When the governor successfully hires a new director for the state’s Office of Cannabis Management, let’s wish that person luck with the massive undertaking of establishing a high-profile agency and also writing a half-dozen or so new rule chapters needed to implement the office’s regulatory scheme.
One simple yet effective way to ease this task would be to excise the word shall from the office’s rule chapters and public-facing documents.
The arguments against using shall in legal writing are overwhelming:
- Courts interpret the word several different ways;
- Other countries have stopped using it completely;
- It’s legalese;
- People abhor legalese; and,
- It enables more legalese.
We can also add that in the limited instance in which shall is deemed acceptable —imposing a duty or prohibition — the word is still nevertheless used incorrectly.
For example, Minnesota’s Revisor’s Office — the state’s drafting and publishing agency for statutes and administrative rules — explains the lone exception to using shall in the office’s bill-drafting manual:
Either shall or must may be used if all of the following conditions are satisfied:
(1) The statement imposes a duty or prohibition.
(2) The subject of the sentence is a human being or legal entity.
(3) The duty or prohibition is imposed in the active voice.
If all conditions are not met, use must to impose a duty, prohibition, obligation, requirement, status, or condition.
Otherwise, shall shouldn’t be used in statutory drafting. A sentence meeting this checklist would read something like this one from HF100, the cannabis-legalization bill: “The governor shall appoint a director of the office with the advice and consent of the senate.”
Does the example pass the three-part test? Let’s check:
(1) the governor has a duty to appoint the director ☒
(2) the governor is a human ☒
(3) the duty is in the active voice ☒
Although shall is correctly used here, this three-part test is routinely flouted, only undermining the sole credible argument for this limited use of shall. For example, in HF100, shall is used in new text 312 times, and 85 of these instances don’t meet the revisor’s three-part test. This 27% error rate further proves what has been apparent for decades — that legal drafters can’t be trusted to correctly use shall.
I’ve edited some examples from HF100 that show how legal drafters incorrectly use shall according to the revisor’s three-part test:
- The following protections
shallapply to employees who are transferred from the Department of Health to the Office of Cannabis Management.
(Protections isn’t a human being or legal entity, and a duty isn’t being imposed.)
The office shall require the payment ofApplication fees, initial licensing fees, and renewal licensing fees must be paid as provided in this section. The initial license fee shall includeincludes the fee for initial issuance of the license and the first annual renewal. The renewal fee shall beis charged at the time of the second renewal and each subsequent annual renewal thereafter
(The first instance is a requirement, not a duty, and the last two are declarations that are true by operation of law.)
- The report
shallmust contain summary data and must include…
(Report isn’t a human being or legal entity, and why change from shall to must in the same sentence?)
- The employment status and job classification of a transferred employee
shall notcannot be altered as a result of the transfer
(This doesn’t meet any element of the three-part test.)
- Notice sent
pursuantaccording to this paragraph shallmust inform the person that . . .
(Not a human being or duty.)
- The article
shallmust be destroyed at the claimant’s expense of the claimant thereof
(Enables more legalese.)
- The possession or transport of cannabis flower or cannabis products for such purpose by a Tribal cannabis business
shallis not constitutea criminal or civil offense under state law
(Declaration that is true by operation of law.)
- All board meetings
shall beare open to the public and subject to chapter 13D
(Declaration that is true by operation of law.)
- For an employee in a temporary unclassified position transferred to the
Office of Cannabis Managementoffice, the total length oftime that the employee has served in the appointment shall includeincludes all time served in (1) the appointment and the transferring agency, and the time served in (2) the appointment at the Office of Cannabis Managementoffice
(Enables poor drafting.)
And on and on it goes. The revisor’s office lists 10 specific instances in which shall shouldn’t be used. Add these 10 instances together with the ignored three-part test, and we have an obligation to ask: Why use shall in the first place?
And, according to its rule-drafting manual, the revisor’s office is even stricter in its advice against using shall in agency administrative rules. The revisor’s office recommends using must, not shall, to impose duties. Most speakers of English stopped using shall to mean “is ordered to” in the seventeenth century. Dictionaries show that we generally use shall as a formal form of will; so to most readers the lawyer’s shall is an obsolete legalism.
The manual then diplomatically gives the one exception to those who refuse to face the bleak realities of shall: “Use shall only when you are imposing a duty on a person or body.”
But as we’ve seen, the recalcitrant defenders of shall can’t even grasp onto this fading life raft.