is phrased in a way that substantially reduces ambiguity: The probationer is prohibited “from viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material unless otherwise indicated in the treatment plan provided by a qualified practitioner in the sexual offender treatment program. Visual or auditory material includes, but is not limited to, telephone, electronic media, computer programs, and computer services.” (§ 948.30(5), Fla. Stat.)

The Serious, Serious Comma was originally published in Tracking Changes (Summer 2019 edition). Members receive a PDF of the quarterly Tracking Changes newsletter by email.

Header Photo by Wesley Tingey on Unsplash

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