Another Skirmish in the “Shall” Wars

Today a reader posted the following comment (found here):

Ken,

I have been pushing your rules about shall and must since I started drafting contracts. Recently, a colleague said that we should use must exclusively. He pointed to the following link to bolster his case:

https://www.faa.gov/about/i…

I wanted to point it out for your opinion.

Thanks

If you want to be heard in the marketplace of ideas, you have to point out the frailties in the other guy’s ideas. Repeatedly. So here goes:

That link is to an item on the website of the Federal Aviation Administration. The title is What’s the only word that means mandatory? Here’s what law and policy say about “shall, will, may and must.” It’s by one Bruce V. Corsino, the FAA’s “Plain Language Program Manager.”

Dr. Corsino is no schmo. You can find out more about him in this article in Harvard Magazine. It says that Dr. Corsino is a trained psychologist and medical ethicist and a retired colonel in the U.S. Army medical department. That tells us two things: First, he’s not a lawyer. Or to put it more specifically, he’s not a transactional lawyer. And second, he’s not a linguist.

Those two factors explain why, for purposes of contracts, Dr. Corsino’s advice is bad to the point of being obnoxious.

For one thing, someone apparently granted Dr. Corsino power over the English language. Here’s how his article opens:

We call “must” and “must not” words of obligation. “Must” is the only word that imposes a legal obligation on your readers to tell them something is mandatory. Also, “must not” are the only words you can use to say something is prohibited.

So must is the only word? Most transactional lawyers and commentators on legal writing would take issue with that. In contracts, drafters use many different verb structures to express obligations. Most of those verb structures are wordy or confusing, but nevertheless, there they are. At the more disciplined end of things, my book A Manual of Style has recommended, through three editions, that you use shall to express obligations imposed on a party that’s the subject of a sentence. The fourth edition, due in September, will do the same.

This supercilious tone pervades the article. Here’s some more:

Until recently, law schools taught attorneys that “shall” means “must.” That’s why many attorneys and executives think “shall” means “must.” It’s not their fault.

I’m not going to rehash arguments I’ve made elsewhere (for example, in this 2014 article), but here’s how I would rebut Dr. Corsino’s assertions as regards expressing obligations in contracts:

• Other kinds of writing don’t use shall? That makes sense, but the prose of contracts is limited and stylized, and a lot is at stake, so different constraints apply. To get a sense of that, you could do worse than look at my draft “quick reference” guide, in this post, to what I call “the categories of contract language.” Contract drafters can safely ignore nostrums intended to apply to writing generally.

• But FAA Plain Language Writing Order 1000.36 says you should use must even in contracts? Lawyers at the FAA might have to pay attention to that, but no one else has to. The marketplace of ideas is cacophonous, so you have to sort out the good ideas from the not-so-good.

• I’ve debunked the notion that using shall is risky. That’s something I addressed most recently in this post, which is the one that prompted the reader comment I quote above.

• The notion that must holds sway to express obligations would come as news even to Bryan Garner, whom Dr. Corsino cites. Garner favors will, not must, although his reasons don’t make sense, as I note in this 2011 post.

So I suggest that Dr. Corsino is out of his depth. For purposes of contracts, I recommend you ignore his advice. His article doesn’t reflect the reality that which verb structure you use isn’t a matter of right or wrong: instead, it’s a judgment call.