Constitutional Crisis Brewing due to U.S. Supreme Court Decision


Chief Justice Roberts’ Dissent Explained

I won’t editorialize about the fundamental moral and societal impacts, or on the flip side the impact on my gay and lesbian friends. But on the rationale behind the Court’s action, Chief Justice Roberts’ dissection of the majority opinion in the US Supreme Court’s decision displays it for all to see–this was a results-driven decision without Constitutional basis. If the Court can impair States’ rights like this in the face of the 10th Amendment, what is next? Texas is already hinting at civil disobedience. Others will follow. This doesn’t bode well in the long-term for the future of a “united” United States.

“Shall”, “may” and “must” for Finance Professionals

When writing or presenting technical material, is it best to use “shall”, “may” or “must”? It is easy to understand why financial professionals such as CPAs, CMAs, or CFAs often use “shall” instead of its plain language counterparts “may” or “must”. Many IRS rules, statutes, and regulations use “shall”. It also feels very authoritative, n’est-ce pas? The term carries the weight of centuries of scripture, tradition, and authority. What is more, finance professionals I interact with simply feel like “shall” means absolutely, positively and without any exception, while “may” and “must” feel less definitive.

The problem is that “shall” is an ambiguous term, carrying multiple potential meanings, including “is required to” or “has a duty to”, or “may”. The problem primarily exists when you use the phrase, “No person shall . . . .” Does this mean that no person may, or no person is required to? This situation is a primary reason many U.S. federal and state legal drafting committees have abandoned “shall” for the less ambiguous and more precise, “must” and “may”.

Of course, there are circumstances when “shall” is perfectly appropriate.

  • When you are quoting regulations themselves that use “shall”.
  • Ummmm . . . .

Yep. That’s right. Unless you are trying to sound like a high tea-sipping member of the British Parliament, or a member of that country club whose members certainly wouldn’t associate with me, that is the only time. And put yourself in your clients’ shoes–would you really like to hang out with an accountant who uses “shall” to tell you what to do? “Must” and “may” or just as strong when used properly. And they are more correct. 

The transition from “shall” to “must” and “may” is especially challenging for a global finance professional perhaps using English as a second, or otherwise non-native language. I frequently see it both in the legal and finance context where using the plain language, yet more precise, “may/must” construction is questioned and challenged. But my recommendation is the same globally though–eliminate “shall” completely from your professional vocabulary, and replace it with “must” or “may” where appropriate.

For an entertaining read agreeing with my position on eliminating “shall”, see Bryan Garner’s article in the American Bar Journal at http://www.abajournal.com/mobile/mag_article/shall_we_abandon_shall

    Debunking a “Good Example” of an Aircraft Safety Regulation Rewrite

    When multiple aircraft in the U.S. have a similar unsafe condition, the U.S. Code of Federal Regulations tells aircraft owners and operators how to deal with it. This is my version of how this regulation should read:

    12 June 2015 Airworthiness directives

    The Plain Language authority of the U.S. government, though, suggests the following is preferable:

    12 June 2015 Airworthiness directives (gov't rewrite)

    Which would you rather read?

    This “after” version directly above is example of the effectiveness of the Plain Language office’s work. The “before” and “after” are linked here:

    http://www.plainlanguage.gov/examples/before_after/airworthydirective.cfm

    Two comments:

    1. I like the addition of bold and white space, and use of “we” and “you”. But consistent with bureaucracy, the “after” version is actually longer (285 words and 28 text lines), and is less helpful, than before. And this Q&A style is difficult because most people reading this need know only two things: (a) what is the rule, and (b) to what situations do these rules apply. Unfortunately, in the “after” version you must read through every question to find those rules. At least in the “before” version, you could easily find the rules.
    2. Both the “before” and “after” are similarly flawed–they tell us what the regulation is going to say, then they finally say it. Why not just say it once, as my rewrite suggests?

    Quick Tip on Use of Clause “regardless of whether”–Rewrite It!

    I came across the clause “regardless of whether” in a construction agreement today:

    Regardless of whether

    There must be a simpler way of saying that, right? Legal language expert Bryan Garner believes “regardless of whether” is right, and should replace “regardless whether”. I disagree, and think rewriting it is best, using an “even if” construction below:

    Even if construction

    I also toyed with using “whether or not” to replace “regardless of whether” (and liked it better than “regardless of whether”) even though that construction is routinely criticized.

    Lesson: When the “right way” still doesn’t sound right, rewrite it.

    Safety Program excerpt from Construction Agreement

    Construction SiteThis is an excerpt from my company’s construction contract safety policy, likely written by engineers and non-English speakers in Thailand. There was an attempt to “write like a lawyer”–the results were less than ideal.

    Lesson 1: Use clear language. If you need to re-read a sentence or paragraph to understand it, it still needs work. Keep it simple.

    Lesson 2: When you define a term (see the final paragraph), use it correctly (“JSA” instead of “SJA”).

    Lesson 3: Using all caps on defined terms clogs up readability. Change these to regular roman type.

    Redline:

    Redline--Safety Program

    Finished product below.

    Redline (rev)--Safety Program

    Scoreboard: 249 words reduced to 210 (-39). And much clearer.

    If you notice anything else, leave a comment.