William Safire reported in a recent column that Supreme Court nominee Sonia Sotomayor has a pronounced distaste for bad writing. She wants the briefs she reads to be written properly, and she believes in carefully crafting opinions. In particular, Sotomayor says, “the unnecessary use of the passive voice” causes her “to blister.”
When I was a young man, I worked briefly as a journalist, and all of my editors argued the active voice was a more direct and vigorous mode of expression. The passive voice, they insisted, denied human agency by sticking a helping verb such as “is” or “was” between the subject of a sentence and an action verb. Since becoming a legal academic, I have noticed the passive voice everywhere I look in legal prose, and I have struggled (with limited success) to stop the passive voice’s creeping incursion in my own writing.
Why is the passive voice so common in legal writing? It would be too simple, I think, to say lawyers are lousy writers. Surely we are no worse than accountants, bankers, doctors, and track coaches. Perhaps the ubiquity of the passive voice in legal writing relates to the positivist assumptions most legalists internalize. We like to believe laws, legal principles, and precedents stand tall and clear. When we apply the law to controversies, neutral and certain answers emerge. It is easy and ideologically convenient to announce, “It is so ordered.” Might Sonia Sotomayor be prepared to say instead, “I think the correct result is . . . .”