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The convention in federal drafting is to use "shall" to require and "may" to
allow. This convention is not without its problems and detractors, but it
remains the convention.
More than a few English-speaking countries, having once followed this
convention, have abandoned it. Simply put, "shall" is great trouble and "may"
is close behind. So it is fair to question whether the convention should be abandoned in drafting federal law. Before you cast it out, though, make sure you
have a better alternative to use in its place. As problematic as "shall" and "may"
can be, most drafters eventually come to the conclusion that the alternatives
are no better.
The crux of the problem with "shall" and "may" is that they each mean
many different things (that is, they are ambiguous). Even if every drafter follows
the convention--using "shall" only to command and "may" only to
allow--the convention doesn't work unless courts and other readers follow suit.
Courts do not always follow suit; they sometimes decide that "shall" in a particular
statute really means "may," and vice versa. (See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432 n.9 (1995).)
Now that the Supreme Court has recognized that drafters follow conventions,
that those conventions should be followed by courts, and that those conventions
can be found in drafting manuals (see Koons Buick Pontiac GMC, Inc.
v. Nigh, 534 U.S. 50 (2004)), perhaps the Court will recognize the shall/may
convention and give it teeth.
"Shall" can be used to express (among other things) a command, a prediction,
or an intention. Thus, "Mary shall go to the store" can mean Mary is commanded
to go to the store, Mary will go to the store, or Mary intends to go to
the store. The term is rarely used in everyday English (at least in American
English), though it is still used in some common questions ("Shall we dance?").
In general, "shall" is archaic and formal.
"May" can be used to express authority, capability, or possibility. Thus,
"Mary may go to the store" can mean Mary is allowed to go to the store, Mary
is able to go to the store, or Mary might go to the store. Like "shall," "may" also
has other meanings; unlike "shall," "may" is still used in everyday English.
This is not to unduly alarm you, but it is to alarm you: The terms "may" and
"shall" are problematic. Each is ambiguous, and the ambiguity cannot always be
resolved easily by context. That said, the convention should be followed until
a demonstrably better approach comes along--and a better approach has not
yet come along.
Some propose using "must" to require, and while that seems superficially
appealing--"must" is not as ambiguous nor as archaic as "shall"--most come
around to the conclusion that it is not appreciably better. "Must" is not free of
ambiguity: "Mary must go to the store" can mean Mary has an obligation to go
to the store or Mary has a need to go to the store.
Though "shall" and "must" both carry the sense of requirement, only "shall"
carries the sense of command; "must" carries the sense of obligation, which is
similar, but not the same. When a host tells a guest, "You shall leave now," the
host is commanding the guest to leave. When a host tells a guest, "You must
leave now," the host is notifying the guest that the time to leave has arrived. In
both cases the guest is required to leave, but only with "shall" is it clear that the
host is the one imposing the requirement. With "must," the requirement could
be imposed by the host ("You broke my vase? You must leave now") by someone
else ("You have a curfew--you must leave now"), or by necessity ("You
have a train to catch--you must leave now"). Try replacing "must" with "shall"
in those three cases; it works only in the first one.
In short, as commands go, "must" is weaker and more ambiguous than
"shall." And then there is the reality that "must" is not used in everyday English
significantly more often than "shall" is. In everyday American English,
most speakers use "have to" (which has its own problems). And so most drafters
fall back on "shall," treating it more or less as a term of art.
As for "may," not nearly as much needs be said, because no one has come
up with a particularly good alternative.
To be sure, both "shall" and "may" could be replaced by indicatives, such as
"is directed to" for "shall" and "is authorized to" for "may." As with "must,"
these are weak, descriptive forms rather than strong, direct forms, and they take
three words rather than just one.
Drafters should follow the convention: Use "shall" to command and "may"
to allow. Notably, that convention has been codified into law in some parts of
the Code, though not yet in all parts--titles 10 and 32 of the Code each have
a section 101 providing that "shall" is used in the imperative sense and "may"
is used in the permissive sense.
To bolster the convention, never use "shall" or "may" in any other sense.
Use "shall" only to command, and use "may" only to allow.
Do not simply inject "shall" or "may" into a sentence and think you are
done. Words are not read in isolation. The broader question is not what "shall"
or "may" means in the abstract but whether the sentence as a whole, read in
light of the provision as a whole and the act as a whole, is intended to be a rule
of command, a rule of discretion, or something else entirely.
If the law imposes a command, for example, it should not only use "shall,"
but it should also specify the consequences that follow a failure to comply.
If a law uses "shall" but does not specify a consequence, a judge can do many
things with it. "Shall" could be mandatory, or "shall" could be directory. "Shall"
could mean "should," or "shall" could mean "may." "Shall" could be mandatory
but only substantial compliance is required. There are other possibilities as
well. Only by specifying the consequence can you be sure it will apply.
Finally, always be on guard when you use "shall" or "may." Consider this:
"The individual appointed as Director shall be a citizen of the United
States."
What does this mean? It could mean that an individual cannot be appointed
as director unless the individual is already a citizen of the United States. It
could mean that an individual, once appointed, has a duty to become a citizen.
Or it could mean that citizenship is automatically conferred upon an individual
when the individual is appointed.
