Thou shalt not shall: The problem of an overused word — Column

August 23, 2021 6:00 am

Courtesy of the University of Pennsylvania.

Returning from recess Monday,  the U.S. House will be greeted by historic legislation: The Senate’s $1.2 trillion infrastructure bill, as well as the reconciliation budget resolution for the Democrats’ $3.5 trillion in social and other spending. To pass both pieces of legislation, Democratic House members must balance internal divisions. But first they should heavily amend the infrastructure bill — for 4,276 reasons.

The infrastructure bill, clocking in at about 2,700 pages, shames the Minnesota Legislature’s attempts to drive up the page count for its so-called omnibus bills. Yet within the 2,700 pages exist 4,276 ways that the House could improve the bill. These 4,276 possible improvements stem from the most emblematic example of legalese and a frequent foe of plain-language advocates. Consisting of only a single word, this indefensible scourge must be cleansed. It is time to get rid of shall.

Misusing shall

Known in legal drafting as a word of authority, shall prescribes a mandatory duty; it means “has a duty to.” For example, “The commissioner shall respond to an appeal within 10 days.” Here, shall requires the commissioner to do something. Shall only exists to mandate a duty. But legal drafters, including many lawyers, commonly misuse shall, using it beyond its appropriate scope. So misused, in fact, that shall is one of the most heavily litigated words.

So corrupted is shall that courts have held it to mean at least four other words: must, may, will, and is. Because shall is so ambiguous, the federal Standing Committee on Rules of Practice and Procedure restyled all federal court rules to remove shall. In the restyled federal Rules of Civil Procedure, the committee — according to their drafting consultant, Joseph Kimble — found 500 shalls, 375 of which were converted to must, shall’s reasonable and friendlier sibling. 

Both shall and must prescribe mandatory duties, but if only 375 of 500 shalls were converted to must, that means 25% of the time shall didn’t mean what it was supposed to. That is problematic. Shall also isn’t plain language. No one speaks using shall except when asking questions such as, “Shall we go?” So why not use its unambiguous and more common alternative, must

Legal drafters have no excuse for using shall instead of must. Both words prescribe mandatory duties, yet only one of them is ambiguous. Ambiguity results in unintended meaning, wasted time, increased costs, unnecessary confusion and costly litigation. And with its 4,276 shalls, the infrastructure bill is primed for not only historic road-and-bridge investments but also historic ambiguity and confusion. Assuming 25% of all shalls are incorrectly used, the infrastructure bill wrongly uses shall 1,069 times.

Some examples

Here is one example of shall’s misuse, in which the term “socially and economically disadvantaged individuals” is defined: 

. . . except that women shall be presumed to be socially and economically disadvantaged individuals for purposes of this subsection. 

Wrong. Women don’t have a duty to be presumed socially disadvantaged — rather, the law is stating that women are presumed to be socially and economically disadvantaged individuals. And another example: 

A covered program shall be subject to the requirements of this section. 

But the program does not have a duty to be subject to the requirements, as inanimate things cannot be duty-bound — instead, the program is subject to the requirements. Overall, the bill has 1,490 shall bes plus 62 shall not bes, and all of them could be changed to must or the present-tense form of be.

Getting rid of shall also excises unnecessary words and shortens sentences. Here is a corrected example from a recently adopted rule from the Minnesota Racing Commission:

A successful claimant, if any, of the horse in the first race shall have the option of scratching may scratch the horse from the subsequent race.

Not only does this correction rid the sentence of the misused shall, but it also reduces the phrase from 6 words to 2. 

More concerning, shall is used ambiguously in a recently adopted industrial-hemp rule from the Minnesota Department of Agriculture:

Producers shall not receive more than one negligent violation per growing season.

Does this sentence mean that a producer can’t receive more than one negligent violation (must not) from the department or that the department can’t grant more than one violation (may not)? Maybe after some time and money, the courts will resolve this ambiguity.

The Minnesota Legislature and state agencies have their work cut out for them, as there are 26,572 shalls in both Minnesota Statutes and Minnesota Rules. But the U.S. House has a head start in the infrastructure bill. Must is already used 11 times, so only 4,265 shalls left to fix.

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Ian Lewenstein
Ian Lewenstein

Ian Lewenstein has worked for the Minnesota Legislature and several state agencies. He specializes in administrative rulemaking and plain language. His comments represent his views alone.