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The Joys of "May"

"May" is one of my favorite words. It is a modal verb, from German, that adds "texture" to sentences in artful ways. Short and sweet, "may" speaks to volition, permission, discretion, possibility, or necessity. It quantifies and qualifies statements, expresses intent, and indicates obligations and possible actions. It is a joy to find so much meaning in one little word. (Other modal verbs include: can, could, might, must, will, would, shall, should, ought to, dare, and need.)

 

Drafting Tip: Use "shall" to create a duty. Use "must" where appropriate to assert the existence of a duty. But, remember that "must" sounds bossy and may not maintain the proper tone in a statute or administrative rule. Use "may" to state permission,  but be careful that the use is not ambiguous or subject to interpretation as a statement of possibility.

The Zen of Law Writing ~ “Must vs. Shall”

If language is not correct, 
Then what is said is not what is meant.

If what is said is not what is meant,
Then what ought to be done remains undone. 

Confucius (551-479 BCE) 
Philosopher, politician, teacher.






Law writers use the word "shall" to denote a duty imposed on a person or an entity.

Law writers use the word "must" to connote a prerequisite or condition precedent that requires meeting certain conditions, consisting of certain components, or possessing certain characteristics.

Law writers sometimes prefer "must" if the word is used in a sentence in which the subject is an inanimate object rather than a person or entity on which a duty can be imposed. ~ Example: "A grievance must be filed within 90 days of the adverse action."

At times, either "shall" or "must" is correct. So, a law writer will consider the context and desired point of emphasis. ~ Example 1: "Notice must be given in writing." versus Example 2: "A review shall be conducted within 45 days of the filing of a formal request for review." ~ Consider that Example 1 relates to a required characteristic of the notice, while Example 2 relates to a person with the duty to conduct the review.

Law writers can often avoid the entire issue by writing the "facts and nothing but the facts" when appropriate. Example: "The successful candidate qualifies for the position by scoring the highest on the test."


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