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Comment by dataflow

2 years ago

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?

17 comments

dataflow

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martinflack  2 years 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...

  • dataflow  2 years 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...

    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  2 years 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."

      7 replies →

    • AnthonyMouse  2 years ago

      > 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.

      But it's the same ambiguity, isn't it? Essentially whether "shall" creates an obligation for the taxpayer to claim it as R&D expense or an obligation for the IRS to accept it as R&D expense if the taxpayer so claims it, the equivalent of whether "shall" applies to the employee or the employer.

      And in both cases the existence of the ambiguity is bolstered by the fact that the overly literal interpretation leads to a ridiculous result.

      2 replies →

anon373839  2 years 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.