Friday, May 13, 2005

"may" vs. "reserves the right to"


Should I substitute "may" for "reserves the right" in a legal document? For example—

1. Company X hereby reserves the right to bring suits, claims, and actions for any and all causes of action arising from this Agreement.


2. Company X may sue you for the things you do under this Agreement.

Some suggest that in number 1, "reserving the right" to do something is more powerful and has a more certain legal meaning than saying that one "may" do something.

Schiess’s response:

I believe "may" is the better word here. It is shorter, has the unanimous approval of legal-drafting experts, and presents only the remotest chance of ambiguity.

Shorter is better
When you can convey the same information in fewer words, the shorter way is better. Always. I’ll cite myself for that point. Wayne Schiess, Better Legal Writing __ (Wm. S. Hein 2005) (forthcoming). So "may" is better than "reserves the right to" if it conveys the same information.

Experts agree on "may"
Every legal-drafting source I’ve ever read and that addresses the subject recommends "may" for discretionary acts in place of longer phrases such as "is entitled to," "is authorized to," and "has the discretion to." Here is a sampling:
  • "'[M]ay' means 'has discretion to,' 'is permitted to' or 'is authorized to.' (Using any of these formulations as an alternative to 'may' . . . would constitute circumlocution.)" Kenneth A. Adams, Legal Usage in Drafting Corporate Agreements 33 (Quorum Books 2001).
  • "If there is no obligation, but only a discretion, 'may' is the word to use." Michèle M Asprey, Plain Language for Lawyers 203 (3d ed., Federation Press 2003).
  • "'May' expresses discretionary authority." Barbara Child, Drafting Legal Documents: Principles and Practices 383 (2d ed., West 1992).
  • "To create discretionary authority, say 'may.'" Reed Dickerson,The Fundamentals of Legal Drafting 214 (2d ed., Little, Brown & Co. 1986).
  • "['May' means] has discretion to; is permitted to[.]" Bryan Garner, A Dictionary of Modern Legal Usage 552 (2d ed., Oxford U. Press 1995).
  • "Use 'may' to create a privilege." Thomas Haggard, Legal Drafting in a Nutshell 237 (West 1996).
  • "[T]he use of 'may' is limited to the grant of discretion or authority." Robert J. Martineau, Drafting Legislation and Rules in Plain English 81 (West 1991).
Remote risk of ambiguity
The word "may" does have another meaning: "possibly will." So in the sentence "The judge may dismiss," we have ambiguity. Does the sentence mean the judge has the authority to dismiss? Or does the sentence mean the judge possibly will (or might) dismiss? It's not clear. See David Crump, Against Plain English: The Case for a Functional Approach to Legal Document Preparation, 33 Rutgers L.J. 713, 729 (2002).

In the piece I just cited, Professor Crump insists that "The judge has the discretion to dismiss," is better and clearer than the sentence using "may" because of the ambiguity: does "may" mean "has authority to" or "possibly will"? Perhaps in a legal memo, a brief, or a law-review article he would be right.

But the question raised here is about using "may" in legal drafting, in what I assume is some kind of transactional document. The use of "may" to mean "possibly will" in a transactional document is rare but does occur:
    One slight complication inherent in using "may" to connote permission is that it can also be read as indicating that something might come to pass. Take the following provision: "During the term of this Agreement, the Investigator may provide the Sponsor with confidential information." This could be read as meaning that the Investigator is authorized to provide the Sponsor with confidential information, but the intended meaning is that it is possible that the investigator will do so. You can usually discern from context which meaning is intended.
Kenneth A. Adams, Legal Usage in Drafting Corporate Agreements 34 (Quorum Books 2001).

But you can avoid even the need to rely on context by using one of these options:
  1. In the document, define "may" to mean "is authorized to" and use it carefully only for that meaning.
  2. Scrupulously avoid using "may" to mean "possibly will" in any legal-drafting project.
  3. Do both 1 and 2.
Powerful and certain
As for the suggestion that "reserves the right" is more powerful than "may," I don't know. We could test the two usages on lawyers or nonlawyers and gauge their effect. My instinct is that shorter is more powerful, and that what is really being suggested is that "reserves the right" sounds more legal. It sure does. But generally, I don't care of something sounds legal as long as it IS legal, and I am not going for emotional impact in legal drafting. I want clarity and precision, and 'may' gives me that.

And what about the suggestion that "reserves the right" has a more certain legal meaning than "may"? This claim is often made about legalistic words and phrases, but it can rarely be backed up. See Benson Barr, George Hathaway, Nancy Omichinski, & Diana Pratt, Legalese and the Myth of Case Precedent, 64 Mich. B. J. 1136, 1138 (Oct. 1985).

One who asserts that a word or phrase has a certain legal meaning should be required to prove it with recognized, consistent legal authority. By the way, a search of the current edition of Words & Phrases turned up no cases construing the phrase "reserves the right" and one case construing "reserves the right to decide," the closest phrase I could find.

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