May 2017 – The Almighty Comma

by Justice William W. Bedsworth

A woman named Lynn Truss published a grammar book a few years back called Eats, Shoots and Leaves. Wonderful book. Best ever written on the subject. If you love someone who scoffs at grammarians, buy them this book.

Or stop loving them. Those seem to me to be the only alternatives.

The title of Ms. Truss’s tour de force is derived from a wonderful conceit about a panda who buys a sandwich in a café, eats it, and then shoots up the place. When asked why, the panda explains that’s what pandas do, citing authority that says a panda “eats, shoots and leaves.”

That misplaced comma after “eats” is the difference between a harmless herbivore and a gun-wielding gang-banger.

I love commas. Read any of my opinions—or for that matter, just keep reading this—and you’ll see that my use of commas is as profligate as a hummingbird in honeysuckle. My mantra is to give the reader as much guidance as possible, and commas are wonderful signposts.

My affection for them may be genetic. I never discussed commas with Mom and Dad, but my granddaughter is delighted by the difference between, “Let’s eat, Grandma,” and “Let’s eat Grandma.” She is still in middle school, so it seems likely this reflects a chromosomatic lacuna1 she will probably never be able to fill with beneficial genetic material.

I am not the first person to comment on my affinity for commas. When I first joined this court, Justice Crosby asked me if my keyboard had more comma keys than his.

Unsuccessful appellate counsel have complained for years that my sentences include more punctuation than content. But I am unapologetic about my use of enforced pauses.

That’s what commas do. They force the reader to slow down, to pause before moving on to the next chunk of content.2 One of the best things ever said about commas was said by William Thurber,3 who wrote a sentence that said, “After dinner, the men went into the living room.”4

Asked why he’d put that comma in after the word “dinner,” he explained it was to give the men time to push their chairs back and stand up.

Wow. That’s impressive. If I could have justified my rulings that well when I was on the Superior Court bench, they wouldn’t have had to kick me upstairs.5

And Thurber was absolutely right. Commas enforce a civilized pace. Commas slow the reader down long enough for him/her to see more clearly where we’re going. They not only illuminate the content, they keep us from reading so fast we fail to comprehend it. In so doing, they contribute to understanding.

And they avoid chaos.

That is no small accomplishment. My experience on this planet suggests the avoidance of chaos is something our species has difficulty with.6 Commas aid in that effort.

Witness O’Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir. 2017),7 a case that originated in the federal district court in Maine. The appeal turned on the absence of a comma.


Seems Maine’s overtime law excludes employees involved in “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” various perishable products.” Note in that statute a long succession of commas sufficient to warm my heart, but the absence of one after “shipment.”

In a dispute about whether that statute meant no overtime for the dairy’s drivers, the drivers argued it should be read as only excluding those involved in “packing for shipment or distribution”—i.e., packers. The dairy, on the other hand said it should be read as excluding those who are involved in the “packing for shipment” (packers) and those who are involved in “distribution” (drivers).

Go back and read it again and try to figure out which interpretation you favor.

A comma after “shipment” might have made it clear the legislature meant to support the dairy’s position. Its absence meant the statute might be designed to exclude only packers.

The result was legal chaos in Maine—a place not noted for chaotic anything.

The parties were reduced to arguing the significance of the fact the words “canning, processing, preserving, freezing, drying, marketing, storing, [and] packing” are all gerunds, while “shipment” and “distribution” are nouns.

Does this tell you anything about the legislative intent? Or does it just remind you of those awful days of diagramming sentences in seventh grade and signal that you don’t want to read the full opinion?

The drivers argued the dairy’s interpretation “contravenes the parallel usage convention.” In their minds, this was worse than violating The Rule in Shelley’s Case—and almost as impenetrable.

They invoked Scalia and Garner, Reading Law: The Interpretation of Legal Texts, in lamenting “asyndeton.”8

Asyndeton. Until I read this case, I couldn’t distinguish between asyndeton and a synonym. And were it not for the chaos surrounding this issue, that information would not be consuming gray matter I could use to store something valuable like the earned run average of Matt Shoemaker.

Watching the lawyers argue the significance of the missing comma must have been like watching Godzilla and King Kong play chess. Neil Young sing Carmen. Eugene Volokh discuss style manuals.

That’s right. The redoubtable9 Eugene Volokh, in discussing this case, notes that, “Some state legislative drafting manuals expressly warn that the absence of serial commas can create ambiguity concerning the last item in a list.” Unfortunately, Maine’s drafting manual is one of only seven that does not.

Legislative drafting manuals? The statutes I’ve been trying to make sense of for half a century were produced by people who had drafting manuals?!?!

Hippogriffs, asyndeton, and legislative style manuals. Three things whose existence I would confidently have challenged before this case.

Hippogriffs? I would still deny their existence, but no longer confidently. This case has done much to shake my confidence in my ability to identify imaginary stuff.

Not familiar with hippogriffs? Missed the whole Harry Potter thing did you? Look them up. It will give you one more reason to use the term “horse’s hindquarters” than you usually have when you read my stuff.10


  1. (1) I can’t believe I said that, either. But in this case, my laziness is stronger than my embarrassment, so it stays in.
  2. (2) My attempt to get this column certified for MCLE credit was denied on the basis that no one will take grammatical advice from someone who refers to phrases and clauses as “chunks of content.”
  3. (3) If your education has not included William Thurber, stop what you’re doing and read The Night the Bed Fell and then read The Night the Ghost Got In. It’s a better use of your time than reading my stuff, and much funnier.
  4. (4) Did I mention Thurber was writing a hundred years ago?
  5. (5) One of my Superior Court colleagues observed, “They elevated Bedsworth from the Superior Court to the Court of Appeal and raised the IQ level in both places.”
  6. (6) And don’t get me started on the imbecilic shibboleth against ending a sentence with a preposition.
  7. (7) I don’t have an official cite on this case yet; in my zeal to bring you up-to-the-minute legal content, I am reporting on a case here that is newer than the bananas in my kitchen.
  8. (8) Certainly the first time in the history of unionism that “asyndeton” has been discussed.
  9. (9) No, I’m not saying what he says should be doubted twice.
  10. (10) And look! I wrote a paragraph without a comma!

William W. Bedsworth
is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov. And look for his new book,
Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.