The uses and misuses of shall

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By Ian Lewenstein

All lawyers are intimately familiar with shall. Even before law school, most lawyers are introduced to the word, which sits prominently in the public domain in legal documents and corporate speak. Once at law school, lawyers encounter shall in court cases, statutes, rules, and contracts. Through osmosis, shall becomes entrenched as a cornerstone of a lawyer’s lexicon. But should it?

Shall’s one meaning is to prescribe a duty; that is, a person has a legal duty to undertake some action. For example, “The petitioner shall submit a filing fee with the petition.” Here, the petitioner has a legal duty to submit a filing fee. The petitioner is required to. The petitioner must. In other words, shall is mandatory, and as Anne Sexton wrote in her lawyer’s guide to the Minnesota legislative process,¹ shall in Minnesota—and pretty much everywhere—is statutorily defined or recognized to be mandatory.²

Straightforward, no?

Not so, say state and federal courts, which have ruled that shall can also mean must, may, will, should, is entitled to, and is. As Justice Scalia and Bryan Garner wrote in their oft-cited book on canons of construction, “shall, in short, is a sloppy mess.”³ And Joseph Kimble, a lodestar of the plain-language movement, has noted—rather alarmingly—that Westlaw’s Words and Phrases has cited more than 1,775 (and growing) appellate cases interpreting shall.⁴ As Kimble and many other leading legal-drafting authorities write, shall has become inoperable:

 

The most telling indictment of most lawyers’ drafting incompetence is that they fall apart over the most important words in the drafting lexicon—the words of authority… The prime offender, as it has been for centuries, is shall. The word has been so corrupted by misuse that it has become inherently ambiguous…⁵

 

And if lawyers still remain unconvinced about the ambiguous cloud hovering over shall, look to the dedicated dictionary of lawyers, Black’s Law Dictionary, which provides five different meanings for the word.⁶ All lawyers strive for precision and to serve their clients effectively, but these goals are hard to reach when lawyers stubbornly cling to a word whose meaning shifts like a chameleon’s hue.

 

Various Minnesota court rulings support Garner’s and Kimble’s assertions that shall is defunct through misuse. For instance, the Minnesota Supreme Court wrote back in 1964 that shall can mean may.⁷ So while our Minnesota Legislature has prescribed that shall is mandatory, the courts have said otherwise; in effect saying, “That’s a nice statute, but it doesn’t bind us.” This reasoning was firmly established in 1965 in Agassiz & Odessa Mut. Fire Ins. Co. v. Magnusson, in which the Court wrote that it can disregard shall’s mandatory meaning under Minnesota Statutes, chapter 645, when a contrary legislative intent appears,⁸ transforming the mandatory shall to the permissive may. A sloppy mess indeed.

And Minnesota courts are not the only judicial bodies to disregard legislatively enacted canons of construction meant to bind and direct how courts interpret law. For instance, as far back as the late 1800s, the U.S. Supreme Court has recognized that shall can mean may unless the plain language indicates otherwise.⁹ 

Furthermore, both Minnesota and federal courts don’t hesitate to override legislative directives when shall’s use lacks legal consequences. Take, for example, a legislative directive on rulemaking: “By such and such date, the commissioner shall begin rulemaking.” What are the legal consequences for a commissioner’s inaction, beyond legislative annoyance? There are none. And as affirmed by the Minnesota Supreme Court in 1974, “A statute which does not declare the consequences of a failure to comply may be construed as a directory statute.”¹⁰ In other words, a Minnesota court—and other state and federal courts—will interpret a shall sans consequences as precatory, not mandatory.

If you still harbor doubts, look to the federal court system, which has recognized the perils of shall: Except for one tricky instance, all four major sets of federal rules (appellate, criminal, civil, and evidence) have had the word extirpated.

 

Not only is shall the king of ambiguity, but it also leads to awkward sentence constructions. Remember, shall only fits when a duty is being established; generally, the word is appropriate if it can be substituted with is required to. “The petitioner shall [is required to] submit a filing fee with the petition.” But shall has become so ingrained into the legal profession that lawyers and legal drafters all too frequently ignore this limited use and instead generate senseless meanings.

Look to a common drafting construction, for example: “This act shall be cited as the Plain Language Act.” The act [is required to be] cited? But no legal duty is being established; rather, a person may cite the act as the Plain Language Act. The drafter isn’t requiring the act to be cited as written but rather giving people permission to cite the act. The sentence could also be interpreted to mean that the act could or should be cited as drafted.

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Or take the worst shall offender of the false imperative (no command is given) and false future (not really in the future), in which shall be is used in an illogical attempt to command something. “There shall be created a Department of Health.” There will be created? There must be created? More accurately, there is created. In this erroneous shall construction, the well-established principle of drafting in the present tense is violated. 

Drafters write in the present tense because the law is always there, speaking. Yet they frequently violate this presumption when using shall, resulting in a stilted and grammatically incorrect writing style. So don’t write in the false future by saying that “the plaintiff shall be entitled to a hearing.” Instead, state a legal fact and write that the plaintiff is entitled to a hearing.

Two of the examples showing the illicit use of shall be feature passive voice. Although not an issue in the examples, passive voice can create a litigious minefield; passive voice and shall are no peanut butter and jelly. With passive voice, the actor is omitted—we don’t know who is acting. And combine that ignorance with shall’s ambiguity, and instead of a sandwich classic, you get something akin to lamb and tuna fish, as seen in this dangerous example: “Producers shall not receive more than one negligent violation per growing season.” Does this sentence mean that a producer (1) must not receive more than one violation from the regulating authority, or (2) may not incur more than a single violation? Reasonably, it could be either, and the litigious minefield is created: 

 

1. The regulating authority can levy only a single violation: Issuing more than one violation is prohibited.

2. A producer may not receive more than one violation: There will be consequences, which are left unstated.

 

With the first option, the sentence could reasonably be construed to mean that the regulating authority is prohibited from levying more than one negligent violation. But the second option implies that the producer could be subject to additional penalties (left unstated) by incurring more than one violation. And even a third option exists—that a producer should not receive more than one violation. Because of passive voice, shall’s ambiguity, and the lack of stated legal consequences, three varying interpretations exist. And additionally, the negative further complicates the sentence.

When shall is combined with a negative, a precarious and wordy construction results: “No person shall violate this requirement.” This provision is not really addressed to anyone (no person); better to use the positive, not the negative: “A person may not violate this requirement.” The positive is more direct and easier to read. Rewriting the example of the producer in the positive demonstrates this directness: “If a producer receives more than one negligent violation per growing season, the regulating authority must [insert legal consequences].” The conditional if creates an easily understandable sentence that then allows the drafter to plug in the legal consequence or, alternatively, to rethink the intent behind the proposed requirement.

 

Besides being ambiguous and litigious, shall is patently not plain language—that is, the broader public does not use it. The word is archaic, obsolete, and, as shown here, highly prone to misuse. Even the most well-intentioned and judicious lawyer should not use shall, especially when a better alternative exists with must.¹¹ The word is also greatly preferred to shall (83-17 percent), according to a prominent plain-language study.¹²

Must carries no such baggage of ambiguity. True, must could also be disregarded as permissive if consequences aren’t attached, but this possibility could be rectified with better and more thoughtful legal drafting. Must is universally recognized, and its use doesn’t lead to the awkward constructions with shall. 

Finally, if plain language is legally required for consumer contracts¹³ and elsewhere in Minnesota Statutes and Minnesota Rules, it should be good enough for the locally focused lawyer who draws up wills and trusts, drafts small-business contracts, and files short and simple briefs with the court. Both judges and the public overwhelmingly prefer plain language,¹⁴ so what better way to serve your client than by using plain language and eschewing the ambiguity of shall? 

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