Vagueness and Ambiguity Specific examples from rules, laws, and other documents

1
Vagueness and AmbiguitySpecific examples from
rules, laws, and other documents

• Maryann Corbett
• Office of the Revisor of Statutes
• September 26, 2007

2
A look at rule disapprovalsand other interesting
cases

• Language problems fall into known classes.
• Most are familiar.
• Youve heard about them. Ill review.
• A few are intriguing.
• Ill review them in detail.

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Legal problems stemming from language

• 1. Unclear standards 5 instances
• 2. Ambiguity 7 instances
• 3. Overbroad discretion 17 instances
• 4. Vagueness 21 instances
• Hands-down winner is vagueness

4
Language-related problems formal types

• May instead of must or shall
• Definitions not provided
• Special case choosing singular or plural
  nouns.
• Forms
• Including but not limited to
• Lists
• Language problems result in legal problems.

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Vagueness Vague terms

• is encouraged
• The auditor is encouraged to prepare or assist in
  preparing returns.
• Use of security cameras is encouraged.
• Not clearly a duty not rule language.
• Raises questions about responsibility for return.

6
Vagueness vague terms

• must provide consultation and ongoing review
  ofmedication administration and timely review of
  medication error.
• Does a regulated party know what actions are
  needed to comply?

7
Vagueness Vague terms

• normally
• A companion animal is a member of a species
  that is normally kept by humans for companionship
  and enjoyment, rather than normally being raised
  for consumption as food.
• Who sets the norm? What about ferrets? What about
  service animals?

8
Vagueness double definitions

• Applicant means a person applying to take the
  Uniform Certified Public Accountant Examination.
  An applicant is also referred to as a
  candidate.
• This will not be clear to people reading rules
  out of context.

9
Vagueness vague phrases

• including
• A personmay administer medications, including
  oral, suppository, eye drops, ear drops.but not
  injections, except insulin
• including doesnt limit

10
Vagueness singular or plural?

• The responsible party shall do all of the
  following
• C. require a parent who refuses newborn screening
  to sign a waiver formThe responsible party
  shallsend a copy of the signed form to the
  commissioner within one week from the time the
  parents sign the form.

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Singular or plural?

• Will the rule apply regardless of the number of
  persons?
• If more than one may act, must they act together?
  
• Dont rely on the rules of construction that says
  the singular includes the plural and vice versa.

12
Vagueness vague phrases

• including/includes but is not limited to
• Active efforts may include, but are not limited
  to, soliciting the advice of tribal
  representatives.
• Can you be sure what youve done will be
  considered an active effort?

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A tip about including

• If you want to give people an idea what a vague
  term covers, list examples and say that theyre
  examples. Avoid including.

14
Unclear standards Examples as cures

• List of specific examples can cure a vague
  standard
• Examples of failure to have financial stability
  or responsibility to act as an agent.
• Examples of karst features that would lead
  directly to groundwater contamination by animal
  feedlots.

15
Vagueness vague phrases

• any other factors deemed appropriate by the
  commissioner for resource or recreation
  management
• End-of-list catchall language as problem
• Can you tell if something is inside the box or
  not?

16
Vagueness vague phrases

• financial stability or responsibility required
  of an agent
• a preponderance of the information
• in a manner prejudicial to public confidence in
  the integrity of the agency

17
Vagueness vague phrases

• least costly alternative
• Vehicle adaptations for disabled persons
• least costly vehicle adaptations that will meet
  the safety needs of the individual
• This is the language recommended

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Tips for avoiding vagueness

• Be as specific as possible in the situation.
• Keep your terms consistent (261).
• Define your terms, but
• Only define what you use.
• Only define what needs it.
• See manual, pages 39-41.
• If you reference a definition or use a defined
  term, make sure it fits your needs!

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Vagueness can lead to

• Lack of specific standards
• Overbroad discretion
• Moral Hunt for squishy boundaries and weasel
  words

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Unclear standardsLists and definitions together

• Water quality standards
• A definition explains what a BCC is
• A list shows which chemicals are BCCs.
• These help the reader, but confuse the legal
  standard.
• Which do you use to decide if something is a BCC?

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Unclear standards Incorporation by reference

• State or federal law or rules
• Conveniently available to the public
• available through interlibrary loan
• submitted to State Law Library
• Clear identification of document in rule.

22
Unclear standards Incorporation by reference

• If you refer to a document, be sure to list it as
  incorporated.
• Be certain the document can be positively
  identified by those who must use it at a library.

23
Discretion red flags may

• May is the cause of almost half of the mentions
  of overbroad discretion in the sample of
  disapprovals reviewed.

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Problems related to modal verbs

• English modal verb system is inherently
  ambiguous.
• Modal verbs have many shadings.

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Why does may cause trouble?

• Its inherently ambiguous in normal use.
• (Look at a dictionary. See all those meanings?)
• In legal use, its restricted to one meaning has
  discretion to do or not do
• Native speakers must work to be aware of shades
  of meaning.

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Discretion red flags may

• When we start with if we often write may when
  we really need shall or must.
• Did you really want to give discretion not to do
  this?

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When may should be shall or must

• An agency may continue the search if it is in
  the best interest of the child or if the court
  orders it to do so.
• may seek emergency removal of an Indian childto
  prevent imminent physical damage or harm to the
  child.
• Can you decide not to do it in those cases?

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When may should be shall or must

• In cases governed by subpart 2, the commissioner
  may appoint a case reviewer or a family visitor.
• In fact, the commissioner must appoint one or the
  other (but has discretion to choose which). Say
  must appoint either

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Reminders about may

• may do something IF use must
• may before A or B use must
• Moral Circle every may and try plugging in has
  discretion to do or not do. Do you mean that?

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When may calls for added information

• A veterinarian may possess substances that are
  FDA approved, but not specifically for the horse,
  only with the prior approval of the commissions
  veterinarian and board of stewards.
• How will the commissions vet and the board
  decide? What are the criteria?

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Reminders about may

• may do something IF use must
• may before A or B use must
• Moral circle every may and try plugging in has
  discretion to do or not to do. Do you mean that?

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What about may not?

• Manual allows it for prohibition, but it has been
  disapproved.
• The use of the phrase may not in the proposed
  rule suggestions that the commissioner is
  permitted to exercise some discretionSpecial
  Transportation Services Rules

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What about may not?

• Manual allows it for prohibition, but its
  confusing to the public.
• An application received after the deadline may
  not be approved.
• Must not? Or might not?

34
Moral Prohibit without may

• Drafting manual presents two options
• Shall not
• Must not
• (A bold experiment Can you draft without may?)

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Ambiguity some types

• Modifiers before groups of things modified.
• Numbers
• Semantic or lexical ambiguity

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Ambiguity syntax and modifiers

• Modifiers before pairs of things modified
• Not as a modifier
• Certain signs allowed so long as they are not
  flashing, in the public right of way, obstructing
  vision at an intersection, or used more than
  three times per calendar year.

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Does not apply to the whole list?

• Drafter probably means
• so long as the sign is not flashing,
• not in the public right of way,
• not obstructing vision, and
• not used more than three times per calendar
  year.

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Minnesota example

• M.S. 340A.702(6) 2002
• It is a gross misdemeanorto sellintoxicating
  liquor within 1000 feet of a state hospital,
  training school, reformatory, prison, or other
  institution under the supervision and controlof
  the commissioner of human services or the
  commissioner of corrections.

39
Ambiguity at least numbers

• Visual screens must be a range of at least three
  to four feet in height when constructed, or in
  the case of plant materials, when mature.
• Is the standard at least three feet or at least
  four feet?
• Do plants need range? Separate sentence?

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Ambiguity numbers

• Language requires a parking lot island
• once the lot exceeds 49 spaces and also says
  150 square feet of island space must be added
  for every additional 25 parking spaces.
• Is it 4925 or 5025?

41
Ambiguity introductory language

• Language requires temporary signs to meet the
  following criteria.
• The subitems govern disparate types of signs,
  unrelated to each other.
• -Do all temporary signs have to meet all
  criteria?

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Ambiguity single words

• Semantic (lexical) ambiguity?
• when the persons alcohol concentration, at the
  time, or as measured within two hours of the
  time, of drivingis 0.10 or more.

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The argument

• according to the American Heritage College
  Dictionary, the first definition of the word
  measured is determined by measurement in
  turn, the word measurement is defined as
• The act of measuring
• The dimension, quantity or capacity determined by
  measuring (the measurements of a room)

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Moral Hunt for ambiguity

• Have the rules read by a party who is not
  involved.
• Search out the standard sources of syntactic
  ambiguity. See texts and the bill drafting manual.

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Some conclusions

• Our rules are individual, but they do show some
  patterns of language-related problems.
• The problems match what drafting textbooks
  discuss.
• Our native habits make problems hard to see.

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To learn more, read

• Garner, Bryan A. Legal Drafting in Plain English
• Charrow, Erhardt, and Charrow. Clear and
  Effective Legal Writing
• Adams, Kenneth. A Manual of Style for Contract
  Drafting
• The revisors 2002 bill drafting manual

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What about the friendly audience?

• Centuries of precedent about vagueness and
  ambiguity.
• Relatively little experience with modern readers
  finding the law online.
• Little of what we know is being applied.

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The friendly readers problems

• Rules located online are often out of context,
  which is what readers most need.
• Connection between rule and statute often not
  made clear.No connections to incorporated
  material.
• No allowances made for needs of people with low
  literacy. One size doesnt fit all.

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Some national literacy stats

• Prose literacy levels
• 1 (lowest) 21 percent
• 2 27 percent
• 3 32 percent
• 4 17 percent
• 5 (highest) 3 percent can pull out specific
  information from a dense document.

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Some local literacy statsPercent at 1 or 2

• Saint Paul 38
• Minneapolis 38
• Edina 20
• Roseville 25
• Fridley 28
• Shoreview 18