Some Key Words to Watch in Legislation

As we head towards the end of the 2026 California Legislative Session, and review hundreds of amended bills, there are some words or phrases that bear a closer examination. In general, we should be concerned with problematic words in proposed statutes that are not clear or are ambiguous. These are likely to create confusion and may result in unintended consequences for those attempting to comply with the statute’s provisions.

As a result, some of the common types of problematic statutory words are those words or phrases that are ambiguous (that have more than one reasonable meaning), vague (that generally lack an objective definition), or outdated (that may not apply well to current circumstances).

So, what are some of these words and phrases in bills that we should pay close attention to? Let’s start with two easy ones:

“Shall” – In California statutes, this word is mandatory. In other words, it means something has to be done or someone has to do something.

“May” – In California statutes, this word is permissive. In other words, it means something can be done or someone has discretion whether to do something.

What about some other words that should be noted?

“Reasonable” – My first-year contracts professor at McGeorge School of Law called this a “weasel word” because it can be used to “weasel” yourself out of something and usually means that either side of a dispute will use it to make their case. We often say, “what is reasonable to me may not be reasonable to you.” It is an ambiguous term that lacks certainty and a clear definition.

“Excessive” – Another vague term that lacks an objective definition, similar to the term reasonable. What does excessive mean to you or to me? In other words, it may mean something different to different individuals if it is not defined.

“In whole or in part” – This is an expansive term that captures everything. There is no limitation on its application.

“Notwithstanding“ – This is regularly used to exempt whatever follows this word. It means that, no matter what any other law that may be in existence, the language that follows this word is controlling. You can ignore any other possibly conflicting statute because it is only this one that needs to be followed.

“Subject to” – This is a term that limits the scope of the language following this term. Read carefully what the limitation is before the general rule is provided thereafter.

“Any” – Another expansive term that includes everyone or everything that follows it.

“All” – Another expansive term that includes everyone or everything that follows it.

“Including, but limited to,” – A potentially expansive term because it not only embodies that which follows the phrase, but also all those related but not specifically listed.

“Unless” – Another term that limits the scope of the language following this term. Read carefully what the limitation is before the general rule is provided thereafter.

“Appropriate” – Another ambiguous term that lacks certainty and a clear definition.

“Except” – Another term that limits the scope of the language following this term. Read carefully what the limitation is before the general rule is provided thereafter.

“Necessary” – Another ambiguous term that lacks certainty and a clear definition.