[License-discuss] Request Discussion Pre-Reviews For New Licenses (chewkeanho-rlos, chewkeanho-cos, chewkeanho-gpos)

[Bruce Perens]

I was impressed with this:*There are 76 pages in “Words and Phrases” (a
legal reference) that summarize hundreds of cases interpreting “shall.”*

That is quite an indictment.

As an Open Source compliance and intellectual property specialist, I
consider it one of my main duties to keep the customer out of litigation,
and a personal failure if my clients _listen_to_me_ and then are involved
in litigation over the issue. There are, surprisingly, some who pay a lot
of money for advice and then don't listen. I work for an attorney 100% of
the time, so perhaps the ones who get into litigation have first said I'm
all wet.

On Wed, Oct 2, 2024 at 12:37 PM McCoy Smith <mccoy at lexpan.law> wrote:

> "Shall" is a huge bugaboo of Bryan Garner, who's a bit of a legal drafting
> guru (who some swear by and others think is all wet). He did write a fairly
> influential book (with Antonin Scalia) on interpreting legal texts, and
> also apparently was pals with, of all people, David Foster Wallace. And for
> a time (maybe still) edited Black's Law Dictionary.
>
> I sort of agree with him on shall (it is potentially ambiguous and I think
> a bit antiquated) but its one of those things that is so ingrained in legal
> drafting that we'll likely never be rid of it. And others find it valuable.
> On 10/2/2024 10:48 AM, Aaron Williamson wrote:
>
> On Wed, Oct 2, 2024 at 7:48 AM Bruce Perens via License-discuss <
> license-discuss at lists.opensource.org> wrote:
>
>> The word "SHALL" must not be used in a license. Please replace all
>> occurrences of "SHALL" with "MUST" and see
>> https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/
>> for the reasons you must do so.
>>
>> I am assuming you are not a legal professional, I think one would not
>> have missed that issue by now.
>>
>
> This may be an emerging best practice, but it's certainly not ubiquitous
> practice amongst U.S. legal professionals. On the contrary, my experience
> is that "shall" is still more commonly used, regardless of the type of
> legal document in question.
>
>
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-- 
Bruce Perens K6BP
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