Definition
In legal drafting and statutory interpretation, "might" is a modal auxiliary expressing possibility or contingency — that something could occur or could have occurred, without asserting that it will or did. Distinguished from "shall" (mandatory) and "may" (permissive or discretionary), "might" occupies a weaker register still, suggesting a more speculative or conditional probability.
In jury instructions and pleadings, courts have addressed whether "might" adequately conveys the degree of certainty required for a given legal standard. The distinction between "might" (mere possibility) and "would" (more assured probability) has occasionally been contested in personal injury and damages contexts, where the foreseeability or likelihood of harm is at issue.
Common Language
Modern common usage (Wiktionary): Power, strength, force, or influence held by a person or group; physical strength or force; the ability to do something.
Historical common usage (Webster's 1913): Past tense of "may" — expressing possibility or permission in a conditional or past context.
The legal significance of "might" has almost nothing to do with the noun sense (power or strength) that dominates ordinary modern usage. In legal analysis, "might" functions exclusively as a modal verb expressing conditioned possibility, and researchers encountering the term in case law or instructions are dealing with questions of verbal precision in drafting — not with power or capacity in the physical or political sense.
Common Confusion
"Might," "may," "could," and "would" sit along a spectrum of modal certainty that courts and drafters have not always treated consistently. "May" is the standard term for permissive or discretionary authority and is also used to express possibility. "Might" is generally understood as expressing a more attenuated or hypothetical possibility than "may." "Would" suggests a higher degree of probability or near-certainty about a future or hypothetical outcome. In jury instruction challenges, the argument that "might" understates the required probability threshold — or overstates speculative harm — turns on this gradation. Anderson's cross-reference to Shelley's Case signals that "might" has also appeared in the analysis of remainder interests and future estates, where the distinction between vested and contingent rights can hinge on whether a future event "might" or "will" occur.
Why It Matters in Research
Researchers encounter "might" in two distinct legal contexts that require separate attention.
First, in jury instructions and damages law: Bouvier's entry records that Kentucky courts held it was not error to use "might" instead of "would" in a personal injury instruction. This suggests a permissive judicial attitude toward the term in that jurisdiction and era, but the holding is narrow. Researchers should not generalize from it — other jurisdictions or modern pattern instructions may impose stricter standards for probability language, particularly in lost-chance, future damages, or foreseeability analyses. When reviewing historical instructions, note that "might" versus "would" arguments were live enough to reach appellate courts, meaning the distinction was not always treated as trivial.
Second, in property law and estates: Anderson's directive to see Shelley's Case places "might" in the context of future interests analysis. In rule-against-perpetuities and Shelley's Case analyses, whether remaindermen "might" take under certain conditions was a question of contingency versus vesting — a distinction with major consequences for alienability and the validity of the interest. Historical treatises and cases in this area use "might" with technical precision that can be easy to miss when reading quickly.
In both contexts, the practical trap is treating "might" as interchangeable with "may," "would," or "could." Precision in modal language is a recurring source of litigation, and researchers comparing historical documents to modern instruments or instructions should flag modal substitutions as potentially substantive.
Historical Dictionary Support
Neither Anderson nor Bouvier offers a freestanding definition; both entries redirect. Anderson treats "might" as a term requiring resolution by reference to Shelley's Case — meaning the word's legal significance in that context is absorbed into a larger doctrinal question about future interests. Bouvier's entry is a single narrow proposition: that "might" in a personal injury instruction was not reversible error as a substitute for "would." Both entries are thin by design, reflecting the view that "might" is primarily a word of ordinary language whose legal significance is contextual rather than doctrinal.
What historical dictionaries miss is systematic treatment of modal verbs in statutory construction, which has become a richer area of inquiry in modern interpretive practice. The modern reader should supplement these sources with statutory interpretation scholarship and, where applicable, pattern jury instruction commentary.
Jurisdictional Note
The permissive treatment of "might" in jury instructions reflected in Bouvier's Kentucky citation cannot be assumed to represent a universal rule. Modern jurisdictions vary in how strictly they police probability language in damages and foreseeability instructions. Researchers working outside Kentucky, or in modern practice, should consult jurisdiction-specific pattern instructions and appellate commentary.