“May” does not just suggest discretion, it clearly connotes it.
— U.S. Supreme Court Chief Justice John G. Roberts1
While debate continues over some finer points of legal drafting, one little word has risen above the fray: may. Experts spar over the merits of shall, must, will, and more. But those same experts find common ground with may: it unmistakably grants discretion.2
Chief Justice Roberts said so just last June. The case, Biden v. Texas,3 concerned the Immigration and Nationality Act. The act says that the government “may return” border crossers to their country of origin while their immigration cases are pending.4 When the Biden administration balked at enforcing the Trump administration’s return policy, two border states sued. They alleged that because mandatory detention language appears elsewhere in the act, the Biden administration’s inaction under the “may return” section was unlawful.
Chief Justice Roberts, writing for the Court’s majority, rejected this argument because the statute “plainly confers a discretionary authority.”5 His elaboration was emphatic:
The statute says “may.” And “may” does not just suggest discretion, it “clearly connotes” it.6
In fact, wrote Roberts, may is an “expressly discretionary” term.7 This is especially clear when may “is used in contraposition to the word ‘shall.’”8 Had Congress intended the act’s nearby detention provision “to operate as a mandatory cure” of government inaction under the “may return” provision, Congress “would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term ‘may.’”9 In short, the statute’s “use of the word ‘may’ ... makes clear that contiguous-territory return is a tool that the Secretary ‘has the authority, but not the duty,’ to use.”10
This reading of may, though spirited, was hardly new — and Roberts took pains to show it. He cited four modern Supreme Court cases in support, noting that the Court “has ‘repeatedly observed’ that ‘the word “may” clearly connotes discretion.’”11
History buffs might note that the point wasn’t always so settled. One pre–Civil War opinion observed that “[t]he sense in which this word [may] is to be taken, whether permissive or compulsory in various statutes, has been a fruitful source of difficulty and discussion in the courts and at the bar, both in England and America.”12 That court, writing in 1859, fell on the side of a permissive meaning, holding that “the word ‘may’ is used in the section under consideration to confer ... discretionary powers.”13
In the ensuing decades, the case law was uneven, but courts became more confident in announcing, as one did in 1933, that “[t]he primary or ordinary meaning of the word ‘may’ is undoubtedly permissive and discretionary.”14
Modern case law reflects this view. In the past decade alone, California’s appellate courts have confirmed may’s permissive meaning at least a dozen times.15 Here in Michigan, the court of appeals recently rejected an argument for a mandatory may because the argument was “inconsistent with the [statute’s] plain language.”16 The court explained that may “typically reflects a permissive condition, entrusting a particular choice to a party’s discretion.”17
Courts have, unsurprisingly, rejected arguments straining may’s permissive meaning past its breaking point. An isolated or inapt may won’t, for example, allow litigants to flout an entire mandatory administrative-remedy scheme18 or ignore a statute’s list of official designees for service of process.19 And cautious courts, while acknowledging may’s “customary meaning of being permissive or providing for discretion,” accept the possibility of exceptions when “indications of legislative intent ... or obvious inferences from the structure and purpose of the statute” show otherwise.20 These would-be anomalies, besides being logical upon close inspection, are overwhelmed by the cases, too numerous to cite, applying may’s discretionary meaning without hesitation.
Leading commentators have likewise tabbed may as the choice for expressing “has discretion to; is permitted to; has a right to; is authorized to.”21 In Justice Antonin Scalia and Bryan Garner’s Reading Law, this idea takes on canonical status. For the mandatory/permissive canon, they state that “[m]andatory words impose a duty; permissive words grant discretion.”22 In the supporting illustrations, may is their lone choice for correct permissive language.23
Given may’s precedential and canonical standing as a permissive term, it’s puzzling how timid — and elaborately roundabout — some drafters are when granting discretion. I’ve barely scratched the surface in this short article, yet even here I’ve offered five post- 2000 U.S. Supreme Court cases confirming that may “clearly” connotes discretion. May, with active-voice phrasing — the court may award costs — should be a mainstay in our documents.
Yet it isn’t.
I recently checked a form contract for style. What I found was typical:
- “If ..., then the Publisher shall have the right to terminate this Agreement ….”
Edit: then the Publisher may terminate this Agreement
- “If ..., then the Publisher shall have the unqualified right to terminate this Agreement ....”
Edit: then the Publisher may terminate this Agreement
- “[T]he Publisher shall have the right, but not the obligation, to acquire or prepare ....”
Edit: the Publisher may acquire or prepare
The problem with the original versions goes beyond wordiness. True, the original versions used five, six, even nine words to express what may expresses in one word. But let’s look past that.
Consider the rampant misuse of shall. Drafting experts who view shall as a legitimate term of art wouldn’t defend shall’s use in terms granting discretion (as seen above). In fact, those experts are unwavering in their advice: use shall to impose a duty and only to impose a duty.24 Documents send mixed, contradicting messages when the mandatory shall appears in terms that confer discretion. To grant discretion, the experts say, use may.25
Yet in the form contract I studied, 28% of the shalls (22 of 78) appeared in clauses granting discretion. That’s worth repeating: more than a quarter of the contract’s shalls appeared in passages that did not impose a duty but instead granted discretion. Under any definition, that’s loose drafting.
Infusing shalls into discretionary terms risks clouding the duty shalls. After all (a court might ask), if 22 shalls appear in permissive passages, why should shall have an ironclad mandatory meaning elsewhere?
Far-fetched? No. Consider one court’s refusal to find a mandatory duty in this seemingly clear language: “‘[T]he code official shall employ the necessary labor and materials to perform the required work.’”26 The court concluded that this shall was “intended simply to signify the future tense,” was meant “to invest the code official with authority to act,” and was used “in its directory, not mandatory, sense.”27 Why no duty? The court explained that “because the word ‘shall’ is overused, it is not examined critically before placed in a statute and, thus, can convey a diversity of meanings.”28 Given cases like this, drafters’ quick trigger with shall is puzzling.
But we’re not done with potential ambiguity. Take another peek at the examples above; note how inconsistent the language is from one to the next. These examples show three language scenarios for granting discretionary authority. Whenever a drafter uses different words to express the same idea within a document or related documents, the drafter risks contextual ambiguity.29
Here, for instance, only one of the three examples includes the adjective unqualified before the noun right. (“[T]he Publisher shall have the unqualified right to ....”) Does this mean that the discretion granted in the other examples is in some way qualified? Inserting unqualified in one place but not in others needlessly opens the door to that argument.30
In contrast, the consistent use of may, with active-voice phrasing, removes the risk of ambiguity.
The examples above only hint at how frequently shall alternatives appeared in the form contract I studied. All should meet the delete key:
- “The Publisher shall have the right to edit and revise the Work ....” [may edit and revise, etc.]
- “[T]he Author shall have the right to review and approve ... the title ....” [may review and approve, etc.]
- “The Publisher shall have the right to manufacture....” [may manufacture]
- “The Publisher shall have the right to use ....” [may use]
- “The Publisher shall have the right to debit the account ....” [may debit, etc.]
In several provisions scattered here and there, the form contract used the active-voice construction that experts recommend:
- “If the Author fails to [timely] return the corrected page proofs ..., the Publisher may publish the Work without the Author’s approval ....”
- “If ... a claim
shall arise [arises] ..., the parties may [sue] jointly or separately.”
Ironically, this correct — but only occasional — use of may only adds to the contract’s overall inconsistency. May’s correct, consistent use would have, as Scalia and Garner put it, worked “beautifully.”31 We see its seamlessness in these last two examples. But may’s use in only occasional places suggests, again, some possible difference in meaning from the elaborate shall have the right to phrases found elsewhere. Do these may terms mean something slightly different from the wordy shall alternatives? No. But alas, the door to interpretive mischief is by now wide open.