“For want of a comma, we have this case.” So began the First Circuit’s opinion in O’Connor v. Oakhurst Dairy, No. 16-1901, 2017 WL 957195 (1st Cir. Mar 13, 2017). The case turned on the following question of statutory interpretation: The Maine overtime law exempts from protection workers involved in the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution” of certain food products. Does the statute protect workers who distribute but do not package food products?

To add a wrinkle to this puzzle, the Maine legislative drafting manual explicitly discourages the use of the serial (or Oxford) comma. O’Connor, 2017 WL 957195, at *4. What significance, if any, should the First Circuit have attributed to this fact? Grace Hart, in her Volume 126 Note titled State Legislative Drafting Manuals and Statutory Interpretation, demonstrated that “in state courts and legislatures, efforts are underway to use legislative drafting manuals to foster an interbranch interpretive relationship.” 126 Yale L.J. 438, 487 (2016). As the First Circuit launched into an analysis of the drafting manual’s instructions, it cited Hart’s Note in defense of this general approach. O’Connor, 2017 WL 957195, at *6 n.5.

The First Circuit chastised the Maine drafters and extolled “the clarifying virtues of serial commas that other jurisdictions recognize.” Id. In fact, “guidance on legislative drafting in most other states and in the Congress appears to differ from Maine’s when it comes to serial commas.” Id. Ultimately, the drafting manual failed to clarify the statute’s meaning: “The text has, to be candid, not gotten us very far.” Id. at *7. The First Circuit sided with the workers because of the remedial nature of the overtime law. Id. at *10.