Written by attorneys · grounded in primary & secondary sources — see below
A modal verb in statutes, rules, and contracts that grants permission, confers discretion on an actor, or expresses possibility rather than imposing a mandatory duty.
Sources & Authorities
How it applies
Common Examples
6
Conspiracy Impossibility Defense Barred
Miguel Mendoza and Maurice Marshall agree to rob a bank that has already closed permanently. Even though the target no longer exists, the agreement and shared intent establish the crime. Miguel may not raise factual impossibility to avoid liability for conspiracy.
Buyer Refusal on Unmarketable Title
Metro Bank contracts to sell land to Mustafa Mahmoud. A recorded lien clouds title at closing. Mustafa may refuse to close and seek rescission because the title is not free from reasonable doubt.
Congressional Taxing Authority
Congress may enact a uniform excise tax on imported goods to fund national defense. The Constitution grants Congress power to lay and collect such taxes provided they remain uniform throughout the United States.
Select any source to read its text and confirm it supports the definition.
Cases
Statutes
Federal Rules
Uniform Acts
Model Codes
Waiver of Service Request
Melissa Mills files suit against Magnolia Foods and sends a written notice requesting waiver of formal summons service. Magnolia Foods has a duty to avoid unnecessary service expenses and may waive service under the rule.
Jury Instruction on Judicial Notice
In a civil trial, the court takes judicial notice of a geographic fact. The judge must instruct the jury to accept the noticed fact as conclusive. In a parallel criminal case the same judge may instruct that the jury may or may not accept the fact.
Judicial Statement Restriction
Judge Malcolm McKinley plans a public comment on a pending high-profile case. The code prohibits any statement that might reasonably affect the outcome or impair fairness, so the judge may not make the comment.
Common questions
Frequently Asked
4
Does 'may' always grant discretion or can it create a duty?+
In legal drafting 'may' ordinarily confers permission or discretion rather than imposing an obligation. When a rule states that a party may take an action, that party is authorized but not required to act. Mandatory duties are expressed with 'shall' or 'must'.
Supporting sources
How does 'may' differ from 'shall' in interpreting statutes and rules?+
Courts treat 'may' as permissive and 'shall' as mandatory. A statute providing that a court may award fees leaves the decision to judicial discretion, whereas a statute providing that the court shall award fees creates an obligation once statutory conditions are met.
Supporting sources
Can 'may' in a constitutional grant of power limit congressional authority?+
No. Article I, Section 8 uses 'may' and similar language to enumerate powers that Congress possesses. The clause is an affirmative grant, not a restriction. Congress may exercise those powers but is not required to do so.
Supporting sources
Does 'may not' create a prohibition equivalent to 'shall not'?+
Yes. When a rule states that a defendant may not invoke a defense, the language functions as a flat prohibition. The defendant is barred from raising the defense regardless of the underlying facts.
Supporting sources
5 U.S. (1 Cranch) 137 (1803)Property
…is among the rolls. The court ordered the witnesses to be sworn and their answers to be taken in writing, informing them they might state objections to each particular question if any. Mr. Wagner testified he could not recollect whether he had seen any commission in the office constituting the applicants justices of the…
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