[Eugene Volokh, 4:14 PM]
Krugman v. Cavuto: OK, so have a look at these two pieces, and ask yourself -- based on these articles (rather than based on your preexisting views about Krugman and Cavuto), who comes across as the more trustworthy? The more worth reading? The more thoughtful? The more mature? Who is the more likely to persuade undecided readers? The more likely to make readers on his side feel good about being on his side? The more likely to make readers on the other side doubt, even a bit, their positions? And if the answer to all or nearly all of these questions is Krugman (column one) as opposed to Cavuto (column two, responding to Krugman), then what was the point of Cavuto's column?

UPDATE: Reader Chris Lawrence writes:

One thing to bear in mind is that Cavuto's "column" is a transcript of (or just the script for) his commentary at the end of his daily T.V. show, while Krugman's column was a genuine newspaper column.

If Krugman had appeared on television, I suspect his commentary would have been more comparable to Cavuto's.

I did not realize this, and I do acknowledge that there's a difference between what works orally and what works in writing. But even taking that difference into account, I think my basic point stands.

A funny thing happened during the Iraq war: many Americans turned to the BBC for their TV news. They were looking for an alternative point of view -- something they couldn't find on domestic networks, which, in the words of the BBC's director general, "wrapped themselves in the American flag and substituted patriotism for impartiality." Leave aside the rights and wrongs of the war itself, and consider the paradox. The BBC is owned by the British government, and one might have expected it to support that government's policies. In fact, however, it tried hard -- too hard, its critics say -- to stay impartial. America's TV networks are privately owned, yet they behaved like state-run media. What explains this paradox? It may have something to do with the China syndrome. No, not the one involving nuclear reactors -- the one exhibited by Rupert Murdoch's News Corporation when dealing with the government of the People's Republic. In the United States, Mr. Murdoch's media empire -- which includes Fox News and The New York Post -- is known for its flag-waving patriotism. But all that patriotism didn't stop him from, as a Fortune article put it, "pandering to China's repressive regime to get his programming into that vast market." The pandering included dropping the BBC's World Service -- which reports news China's government doesn't want disseminated -- from his satellite programming, and having his publishing company cancel the publication of a book critical of the Chinese regime. Can something like that happen in this country? Of course it can. Through its policy decisions -- especially, though not only, decisions involving media regulation -- the U.S. government can reward media companies that please it, punish those that don't. This gives private networks an incentive to curry favor with those in power. Yet because the networks aren't government-owned, they aren't subject to the kind of scrutiny faced by the BBC, which must take care not to seem like a tool of the ruling party. So we shouldn't be surprised if America's "independent" television is far more deferential to those in power than the state-run systems in Britain or -- for another example -- Israel. A recent report by Stephen Labaton of The Times contained a nice illustration of the U.S. government's ability to reward media companies that do what it wants. The issue was a proposal by Michael Powell, chairman of the Federal Communications Commission, to relax regulations on media ownership. The proposal, formally presented yesterday, may be summarized as a plan to let the bigger fish eat more of the smaller fish. Big media companies will be allowed to have a larger share of the national market and own more TV stations in any given local market, and many restrictions on "cross-ownership" -- owning radio stations, TV stations and newspapers in the same local market -- will be lifted. The plan's defects aside -- it will further reduce the diversity of news available to most people -- what struck me was the horse-trading involved. One media group wrote to Mr. Powell, dropping its opposition to part of his plan "in return for favorable commission action" on another matter. That was indiscreet, but you'd have to be very naïve not to imagine that there are a lot of implicit quid pro quos out there. And the implicit trading surely extends to news content. Imagine a TV news executive considering whether to run a major story that might damage the Bush administration -- say, a follow-up on Senator Bob Graham's charge that a Congressional report on Sept. 11 has been kept classified because it would raise embarrassing questions about the administration's performance. Surely it would occur to that executive that the administration could punish any network running that story. Meanwhile, both the formal rules and the codes of ethics that formerly prevented blatant partisanship are gone or ignored. Neil Cavuto of Fox News is an anchor, not a commentator. Yet after Baghdad's fall he told "those who opposed the liberation of Iraq" -- a large minority -- that "you were sickening then; you are sickening now." Fair and balanced. We don't have censorship in this country; it's still possible to find different points of view. But we do have a system in which the major media companies have strong incentives to present the news in a way that pleases the party in power, and no incentive not to.

Since no good deed goes unpunished, leave it to The New York Times to take a shot at me. Not The Times itself, but columnist Paul Krugman, who blasts me for my apparent blatant partisanship. He writes: "Neil Cavuto of Fox News is an anchor, not a commentator. Yet after Baghdad's fall he told ‘those who opposed the liberation of Iraq’ -- a large minority -- that ‘you were sickening then; you are sickening now.’" First off, Mr. Krugman, let me correct you: I'm a host and a commentator, just like you no doubt call yourself a journalist and a columnist. So my sharing my opinions is a bad thing, but you spouting off yours is not? Exactly who's the hypocrite, Mr. Krugman? Me, for expressing my views in a designated segment at the end of the show? Or you, for not so cleverly masking your own biases against the war in a cheaply written column? You're as phony as you are unprofessional. And you have the nerve to criticize me, or Fox News, and by extension, News Corporation? Look, I'd much rather put my cards on the table and let people know where I stand in a clear editorial, than insidiously imply it in what's supposed to be a straight news story. And by the way, you sanctimonious twit, no one -- no one -- tells me what to say. I say it. And I write it. And no one lectures me on it. Save you, you pretentious charlatan. Let me see if I have this right, Mr. Krugman. Journalists who opposed this war are OK. Those who support it are not. Says who? You? I'm less of a journalist because I was in favor of this war, but you're more of a journalist because you were not? You imply that by being in favor of this war, I'm pandering, and by extension, my company is pandering to the White House. Nowhere does it ever occur to you, one can legitimately not agree with you. That doesn't make me less of a journalist. But, Mr. Krugman, it does make you more of an ass. Here's the difference: You insinuated it, I just said it. Now may I suggest you take your column and shove it?

As you might gather, I'm probably more in Cavuto's political camp than in Krugman's; and I don't agree with Krugman on the the issue about which he writes. But I hope that my side can argue more like Krugman and less like Cavuto.

 
[Eugene Volokh, 3:44 PM]
My favorite jam: I usually like my sweets sweeter than many other people do, but one exception is jam: I find that many American jams have so much sugar that it drowns the flavor of the fruit.

     But I recently found some really fantastic jams from the Mountain Fruit Co. in Chico, California; a local specialty wine store (The Wine House) carries them, and I buy the jars literally by the dozen. (For a while, Trader Joe's used to stock some, too, but they don't seem to any more.) I love the flavor variety -- my favorite are probably the plum and the apricot, two flavors that I generally much like, but even the strawberry and raspberry are delicious, because they taste like actual strawberries and raspberries, and not like sugar. I don't recommend the pear or the fig, but the other stuff is very good. And they're quite modestly priced, for specialty jam: $2.99 for a standard-sized jar (12 oz. or so, I think, but I forget).

     If you ever run across this brand, check them out. They apparently don't have their own Web site, but this page provides a phone number; I called it, and they said that they could ship them for $36 per case of 12, including shipping -- not very convenient for people who just want to sample some, though I might use the number myself in the future. And, no, I don't get a kickback for this, though I should.

 
[Eugene Volokh, 11:17 AM]
Senator Schumer and the Second Amendment: Here's what a Schumer spokesman apparently said a few days ago (thanks to InstaPundit for the pointer):

The Senate's leading gun control advocate, Sen. Charles Schumer -- who's currently pressuring the White House to extend the 1994 assault weapons ban -- travels with an armed bodyguard, NewsMax.com has learned. . . .

Sensing a public relations problem in the making, the senator's spokesman explained that his boss "believes in the Second Amendment and the right to bear arms."

"So I don't think there's anything inconsistent about it," he insisted. . . .

And indeed Schumer has expressed this view before, for instance at the Ashcroft confirmation hearings (Jan. 17, 2001):

SCHUMER: Let me ask you a series now, similarly, on gun control. I was very glad to hear that you would support the continuation of the assault weapons ban which Senator Feinstein carried in the Senate and I carried in the House, so it's obviously important to me.

I would just like to ask, in terms of the Second Amendment -- and while some might not believe it, I believe in the Second Amendment. I do not agree with those who think the Second Amendment should be interpreted almost in a non-existent way, just for militias, and then we should broadly interpret all the others. But, just like you can't scream "fire" in a crowded theater, that's a limitation on our First Amendment rights, there are limitations on the Second Amendment as well. And some of my friends believe there should be no limitations, and that's where I disagree with them. . . .

     But what then are we to make of this July 21, 2001 Boston Globe op-ed, cowritten by Senators Kennedy and Schumer, following Attorney General Ashcroft's letter that said the Second Amendment secured an individual right?

On May 17, [Ashcroft] sent a letter to the National Rifle Association contending that the Second Amendment confers an individual right to own guns, not just a collective right to a well-regulated militia.

As support for this contention, he cited four Supreme Court decisions from the 1890s but failed to mention the court's leading decision in 1939 that is clearly contrary to his position.

Moreover, Ashcroft's interpretation of the Second Amendment is diametrically opposed to that currently being advanced by the Justice Department in the pending case of United States v. Emerson, where the department has advanced the position that gun ownership is a collective, not individual, right.

In his letter to the NRA, Ashcroft also articulated a new standard for evaluating gun laws, proposing to require that any restriction on gun ownership be supported by a compelling state interest -- a test that very few laws can survive. Even law professors who otherwise agree with the individual-rights theory acknowledge that the Constitution permits the reasonable regulation of guns. Ashcroft's new Second Amendment theory, however, will strengthen the hand of the NRA and other foes of gun control.

Immediately after we became aware of Ashcroft's letter to the NRA, we wrote to him, asking him to reconsider the changes in gun control policy he was advocating. He has not responded.

Shortly afterwards, two public policy groups, the Brady Campaign and Common Cause, filed an ethics complaint against the attorney general, charging that his letter to the NRA constitutes an ethical breach because it conflicts with the official position of the United States in the Emerson case. According to Samuel Dash, an expert in legal ethics, the attorney general's letter to the NRA constitutes an act of disloyalty to his client, the United States, and an impermissible conflict of interest.

We have also learned that the Justice Department's Office of Legal Counsel is drafting an opinion to make the attorney general's views on the Second Amendment official policy of the government. This would be a radical departure from its longstanding position.

(Here's a copy of Ashcroft's letter.)

     Now I can understand why people might disagree with Ashcroft's constitutional position, and criticize either his acceptance of the individual rights view or his seeming endorsement of the strict scrutiny test (though since then, it's become clear that Ashcroft believes that all federal gun control laws pass the strict scrutiny test). But Schumer apparently doesn't disagree with Ashcroft's view that the Second Amendment secures an individual right, or so Schumer said before and since. He himself rejects the "collective right to a well-regulated militia" view that he faulted Ashcroft for endorsing; and the analogy he gave when explaining what might be proper regulations (the analogy to shouting fire in a crowded theater) is precisely the analogy that Ashcroft uses in his May 17, 2001 letter when explaining what Ashcroft thinks might be proper regulations.

     So Schumer has said he believes in an individual right to bear arms -- but he has also condemned Attorney General Ashcroft for taking exactly the same individual right view, without mentioning that he (Schumer) takes that view, too. A bit odd, no?

     I realize that some might argue that Schumer believes the Constitution secures an individual right to bear arms, but also believes that Ashcroft -- as the lawyer for the U.S. government -- has an ethical obligation to always take the most pro-government, anti-individual-rights view that's plausible under the precedents, in order to maximize the government's chance of winning. But such a theory, which most readers would probably find rather counterintuitive, is certainly not explicitly stated in the Kennedy & Schumer op-ed. And in any event, it would also be contrary to the traditional understanding of the Attorney General's role: An Attorney General is certainly not ethically obligated to always make the most pro-government arguments possible. I also highly doubt that Schumer would express the theory where other constitutional rights were at stake ("I think that the First and Fourth Amendments protect defendant X, but it's outrageous that Attorney General Ashcroft would take the same view that I do; he has an ethical obligation to propose the most pro-government understanding of the First and Fourth Amendments").

     So what exactly is Schumer's position? That "the Second Amendment confers an individual right to own guns"? That it secures "just a collective right to a well-regulated militia"? Or that the Second Amendment confers an individual right to own guns, but that it's wrong for Attorney General Ashcroft to agree with that?

UPDATE: Matt Rustler has another quote from Sen. Schumer, which makes it even harder to figure out exactly what Sen. Schumer's views are.

 
[Eugene Volokh, 9:54 AM]
Details, we want details: The French government has apparently accused the U.S. government of "denigration and lies" about France (thanks to InstaPundit for the pointer):

Bush administration officials denied running an organized campaign to attack France, rejecting a complaint by the French ambassador that the United States is retaliating for their disagreements over the Iraq war. . . .

[T]he French ambassador in Washington, Jean-David Levitte, sent a letter to administration officials and lawmakers complaining about a series of news articles criticizing France, attributed to anonymous administration officials.

The letter is part of an attempt by France to counter ''the untruthful accusations which have appeared in the American press and which have profoundly shocked the French,'' the Foreign Ministry said in Paris.

Levitte cited eight examples of recent news articles alleging French actions to undermine the U.S. war in Iraq, including arms sales and passport distributions. He asked U.S. officials to ''help put an end to these useless polemics.''

''The methods used by those propagating this disinformation have no place in the relationship between friends and allies, who may disagree on important issues but should not engage in denigration and lies,'' Levitte said. . . .

An interesting story, but it leaves open the obvious questions: What exactly are the eight examples? and Are the allegations in those news articles indeed inaccurate? If anyone can point me to a list of the eight examples, or, better yet, a list of the eight examples with some investigation about who's right and who's wrong, I'd love to blog the link. Vague assertions and broad paraphrases of two of the eight items just don't cut it in the cyberspace / The Smoking Gun age.

UPDATE: A reader points to the French letter that has an attachment with the eight examples. Wouldn't it have been nice if the AP story had included the URL? But of course you can't include URLs in wire stories -- it's just not done, and, after all, why would readers want to see actual data when they can read general paraphrases?

 
[Eugene Volokh, 9:40 AM]
Number of Sexual Partners, or Don't Believe Everything You Read in College: Masters, Johnson & Kolodny, Human Sexuality 404 (4th ed. 1992), has a table labeled "Sexual Partnerships Among Homosexuals." Among other pieces of information, this reports that the median number of sexual partners for male homosexuals was over 250 (the numbers were somewhat lower for black males, but the aggregate result seemed to be over 250). Quite a striking result, since for straight males the median number is generally seen as being under 20 (subject to the usual caveats about the difficulty of getting honest answers on these sorts of things). Others have naturally picked up on this, and have even made it part of their explanations of their views of homosexual behavior -- it's a college textbook, after all, and Masters & Johnson at that. If you can't trust them, whom can you trust?

     Well, it turns out that you can't trust them. The source Masters, Johnson & Kolodny cite is "Adapted from Alan P. Bell and Martin S. Weinberg, Homosexualities. Copyright 1978." Already we see one possible flaw -- the data is from 1978 (as careful users of the data point out, to their credit), and it's at least possible that gay behavior changed in some measure because of the AIDS epidemic. (I've heard that it had, though I know of no clear studies on this.) But the real problem is much more serious.

     The Bell & Weinberg book appears to be a detailed and likely useful work; I'm not trying to knock it. But it's based on a study limited to the San Francisco Bay Area in 1970. What's more, the study was done by research assistants trying to recruit subjects through various means -- "such as public advertising, bars, personal contacts, gay baths, organizations, mailing lists, and public places" -- that don't seem likely to produce a random sample even of the gays in the San Francisco Bay Area in 1970. On top of that, this was a self-selected study, which measured only those who volunteered -- doubtless a small, and likely unrepresentative, fraction of those who heard about the study. To its credit, the book stressed (p. 22), that

It should be pointed out that reaching any consensus about the exact number of homosexual men or women exhibiting this or that characteristic is not an aim of the present study. The nonrepresentative nature of other investigators' samples as well as of our own precludes any generalization about the incidence of a particular phenomenon even to persons living in the locale where the interviews were conducted, much less homosexuals in general.

But of course this generalization is precisely what Masters, Johnson & Kolodny engaged in, by presenting their table simply as "Sexual Partnerships Among Homosexuals." And naturally people who read Masters, Johnson & Kolodny infer that the reported data refers to homosexuals generally (or perhaps homosexuals generally in the 1970s) -- as opposed to a self-selected group of homosexuals in the San Francisco Bay area in 1970, a group that might not even tell us anything about "the incidence of a particular phenomenon even [among the] persons living in the locale where the interviews were conducted . . . ."

     The only halfway reliable data on these sorts of issues would come from random samples of the population at large, and of course it's hard to get data about homosexuals from those samples, since they're such a small fraction of the population -- it would take a huge study to get any sort of statistically significant information. The best data that I've seen so far (and I can't claim to have done a thorough survey, but I did do a bit of digging) comes from Laumann, Gagnon, Michael & Michaels, The Social Organization of Sexuality: Sexual Practices in the United States 315 (1994) (early 1990s data, surveying Americans between 18 and 59). According to this study (note that I've rounded some margins of error, and used homosexuality as defined by "Any same-gender partners in past 5 years," an arbitrary choice), here are the averages:

	Partners in Last Year	Partners in Last 5 Years	Partners since Age 18
Straight men	1.7 +/- 0.3	4.8 +/- 0.6	16.9 +/- 3
Gay and bisexual men	2.9 +/- 0.8	16.7 +/- 7	26.6 +/- 11.5
Straight women	1.3 +/- 0.1	2.2 +/- 0.2	5.2 +/- 0.6
Lesbian and bisexual women	5.7 +/- 7	10.1 +/- 9	19.9 +/- 10.5

Naturally, this data may be subject to the usual problems caused by respondents misreporting information (people often titter about the vast mismatches between the number of female sexual partners claimed on average by men, and the number of male sexual partners claimed on average by women -- some of this may be explained by the presence of relatively unsurveyed outliers, such as female prostitutes, but I'm told that much of it can only be explained as, er, misstatements by men, women, or both). Moreover, because there are relatively few homosexuals in any random sample, the margins of error (at the 95% confidence interval) are huge. Still, we do see (1) a pattern of gay men apparently having on average quite a few more partners than straight men (the differences in two of the cells are statistically significant), and lesbians having quite a few more partners than straight women, though about as many as straight men (the differences in one of the cells are statistically significant), and (2) gay men having far fewer sexual partners than reported by Masters, Johnson & Kolodny. Also (and this is an UPDATE from the original post), these are averages, not medians; the medians will very likely be considerably lower.

     Very little of this, of course, is definitely accurate. It's possible that the Laumann et al. study was flawed, and that the numbers are closer to those reported by Masters, Johnson & Kolodny. But one statement is definitely accurate: There is no reason whatsoever to trust the numbers that Masters, Johnson & Kolodny report, which are based on a geographically limited, self-selected sample, reported in a study that specifically warned against the generalization that Masters, Johnson & Kolodny engaged in.

 
[Eugene Volokh, 8:35 AM]
"First thing is I'm an American": My fellow libertarian constitutional law professor David Bernstein writes:

Arturo Moreno has bought the California Angels. Not especially interesting in and of itself, but here's a notable outtake from the New York Times story on the sale:

Both [baseball commissioner] Selig and Moreno played down the fact that Moreno is the first Hispanic, or even member of a minority group, to buy controlling interest in a Major League Baseball team. There's even some question whether Moreno can be considered a minority-group member. He is of Mexican descent, but as he said: "I'm fourth-generation American. First thing is I'm an American'' He was born and raised in Tucson and has homes in Phoenix and Southern California. "I'm proud of being a Mexican-American, but as far as being a first minority," he added, he didn't place any significance on that. "I think we're all Americans. Most of us are immigrants from someplace, and I think we always try to do our best being an American."

. . .

 
[Eugene Volokh, 8:31 AM]
Technorati: I'm sure many of you -- especially those who have your own blogs -- are familiar with this, but in case you aren't, I thought I'd pass this along. Technorati is a nifty way to find out who's linking to you, and how they're responding to your posts; just go to the page, enter your URL and then click on "Get Link Cosmos." (You can then bookmark the resulting search page to rerun the query in the future, though I sometimes find that I need to wipe out my local Web page cache in order to have that work -- I don't know why.)

 
[Eugene Volokh, 6:05 PM]
More on pronouns and possessives: Prof. Geoffrey Nunberg (Stanford University Department of Linguistics) writes:

Someone pointed me to your postings on this business. I can't tell exactly where this rule originated, but its most influential modern locus is Wilson Follett's 1966 Modern American Usage. In the article on "antecedents," Follett says (I've used quotation marks for his italics):

A noun in the possessive case, being functionally an adjective, is seldom a competent antecedent of a pronoun: "On F's arrival from Virginia at La Guardia Airport last night, he denied to reporters that..." "F." would legitimately lead to "he"; "F's" cannot. Reconstruct, then: "F, on his arrival, denied..." (Of course a possessive noun can be the antecedent of a possessive -- i.e., an adjectival--pronoun: "F's denial was made on his arrival.")

The rule is repeated in Jacques Barzun's 1985 Simple and Direct and John Simon's 1980 Paradigms Lost.

Follett's occasional good sense abandoned him here. The rule is a perfectly absurd concoction, which grows out of a basic confusion about parts of speech (no, possessives are not adjectives, which is why you can't say "It looks John's," for example). It's probably based on a false analogy to sentences like "In the old days no shark fishing took place, and they were caught only occasionally," which Follett condemns with perhaps more justification. As you point out, a sedulous conformity to the rule would require one to avoid the most elementary sentences of English -- for example "Hamlet's mother loved him."

Webster's Dict. of English Usage cites other examples, among them:

"It was Mr Squeers's custom to call the boys together and make a sort of report...regarding the relations and friends he had seen" (Dickens, Nicholas Nickleby)

"...shaking Snooks's hand cordially, we rush on to the pier, waving him a farewell." (Thackeray, The Book of Snobs)

"Stafford's enemies were in deadly earnest, because while he lived they and all they strove for were in jeopardy." (G. M. Trevelyan, A Shortened History of England)

Anyway, the whole story testifies to the degree to which the rules of "correctness" have been detached from their connection to reason and have become the aracana of an infantile game of "gotcha." But maybe it's the PSAT's fault for going there in the first place . . . .

 
[Eugene Volokh, 3:34 PM]
Judicial Watch sues Senate over filibuster: Here's the complaint.

 
[Eugene Volokh, 1:04 PM]
The Internet: Judge Kozinski e-mailed to me a cute line, which I tracked down to a 1998 Chicago Tribune piece by Eric Zorn:

The Internet is a bathroom wall.

Here's Zorn's further explanation:

Consider: Anyone can write anything on a bathroom wall. There's little accountability on a bathroom wall. It's hard to tell who wrote what on a bathroom wall. Truth looks just like rumor on a bathroom wall. Great stuff is interspersed with awful, stupid stuff on a bathroom wall.

Most people know instinctively not to offer as verification or a point of information the phrase "Well, you know, I read on the bathroom wall that. . ." Yet far too many seem willing to lace their discourse and communications with "facts" gleaned from bulletin boards, e-mail and Web sites.

The sad fact, which I've noted in many posts over the past year (and even setting aside egregious examples like the Jayson Blair affair), is that most media turn out to be a bathroom wall, too. An exaggeration, but less of an exaggeration that I'd like it to be.

 
[Eugene Volokh, 12:56 PM]
Assisted suicide, and more: Sub Judice (May 14, 7:36 pm post) discusses Russell's post, and also explains how I just barely avoid very serious legal trouble.

 
[Eugene Volokh, 12:43 PM]
How law professors really feel this time of year: Jeff Cooper captures it nicely.

 
[Eugene Volokh, 11:55 AM]
Actual grammar authority: Reader Alice Marie Beard (a George Mason law student) points to The Columbia Guide to Standard English, which actually deals with this very issue:

Milton's blindness forced him to dictate to an amanuensis. Some have argued that a personal pronoun such as him in the example cannot have a noun in the genitive case (Milton's) as its antecedent; they insist that only a genitive pronoun with noun will work: Milton's blindness forced his dictation to an amanuensis. But there is nothing wrong with the example using him: we know that it refers to Milton, and although the logic may be imperfect the common sense of the grammar prevails. Occasionally, especially when the pronoun is who or whom instead of whose (A prodigious piece of work was Johnson's dictionary, who now gets credit for a one-man effort), the resulting sentence will be awkward regardless of whether the pronoun is genitive or something else. But otherwise you may comfortably use a noun in the genitive case as antecedent for a pronoun in any case.

So at least this attests to the existence of a controversy, which might be reason enough for the PSAT to throw out the question. But I wonder how credible the "some" who "have argued" this are; and in any event, this is further evidence that, contrary to the Standard, it's not accurate to say that "the sentence has been proven to contain an error of grammar."

     If you smell an agenda in my argument here, you're right. I do wish that before people claim (even in an aside) that some phrase is Grammatically Wrong, they check the sources, and consider the possibility that the phrase is merely inelegant, or is condemned as wrong by some authorities while defended by others -- or maybe is even perfectly fine.

 
[Eugene Volokh, 10:56 AM]
Grammar: Reader David Rorhbacher writes, apropos the Toni Morrison sentence grammar brouhaha:

I find it impossible to believe that any grammarian or grammar book has ever promulgated such a ridiculously untrue rule. English follows the rule found in Latin for the relative pronoun: "The pronoun agrees in number and gender with the antecedent; its case is determined by its function in the relative clause."

A couple examples:

"A jest's prosperity lies in the ear
Of him that hears it" (Love's Labour's Lost V.ii)

"Every subject's duty is the king's; but every
subject's soul is his own" (Henry V, IV.i)

So, as I mentioned, it does seem a bit odd to say (about "Toni Morrison's genius enables her to create novels that arise from and express the injustices African Americans have endured") that "the sentence has been proven to contain an error of grammar."

 
[Eugene Volokh, 10:54 AM]
American government's Arabic-language Radio Sawa project seems to be working: It's impossible to tell just how much of an effect it's having, but at least it appears to be bringing in the listeners. From Melissa Seckora in The Hill:

Mid-East TV was envisioned as a TV version of Radio Sawa, the star of the U.S. public diplomacy effort. The approach is to reach the largest audience as quickly as possible and keep it tuned in.

Launched in the months after the Sept. 11 attacks, Sawa took only three months to become the most-listened-to station in eight Arab countries, reaching 10 times the number of people Voice of America (VOA) had reached in 50 years.

The station broadcasts top-10 American and Arabic pop tunes, local cultural and sports headlines, Bush’s weekly radio address, and other important speeches by high administration officials including Defense Secretary Donald Rumsfeld.

Sawa has, however, received a fair amount of criticism -- much of it from within the VOA establishment. There have been complaints that Sawa plays too much music and not enough news, is insufficiently pro-Palestinian, and criticizes the Arab world too much.

As to the claims in the last sentence, perhaps "that's not a bug, that's a feature."

 
[Eugene Volokh, 10:44 AM]
Blawg search: http://blawgs.detod.com seems to be a search engine focused only on law-related blogs. Thanks to reader James Foster for the pointer.

 
[Eugene Volokh, 10:18 AM]
Farther and further: A reader writes, apropos my post below:

Eugene, you write:

Is it really a grammatical error to say, for instance, "John's legs couldn't carry him any further"?

I'd say yes -- because it should be "farther" (physical distance) rather than "further" (greater in metaphysical extent or degree). . . .

     Another false arrest by the Language Police, it seems to me, and on their own prescriptivist terms. The very first definition of "further" listed in my New Shorter Oxford is "To or at a more advanced point in space or time; = farther." (The second definition also fits the way I used the word: "Beyond the point reached, to a greater extent, more.") Merriam-Webster Online says, as the first definition, "FARTHER 1 ." (Thomas Hardy is on my side, so far no-one on the side of the Language Police.) My Webster's Dictionary of English Usage notes the controversy, but says that "both farther and further are in flourishing use whenever spatial, temporal, or metaphorical distance is involved," citing, among others Mordechai Richler and Graham Greene.

     The American Heritage online writes:

Since the Middle English period many writers have used farther and further interchangeably. According to a relatively recent rule, however, farther should be reserved for physical distance and further for nonphysical, metaphorical advancement. Thus 74 percent of the Usage Panel prefers farther in the sentence If you are planning to drive any farther than Ukiah, you'd better carry chains, and 64 percent prefers further in the sentence We won't be able to answer these questions until we are further along in our research. In many cases, however, the distinction is not easy to draw. If we speak of a statement that is far from the truth, for example, we should also allow the use of farther in a sentence such as Nothing could be farther from the truth. But Nothing could be further from the truth is so well established as to seem a fixed expression.

Likewise, Garner's A Dictionary of Modern American Usage says that "In the best usage, farther refers to physical distances, further to figurative distances." So there are two authorities, of the five that I've checked, that points to what is basically a usage preference. (Note, incidentally, that the American Heritage Usage Panel was given starker examples than the one I used -- "couldn't carry him any further" focuses not just on distance traveled, but also on progress within a process, something that's logically between their two examples.)

     So, no, I don't think that "John's legs couldn't carry him any further" is an error, grammatical, lexical, or, I would say, even as a matter of usage.

 
[Eugene Volokh, 8:19 AM]
The Toni Morrison sentence: Some of the Weekly Standard's criticisms of the PSAT's "Toni Morrison's genius enables her to create novels that arise from and express the injustices African Americans have endured" sentence may be apt. I can't speak to the quality of Morrison's work, but I agree that the sentence is imprecise -- presumably the authors meant to say that her genius enables her to create what they see as "great novels that arise from . . ."; it doesn't take genius just to create "novels that arise from . . . ." Much depends, then, on whether you see the PSAT's use of a sentence as endorsing the views in the sentence, which in turn probably depends on, among other things, what the other sentences were. But that's not what I'm concerned about.

     Rather, what I love is a good debate about language, and specifically the alleged grammatical error in the sentence:

The word "her," [Kevin Keegan, a Montgomery County high school journalism teacher] posited, was improperly referring to "Toni Morrison's," so the answer should have been "A," signifying a mistake in "her to create." Many grammar manuals insist that a pronoun such as "her" should refer only to a noun, not, as in the case of the possessive "Toni Morrison's," an adjective.

The Weekly Standard says that therefore "the sentence has been proven to contain an error of grammar."

     Is this really so? The word "her" is clearly referring to "Toni Morrison," not to "Toni Morrison's." The asserted rule must be that a pronoun cannot refer to the noun portion of a possessive -- but I've never heard of any such rule. Is it really a grammatical error to say, for instance, "John's legs couldn't carry him any further"?

     I'm not making a descriptivist argument here -- even applying a prescriptivist approach, I'm unaware of any prescription that forbids this. Can any grammar experts out there e-mail me a quote from a grammar book that expresses this sort of rule? (No need for tales of what one was once taught, or logical arguments -- I'm looking for explicit quotes from the acknowledged Authorities.)

     Incidentally, I agree with Keegan's statement that "if you have a rule that in two grammar books contradicts itself, you either don't test it or you accept both answers." I've just never heard of such a rule, and would like to learn more about it.

     Finally, note that if the grammar books do contradict themselves -- also the view of the Post, which simply speaks of what "[m]any grammar manuals" say -- then I'm not sure that it's right to say that the sentence has been "proven to contain an error of grammar." The existence of a controversy doesn't prove that there's an error in the sentence, though it might show that there's an error in the decision to use this particular sentence on the test.

UPDATE: Sambal shares my view, with more details.

 
[Eugene Volokh, 6:35 AM]
The birds and the bees: Aren't you glad that your parents didn't explain sex to you by really telling you about the birds and the bees? "Now, daughter, think of yourself as a bee. There's a 99.99% chance that you'll never get any, and instead of developing an extensive reproductive system, you'll get to have a stinger and a venom pouch. But there's a tiny chance that you'll be a queen bee, which means you'll be really huge, and all these male bees will mate with you."

     "Son, you have to find the queen, the one all the other boys want to mate with. Then you'll have sex with her, and your penis will fall off and stay in her body. Then you'll die. Oh, before you have sex with her, make sure you take the other guy's penis out of her first." "No wait, daughter, actually, think of yourself as a bird. That means you've got a single cloaca, through which your urine, feces, and eggs go out, and the male's semen comes in. Just remember that, and you'll be OK."

     Good thing I learned about sex through the "S" volume of the encyclopedia instead.

 
[Eugene Volokh, 6:00 PM]
Maureen Dowd quotes Bush badly out of context: Andrew Sullivan points this out. Dowd wrote:

Busy chasing off Saddam, the president and vice president had told us that Al Qaeda was spent. "Al Qaeda is on the run," President Bush said last week. "That group of terrorists who attacked our country is slowly but surely being decimated. . . . They're not a problem anymore."

Bush actually said:

Al Qaeda is on the run. That group of terrorists who attacked our country is slowly, but surely being decimated. Right now, about half of all the top al Qaeda operatives are either jailed or dead. In either case, they're not a problem anymore. And we'll stay on the hunt. To make sure America is a secure country, the al Qaeda terrorists have got to understand it doesn't matter how long it's going to take, they will be brought to justice.

Bush is certainly not saying that "They" ("That group of terrorists who attacked our country") "[a]re not a problem anymore." Rather, he's saying that "they" -- the "about half of all the top al Qaeda operatives [who] are either jailed or dead" -- aren't a problem. The "either case" seems to refer to the "jailed" and the "dead," especially since Bush goes on to acknowledge that there are others who are potentially a problem: "[W]e'll stay on the hunt. To make sure America is a secure country," the remaining ones have to be caught (an acknowledgment that if we don't catch them, we won't be secure).

     Not exactly candid journalism from Ms. Dowd.

 
[Eugene Volokh, 5:40 PM]
Minuteman stays: The AP reports:

The University of Massachusetts, amid widespread opposition to its proposed adoption of a new mascot, has decided to keep its Minuteman logo, school officials announced Wednesday.

Athletic Director Ian McCaw had said that sales of souvenirs bearing the Minutemen have dropped over the past decade. A design firm hired by the school suggested sales might be revived by the creation of a new symbol for the school.

McCaw also said there were "gender, firearms and ethnicity issues" with the Minuteman. Women's sports teams at UMass are known as the Minutewomen. . . .

The student government association condemned the idea and called for a student referendum. Alumni reaction to the proposed change was largely negative. . . .

The end of the story points out that souvenir sales apparently declined at the same time that the team stopped winning, so there might be more going on here than the public suddenly souring on Minutemen.

     Thanks to The Bitter Ms. Canine for the pointer.

 
[Eugene Volokh, 5:36 PM]
Sauce for the goose: Reader Bruce Bartlett, writes, apropos my post about lawsuits against newspapers below:

I certainly agree that a lawsuit against the New York Times over the Blair affair would have no merit. But I disagree with your view that such suits should not be filed. Let the Times feel what most other businesses in the US have to put up with for a while and maybe it will influence their editorial opinion on tort reform. I say, sue the crap out of them.

Well, now that you put it that way . . . .

 
[Eugene Volokh, 3:15 PM]
The Easterbrook opinion really is very good: And, after of the discussion of the defendant's, er, zaniness, comes this gentle and quite proper admonition to the trial judge:

Counsel for James contends that the district judge violated the first amendment by excluding from the courtroom any spectators whose religious beliefs require them to cover their heads. Because James himself did not seek to wear any form of head covering, he lacks standing to raise this contention. None of the spectators was held in contempt, and none has sued seeking a declaratory judgment. But although this appeal does not present an Article III case or controversy on this issue, the judicial branch has an interest in the prudent handling of public relations, and no formal controversy is needed to say a few words on the topic.

The Constitution does not oblige the government to accommodate religiously motivated conduct that is forbidden by neutral rules, see Employment Division v. Smith, 494 U.S. 872 (1990), and therefore does not entitle anyone to wear religious headgear in places where rules of general application require all heads to be bare or to be covered in uniform ways (for example, by military caps or helmets). See Goldman v. Weinberger, 475 U.S. 503 (1986). Yet the judicial branch is free to extend spectators more than their constitutional minimum entitlement. Tolerance usually is the best course in a pluralistic nation. Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority’s. The best way for the judiciary to receive the public’s respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is self-defeating. It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.

(I take it that the "entitled" doesn't necessarily mean constitutional entitlement, but rather entitlement as a matter of sound judicial administration, something about which federal appellate courts can certainly admonish federal trial courts.)

 
[Eugene Volokh, 3:09 PM]
Fraud / negligent misrepresentation / breach of warranty lawsuits against the New York Times: Various people have suggested (with varying degrees of seriousness, I suspect) that New York Times readers should be able to sue the Times for fraud, negligent misrepresentation, or breach of warranty based on Jayson Blair's misconduct.

     I think that would be an awful idea, and I hope and expect that courts would block it. Really, no matter what one might think about this particular scandal, do we really want the product liability juggernaut to get into this area? Imagine that every time a newspaper, magazine, or television program published something that some people claimed was false, someone would sue -- and would sue in the jurisdiction that's most hostile to the speaker's claims (should be possible, since such publications are distributed in all states) -- alleging that readers were defrauded?

     This would be far more dangerous to speakers than libel law is. Libel lawsuits involve a particular plaintiff; here, any reader can sue -- and if one loses, then another can sue, and then another, until one finds a friendly jury. (Yup, that's generally possible, since each plaintiff would not be bound by a completely different plaintiff's defeats.) Many libel plaintiffs have an incentive not to sue, since such lawsuits would just spread the personally defamatory claims about which they're complaining; but an ideologically minded allegedly defrauded reader might not have the same personal incentive to stay out of litigation. Libel lawsuits can be avoided by not publishing things that accuse particular people of misconduct. But if you're talking about readers being defrauded, then it doesn't matter whether the speech is about a particular person, or about matters in general -- e.g., the advantages or disadvantages of social security privatization, Bjorn Lomborg's views on the environment, and so on. And, as we know, the costs and risks of litigation can powerfully deter and distract speakers even if their statements are true, and even if they ultimately end up winning each case.

     Nor can one distinguish the New York Times situation by alleging that here the management was negligent. First, such accusations can be made in nearly every case. Second, if the article was written by an employee, the employer would be strictly liable for the employee's actions under respondeat superior. (That's the rule in libel cases, incidentally.) The only question is what the employee knew or was negligent about, not what his managers knew. So all you'd have to argue is that the reporter knew the statement was false (fraud), was negligent about its falsehood (negligent misrepresentation), or perhaps even that he made an innocent mistake (breach of warranty of accuracy).

     The best remedy for the Times's misconduct, I think, is public exposure and public criticism. It's not by any means a perfect remedy. But it's much better than the alternative of making it possible to sue over every allegedly incorrect factual assertion in the media.

 
[Eugene Volokh, 2:21 PM]
First Amendment after 9/11: By the way, I've often argued against claims that the First Amendment has been under assault since 9/11; there've been a few First Amendment violations since then, but only very few. Unfortunately, the flag display laws that I mention below need to be added to that list.

 
[Eugene Volokh, 1:19 PM]
Statutes requiring employers to let employees display flags: I've only recently learned about a couple of post-9/11 statutes that require private employers to let their employees display flags. N.Y. Labor Law sec. 215-c says: "No employer . . . shall discharge or discriminate against any employee in compensation or in terms, conditions or privileges of employment for displaying an American flag on the employee's person or work station, provided such display physically does not substantially or materially interfere with the employee's job duties." The law provides for civil penalties of $200-$2000. N.J. Stat. sec. 10:15-12.6 says much the same, but provides for "damages caused by the discharge or discrimination, including punitive damages, and for reasonable attorney's fees as part of the costs of any action for damages." Other states may have similar laws; these are just the two I've noticed. While I understand the motivation behind these laws, I think they're unconstitutional, improper, and unnecessary.

     1. Let me begin with the constitutional objection: The Supreme Court has generally held that property owners have a First Amendment right not to be compelled to display ideological messages. Wooley v. Maynard (1977) held that drivers can't be required to display "Live Free or Die" on their license plates: "New Hampshire's statute," the Court held, "in effect requires that appellees use their private property as a 'mobile billboard' for the State's ideological message," which was unconstitutional. And PG&E v. PUC (1986) made clear that the same principle applies to businesses as well; PG&E struck down a state requirement that utilities distribute in their billing envelopes messages from the utilities' political critics. Here, a business is required to display a highly ideological symbol -- a U.S. flag -- on its own walls (the "on the employee's person" proviso is less troublesome, though not free from difficulty) whenever an employee so insists; the business is "require[d to] . . . use [its] private property as a a '. . . billboard' for the State's ideological message." (It's true that the message is posted by a private employee, not the state, but it's the state that selects the favored message, which is the U.S. flag, and that compels the employer to allow the message.)

     The Court has allowed some laws that require private property owners to allow third parties to speak their property; PruneYard Shopping Center v. Robbins (1980) upheld a California state requirement that owners of large malls allow members of the public to speak on the mall's property, and Turner Broadcasting Sys. v. FCC (1994) did the same to a federal requirement that cable operators carry local broadcasters on their cable systems. But these cases specifically distinguished Wooley and PG&E on the grounds that, in PruneYard, "no specific mesage is dictated by the State to be displayed on appellants' property[, t]here consequently is no danger of governmental discrimination for or against a particular message," and, in Turner, the rules "confer benefits upon all full-power, local broadcasters, whatever the content of their programming." Similarly, PG&E stressed that the law in PruneYard was valid partly because "the access right [was not] content based," whereas in PG&E the requirement "does not simply award access to the public at large; rather, it discriminates on the basis of the viewpoints of the selected speakers."

     The New York and New Jersey laws aren't generalized mandates that property owners allow speech evenhandedly by a wide range of speakers; nor are they even requirements (which have never been tested in the Supreme Court) that businesses display certain factual information, such as information about labor laws or warnings about the presence of certain chemicals. Rather, they require employers to let their property be used -- at any employee's command -- for the display of one particular ideological symbol, the American flag. They're thus much like the laws held unconstitutional in Wooley and PG&E, and unlike the laws upheld in PruneYard and Turner.

     2. Now, to be frank, I'm not sure that Wooley and PG&E were correct; I'm quite certain about my analysis given the Court's caselaw, but I can see why people might oppose that caselaw -- it's not clear that requiring people to allow certain speech on their property is indeed properly characterized as "compelled speech." It may be an interference with property rights, but it doesn't require anyone to actually say or write anything.

     But the laws are still wrong, precisely because they unjustifiably interfere with private property rights. People's offices are the company's property, not the employees'. If employees want to fly flags, that's just great; I fully support them in doing so, if they do it on their own property (or on government property that's treated as a public forum). But I don't think anyone should be entitled to display his message on someone else's property.

     Now I'm well aware that property rights are already pretty heavily burdened by many other laws, and employers' property rights are especially burdened. Some of these burdens may be proper, but many may be improper. Still, this is hardly a reason to add yet another improper burden (which would then in turn become an argument for adding still more such burdens).

     3. Finally, the law strikes me as quite unnecessary. Yes, I've heard the stories about employers forbidding employees from displaying American flags; and I've been quite annoyed by the employers' behavior. But I've also noticed that many such employers changed their policy when it drew public attention.

     Public attention, not legislation and litigation, seems to me to be the proper response to this. If you think that a company shouldn't keep its patriotic employees from posting American flags, make that public, and try to pressure the company into changing its policy. (I don't want to return to the Dixie Chicks issue here, but I do think that pressuring the company through public condemnation would be quite proper here.) Much of the time, this will work. And if it doesn't, well, there ought not be a law: It should indeed be up to the company to decide whether it wants flags flown on its property.

* * *
     I don't know the politics behind the enactment of these laws -- but I somehow suspect that there wasn't much opposition to them. The Left doesn't mind extra burdens on employers; the Right likes the American flag; everyone likes to be patriotic; and unfortunately few legislators pay much attention to what strike me as some pretty important principles, both of free speech law and of property rights. Unsurprising, but unfortunate.

 
[Eugene Volokh, 11:28 AM]
Proposed UCLA speech code: The Daily Bruin (the UCLA student newspaper) just ran an article about this. My original post on the subject, which also points to the speech code text, is here; my memo that argues that the speech code is unconstitutional and unnecessary is here. The administration's chief argument for the speech code is that it's actually legally required; I respond to that in Part D of my memo.

 
[Eugene Volokh, 9:07 AM]
Amusing author's notes: The first footnote in any law review article is generally the "author's note," which says whom the author is affiliated with, and thanks people who helped the author. Often the thank-you's are followed by something like "All errors, of course, are my own responsibility," which on the one hand is gracious, but on the other hand so obvious that it seems a bit pointless. In any case, here are my favorite twists on this, the first three of which are seemingly part of a series:

1. "Any errors in this article are the fault of society, and cannot be blamed on an individual." (David Kopel 1999.)



2. "Errors are entirely the responsibility of sinister unknown forces, not the authors." (David Kopel & Glenn Harlan Reynolds 2000.)



3. "Any flaws in the Article are entirely the fault of the Author. Nevertheless, readers are encouraged to sue the manufacturer of the computer on which this article was word-processed." (David Kopel 2001.) (This was in an article that had to do with products liability.)



4. "All errors in this essay are due to the flawed Pentium chip in my computer." (Jack Balkin 1995.)



5. "All errors that remain are intended as a test of the reader's knowledge." (Paul McGreal 2002.)



6. "I am grateful to my colleagues [named] for their careful reading of earlier drafts of this paper and their helpful comments, criticisms and suggestions. If there are any glaring errors in this piece I will not be able to resist the feeling that they are at least partially responsible." (Alan Scott Rau 1995.)

 
[Eugene Volokh, 8:46 AM]
Update on Lileks: Reader Shannon Maders writes, in response to my favorable citation to Lileks The Handmaid's Tale post:

Professor Volokh,

I just wanted to drop you a quick note re Lileks' post re The Handmaid's Tale. While I love Lileks and despise the novel, I feel obliged to report that there is in fact a dystopian sci-novel written by a very famous and highly regarded writer that depicts a future society run by homosexuals in which homosexuality is officially encouraged -- it's Anthony Burgess' The Wanting Seed. Of course, I don't expect The Wanting Seed to be made into an opera anytime soon, but it's worth pointing out that such a novel does exist. . . .

I read it back in college (i.e., over a decade ago), so my memory of it isn't particularly keen. I don't recall any genetic manipulation or programming, but otherwise Lileks' description is remarkably similar to Burgess' novel -- in Burgess' novel, the world is wracked by severe overpopulation so stringent limits are placed on reproduction, and homosexuality (as well as, if I remember correctly, other forms of nonreproductive sexuality) are officially encouraged. Indeed, much of the novel's 'satire' centers, I believe, on the various pro-homosex