The Oxford Comma and the Law

The legal dispute between the Oakhurst Dairy and its drivers has been settled. As widely reported in the media, the dispute hinged on the use, or omission, of the Oxford comma. But the media, or at least the New York Times, is still getting it wrong. The ambiguity in the law was never just about the Oxford comma. The court ruled that the law as a whole was badly worded and ambiguous and made its ruling based on the legislative intent of the law, not the punctuation.

The latest New York Times article says that because of the settlement we’ll never get a legal ruling on the Oxford comma, but again, that’s wrong. The court had resolved the ambiguity in the law in favor of the drivers, and the ongoing proceedings were to determine the facts of the case and what damages, if any, were to be awarded the drivers. The settlement puts an end to that process.

The story, in all its grammatical detail, as I wrote it on 17 March 2017:

The Oxford comma was in the news recently when a federal court interpreted a Maine statute regarding overtime pay for dairy truck drivers. In the case of O’Connor, et al. v. Oakhurst Dairy, the lack of a comma, or so the news stories would have it, resulted in a victory for workers’ rights. The Oxford comma (serial comma) is the comma after the penultimate item in a list, as in me, myself, and I; the Oxford comma is the one after myself.

The problem with the news reporting on this case is that the ambiguity does not rest solely with the lack of a comma. And, more importantly, the decision of the circuit court did not rest on the punctuation but rather relied on other methods to interpret the statute in question.

First, let’s get this out of the way: the Oxford comma is a style choice. It’s not a hard rule of punctuation. Whether or not one chooses to use it is optional. Those in favor of using it often argue that its use removes ambiguity, but that’s not necessarily the case. Its use can create ambiguity just as often as its omission. For every instance of ambiguity resolved by its exclusion, as in I’d like to thank my godparents, Jane Doe and John Smith (is the speaker thanking two people—Jane and John are the godparents—or four?), there is an instance like I’d like to thank Jane Doe, my aunt, and John Smith (again, is it two people—Jane Doe is the aunt—or three?). Both consistent use and consistent non-use of the Oxford comma will result in ambiguity at some point, and when faced with such ambiguity one must either be inconsistent, adding or deleting it as appropriate, or rephrase the sentence.

But back to the case at hand.

Maine law, 26 M.R.S.A. § 664(3), requires that workers be paid time and a half for work in excess of forty hours per week. But that law has several exceptions, one of them, subsection (F), being that the overtime rule doesn’t apply to:

The 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.

Oakhurst Dairy in Portland, Maine did not pay its delivery drivers overtime, and the drivers sued for the overtime wages they felt they were entitled to under the law. The lack of a comma after shipment created ambiguity—are packing for shipment and distribution one or two distinct activities? If they are one activity—the packing in preparation for delivery—then the drivers, who only deliver and do not pack, are owed overtime because the actual delivery is not exempt from the overtime rule. If they are two activities, the delivery (i.e., the shipment or distribution) is exempt, then they are not owed the money.

The Maine Legislative Drafting Manual dictates that statutes not use the Oxford comma and advises that the sentence should be rephrased if ambiguity results from its omission. And the practice in Maine follows this guideline; Oxford commas are just not found in its laws. This preferred style practice would lead one to conclude that packing for shipment and distribution are two distinct activities, both exempt from the overtime requirement. This interpretation is reinforced by the use of the synonyms shipment and distribution. If they are not distinct activities then the use of both is redundant.

Furthermore, there is no conjunction preceding packing. In such lists we normally expect a conjunction before the last item. If the law intended shipment and distribution to be a single activity, it would have read ...storing or packing for shipment or distribution.

And indeed, the federal district court for Maine followed this logic and interpreted shipment and distribution to be distinct and denied the drivers’ suit.

But it’s not that simple. The drivers appealed and argued before the circuit court that shipment and distribution are not redundant, that shipment refers to use of third-party carriers, while distribution refers to delivery by the employer’s own drivers. The drivers cited dictionary definitions, the use by Oakhurst Dairy in its in-house communications, as well as other Maine statutes that treat the shipment and distribution as distinct activities and not redundant to support this distinction.

The drivers also argue that since all the other activities in the list, aside from shipment and distribution, are gerunds (e.g., canning, processing, preserving), the grammatical rule of parallel construction would indicate that shipment or distribution is a modifier of packing and are not activities subject to the exemption. If they were intended to be distinct activities, the law would read ...storing, packing for shipment or distributing, rather than distribution.

And as for the lack of a conjunction before packing, the drivers point to the use of asyndeton, the deliberate omission of a conjunction from a list, as in I came, I saw, I conquered. But the use of asyndeton in law, and in Maine statute in particular, is rare, so the circuit court concluded that this particular rejoinder was not very convincing.

After all this, the circuit court concluded that any plain reading of the text was ambiguous, and that methods other than grammar had to be used to determine its meaning. Instead, the court relied on the general principle in interpreting Maine law that ambiguous provisions “should be liberally construed to further the beneficent purposes for which they are enacted.” And since the overtime rule was enacted to further the health and well-being of workers, the circuit court ruled in the drivers’ favor and reversed the district court’s ruling.

Now that the decision has been made that the drivers are not exempt from the overtime law, the case goes back to the district court for trial to determine if they did in fact work the overtime hours, and, presumably, that any such overtime did not involve packing. Or, of course, it could be settled out of court.

This case is far from the first where the comma has played a role in how a statute is interpreted. In 1872, the Tariff Act of 1870 was revised with devastating consequence to U.S. federal tax revenue. The original act had exempted from tariffs fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation. But the 1872 revision inserted a comma between fruit and plants. In the original act, the only thing that was exempt from tariffs were the fruit plants themselves. The fruit itself and other types of plants were subject to taxes. The addition of the comma, reading fruit, plants, tropical and semi-tropical, meant that all fruit as well as all plants were exempt from the tariff.

In 1989, in the case of United States v. Ron Pair Enterprises, Inc., the U. S. Supreme Court ruled that the comma did have interpretive weight. At question was the meaning of § 506(b) of Chapter 11 of the 1978 Bankruptcy Code. That law reads:

...there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.

The court ruled that the comma after interest on such claim, meant that the interest did not have to be part of the original agreement and that the holder of the claim could receive interest that accrued after the bankruptcy filing. The interest is contrast to reasonable fees, costs, and charges, which are only due if they arose as part of the original agreement prior to bankruptcy.

And, of course the commas in the Second Amendment to the U.S. Constitution have been the subject of endless controversy—which I don’t care to re-litigate here. That amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

But these other cases do not involve the Oxford comma. To my knowledge, O’Connor, et al. v. Oakhurst Dairy is the first legal case that involves this particular use of the comma, and the courts ruled here that the punctuation is not dispositive. In other words, the Oxford comma cannot, at least in and of itself, be taken as determinative of meaning. In this, the news reports have been getting it wrong—whether or not one uses the Oxford comma just doesn’t matter all that much, in law or anywhere else.

ADS Word of the Year: fake news

7 January 2018

On 5 January, the American Dialect Society chose fake news as its 2017 Word of the Year. The ADS defined fake news as either “disinformation or falsehoods presented as real news” or “actual news that is claimed to be untrue.” The phrase was considered during the organization’s deliberations for the 2016 Word of the Year (WOTY), but in that year it was being used only in the first of these two senses. Donald Trump began using it in the second sense in 2017, and it is this sense that catapulted it into the top spot. As far as I know, this is the first time a word has been considered in multiple years. (The ADS uses an expansive definition of word, that of “vocabulary item,” which includes phrases, hashtags, and the like.)

This is the twenty-eighth year the ADS has selected a WOTY, making it the most venerable of the organizations that do so. The organization comprises linguists, lexicographers, and those who study and write about language professionally. While the aims of the organization are scholarly, the WOTY selection is not a scholarly exercise, but rather one performed for fun and to educate the public about how language change is a normal, ongoing process.

While the single WOTY is noteworthy, perhaps more compelling are the words that were considered for the various categories the ADS votes on. The selections and the vote tallies are as follows:

Word of the Year

  • fake news, 196

  • #MeToo, indication by women that they have experienced sexual harassment or assault, 35

  • take a knee, to kneel in protest, especially during a time when others are standing, 30

  • alternative facts, contrary information that matches one’s preferred narrative or interpretation of events (this is the definition given by the ADS; I would define it as euphemism for lies, 12

  • persisterhood, persister, blend of persist and sister(hood), an expression of solidarity for women who persist in the face of sexism and gender bias, 6

  • milkshake duck, person or thing that is deeply loved until problematic behavior is revealed or unearthed, 5

  • whomst, humorous variant of “whom” used as a sarcastic display of intelligence, 3

  • pussyhat, pink knitted hat worn by demonstrators at the Women’s March, 2

Political WOTY

  • take a knee, 181

  • persister, persisterhood, 62

  • antifa, anti-fascist movements and organizations, treated as a whole, 16

Digital WOTY

  • shitpost, an online posting of worthless or irrelevant online content intended to derail a conversation or to provoke others, 78

  • rogue adj., describing someone ostensibly working in an administration who is posting messages against it, 34

  • ratio, on Twitter, amount of replies to a tweet compared to the number of retweets and likes, 25

  • get the zucc, be banned from Facebook (from the name of Facebook founder Mark Zuckerberg), 24

  • initial coin offering, capital-raising process to collect funds to start up a new cryptocurrency, 21

  • emergency podcast, an audio show prepared at a moment of dire political need, 20

  • digital blackface, when a (usually white) person uses images of black people as a proxy for themselves on social media, 19

  • blockchain, technology underlying cryptocurrencies like bitcoin, which exploded in value this year, 18

Slang/Informal WOTY

  • wypipo, humorous phonetic spelling of white people used to flag white privilege, cluelessness, or absurdity, 168

  • snatched, good-looking, attractive, 22

  • shooketh, mock-archaic way of expressing shock or excitement, 18

  • RIP, humorous expression of being overwhelmed by emotions or other factors, as if dying, 5

Most Useful

  • die by suicide, a variant of to commit suicide that does not suggest a criminal act, 108

  • -burger, combining form modeled on nothingburger, 60

  • angry react, sad react, expression of anger or sorrow (describing reaction emoji, e.g. on Facebook), 38

  • millennial pink, tint of pink used in goods and social media by and for millennials, 8

Most Likely to Succeed

  • fake news, 226

  • unicorn, a one-of-a-kind person or thing, 20

  • stan, v., be a big fan (from the Eminem song, “Stan”), 2

Most Creative

  • broflake, man or boy who lacks resilience or coping skills in the face of disagreements or setbacks, 100

  • askhole, person who continuously asks ridiculous or obnoxious questions, 78

  • milkshake duck, 50

  • caucacity, blatantly exhibiting white privilege or acting in a stereotypically white way (a blend of Caucasian and audacity), 36

Euphemism of the Year

  • alternative facts, 181

  • avocado toast, a minor indulgence for which people unfairly judge others, esp. millennials, 43

  • internet freedom, removal of net-neutrality regulations by the FCC, 23

  • problematic, an understated way to say something is very wrong or unacceptably politically incorrect, 13

WTF WOTY

  • covfefe, a (probably) mistyped word of unknown meaning used in a Donald Trump tweet, 113

  • raw water, water from natural sources without filters or treatment, 74

  • Oh hi Mark, ohimark, catchphrase based on a line from the notoriously bad movie The Room, 34

  • procrastination nanny, person who moderates productivity for other adults, esp. as a group event, 16

Hashtag of the Year WOTY

  • #MeToo, 231

  • #ReclaimingMyTime, phrase repeated by Rep. Maxine Waters when questioning Treasury Secretary Steve Mnuchin in a House committee hearing, 25

  • #NeverthelessShePersisted, feminist rallying cry based on Mitch McConnell’s warning to Elizabeth Warren during a Senate debate, 12

  • #Resist, slogan of the anti-Trump resistance, 11

Emoji of the Year

  • 🧕 woman with head scarf or hijab, 96

  • 🐐 goat (Greatest Of All Time), 44

  • im🍑 impeach, 50

  • 🤔 thinking face, 53

2017 Words of the Year (WOTY)

23 December 2017

As I did last year, and on occasion before that, I’ve come up with a list of words of the year. I do things a bit differently than other such lists in that I select twelve terms, one for each month. Since similar lists often exhibit a bias toward words that were in vogue at the end of the year when the list was compiled, my hope is that a monthly list will highlight words that were significant earlier in the year. The list is skewed by an American perspective, but since I’m American (and a Texan to boot), them’s the breaks.

I’m interpreting word loosely, including phrases, abbreviations, hashtags, and the like. The selected words are not necessarily new, but they are (mostly) associated with their respective month, either coming to widespread attention during it or associated with some event that happened then.

So, here are the 2017 Wordorigins.org Words of the Year:

[Discuss this post]

January: alternative facts. On 22 January, two days after Donald Trump’s inauguration, Counselor to the President Kellyanne Conway used alternative facts in an interview on NBC’s Meet the Press to describe Press Secretary Sean Spicer’s repeating Donald Trump’s lies about the audience at the inauguration. The internet and cable TV news exploded at Conway’s use of the phrase, and the phrase went on to be emblematic of the administration’s approach to the truth.

(Source)

February: deep state. The term deep state goes back to at least 2000, where it was used to refer to the national security and police bureaucracies in Turkey that wielded enormous clandestine power. In the opening months of the Trump presidency, the term began to be applied to the United States, particularly those parts of the bureaucracy that the Trump administration believed, rightly or wrongly, to be resisting them.

(Source)

March: originalism. On March 20 the Senate began hearings on the nomination of Neil Gorsuch to the U. S. Supreme Court. Gorsuch was approved and took his seat on the bench in April. Gorsuch, like his predecessor Antonin Scalia, is a follower of the doctrine of originalism, the principle that the founders’ intent is the overriding factor in interpreting the constitution. The doctrine is a relatively new and radical one, with the OED dating the term to only 1980.

(Source)

April: re-accommodate. United Airlines CEO Oscar Munoz used this word as a euphemism for forcibly removing a passenger from an overbooked flight.

(Source)

May: covfefe. Earlier in May, Donald Trump claimed that he had coined the phrase prime the pump (which dates to 1916 in the metaphorical, economic sense, and is even older in the literal, mechanical sense), but on 31 May he did coin covfefe in a tweet sent out just after midnight (“Despite the constant negative press covfefe”). While apparently just a misspelling of coverage, the internet exploded with speculation, some serious, much jocular, about just what covfefe might mean. In and of itself, covfefe would not be worthy of mention, but it is emblematic of Trump’s tweeting, which has dominated the news all year.

(Source)

June: slant. On June 19, the US Supreme Court delivered an 8–0 opinion in Matel v. Tam, which declared that the laws allowing the US Patent and Trademark Office to reject trademarks that “disparage” persons, institutions, and beliefs were unconstitutional. The USPTO had previously rejected the trademark for the Asian-American band, The Slants, led by front man Simon Tam, for being disparaging to Asians. Tam had chosen the name, in part, in an effort to reclaim and meliorate the term. The court’s decision seemingly will permit people and corporations to register other ethnic slurs as trademarks, although the full effect is still unclear. The highest profile beneficiary of the decision is the NFL’s Washington Redskins, which had previously had its trademark status revoked for being disparaging to Native Americans.

(Source)

July: collusion. Use of the word collusion had been bubbling up all along in regard to possible collaboration between the Trump presidential campaign and Russia in getting Trump elected, but it boiled over in July with the release of an email conversation between Donald Trump, Jr., other campaign officials, and agents for Russia which set up a meeting between Trump campaign officials and agents of the Russian government about material that was damaging to Hillary Clinton.

(Source)

August: totality. August was a tough choice. The white supremacist protests in Charlottesville, Virginia, which left one counter-protester, Heather Heyer, dead and dozens more injured dominated the news, spawning many possible terms (see Antifa in Honorable Mention). But the month also hosted a solar eclipse on 21 August which could be seen from almost anywhere in North America and whose region of totality cut across the continental United States.

(Source)

September: hurricane. Hurricane Harvey made landfall in Texas on 26 August, inundating the city of Houston before moving on to Louisiana, causing 91 deaths, and becoming the costliest storm in history. Hurricane Irma, a category five storm and the strongest Atlantic tropical cyclone on record, tore through the eastern Caribbean, essentially destroying the islands of Barbuda and Saint Martin, and made landfall in the Florida Keys on 10 September, before moving up the west coast of that state. Those were followed by Hurricane Maria, which reached category five status on 18 September and then slammed into Dominica and Puerto Rico, causing catastrophic damage. Maria was the deadliest storm of the season, causing at least 547 deaths.

(Source)

October: gravitational wave. The 2017 Nobel Prize in physics was awarded to the team that confirmed the existence of gravitational waves. Rainer Weiss, Barry C. Barish and Kip Thorne were awarded the prize for their discovery of the waves back in 2015 using LIGO, the Laser Interferometer Gravitational-Wave Observatory. Einstein had predicted the existence of gravitational waves in his 1915 theory of general relativity, but it took a century for technology catch up and actually detect them. The gravitational waves that were observed had been created by the merger of two black holes. And on 16 October the LIGO observatory announced another detection of gravitational waves, this time created by the merger of two neutron stars.

(Source)

November: #metoo. Following the public allegations of dozens of cases of sexual assault and harassment by Hollywood producer Harvey Weinstein, hundreds of thousands of women took to the internet telling of their own experiences being harassed using the hashtag #metoo. The hashtag had been coined and used by social activist Tarana Burke in 2006. Following the Weinstein revelation, a string of celebrities and politicians have been fired or forced to resign due to past sexual assault, harassment, and mistreatment of women.

(Source)

December: wildfire. On 4 December, the Thomas wildfire started in this hills above Santa Barbara, California. The Thomas fire is the largest in the state’s history, and as of this writing (23 December), it has burned over 273,000 acres (110,000 hectares) and is only 65% contained. While wildfires are an annual occurrence in California, 2017 is the worst fire season on record, with 8,778 fires so far and over 1,370,000 acres (554,000 hectares) burned.

(Source)

Honorable Mention: The honorable mentions are terms that rose to prominence during the year but were either not associated with a particular month or which lost out to another term.

  • Antifa, a loose confederation of anti-fascist groups in the United States who stage counterprotests to fascist and white supremacist demonstrations and are often prepared to use violence to quash fascist demonstrations if necessary

  • carnage, a word much used in Trump’s inaugural address on 20 January

  • cladding, a term for the exterior covering a building, a factor in the Grenfell Tower fire in West London on 14 June in which 71 people died

  • dreamer, a term for undocumented immigrants to the United States who were brought into the country as children, after the Development, Relief, and Education for Alien Minors Act, first proposed in Congress in 2009, but never passed; President Obama had used executive orders to implement the provisions of the act, which allowed a subset of those minors to remain in the United States; the Trump administration reversed that action in September

  • emolument, an archaic word for payment; the US Constitution forbids the president from accepting emoluments from the states or from foreign governments, and there is some debate as to whether Trump’s business interests are in violation of that clause

  • extreme vetting, a term used by the Trump administration to refer to more rigorous screening of immigrants to the US

  • Nevertheless, she persisted, a phrase used by Republican Senate Majority Leader Mitch McConnell on 7 February in reference to Elizabeth Warren’s reading of a 1986 letter by Coretta Scott King arguing against the appointment of Jeff Sessions to the federal bench, a reading that was objected to as violating Senate rules; the phrase subsequently became a feminist slogan

  • subtweeting, the practice of tweeting about someone or something without directly referencing them

  • take a knee, NFL players took to going down on one knee during the national anthem to protest unequal treatment of African-Americans by police

5 Ways to a Faster PhD

27 July 2017

This article has absolutely nothing to do with etymology or language (except in the tangential way that it is about professional studies in the humanities), but it’s something I wrote about the problem of how long it takes to complete a PhD in the humanities.

It’s probably not of much interest to those outside academia.

And sorry about the click-baity headline; that was the editor’s idea, not mine.