4 ms·

If it's so crazy that people think "shall" couldn't have possibly been meant to be taken literally, (why) is there no court case about it? Is that not possible

If it's so crazy that people think "shall" couldn't have possibly been meant to be taken literally, (why) is there no court case about it? Is that not possible at this stage in the process?

martinflack 3y ago
As a law prof once told me, "shall" can end up being ambiguous in court, despite the common understanding. I'm sure this isn't the best tutorial on the topic but it gives you a taste: https://www.barandbench.com/columns/shall-shocked-the-use-of-shall-in-legal-documents https://www.barandbench.com/columns/shall-shocked-the-use-of...
- dataflow 3y ago
  > As a law prof once told me, "shall" can end up being ambiguous in court, despite the common understanding. Perhaps it can be can be made ambiguous in some context if you try hard enough, but that doesn't mean it commonly is so, or that it is here. > I'm sure this isn't the best tutorial on the topic but it gives you a taste: https://www.barandbench.com/columns/shall-shocked-the-use-of https://www.barandbench.com/columns/shall-shocked-the-use-of... Thanks, but the only thing that link gave me a taste for is terrible strawman arguments. (Or a severe lack of understanding of basic English.) If you have "shall be" in a sentence, then that phrase is the verb of interest whose ambiguity (or lack thereof) you must examine, not the "shall" on its own. Claiming "shall" is ambiguous because it changes meaning when you put "be" after it makes no sense. It comes across as the kind of argument a first-grader would make. They write: If the substitution rule is applied in the sentence: “The employee shall be reimbursed all expenses”, you would get: “The employee has a duty to be reimbursed all expenses”. This created ambiguity for the simple reason that the intent appeared to state an entitlement of the employee and not to impose a duty on the employee. Do they lack common sense when reading this, or do they struggle with English? It's like claiming "I have a carrot" is somehow ambiguous because "I have been a carrot" means something entirely different. Does that sentence need disambiguation with "I possess a carrot" or "I have a carrot, but have not existed, as a carrot"? Are these serious arguments?
  - torstenvl 3y ago
    Agreed. Their analysis inappropriately conflates the syntactical subject of a sentence with the semantic agent of the sentence. It also violates the fundamental rule that changing a sentence into the passive voice does not effect a semantic change. "The employee shall be reimbursed [by the employer] for all expenses." must necessarily mean the same as "The employer shall reimburse the employee for all expenses."
    - pama 3y ago
      I think that in the first (ambiguous) phrasing there is an implicit (common-sense?) understanding of: the employee shall be reimbursed for all expenses if the employee asks for it or wants it, ie the employee has the right to ask for and only then the employer has the obligation to reimburse all expenses.
      - torstenvl 3y ago
        No, there is no reason to appeal to "common sense." It is the plain and unambiguous meaning of the text itself.
        PaulDavisThe1st 3y ago
        I think you may have been reading too many IETF documents. Legal text doesn't come with a list of definitions that attempt to lock e.g. "shall" down in stone.
        torstenvl 3y ago
        I rarely read IETF documents. But as a practicing lawyer for about 15 years, I've read, interpreted, drafted, advised on, and litigated countless uses of the word "shall" in agreements (as well as in statutes and regulations). In fact my first pro bono case in BigLaw, on behalf of a nonprofit in a corporate election case, hinged on it. Shall is not this mysterious ambiguous beast the link makes it out to be.
- throw555chip 3y ago
  In the military, they made it very clear to use how to read "shall", "must", "should", etc. https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/ https://www.plainlanguage.gov/guidelines/conversational/shal...
  - psunavy03 3y ago
    Military SOPs and case law are not the same thing.
anon373839 3y ago
I think the issue is different. It’s not whether “shall” means something other than “must”; rather the issue concerns the scope of the code section containing this language. For example, in the California Rules of Court, you can find a rule that that briefs “must” use 13-point type. (Rule 8.204(b)(4).) That provision is located within the title on appellate procedure, so it has no effect on trial briefs. Even if it said “absolutely shall with no exceptions whatsoever and under penalty of death,” it would have no effect in a trial proceeding.

If it's so crazy that people think "shall" couldn't have possibly been meant to be taken literally, (why) is there no court case about it? Is that not possible at this stage in the process?

martinflack 3y ago

As a law prof once told me, "shall" can end up being ambiguous in court, despite the common understanding. I'm sure this isn't the best tutorial on the topic but it gives you a taste: https://www.barandbench.com/columns/shall-shocked-the-use-of-shall-in-legal-documents https://www.barandbench.com/columns/shall-shocked-the-use-of...

dataflow 3y ago
> As a law prof once told me, "shall" can end up being ambiguous in court, despite the common understanding. Perhaps it can be can be made ambiguous in some context if you try hard enough, but that doesn't mean it commonly is so, or that it is here. > I'm sure this isn't the best tutorial on the topic but it gives you a taste: https://www.barandbench.com/columns/shall-shocked-the-use-of https://www.barandbench.com/columns/shall-shocked-the-use-of... Thanks, but the only thing that link gave me a taste for is terrible strawman arguments. (Or a severe lack of understanding of basic English.) If you have "shall be" in a sentence, then that phrase is the verb of interest whose ambiguity (or lack thereof) you must examine, not the "shall" on its own. Claiming "shall" is ambiguous because it changes meaning when you put "be" after it makes no sense. It comes across as the kind of argument a first-grader would make. They write: If the substitution rule is applied in the sentence: “The employee shall be reimbursed all expenses”, you would get: “The employee has a duty to be reimbursed all expenses”. This created ambiguity for the simple reason that the intent appeared to state an entitlement of the employee and not to impose a duty on the employee. Do they lack common sense when reading this, or do they struggle with English? It's like claiming "I have a carrot" is somehow ambiguous because "I have been a carrot" means something entirely different. Does that sentence need disambiguation with "I possess a carrot" or "I have a carrot, but have not existed, as a carrot"? Are these serious arguments?
- torstenvl 3y ago
  Agreed. Their analysis inappropriately conflates the syntactical subject of a sentence with the semantic agent of the sentence. It also violates the fundamental rule that changing a sentence into the passive voice does not effect a semantic change. "The employee shall be reimbursed [by the employer] for all expenses." must necessarily mean the same as "The employer shall reimburse the employee for all expenses."
  - pama 3y ago
    I think that in the first (ambiguous) phrasing there is an implicit (common-sense?) understanding of: the employee shall be reimbursed for all expenses if the employee asks for it or wants it, ie the employee has the right to ask for and only then the employer has the obligation to reimburse all expenses.
    - torstenvl 3y ago
      No, there is no reason to appeal to "common sense." It is the plain and unambiguous meaning of the text itself.
      - PaulDavisThe1st 3y ago
        I think you may have been reading too many IETF documents. Legal text doesn't come with a list of definitions that attempt to lock e.g. "shall" down in stone.
        torstenvl 3y ago
        I rarely read IETF documents. But as a practicing lawyer for about 15 years, I've read, interpreted, drafted, advised on, and litigated countless uses of the word "shall" in agreements (as well as in statutes and regulations). In fact my first pro bono case in BigLaw, on behalf of a nonprofit in a corporate election case, hinged on it. Shall is not this mysterious ambiguous beast the link makes it out to be.
throw555chip 3y ago
In the military, they made it very clear to use how to read "shall", "must", "should", etc. https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/ https://www.plainlanguage.gov/guidelines/conversational/shal...
- psunavy03 3y ago
  Military SOPs and case law are not the same thing.

anon373839 3y ago

I think the issue is different. It’s not whether “shall” means something other than “must”; rather the issue concerns the scope of the code section containing this language. For example, in the California Rules of Court, you can find a rule that that briefs “must” use 13-point type. (Rule 8.204(b)(4).) That provision is located within the title on appellate procedure, so it has no effect on trial briefs. Even if it said “absolutely shall with no exceptions whatsoever and under penalty of death,” it would have no effect in a trial proceeding.