One of the things I enjoy about reading the Language Log, a cooperative blog by academic linguists, is the ease with which some of the authors slip into high dudgeon. (I suppose I might be like that, too, if my subject were language, in which everyone is an expert.) The latest target of Geoff Pullum’s indignation is U.S. Supreme Court Justice Kennedy, who, it turns out, doesn’t know his active from his passive, when it comes to voice.
The offending passage occurred in the judge’s dissent in Jones v. United States 526 U.S. 227 (1999) where Kennedy is interpreting a piece of federal criminal legislation, and he finds that “there is some significance in the use of the active voice in the main paragraph and the passive voice in clauses (2) and (3) of §2119.”
The legislation reads in part as follows:
Whoever, possessing a firearm . . . takes a motor vehicle. . . from the person or presence of another by force . . . shall–
(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”
It is not the case that “if serious bodily injury results” and “if death results” are in the passive voice. (“[S]hall… be fined” is in the passive voice, however; but that is irrelevant to Kennedy’s analysis.)
But heavens above: You can get to be a Supreme Court justice, and write about actives and passives, without having any clue how that distinction is normally defined by grammarians, and without giving any alternative definition? Could we perhaps organize a few lunches at which linguistics department chairs meet with law school deans or something?
I ran a quick check on CanLII of the judgments of our Supreme Court and found a single instance where the court used the expression “passive voice.” Cartwright J. [whose name becomes Cartweight thanks to OCR, something altogether more ponderous] used it correctly, I’m relieved to say, in Workmen’s Compensation Board v. C.P.R,  2 S.C.R. 359:
The second question passed on by the Appeal Division dealt with the interpretation of s. 16 of the Act which reads :—
16. No compensation shall be payable under this part in respect of any injury, unless application for such compensation is made within one year after the occurrence of the injury, or in case of death within six months from the time of death.
. . .
It may be observed in passing that s. 16 is expressed in the passive voice and does not expressly require the application for compensation to be made by the claimant.
No need for law-linguist lunches here. Not that they wouldn’t be jolly affairs. . .