Toward Clearer Guidance on Drafting Principles of the Law
This Director's Letter was originally published in the Fall 2019 Edition of The ALI Reporter.
The ALI Style Manual, a somewhat obscure publication that nonetheless plays an important role in our work, provides relatively clear drafting guidance for Restatements and model codes.[1] Drafting guidelines for Principles projects, however, are not as well specified.[2] This gap has led to some confusion and disagreement among project participants and inconsistencies in our drafts. My hope is that this letter’s focus on the issue will lead us to more consistency in our Principles projects.
Our three major project categories vary along two axes. The first axis—and the cardinal distinction among ALI project types—is the audience toward which the project is primarily aimed: courts for Restatements; legislatures for model codes; and a variety of institutions, both public and private, for Principles projects. The second axis is the voice in which the black letter is written: Is it the ALI’s own voice speaking to the target audience, or are we adopting the voice of the audience itself?
On the question of voice, the Style Manual states that Restatements “assume[ ] the perspective of a common-law court,” and, accordingly, the black letter is phrased “in the descriptive terms of a judge announcing the law to be applied in a given case.”[3] Thus, although Restatements are addressed to courts, Restatement black letter speaks in the voice of a court. This approach makes it easier for courts to adopt the ALI’s articulation of a rule, simply by importing the black letter directly into a judicial decision. In the Comments and Illustrations, however, a Restatement reverts to the perspective of the Institute in our role as explainer and analyzer of the law, and in this voice we speak to courts, practitioners, and academics (and whoever else might seek our guidance).
Model codes follow a similar blueprint. The black letter consists of “prescriptive statutory language” crafted “with a view toward legislative enactment.”[4] Thus, the black letter speaks in the voice of the legislative body itself. A legislature persuaded by the wisdom of our work can more easily adopt our black letter or make whatever changes it deems appropriate. But, as in the case of Restatements, our model codes revert to the Institute’s own voice in the Comments and Illustrations.
For Principles projects, nothing in the Style Manual directly indicates from whose perspective the black letter ought to be written. But since 2015, when the ALI clarified the distinction between Restatements and Principles projects, it has been clear that Principles are not meant to speak through the declarative voice of a common-law judge or the prescriptive voice of a legislature. And even where Principles are directed towards a legislative audience, they do not offer fully developed statutory language, as do model codes; instead, Principles provide guidance for the drafting of such legislation.
Despite the lack of attention to this issue in the Style Manual, since we clarified the three categories in 2015, black letter Principles provisions generally have been drafted in the voice of the Institute itself, which is fitting given that the ALI is providing its guidance to a project’s target audience, public or private. An example from § 3.07(a) of the Principles of the Law, Compliance, Risk Management, and Enforcement, provides that “[t]he board of directors and executive management should promote an organizational culture of compliance and sound risk management.”[5] The ALI is therefore speaking, in its voice, to the board of directors. The perspective is different from those used in Restatements, which use the voice of the courts, and model codes, which use the voice of legislatures.
Nor is there Style Manual guidance about usage of the key terms employed to make operative the substance of our Principles work. In contrast, for Restatements and model codes, the Style Manual provides guidance on the use of words such as “shall,” “must,” “may,” and “should.”[6]
In making recommendations to institutions in Principles projects, we generally use the word “should.” For an example in which the ALI speaks to governmental actors, § 7.03 of the Principles of the Law, Policing, says: “In instances in which force is used, officers should use the minimum force necessary to perform their duties safely. Agencies should promote this goal through written policies, training, supervision, and reporting and review of use-of-force incidents.”[7] To consider an example that speaks to private actors, § 3.06(a)(1) of the Principles of Compliance, Risk Management, and Enforcement, says: “The members of the board of directors . . . should [ ] be independent.”[8] The reason that Principles projects tend to rely on “should” is precisely because they are written in the voice of the Institute and not in the voice of a body with sovereign compulsory powers, such as a court ora legislature.
In the example above concerning the board of directors, if we were preparing a Restatement, we would instead say, in the declarative voice of a court, that “the members of the board of directors are independent.” And, if we were writing a model code, the Style Manual prescribes that the preferred formulation would be “must,” reflecting the governmental power of the legislature.[9] The black letter in Restatements and model codes sets forth what will be legally binding obligations once adopted by courts and legislatures, respectively, and the violation of these obligations is generally coupled with a remedy. In contrast, the black letter in a Principles project sets forth best practices for a particular institution or actor, which might not suffer adverse legal consequences if it does not do what we say it should do.
But despite the prevalence of “should,” “shall” also makes a frequent appearance in our Principles projects. For example, § 3(a) of our recently approved Principles of the Law, Data Privacy, provides: “Whenever a data controller or data processor engages in a personal-data activity, the data controller or data processor shall provide a transparency statement, which is a publicly accessible statement about these activities.”[10] What does “shall” mean in this context? It cannot be that this particular transparency statement is legally required, as “must” would convey, because there was no attempt to directly ground this provision in sources of positive law. Does it mean “should”? If so, using different words across our projects to convey the same thought is likely to lead to confusion over time. Or does it mean “should” with extra bite, as in “really should”? But “really should” sounds more like the voice of an exasperated parent than that of an institution that prides itself for using precise legal language. This ambiguity explains why the use of “shall” is becoming increasingly disfavored, as reflected in the Office of the Federal Register’s Principles of Clear Writing[11] and in Bryan Garner’s article, Shall We Abandon Shall.[12] “Shall” has served us for a long time but maybe the time has come for us to retire it as well.
Is it ever appropriate to use “must” in a Principles project? For example, consider § 11.03 of Principles of Policing, which states (emphases added): “Officers should inform suspects of their right to refrain from answering and their right to counsel, and ensure that any waivers of those rights are meaningfully made. Any invocation of rights must be respected, and if there is any uncertainty as to whether rights are being invoked, officers should take the time to clarify that. Waivers of rights should be documented using appropriate agency forms, and must be recorded in accordance with § 11.02.”[13] In these instances, “should” is used to describe the best practices that the Principles project recommends, as is appropriate. The first “must,” dealing with the invocation of rights, refers to a clear requirement of the Constitution, as § 11.03 explains in a Comment. Thus, it is not a best practice transmitted by “should,” but a constitutional requirement transmitted by “must.” (One might ask why this command belongs in a Principles project, but it makes sense to include it for completeness in a discussion in which the ALI is recommending best practices with respect to related actions, all of which are aimed at enforcing constitutional safeguards.) The second “must” actually was the subject of a comment made from the floor at this past Annual Meeting, when an observant ALI member noted that § 11.02—which is cross-referenced—actually uses “should” to describe the recording requirement. The Reporter agreed with the commenter that “should” would be a better choice for this clause, and we can expect such a change to be made to the black letter in accordance with the Boskey motion.
Is there any role for “may” in Principles projects? Consider § 4.04(a)(1) of Principles of Policing: “During a stop, an officer may [ ] request identification and make other inquiries as necessary to investigate the crimes or violations for which the officer has reasonable suspicion, or as necessary to ensure officer safety.”[14] Here, the provision is designed to emphasize that an officer is permitted to take such actions, presumably because it otherwise would not be clear. An unqualified “should” would be inappropriate because we are not recommending an across-the-board practice. If, in contrast, our goal is to say when such practices should be used, a “should under the following circumstances” formulation would be appropriate. “May” also sometimes is used to offer a menu of best practices, where the selection of one or more options will depend on the particular circumstances faced by the user of the Principles. An example appears in § 5.9 of a Preliminary Draft of Principles of the Law, Student Sexual Misconduct: “Informal resolution of complaints or reports may include a wide range of accommodations and remedial measures.”[15] The Comment lists some of the accommodations and remedial measures to which the black letter refers, including administrative leave, apology, and no-contact directives. Because the choice among these options is best left to the educational institution in the context of the given case, “should” would be inapt.
I believe that three drafting principles will facilitate our future work on Principles projects. First, Principles should be written in the voice of the ALI, recognizing that this voice offers flexibility to meet the needs of different contexts. Second, we need to keep in mind the target audience for our recommendations. And third, we need to make sure that we are using the correct operative words and doing so consistently. In general, it will be “should,” though some exceptions are appropriate, as indicated above. But we need to make sure that the reader will understand why we are using different words. My hope is that we will now pay more attention to these issues and that, as a result, we will add further consistency to the language we use in Principles projects.
[1] See THE AMERICAN LAW INSTITUTE, CAPTURING THE VOICE OF THE AMERICAN LAW INSTITUTE: A HANDBOOK FOR ALI REPORTERS AND THOSE WHO REVIEW THEIR WORK 3-13 (rev. ed. 2015) (“ALI Style Manual”), available at https://www.ali.org/publications/style-manual/.
[2] See id. at 13-15.
[3] Id. at 5.
[4] Id. at 4, 11.
[5] Principles of the Law, Compliance, Risk Management, and Enforcement § 3.07(a) (Tentative Draft No. 1, Apr. 4, 2019).
[6] See ALI Style Manual at 7, 12-13.
[7] Principles of the Law, Policing, app. B, at 73 (Council Draft No. 4, Aug. 8, 2019). Section 7.03 was approved by the Membership at the 2017 Annual Meeting, when it was numbered § 5.02.
[8] Principles of the Law, Compliance, Risk Management, and Enforcement § 3.06(a)(1) (Tentative Draft No. 1, Apr. 4, 2019).
[9] See ALI Style Manual at 12.
[10] Principles of the Law, Data Privacy § 3(a) (Tentative Draft, Apr. 15, 2019).
[11] Office of the Federal Register, Drafting Legal Documents, Principles of Clear Writing (Aug. 15, 2016), https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html.
[12] Bryan A. Garner, Shall We Abandon Shall?, ABA JOURNAL (Aug. 1, 2012), available at http://www.abajournal.com/magazine/article/shall_we_abandon_shall.
[13] Principles of the Law, Policing § 11.03 (Tentative Draft No. 2, Mar. 18, 2019).
[14] Id. § 4.04(a)(1).
[15] Principles of the Law, Student Sexual Misconduct: Procedural Frameworks for Colleges and Universities § 5.9 (Preliminary Draft No. 5, Oct. 18, 2018).
