Sonia Sotomayor: Activist Grammarian
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 . . . .”
When you are at your Fourth of July cookout or fireworks display this week, see if anyone mentions the Declaration of Independence. If they do, ask “which Declaration of Independence?” After all, there are more than one.
Irene’s recent post on why we love intellectual property gets at its certain power–its ubiquity in everyday life. The recent death of Michael Jackson speaks to that particular ubiquity. What was necessarily powerful about his death was that for kids of a certain generation (maybe if you were born between 1972 and 1980?), his music served, as the pundits keep saying over and over, as the “soundtrack” of our lives. I remember one slumber party where all of the Michael Jackson videos played over and over and over for 24 hours (those poor parents). The summers of 1983 through 1985 were consumed in the great debate (forget US v. USSR) of the middle 1980s: who was better, Michael Jackson or Prince! I was a stone cold Prince fan, who marshaled my arguments as if I was getting ready for battle (Purple! Let’s Go Crazy!, Purple!). I was usually in the minority in that one, as no one could top Michael’s videos (did Prince dance with zombies (No!), could Prince moonwalk (No!), could Prince rock that awesome red jacket (No!)).