Volokh On Passive Voice Dogma

Not long ago, Josh Benton and I got into it a bit regarding the nature of standardized essay tests and the risk they pose in rewarding dull formulaic writing. In another context, Eugene Volokh takes on the commonplace that the passive voice is to be avoided like the plague. He writes:

"Avoid the passive voice!," writers are often told. That's good advice -- but it shouldn't, I think, be taken to extremes.

He then uses a pair of sentences to demonstrate how the passive voice sometimes is more concise than its active-voice alternative, particularly in law where who's kicking whom may be the whole thrust of an argument. Thus, he rejects the idea that good writing requires the writer to mothball the passive voice forever and anon.

As a professor of law, and as a talented writer, Volokh is well-positioned to comment. In all my years of writing, surrounding myself with writers, receiving or administering writing instruction, never have I encountered a more profound bias against the passive voice than I found in law school. The writing faculty rail against its evils with an adamance that approaches hysteria.

Of course, a lawyer's intended audience (often, another lawyer or a judge; alternatively, a corporate muckety-muck with a finance degree and an MBA whose idea of bedtime reading is Who Moved My Cheese) reads attorney workproduct with little interest in nuance or rhetorical subtlety. Only a foolish attorney, myself for example, ever writes without taking this into account.

While the injunction has merit, the impulse to such a one-sided account arises due to the perceived expedient of a least-common-denominator approach. At most schools, the writing faculty has only six or so credit hours to fashion law students in groups of ten to twenty students into effective legal writers (and it is a species of technical writing requiring substantial instruction). In most of the remaining classes, students need not write a word until the final exam, the grading of which only marginally reflects a student's eloquence, focusing instead on issue-spotting and logical organization.

In this lone regard, as you might imagine, law school presented me with a sisyphian challenge. To some extent, I needed the discipline; like many writers, I overused the passive voice. But at some point -- because my writing, and preserving my own voice, are so important to me -- I began to rebel against my instructor's rigidity.

Volokh chooses not to take up a second reason to sprinkle passive constructions among their active brethren: rhythmic variation. Any expressive medium that eschews aesthetic variety cannot sustain an audience's attention. A littany of subject-verb-object sentences lulls a reader to sleep faster than Xanax. Long before the onset of sleep, the reader's attention has flagged and his comprehension diminished concomitantly. Sadly, a great deal of the legal writing I encounter takes exactly this form, which I attribute in part to the pounding of active-voice orthodoxy like nails into first-year students' heads. There are mornings it is all I can do to keep my eyes open.

Naturally, many techniques enable a writer to keep readers alert and attentive. But effective writing is such an esoteric art that I can't imagine why anyone would take even a single arrow out of the writer's quiver.