Even able writers who try their best to “be clear” may fail miserably. A couple of months ago, I was reminded of how subtle clarity can be—and how greatly it can matter.
In March the U.S. Court of Appeals for the First Circuit, in Maine, handed down a controversial decision—one I heard about the same way you probably did, in coverage by the New York Times, the Washington Post, CNN, NPR, and other news outlets. The court reversed a lower court decision in a Maine labor law case to rule in favor of the plaintiffs, dairy-truck drivers, on the grounds that the absence of a comma in a state law made it ambiguous.
The law says that the usual regulations mandating extra pay for overtime do not apply to the following categories of work: “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution” of perishable foods. Because no comma appears in that series after “shipment”—because the series lacks a serial, or Oxford, comma—about 75 drivers are entitled to four-plus years of back overtime, the court decreed. That overtime is worth millions.
As the Times explained the Court of Appeals’ reasoning, “The phrase could mean that ‘packing for shipment or distribution’ was exempted, but not distribution itself.” So, arguably, people who distribute perishable food do not belong to an exempt category, and they do therefore deserve overtime pay.
My first thought when I read this was, No, sorry—nothing against truck drivers, but the law does not say that. If what was exempt from overtime was packing for either of two purposes (shipping or distribution), the phrase should have ended, “… marketing, storing OR packing for shipment or distribution.” The missing “or” is the clincher, not the serial comma, which would unimportantly appear, or not, after “storing.” As written, the single “or” can’t, correctly, be part of the phrase “shipment or distribution” because it’s busy tying together the series as a whole. The two distinct work categories of packing and distribution are being declared exempt.
But then I stepped back from the grammar and thought, The higher court found the law ambiguous! If the justices couldn’t agree on what the law means, what more do we need to know? And I noticed that the sentence does contain a bit more evidence pointing toward ambiguity: canning, processing, … and packing are all -ing forms of verbs, specifically gerunds, whereas shipment and distribution are not. The form of these two nouns subtly encourages us to think of them as different from the gerunds in the series. Might they be a pair of objects of the preposition for?
Further, let’s acknowledge that not every law on the books is well written or even up to code grammatically. So never mind that the manual for drafting laws in Maine, according to the Times, advises against using serial commas. (The manual is said to give “trailers, semitrailers, and pole trailers” as a don’t-do-it example, and “trailers, semitrailers and pole trailers” as one to emulate.) It’s crazy that the meaning of this section of the law in question depends so heavily on one optional comma.
To me, this episode demonstrates why we should all routinely use serial commas. “The canning, processing, packing for shipment, or distribution” of perishable foods—that’s clear, no?
But it also contains a broader lesson about looking out for readers. I doubt that any of us can write anything worth reading if we’re constantly considering possible misreadings and ambiguities in sentences as we draft them. So we need to take that step after drafting and read our work over with sharp, skeptical eyes. I think of it as pretending I’ve never before seen what I just wrote. When I have time to put the work aside overnight, or at least while I go out for a walk, I do it. It makes the little trick of imagination I’m playing easier. Alternatively—or usually also—I ask someone to weigh in who really has never before seen what I wrote and who understands that I’m not just seeking praise.
While looking out for our readers, we must also give them credit as critical thinkers; we don’t need to tell them things over and over. Trying to see through their eyes what we’ve written doesn’t have to lead to dull repetition. Rather, the idea is to meet readers more than halfway.
Looking out for readers may not be worth millions to them—let alone to us—but still it’s worth a lot.
Do you have questions about language or grammar, or are there topics you would like me to address? If so, please email me at bwallraff @me.com.