You Shall Use Must
Will somebody clear this up for me?
Today TFG’s lawyers filed a response to the DOJ’s filing in the matter of TFG vs. The United States of America. In that response they injected a new and intriguing argument with regard to the Presidential Records Act.
They claim that in a clause from the law, there is a flaw in the law’s wording.
Quoting: “…the Archivist of the United States shall assume responsibility for the custody, control. and preservation of and access to. the Presidential records of that President”.
(emphasis is mine).
Their argument? The law fails to use the word “must” instead of “shall” because they mean different things, even in the context of the clause’s wording.
I’m no legal eagle, but I see both words as directives. And I’ve been told by legalese people that should know that there is no difference between “must” and “shall”. Am I wrong?
Anyone beg to differ?
Trumpholers only care about the actual meaning of words if they get an advantage. Otherwise, it’s just a detail.
1TFG is a golfer. If he was aware of, and followed, the Rules of Golf he would know that “shall” equals “must”.
Oops, forgot he allegedly cheats at golf, too.
2Same idiots who profess that spraying Capitol police officers with bear spray and pounding on them with shields and flagpoles is just normal tourist activity.
3Lawrence O’Donnell did a long bit on his show about “shall = must” in the law. When lawyers and lawmakers don’t mean “must”, they use “may”…
This is all just chum for the MAGAts and Faux Noise…
4https://www.isba.org/barnews/2009/11/25/must-vs-shall
Looks a little iffy. That’s probably where they got the idea to try it.
5https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/
Here’s another one.
6Saw that. I was hoping it might come up in discussion. That whole concept of using “must” instead of “shall” because no one says “shall” anymore seems specious to me. We all know the recent history of our language, nobody says “shant” anymore either. Language evolves, but that doesn’t mean we need to invalidate a law because the language is newly seen to be ambiguous.
OTOH In my opinion the language of the act is not one of direction but of allocation. Naming the department responsible for archiving presidential records. Could have been the White House permanent staff, but they selected the National Archives.
7As long as Cry Baby SHALL stay in the spotlight ………….
8“Shall” is, and hath ever been, the Future Imperative Tense. I’m not sure where I have seen it ‘corrupted in current usage’, as those articles claim.
9I referee high school soccer. One of the rules says a player “shall give ten yards” clearance of the ball for a free kick. In youth soccer, which I also refereed for about 35 years, if a player wants to stop the free kick the kicker must request a 10 yard enforcement.
10This is the first time I’ve seen a debate between must and shall.
In the English I learned, “shall” has always meant “do it.”
11shall, vb. 1. Has a duty to; more broadly, is required to . This is the mandatory sense that drafters typically intend and that courts typically uphold.
–Bryan A. Garner, Black’s Law Dictionary 1407 (8th ed. 2004).
12Lawrence O’ Donnell did a segment on shall and must last night. His view is from a former senate staffer who wrote laws. His take is shall always means must.
13The use of the word “shall” is actually a matter of some dispute among legal writers, because it can have different meanings depending on the sense in which it is used. “Shall” usually imposes a duty upon someone, e.g., “The court shall enter an order granted the relief requested.” But depending on the context, it can sometimes mean “may” or “should,” e.g., “No person shall be authorized to enter the premises.” Some lawyers advocate avoiding the use of “shall” entirely, to avoid this problem.
That said, in the usage above, “the Archivist of the United States shall assume responsibility” clearly imposes a duty upon the Archivist, and is therefore being used in a mandatory sense equivalent to the word “must.” So TFG’s argument is a non-starter. (Or it should be–I have no faith that the courts will apply the law correctly when it comes to TFG.)
14That reminds me of my 6th grade teacher, Mrs. Libby. If one raised one’s hand and asked “Can I go to the bathroom?”(actually, it was boys or girls room), she would answer “You MAY if you CAN.” My brother and I still laugh about that.
15The bottom line is that it’s just another bull…. stalling tactic that won’t change anything.
16I hope I get to meet you someday, JJ, (aka Susan). That would be 100% worth a special trip to Texas.
17Reminds me of this:
“It depends on what the meaning of the word ‘is’ is. If the—if he—if ‘is’ means is and never has been, that is not—that is one thing. If it means there is none, that was a completely true statement. … Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true.”
18Luckily there’s a bunch of judges in DC who call themselves “originalists.” Ask them what “must” and “shall” meant in 1787.
19fenway Fran, my favorite was always ” Can I go to the restroom real fast?” I’d look at my wristwatch and say ” I don’t know but I’ll time you” and then pretend to hit the timer button.
20I disagree that “No person shall be authorized to enter the premises,” means they should not be authorized. It means they shall not be authorized.
21This argument by trumpf “attorneys” is proof they are out of legitimate arguments so they resort to bullshit. Reminds me of something alex jones attorneys would argue.
22Wow good catch from tRump’s attorneys! Seems the Government was caught using ‘alternative word meanings’.
23Conservatives can be so diabolical …
https://www.nbcnews.com/meet-the-press/video/conway-press-secretary-gave-alternative-facts-860142147643
In my thirty-five years working as a computer programmer for NASA, we were always instructed to interpret the word ‘shall’ to mean a requirement and the word ‘may’ to mean a suggestion. Then again, our NASA bosses were engineers, not lawyers, so who were they to say?
24So ‘thou shall not commit adultery’ is merely a suggestion?
25Oh oh, looks like we’ll have to change The 10 Commandments.
26‘Thou shalt not steal.’
Or is it ok to steal now that they didn’t say ‘must’?
From my Law Prof. brother …
A Mathematician, Scientist and Lawyer were all asked the same question, “How much is 1 plus 1?”
27Mathematician, “You take the number 1 and add 1 more number, you get the number 2.”
Scientist, “You put 1 carrot in a bag and add 1 more carrot to the bag, you get 2 carrots in the bag.”
Lawyer when asked the same question jumped up, closes the blinds, dimmed the lights, looks quickly around and whispers in my ear, “Whatever you want it to be.”
I took a class in contract drafting, taught by the expert witness in the “million dollar comma” case. According to him, “shall” imposes a duty.
28I can echo what BFSMan said — in NASA contracts the word “shall” meant something which absolutely must be done. If you don’t meet a “shall”, don’t count on your proposal/contract being accepted.
BFSMan — Backup Flight Software? I was PASS GN&C.
29I thought everyone knew the difference between “must” and “shall”. They’re spelled differently.
[With apologies to those above who have addressed the issue thoughtfully and carefully. I remembered once Johnny Carson asked “what’s the difference between a yam and a sweet potato”, and an audience member shouted “79 cents a pound”. Followed by one of his musicians giving the spelling diff.]
30Great advice for Dump:
31“Mind what you do: If you deceive me once, I SHALL never believe you again.”
Denis Diderot
As an electrician we have “the code” and “shall” in that context is the same, according to the lawyers, as saying “you will”.
32lex @ 27
About 45 years ago in Iowa, the attorney general argued that the words ‘may not’ in a state law meant ‘may.’
He had aspirations to higher office, but for decades after that the political reporter at the Des Moines Register phrased every reference to him as ‘former attorney general X, who once argued to the Iowas Supreme Court that “may not” means “may” . . ‘
X never did attain higher office.
33Harry Eagar @ 33
34Lol, can’t blame the guy for trying!
AlanInAustin – Four years Level 3 verification on PASS software, eight years BFS GN&C software, the rest MCC MOC.
35