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January 07, 2011

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Orin Kerr

As I understand it, the basic idea is that when describing things happening, the active voice is clearer: It says who is doing what. "Joe shot Adam," rather than "Adam was shot, and the shooter was Joe."

The hard part is that much of legal writing describes statuses and relationships, not action: Avoiding the passive voice is difficult. My favorite example is in Fourth Amendment law, where you must say that a search or seizure is reasonable. How do you avoid the passive voice? "Officer Bob's search had reasonableness"? "Officer Joe reasonably seized the dugs?" It seems to me that the only way to avoid awkwardness is to use the passive voice -- "the search was reasonable".

anon

"The search was reasonable."

That's not passive voice is it? Just past tense. Reasonable isn't a verb. Using the verb "to be" is a passive verb. Stylistically, it may be better to use active over passive verbs, but I think it is a different issue than active versus passive verbs.

how about: the search was reasonably done.

That's passive and sure sounds awkward.

But I agree. Avoiding passive voice avoids hiding the ball. It assigns responsibility for action and makes both authors and readers consider who the actor is in a sentence.

Orin Kerr

Anon,

Perhaps I'm just clueless, but I'm not entirely sure why "the search was reasonable" does not use the passive voice, in your view. The verb in the sentence "the search was reasonable" is "was," the third-person singular form of the verb "to be." Or is that wrong?

Patrick

Active sentences ought be a writer's default rule.

Intentionally or otherwise, passive sentences create ambiguity. For example, the sentence “passive sentences should be avoided” is not very helpful. Who should avoid them? Writers? Readers? Publishers? People walking down the street?

When I read sentences in the passive voice I have a hard time escaping the feeling that the writer is avoiding some issue -- either because the writer actually IS avoiding an issue, or because the writer has not thought things all the way through. Either way amounts to a loss in the writer’s credibility.

Consider your example: a writer who says “the search was reasonable” tells the reader something, but also leaves a whole lot of stuff in assumption-land. That statement, standing alone. A writer who says “court X held that the search was reasonable” or “if my thesis is correct, the search was reasonable” is so much more helpful to his or her reader. Don't you think?

At bottom, we write to communicate our thoughts. An active sentence *always* communicates more than a passive sentence. So long as your thesis, point, or argument is sound, active writing better writing; better writing is better communicating; and communicating really is the whole shebang.

Patrick

* Oops: "That statement, standing alone *is not very helpful*."

Jacqueline Lipton

Thanks for all these thoughts, but I still have a few confusions. I can't tell if "The search was reasonable" is active or passive. I agree with Orin that on Anon's analysis the sentence is passive because of the use of the past tense of "to be".

Also, no one has really answered Orin's point about legal writing often describing statuses and relationships rather than actions. Isn't this the key problem here? Obviously, "Sam shot Joe" is easier to read/understand than "Joe was shot by Sam" or "Joe was shot and Sam was the shooter". But I'm not sure that this always helps with legal concepts and arguments.

I also don't understand Patrick's comment distinguishing "In my view, the search was reasonable" from "The search was reasonable" on the basis that the former is active and the latter passive. It looks to me like exactly the same type of sentence with a qualifying clause at the front of it. I don't see how "In my view..." changes the sentence from passive to active.

Jeff Lipshaw

"The search was reasonable" is not passive voice. Passive voice is when the grammatical subject is the recipient of the action of the verb. It is a transitive sentence (i.e. one in which the verb requires an object) reversed so that the normal predicate object comes first. "Joe was humiliated by his professor" instead of "His professor humiliated Joe."

"The search was reasonable" is simply a sentence in which the predicate adjective modifies the subject.

For more on the significance of transitive and intransitive verb syntax (and "telic" and "atelic" semantics), I heartily recommend "The Financial Crisis of 2008-09: Capitalism Didn't Fail, But the Metaphors Got a 'C'", at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=167469.

Joe

My grammar skills and knowledge has dwindled to the point that I can only tell when I hear something wrong, but I can't explain why it is so. I probably couldn't identify the "passive voice," so much as just hear something askew and try to re-word it.

Jessica Owley

I agree with Anon and Jeff. "The search was reasonable" is not passive voice. The sentence uses a passive verb (to be) but is not in passive voice.

Reading this discussion, I was also struck by another reason to avoid passive voice ... it is often wordy. Look at Jeff's two examples. The active voice example uses fewer words and gets to the point quicker. This has value. I am often instructing my students to (1) minimize the use of passive voice (2) use active verbs and (3) reduce wordiness. All three of these components improve writing. [Reducing wordiness is also important for our students who will need to meet page limits for briefs]

Orin Kerr

Thanks, Jeff -- I get it now. I had been thinking that passive voice means using the verb "to be", but I see why that's not the case.

Jeff Lipshaw

Orin, I think using passive voice does require that a form of "to be" be used as an auxiliary verb. I'm dredging up old grammar lessons, but I think "to be" in "the search was reasonable" is a "linking verb" which, as I noted, merely attaches the predicate adjective to the subject.

I did see something on when passive voice is appropriate, and perhaps this gets to Jackie's original question. You may properly use passive voice if your intention is to downplay the actor. So it doesn't sound so weird in the description of a scientific experiment or a patent application to say "six drops of sinister sauce were added to the mix." The idea is that you are taking the researcher out of the sentence. Maybe that air of dispassionate "scientism" makes passive voice attractive and overused.

Barbara Burke

"The search was reasonable" is not in the passive voice because it is missing a past participle. The passive voice includes two things: a form of the word "to be" or "to have" and a past participle.

Roger

Jessica: "I am often instructing my students," not "I often instruct my students"? :)

Bruce Boyden

This is one of those rules that's learned in high school and college and then often inflexibly applied under the mistaken impression that there are no exceptions. Somewhere, maybe in Strunk & White, there is a discussion of when passive voice is OK. Essentially, it's OK if it's appropriate to put the focus on the receiving end of the verb -- i.e., if you want to focus on Joe's experience of being humiliated by his professor above.

However, in law review editors' defense, passive voice (with a missing noun) can also serve as a dodge when a writer is not quite sure what the argument is. I've certainly lapsed into this myself.

Marc Blitz

Joseph Williams offers some helpful advice on this question in his book, Style: The Basics of Clarity and Grace:

"Some critics of style tell us to avoid the passive everywhere because it adds words and often deletes the agent, the 'doer' of the action. But in fact, passive is often the better choice." It's the better choice, he explains, where the reader won't care who is responsible for the action, where using the passive voice in one sentence helps it flow more smoothly into the next one (or from the preceding one), or where it allows the writer to tell a story in a way that highlights some character other than the "doer." The lesson I take away from this is that while active voice ought to be the default rule, as Patrick says above, you can and should use passive voice where doing so helps you tell the story you want to tell, or tell that story more clearly.

Jeff Lipshaw

To Bruce and Marc's points, I have been educated by this thread. (This thread educated me.)

Now there are style issues with that sentence, but it's not the passive voice. I also remember somebody (9th grade?) teaching me that Latin root verbs are less "active" than Anglo-Saxon root words. If I switch to "taught" rather than educated, it does something odd.

"This thread taught me." That's a little different semantically, because I think the Anglo-Saxon "taught" is less educated than "educated." Also, it's a little odd because "taught" seems to want what was taught as the direct object and "me" as the indirect object. "This thread taught me something." "I taught my students contract law." "I educated my students in contract law"? Yuck. "My students were educated by me in contract law." Double yuck.

You can imagine how this goes over at cocktail parties.

Peter Yu

Although most changes to active voice improve the article, my disagreement with law reviews over passive voice always come in two strands.

The first strand concerns the example Jeff gave. "Joe was humiliated by his professor" is different from "His professor humiliated Joe." If the emphasis is on Joe being humiliated and the consequences, I think it's okay to use passive voice to focus on the subject. Once in a while, I have law review students telling me, "I understand this will change your emphasis and make the paragraph awkward, but we have a no passive voice rule." As much as we want to teach our students to follow the Bluebook, the Chicago Manual of Style, or whatever they use, it's also important to educate them about the role of law review editors. A piece of writing is not just a cite-checked, BB'd legal document.

The other strand is along the lines of "... the time when Hoffa was killed" (in an article not about Hoffa). Yes, this is in passive voice, but it's intentional because the professor is not in the best position to determine who killed Hoffa. Nor could this issue be easily settled by a law review article, or one of its footnotes. In the end, the author usually compromises by adding a few sentences in a footnote and tracking down a few books about Hoffa for some see generally cites. Gradually, a 50 page article turns into a 70 page article. Adding insult to injury, law reviews now complain about their articles being too long and start to impose word limits. What a vicious cycle! Many of the unnecessary footnotes were added to please editors in the first place. I mean, authors added many of the unnecessary footnotes to please editors in the first place.

Jacqui Lipton

And I still don't understand the assertion that using the passive voice is" hiding the ball". If this argument refers to an attempt by an author to make an unsupported or vague allegation, couldn't that be remedied by a reqest to cite a relevant authority, rather than to change to active voice?

Chris Liebig

I teach legal writing, and I certainly try to ensure that my students won't emerge from my class with the idea that passive voice is always wrong. "Defendant was arrested for burglary" is probably better than "Officer Carmichael arrested Defendant for burglary," when the name of the arresting officer doesn't matter. As with anything else in legal writing, the writer needs to use judgment.

But if you're not conscious of when you're using the passive voice and when you're not, you can't make a good judgment. A lot of the time, there is no good reason not to put the actor before the verb, and doing otherwise just introduces unnecessary abstraction into the sentence. When a judicial opinion makes your eyes glaze over, it is often because it overuses the passive voice (and that other major source of abstraction, the nominalization). It is just easier for someone to understand you when you talk about people doing things, rather than about abstractions that somehow "occur." If the students leave my class writing "The letter was sent for the purpose of inducing action by Smith," instead of "Jones sent the letter to induce Smith to act," I need to work harder.

I try to get the students to see the hazards of the passive voice by having them critique some of the more poorly written judicial opinions that they have to read for their other classes. I often use two old contracts cases for that purpose -- Cole-McIntyre-Norfleet Co. v. Holloway, 141 Tenn. 679 (1919) and Spaulding v. Morse, 76 N.E.2d 137 (1947). Anyone who thinks legal writing faculty make too much of a fuss over the passive voice and nominalizations should force themselves through those two cases. The fact patterns of those cases -- especially Spaulding -- are actually terrific, but students are so glad to get to them end of them that they barely have any energy left over to critique the reasoning or discuss the issues they raise.

P.S. Hi, Peter!

Chris Liebig

Jackie -- I think most instances of the passive voice just it harder for the reader to follow what the writer is saying. But there are definitely times when it can function to "hide the ball," as with the old political classic, "mistakes were made."

I was recently at a public meeting with our local school superintendent. He was responding to parents' complaints about how the lunch period for elementary school students had been shortened in some schools to a mere fifteen minutes. He explained that school principals had squeezed lunch to find more time for instruction, because of the pressure they feel to raise standardized test scores. Under No Child Left Behind, he explained, principals who continually fall short of the test score targets could ultimately "get fired." He sympathized with our concerns and agreed that the situation was regrettable, but was just trying to explain the context in which the principals made their decisions.

Of course, people don't just "get fired"; *somebody* fires them. And who is in charge of hiring and firing school principals? The very person who was standing there telling how regrettable the situation is. I know, the issue is complicated, but I think that counts as an instance of the passive voice functioning to "hide the ball."

Does that happen in law review articles? I don't know. Anyone have any examples?

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