Like many of us I'm sure, I'm currently (and diligently!) working away at suggested edits by various law journal editors. In recent years, I've been very good about trying to avoid the passive voice in my drafts, but a couple of instances always sneak through. And I usually wonder (as I redraft) why are we all so obsessed with active versus passive voice? When I'm reading the work of others, I'm never particularly aware of whether they write in the active or passive voice or a combination of both. But when did the "no passive voice" rule initially hit the law reviews, and what is its basis? And do people think it affects your chances of a "good" placement if there's too much passive voice in the initial submitted draft?
...unwise editors often turn good general advice into a bad categorical rule. So it is here: "Generally avoid the passive voice" is good, "never use the passive voice" is bad.
In particular, if your discussion focuses more on the object than on the subject (the actor), it's often better to use the passive voice, which has a similar focus. If you're writing about the substance of the USA Patriot Act, for instance, the passive sentence "The Act was adopted shortly after the September 11 attacks" may be better than the active "Congress adopted the Act shortly after the September 11 attacks." The passive voice properly focuses the discussion on the Act, where you want it to be, rather than on Congress, which is not terribly relevant to your thesis. (Of course, if you were writing about Congressional decisionmaking related to the Act, "Congress adopted ..." may be exactly right -- but again the point is to choose the voice that fits what you want to emphasize, not to mechanically make everything active.)
MS Word claims that the bolded section of the following excerpt from my current project is in the passive voice:
In Grimes v. Donald, the Delaware supreme court identified three reasons for excusing demand: “(1) a majority of the board has a material financial or familial interest; (2) a majority of the board is incapable of acting independently for some other reason such as domination or control; or (3) the underlying transaction is not the product of a valid exercise of business judgment.” 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 say it's a perfectly fine sentence and trying to turn it into the active voice would make it less--rather than more--clear. But some frakking second year law review editor would probably try to do so.
