There’s a new post at the Faculty Lounge on the passive voice (thanks to Prof. Sam Levine for the pointer). Here’s my thinking on the substantive question (as opposed to the question of whether law review editors are overeager to replace passive voice with the active), from my Academic Legal Writing book.
Many people recommend that you turn the passive voice — “The action was done by this person” (the object was verbed by the subject) or just “The action was done” — into the active voice, “This person did this action” (the subject verbed the object).
This is generally good advice. Passive voice often makes writing less direct: “Passive voice should be avoided by you” is worse than “Avoid the passive voice.” It also sometimes conceals responsibility, as in the famous “Mistakes were made” used as a substitute for “We made mistakes.”
But if your discussion focuses more on the object than on the subject (the actor), you might want to use the passive voice, which has a similar focus. If you’re writing about 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, rather than on Congress.
Also check out this post by Prof. Geoffrey Pullum (Language Log)