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January 07, 2011


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Jacqui Lipton

For example, law review editors have corrected sentences like: "The [***] doctrine has been criticized because..." on the grounds that it is in the passive voice. I'm not sure that it is in the passive voice and, even if it is, it doesn't seem to hide the ball as long as authority is cited for who criticized the doctrine.

Bill Dunlap

Well, I was taught that the passive was made to be used.

Chris Liebig

Jacqui -- Agreed. That is in the passive voice, but I wouldn't say it's hiding the ball. The fix is likely to be something like "Commentators have criticized the doctrine because . . ." with cites. Taking the emphasis off "the doctrine" and putting it on "commentators" probably makes that sentence less effective.

Jake Stevens

It should be noted that this is the longest thread that has been seen on this blog in a long time...


This is another reason why I abhor the law journal process. Not only do the wrong people make the calls on what the best articles are, we also have terrible writers (law students) telling bad writers (law professors) how to write.

David S. Cohen

Jacqui - I highly recommend doing a search for the blog Language Log and then finding some of what they've written about passive voice. They're a descriptivist (rather than prescriptivist) group of grammar/language folks (which, I've come to learn reading their blog, is a very nasty battle), but they write some really interesting stuff about the obsession by American grammar-fanatics in avoiding the passive voice at all costs. They argue, and I've come around to it, that a) this obsession results in people being scared to use "to be" in any form when it is often very useful when not part of the passive voice (like in "the search was reasonable"), and b) the passive voice is in fact often very valuable to use and that when we write awkward sentences to avoid it, we often create more confusion or distraction in our readers.

Jacqueline Lipton

Thanks, David - I'll check it out.
There's a lot of times I wonder why a law review is insisting I make changes that I think make the article more awkward to read. Peter Yu made this point well earlier in the thread. And it also makes me wonder why we insist that our tenure track colleagues publish in student edited law journals where, depending on the editors that year, their articles may be improved by editing or made worse. I've heard the argument that student editors in "top" law journals are much better than in lower ranked journals. I don't know if this is true or not, and I can't see how it can be a generally applicable rule given that the editors change each year anyway. At least with peer review and professional editors, you have a better chance of professional editing (although I've heard horror stories about the book editing process too). So given that a lot of tenured senior faculty tend to give up on student edited law reviews in favor of books and peer-reviewed journals, shouldn't we give our tenure track colleagues some slack on this front?

Jessica definitely hits a significant point: active voice is nearly always more concise than passive voice.

However, we generally consider passive voice okay, stylistically, if it was chosen deliberately. While active voice emphasizes whoever is performing the action, passive voice emphasizes what's being acted upon. Therefore, if you want to emphasize the object being affected, it makes sense to use passive voice.

For example: "I kicked the ball." Here, "I" is the subject of the sentence, and we use that term for a reason! It's all about me. "I" also get to conjugate the verb. This also is a bit more natural because the structure reflects the reality of the situation. In real life, I am doing the kicking, so I should also get to "do" (conjugate) the verb. Moreover, because our narratives are usually about people who do stuff, this ends up being the default sentence.

However, it is perfectly acceptable, and maybe even better, to say,"The ball was kicked by me," if I want to make the reader focus on the ball. If I were writing a story about some magical ball, it would make sense for the ball to be the subject of the sentence as often as possible.

So, if you're talking about a crime, a newspaper might say, "bank robbed by gang," because the article's going to be about the bank robbery, not the gang. Or, if we said something like "victim raped by unknown man," we're putting the spotlight on the v"ictim," while phrasing the sentence as "Unknown man rapes victim" shifts the focus to the "unknown man."

Steve Bainbridge

MS Word claims the following sentence is in the passive voice: "As to the first prong, directors are interested if they have a personal financial stake in the challenged transaction or otherwise would be materially affected by the board’s actions." I think it's a perfectly clear and fine sentence. Thoughts?

Jeff Lipshaw

Steve, I'm assuming that MS word proposed that you end the sentence "... or the board's actions would otherwise materially affect them." I think that's probably a case of wanting to keep the emphasis on the directors and not the board, and hence an okay use of passive voice.

I'm a big advocate of the passive-aggressive voice: "The law review editor was told to get stuffed by Professor Bainbridge."

Scott Fruehwald

Writers should use the active voice, except when there is a specific reason to use the passive voice, such as when the writer wants to deemphasize the actor. However, rules are only the beginning. One of the most important things about being a good writer is developing an ear for what sounds good and what creates the emphasis you want. What voice sounds best within the context of the other sentences? How do the sentences fit together? See Exercises in Clear Legal Writing for Lawyers and Law Students at .

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