3 Scribes J. Leg. Writing 61 (1992)
The Many Misuses of Shall

handle is hein.journals/scrib3 and id is 69 raw text is: The Many Misuses of Shall
Joseph Kimble
[W]hen such a rule says that something shall be done, the
Court jolly-well means for it to be done; the direction is a
mandatory one and must be obeyed.... But the rule
does not specify or mandate any particular sanction ....
[W]e do not believe that [dismissal] is a mandatory sanction
required to be applied indiscriminately in all cases. The
trial court, we think, had some discretion in the matter.
People's Counsel v. Public Serv. Comm'n,
451 A.2d 945, 948 (Md. Ct. Spec. App. 1982)
Let me offer a summary up front, where it belongs.
First, shall is the most important word in the world of legal
drafting - contracts, wills, trusts, and the many forms of public
and private legislation (from statutes to court rules to corporate
bylaws). Shall is the very word that is supposed to create a legal
duty.
Second, shall is the most misused word in the legal vocabulary.
Third, this perpetual misuse reflects the sickening failure of
most law schools to teach legal drafting.
Fourth, a good case can be made for abandoning shall entirely.
That would at least end the misuses. And it would take us another
step closer to plain language.
Finally, though, the best solution may not always be that neat.
In some documents, the best solution may be to define shall and
must and may - the terms of authority. That way, drafters can
make clear the degree of duty they intend and the possible conse-
quences of a breach.
The Grammar of Shall
Shall is a modal auxiliary verb. The modal auxiliaries (shall,
will, must, can, may) are so called because, unlike the other
auxiliaries (be, do, have), they express modal meanings such as

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