A $10 Million Comma (Not Really)

April 2, 2017 —

There’s been a whole bunch of reporting (from The New York Times, for example) about a case in which a (deliberately?) omitted comma between two list items in a Maine statute might cost a dairy company $10 million. Even the US Court of Appeals for the First Circuit gives the humble comma star treatment here (first sentence of its opinion: “For want of a comma, we have this case.”).

This is not a case about a comma. No case is about a comma. The problems with Maine’s statutory drafting conventions (and probably statutory drafting conventions in general) go way beyond commas. If someone comes to you with a $10 million question that hinges on a comma, you’ve got a much bigger problem.

The powers that be in the State of Maine offer the Maine Legislative Drafting Manual. Its recommendations on lists don’t make much sense.

Complicated text. When several of the items in a series are more than one typed line long or a section has complex internal punctuation, the text should be written in outline form for ease of reading. In addition, outlining is often useful when a legislative sentence contains several cases, conditions or exceptions. Occasionally, however, readability may suffer as a result of outlining if the method is used too extensively. (p. 72, emphasis mine)

This echoes Reed Dickerson’s Fundamentals of Legal Drafting (which is cited a few times in the Maine Legislative Drafting Manual):

The draftsman should distinguish the outline form as an aid to analysis from the outline form as a means of expressing final text. The former must, in the interest of analysis, be severely hierarchical; the latter, in the interest of clarity, predominantly linear. Thus, an instrument whose apt concepts and logical sequence reflect a sophisticated, detailed working outline may finally appear merely as a sea of numerically coordinate sections. Even in the final text of longer and more complicated instruments, the hierarchical form must be used with restraint. (§5.1)

When we’re talking about statutes, how can readability suffer from using an outline list? Why use outlining with restraint? Statutes aren’t novels – no one is reading this stuff cover to cover. When would an outline list be anything but helpful?

Outlining sections. …begin each item with an upper-case letter, use a conjunction after the next to the last item, end each item except the last with a semicolon and end the last item with a period. (p. 73)

Why is all of this necessary? Is a line break really such a subtle way to show the end of a list item that you need semicolons and conjunctions?

Apple has created technical documentation for dozens, maybe hundreds, of devices and applications over the years. Here are Apple’s guidelines for punctuation in lists:

List items that are fragments or that complete the thought started by the main clause should not end with a period; list items that are complete sentences should end with a period.

That’s it. No terminal punctuation (unless the list items are complete sentences). No conjunctions ever. Nice and simple.

(“But how can anyone possibly know whether items in a list are conjunctive or disjunctive without an and or an or after the penultimate item?” you’re no doubt asking. Which of these options seems like the clearest, most user-friendly way to set up a conjunctive or disjunctive list: one word after the second to last list item, so that the reader has to puzzle through almost the entire list before understanding how it works; or a few words before the list?)

Indented and blocked paragraphs. A paragraph may apply to the entire section or to a previous subunit (subsection, paragraph, etc.), depending on its format. In order to eliminate any ambiguity in determining this relationship, the drafters of the 1964 Revision of the Statutes established the following rule to govern “indented” and “blocked” paragraphs. If the paragraph is unnumbered, unlettered and indented only on the first line, the paragraph applies to the entire section. If the paragraph is “blocked” (the first line is not indented, but the paragraph may have an indented left margin), the paragraph applies to the nearest previous subunit that shares the same margin or is located the same number of spaces to the right of the margin. (pp. 75–76)

Saying that what a paragraph applies to – what a paragraph means – depends “on its format” goes against decades of recommendations on technical writing (and statutes are pretty close to technical writing). In technical writing, you keep presentation (formatting) and content separate. This separation is one of the essential aspects of CSS, XML, and content management systems.

I fully accept that when you’re working with outline lists (as you often do in statutes), indentation (a formatting attribute) is essential to show hierarchical level (content). But a guideline that says that content depends on formatting gets the relationship backward: formatting depends on content.

This recommendation is also inconsistent with another one:

Flushing left. When you outline, do not use numbered subsections or lettered paragraphs in the middle of running text, a device commonly known as “flushing left.” Flushing left reduces readability and usually increases ambiguity.

Example:

1. Minor; Class E crime. A person who has not attained 20 years of age who:

A. Consumes alcohol in a public place; or

B. Operates a school bus without a valid driver’s license

commits a Class E crime.

The section is less confusing when written:

Example:

1. Minor; Class E crime. A person who has not attained 20 years of age commits a Class E crime if that person:

A. Consumes alcohol in a public place; or

B. Operates a school bus without a valid driver’s license. (p. 75)

I personally don’t see much difference in terms of readability and ambiguity between these two examples (I slightly prefer the first one because it’s closer to everyday English). I also can’t imagine an example in which there would be much difference.

But in any event, it’s strange that it’s OK to have stuff after a list when you call it an “indented” or “blocked” paragraph, but not when you call it “flushing left”.

Parenthetically, I don’t think it matters that “flushing left” happens mid-sentence. Whatever the sentence structure, what your brain internalizes is something like:

Blah blah blah:
• Item 1
• Item 2
• Item 3
Result or exception

On to commas:

Commas are probably the most misused and misunderstood punctuation marks in legal drafting and, perhaps, the English language. Use them thoughtfully and sparingly.

Series. Although authorities on punctuation may differ, when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series. (p. 113)

Why use commas sparingly? To save on printer cartridges? And why thoughtfully?

I can think of two better ideas, especially for technical writing (and they’re more or less the same idea):

  • Use one rule for commas all the time and never think about commas again.
  • Use numbers or bullets and never think about commas again.

With all of this in mind, this is what the statute in this case actually looks like:

The overtime provision of this section does not 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.

This language adheres to the Maine Legislative Drafting Manual. Outline lists are used, but not too extensively (it’s actually a little bizarre that the long list is inline and the short list is outline). The outline list (“Agricultural produce…”) has plenty of punctuation and a conjunction after the second to last item. Nothing is “flushed left”. And there’s no comma between “packing for shipment” and “or distribution” (whether there should be a comma is a question that’s worth $10 million to a Maine dairy company).

This is what the statute probably should look like:

The overtime provision of this section does not apply to the following items:

• Agricultural produce
• Meat products
• Fish products
• Perishable foods

This exception is limited to the following activities:

• Canning
• Processing
• Preserving
• Freezing
• Drying
• Marketing
• Storing
• Packing for shipment or distribution

No commas, no conjunctions, and no questions about what’s going on with packing, shipment, and distribution. It’s also probably a good idea to put the list of particular activities after the list of more general products/industries. It’s possible that the last item should be split in two (“Packing for shipment” and “Distribution” – although, like the appellant delivery drivers in this case, I would have expected the real statute to read “distributing” to match the other list items if this is actually how the statute is supposed to work). Who knows?

Whether you put a comma between the last two items in a serial list doesn’t even begin to scratch the surface of the problems with the drafting conventions observed in this statute.