The fate of Illinois’ gambling law, hundreds of millions of dollars in casino revenue and a proposed casino in Rosemont may all turn on how courts interpret a single word: “shall.”
That’s a shame, legal drafting experts say. They’ve been working for years to kill “shall,” hoping to persuade legislators and lawyers to stop using a word they say is pompous, imprecise and a spur to costly litigation.
“The word has caused us no end of trouble,” said Joseph Kimble, a legal drafter and law professor at the Thomas M. Cooley Law School in Lansing, Mich. “Enormous amounts of lawyer time and litigation time havhave been spent on the word `shall.'”
To lay people, the word seems simple enough, if a bit old-fashioned. It’s normally a synonym for “will” or “must” and can pop up in sentences such as “I shall leave tomorrow” or “You shall not walk on the grass.”
But Webster’s lists five definitions, some depending on context. Sometimes, that’s all it takes to get lawyers fighting. Appeals courts have struggled with the meanings of “shall” in at least 1,000 published opinions. Lawyers who want to wriggle out of a seemingly clear mandate can point to the hordes of conflicting rulings.
“People can make a lot of hay out of `shall,'” said Bryan Garner, editor in chief of Black’s Law Dictionary and president of LawProse Inc., a Dallas company that teaches legal writing.
“Shall” recently moved to center stage in Illinois when the state Gaming Board announced its legal interpretation of the 1999 gambling law. That law allowed Emerald Casino Inc., owner of a failed casino in East Dubuque, to apply to the board to renew its gambling license so it could open a casino in Rosemont. “The board,” the law said, “shall grant the application.”
Emerald and its supporters say “shall” means “must” and the board must grant the license.
Emerald’s rivals also say “shall” means “must.” But they argue that, as a result, the gambling law is unconstitutional because it singles out Emerald for favored treatment and thus violates the state’s ban on “special legislation.”
In June, the Gaming Board concluded that, in this instance, “shall” doesn’t mean “must.” The board’s attorney cited legal cases in which “shall” has been found to mean “may.”
As bizarre as it sounds, said board member Joseph Lamendella, an attorney, some courts have ruled that “shall” doesn’t mandate anything. “There are cases that say sometimes `shall’ doesn’t mean `shall,'” he said.
The board’s view angered supporters of the casino in Rosemont, who suggested pointedly that board members needed a dictionary.
But it likely pleased casino owners and others. If “shall” doesn’t require the Gaming Board to renew Emerald’s license, the law appears more flexible and less like an attempt to rig the licensing process in any one company’s favor. The law’s survival is critical for casino owners because it allows them to conduct gambling at dockside.
The Gaming Board is expected to vote Oct. 17 on Emerald’s license, but challenger Lake County Riverboat, a limited partnership, hopes the state Supreme Court will hear its petition to keep the gaming board from voting.
In the meantime, legal drafting experts say it’s time to start purging law books of their “shalls.”
Garner and Kimble acknowledge that using “must” or “may” in documents will not eliminate all questions of interpretation, but it would simplify many disputes.
Garner has already begun the process. He recently helped remove all the “shalls” from new versions of the Federal Rules of Appellate Procedure and the Texas Rules of Appellate Procedure, substituting “must” or another more exact word depending on the context.
Law schools could help stamp out “shall” by doing a better job of teaching legal drafting, Garner said. “The vast majority [of legal writers] probably prepare documents wholly unaware of the problems that `shall’ causes,” he said.
Banishing “shall” also would help make legal language more accessible to lay people, Kimble said.
“Nobody uses the word `shall’ in common speech,” he said. “It’s one of those words that gives legal writing its peculiar smell.”
