Eugene Volokh notes that sometimes it's perfectly appropriate to use the passive voice:
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.
Which prompts this comment from a law student:
In my last legal brief (1L here) I made three specific and intentional uses of the passive voice to re-focus the sentence to where I wanted the reader's attention. My professor "corrected" all three of them. She made so many "corrections" of what were stylistic choices (actually marking them as mistakes) that I'm doubting her credibility as both teacher and author.
Which prompts two thoughts. First, the slavish antipathy to the passive voice demonstrated by MS Word's garammar check is second only to that of most law review editors. Second, legal writing instructors who focus on style at the expense of legal reasoning, Bluebooking, proper use of citations, proper use of authority, and so on, are doing their students a serious disservice. Yet, I suspect, many do so.
In an ideal world, both law review editors and legal writing instructors would check with the author to see if s/he made a deliberate choice in these matters.
