Eugene Volokh's Blog, page 2687
October 23, 2011
NYT Corrects Editorial on Detention and Other Security Issues
Benjamin Wittes at Lawfare has been keeping a running track of factual difficulties in Times editorials over the last year dealing with Guantanamo detention and other terrorism related issues. The paper today issued a correction to an editorial, and the Lawfare discussion of the correct and the misstatements in the original editorial, as well its its inconsistency in important ways with earlier Times editorials, bears reading. I don't understand why the Times has such trouble getting this right on the editorial page; its own reporters could easily fact check this stuff, or a quick call to Ben Wizner at the ACLU would spare it embarrassment. The editorial, says Lawfare's Wittes:
deals with the detainee provisions of the Senate NDAA. And the Times is, while late to the party, no happier about the provisions than I am. Indeed, breathless, sky-is-falling tone aside, I'm largely in agreement with the editorial–some of which even tracks arguments that first appeared in public in posts of mine on this site.
But this laudable and sudden scrupulousness about getting facts right holds real danger for the Times editorial writers. I mean, where does it all stop? If the Times feels obliged to correct its error about the authorship of the NDAA provisions, what about the several other errors in the same editorial–some of which, at least, are glaring and not subject to dispute among reasonable people?
For example, if the Times feels called to get the provision's sponsorship right, might it also feel it necessary to correct its reporting of a roll-call vote count? The editorial says of the recent Senate vote to reject the Ayotte amendment:
"And yet 42 senators voted for the measure, introduced by Kelly Ayotte, the New Hampshire Republican who is a favorite of the far right. They included the usual gang of fearmongerers, John McCain, Lindsey Graham and Joe Lieberman, but also so-called Republican moderates like Susan Collins and Olympia Snowe."
This is a very special kind of 42, according to the actual vote tally–the kind of 42 that's called 47.
What should most concern the Times are the couple of emails I've received from several eminent professors, smart and intellectually scrupulous folks whose opinion I value a lot, deeply committed progressives, who have asked that I urge Wittes to greater restraint, because it's unsporting to shoot fish in a barrel.
Another Hunter on the High Court
CNN reports that in a recent speech Justice Elena Kagan acknowledged that she has gone practice shooting and hunting with Justice Scalia — and that she likes it. From the story:
She recalled paying a courtesy call on Sen. James Risch (R-Idaho) shortly after her nomination to the court by President Obama in May 2010. Risch asked her about gun rights, and remarked she may not realize how important the issue was to some Americans, especially in his home state.
She admitted never having owned or fired a gun before. "But I told the senator if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia."
And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.
"You're Jewish," deadpanned Rabbi Mitchell Wohlberg.
"Yeah, but it turns out, it's kind of fun," said Kagan, laughing.
War Powers Suit Dismissed
On Thursday, U.S. District Court Judge Reggie Walton dismissed Kucinich v. Obama, a suit filed by ten members of Congress alleging that President Obama's use of military force in Libya was unlawful as it violated the War Powers Act and lacked Congressional authorization. Judge Walton held the members of Congress lacked standing to bring the challenge, as they had ample legislative means at their disposal to oppose the President's use of military force. Judge Walton noted a "long line of cases" that "all but foreclosed the idea that a member of Congress can assert legislative standing to maintain a suit against a member of the Executive Branch," including a relative recent case involving a suit by Rep. Kucinich against then-President Bush. Judge Walton added in a footnote:
Interestingly, Representative Kucinich, the lead plaintiff in Kucinich v. Bush, the case in which these words were written, is the lead plaintiff in this case in which members of Congress are again attempting to bring an action against Executive Branch officials. Indeed, the plaintiffs "acknowledge the contrary result" reached by the District of Columbia Circuit in a case also involving alleged presidential violations of the War Powers Clause and the War Powers Resolution. See Pls.' Opp'n at 17. While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law. The Court does not mean to imply that the judiciary should be anything but open and accommodating to all members of society, but is simply expressing its dismay that the plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.
As noted by Politico, Rep. Kucinich's attorney, GWU law professor Jonathan Turley, objected to Judge Walton's suggestion this suit should not have been filed.
I must strongly disagree with the Court's statement in a footnote that, because the D.C. Circuit previously ruled against members in an earlier challenge, no further challenges should be made by members who disagree. If that were the standard, many of our most famous cases in history, like Brown v. Board of Education, would never have happened. Changes in precedent are often secured only after years, if not decades, of challenges. These members strongly disagree with the D.C. Circuit case law and the only way to ask the Circuit to reconsider those holdings is to first receive a decision from the district court.
Of course it is sometimes necessary to raise claims that are squarely foreclosed by precedent in order to prompt the Supreme Court to revisit its own prior decisions. But such a legal strategy only makes sense where intervening precedents and other decisions raise questions about prior decisions or otherwise expose tensions or contradictions in contemporary doctrine. Simply repeating failed legal arguments in the vain hope the judiciary will alter course, as the plaintiffs did here, borders on the frivolous, and creates the impression those filing suit are more interested in publicity and making a political point than in prevailing in court.
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Against descriptivism and prescriptivism: repost
In light of Eugene's recent post on language matters, I thought I would repost something I put up here back in 2007. Various so-called prescriptivists argue against descriptivism, claiming that descriptivists — because they go by usage — have no basis to correct anyone's English.
Of course this is completely false, and reflects a misunderstanding of what descriptivism is. Usage is a harsh mistress! There was a post on Language Log once (I think, though I can't find it now) that expressed it well. Roughly, it went like this: In some communities of English speakers, people say "The team is winning." In other communities of English speakers, people say "The team are winning." In still others, people say "The team be winning" or "The team winning." But there are no communities of English speakers (to my knowledge) where people say "The team am winning." Of course I might be wrong. But if I'm right, all those previous expressions would be correct to use if you're in the appropriate group, and "The team am winning" is (almost) never correct to use.
Thus, the descriptivist has plenty of grounds to correct people. Most language "rules" also correspond to everyday usage. In those cases, the prescriptivist and descriptivist agree with each other. The arguments happen when "rules" (as stated by whomever) diverge from usage. But that's a minority of cases. The descriptivist and prescriptivist are equally willing to correct people's English (if they feel they're in a position where correcting is appropriate, like, say, English teacher); they each recognize a standard of correctness that can be (and often is) violated; just their standards differ.
O.K., but back to my original goal, which was to repost something from 2007, where I explained why I don't even like these terms "descriptivism" and "prescriptivism". Here goes:
—–
This whole series of posts just underscores why I don't like the words "descriptivism" and "prescriptivism." When one says one's a descriptivist, this immediately makes people think one doesn't want to prescribe. This is of course completely false, and I would have thought that my posts (and Eugene's) would have put that idea to rest. But no, this misconception dies hard.
Am I a descriptivist? Yes! Because I think usage is the ultimate guide to what English means. I'd think that even self-described "prescriptivists" would say the same thing if, as anthropologists, they encountered a new tribe in the Amazon and tried to describe their language. To know what the language means, you have to observe its practitioners and see what rules they themselves follow in speech.
Am I a prescriptivist? Yes! I've been an editor of a journal in the past (and so has Eugene), and I still act as editor when I read friends' drafts and my students' work. When I write an article, I send it to Eugene, who tells me how I should rewrite it. Heck, Eugene has even written a book called Academic Legal Writing, in which he gives the reader expressions to avoid!
And it's clear why we're interested in prescribing usage: In my case, my only rule is to speak in ways that make you best able to accomplish your goals. Since my goals are usually communicative, I believe in speaking in ways that are clear and comprehensible to my target audience. (And since my target audience often changes, the content of "clear and comprehensible" also changes.) Anyone's "rules" are only valuable to me insofar as they serve my goal. But once I've stated a goal, for instance effective communication with and persuasion of legal academics, there is probably an objectively best way to pursue that goal.
Therefore, to the extent a particular phrase makes my thought unclear, marks me as uneducated and therefore reduces my credibility with my readers, or something else along those lines, then using that phrase is a mistake — because it's a less effective way of pursuing my goal. (When people correct language mistakes in my posts, most of the time I myself would agree that it's a mistake!) The best way to pursue my goal might even be formalizable by means of rules — and most of these rules are indeed the ones we learned from our 7th-grade English teachers — but there's no necessary relation between the one and the other, and of course, in case of conflict, it's the English teacher's rules that should go out the window.
So the notion that I don't think there are better and worse ways of speaking — that I wouldn't teach my kids how to talk and how not to talk — is silly. The difference between self-described "prescriptivists" and "descriptivists" isn't that the first gang prescribes while the second gang describes. When I say that my students are speaking or writing incorrectly, I mean that they're expressing themselves in ways that I don't think are likely to achieve what I think their goal might be (and of course I have to explain why the words they use are ineffective). And when I choose how to speak, I likewise choose the words that I think are most likely to achieve my goal.
This "functional prescriptivism" business is a difficult exercise, and miles away from the "anything goes" that some people use as their caricature of descriptivism.
Neoconservatism and Government Competence
There was a time, way back in the mid-1980s, that I considered myself a libertarian on domestic policy and a Commentary–style neoconservative on foreign policy. The latter meant that I supported U.S. efforts to "export liberal democracy."
At some point, however, a contradiction became apparent: if I didn't trust the government to competently run, say, public schools, what made me think that the the government, subject to the same public-choicey and other constraints, would be competent at handling the much more complex task of remaking other societies in America's image?
That was the end of my neoconservatism. The utter incompetence that the U.S. has displayed in both Iraq and Afghanistan–apparent, I think, regardless of whether one believes that the U.S. was justified in overthrowing Saddam and the Taliban–has hardly made me rethink things.
UPDATE: This post was prompted in part by two excellent essays in the most recent Claremont Review of Books, one by Mark Helprin, the other by Angelo Codevilla. Together, they paint a devastating portrait of U.S. foreign policy since 9/11, although I don't agree with everything that either author has to say.
One can glean the following points from their essays: (1) Even if "regime change" is warranted, hanging around to engage in nation-building typically is not; (2) U.S. foreign policy interests in the Muslim world consist primarily in the relatively limited goal of having friendly (or at least non-hostile) regimes there, not in decreeing that it's liberal democracy or bust, especially when the local populations are far more preoccupied with inter-ethnic conflicts of no interest to the U.S.; and (3) to the extent the U.S. has to engage in draconian tasks like invasion and occupation, it must do so with full force, full commitment (including a commitment to take on regimes like Iran if they support attacks on our soldiers), and, most important, with huge resources because the incompetence of government will inevitably mean that accomplishing U.S. goals will be vastly more expensive than planners will anticipate.
October 22, 2011
Profs. Barry Friedman and John Goldberg, Guest-Blogging
I'm delighted to report that Profs. Barry Friedman (NYU) and John Goldberg (Harvard) will be guest-blogging this coming week, chiefly about their new book, Open Book: Succeeding on Exams from the First Day of Law School; you can read more about the book on this site.
Both authors are leading legal scholars — Prof. Friedman on constitutional law and the judiciary, and Prof. Goldberg on tort law, tort theory, and political philosophy — but here they will be using their expertise in legal education rather than scholarship. I much look forward to seeing their posts; I know many of our readers will be able to profit from the posts, and even those who aren't going to law school will find them interesting windows into the legal mind and into legal education.
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October 21, 2011
If Only There Were No Assertionism
Earlier this month, I blogged about assertionism — my label for usage claims that sound like prescriptivism, but are actually bare assertions: They don't rely on any claims about what the (supposed) Linguistic Authorities say, on any detailed logical arguments, or on claims about allegedly superior clarity or precision; they just consist of a person's bare assertions. And when one asks for evidence supporting the claim, all one gets is more bare assertions. Prescriptivists ought to dislike assertionism as much as descriptivists do, partly because assertionism often comes across as unintentional parody of prescriptivism.
Here's an interesting example, which started on the wilful vs. willful thread. I started my post with, "A student saw 'wilful' used in an opinion, and asked whether it was a typo." A commenter then responded that the sentence
does not conform to proper English usage. The "whether" indicates that what follows is speculative, requiring that the verb be rendered in the subjunctive mood. "Was" is always indicative.
And the commenter then gave several assertedly "proper renderings of the sentence," the first of which was:
A student saw "wilful" used in an opinion, and asked whether it were a typo.
The trouble is that "whether it were" is nearly never used in modern American English, and while it was once a bit more common, it was never the dominant usage (either in American English or British English). Consider this Google Ngrams graph of the usage of "wondered whether it was" (blue) vs. "wondered whether it were" (red) — I used "wondered" just to better test the commenter's assertion, which is limited to "speculative" uses:
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The one problem with Google Ngrams is that it doesn't show raw numbers, so when one of the terms is very rare compared to the other, it's hard to find the ratio. I therefore did a Westlaw search through the USNEWS database (which contains many U.S. newspapers). The search for "wonder! #whether it was" yields 4812 results. The search for "wonder! #whether it were" yielded 8 results. That's right: "whether it was" in this context is 600 times more common than the assertedly more "proper" "whether it were."
I prodded the commenter for evidence supporting his position, but no evidence was to be had. Instead came the "you'll be looked down on" card (followed in a later comment by the "careful user of English card"):
You are judged by the words you use. If you want to sound like an educated American, you would want to emulate George Will, Ronald Reagan, my father or me. Though I've spent 27 years in school, many of them trying to master English and some 9 other languages, Ronald Reagan and my father spoke excellent English in spite of their relative poor education. It can be done.
But George Will, it turns out, seemingly never used "whether it were" in any sources archived in Westlaw's USNEWS database. He had indeed used "whether it was" in several columns, including in "speculative" contexts. The commenter later pointed to Charles Krauthammer as a supposed supporter (speaking of how I should emulate "the English of George Will, Krauthammer or me [i.e., the commenter]"). But Krauthammer, like Will, used "whether it was" but never "whether it were," according to the Westlaw data. And that should be unsurprising, because it seems that virtually no-one is using "whether it were," other than my assertionist correspondent.
When prodded further, the commenter did point to some sources:
I could cite The Gregg Reference Manual, The Associated Press Stylebook 2011, The Chicago Manual of Style 16th Edition, Garner's Modern American Usage, and The American Heritage College Dictionary 4th Edition[,] but they are all behind paywalls. You will find, however, that not one of them will let you off the hook. According to their rules, you must master the subjunctive form were if you want to speak and write correctly.
But I had Garner's Modern American Usage handy, and while it of course does report that there is such a thing as the subjunctive, and that many prefer it in certain contexts, it doesn't say that "whether it was" phrases have to be in the subjunctive. Indeed, Garner lists six situations in which the subjunctive is generally used, and speculation of the "whether it was" variety does not seem to fit within those situations. Again, the commenter's claims about what was "proper" proved to be supported by nothing more than bare assertions.
Finally, the commenter returned to the "you'll be looked down on" / "careful user of English" argument:
You and are are basically talking past each other. While you want to know what's common usage, I want you not to come off as having a deaf ear for English grammar.
Maybe you should consider the simple decision matrix: if you speak as I suggest, I will love it, while hoi polloi won't notice the difference. On the other hand, if you settle for the grammar of hoi polloi, you will irritate me and countless other grammar-nazis, while hoi polloi won't notice the difference.
Yet (1) it's hard to see how following a usage that is 600 times more common shows a "deaf ear for English grammar," while following the vanishingly rare one shows a fine ear. (2) The "hoi polloi" readers on whom the commenter so looks down probably would notice if I used something as unidiomatic as "whether it were," and might well be needlessly distracted or annoyed by the usage. And (3) the "countless other grammar-nazis" whose retaliation the commenter threatens apparently don't exist. It's just his own little hobby-horse here, it seems to me.
I have gone on at some length on this, because it strikes me as such a perfect illustration of assertionism in action. The commenter condemns people for looking to actual usage, which is to say following the views of the great majority of recent writers who have had to make the "whether it was" vs. "whether it were" decision. ("Hell, who wants a lawyer, teacher, priest or physician who gains his standards by googling?," the commenter argues, suggesting that it is equally foolish to rely on googling in making usage choices.) But instead, the commenter claims that we should be guided by the view of one writer — the commenter himself — who asserts, without support, that he is a stand-in for some large group of people that it would do us good to appease. Descriptivism looks pretty good by comparison with that, it seems to me.
Assessing Obama's Performance on Libya
Politico recently asked its Arena contributors whether the recent death of Muammar Gadhafi vindicates President Obama's Libya policy:
How much credit should President Barack Obama get for Qadhafi's death and the tyrannical regime's ouster? Does it vindicate the president over Libya mission critics like Rep. Michele Bachmann?
My response is available here:
President Obama deserves credit for facilitating the overthrow of a brutal dictator at little immediate cost to the United States. Republican critics were wrong to claim that this result could only be achieved with a much larger commitment of U.S. forces.
On the other hand, it is far from clear whether the new regime in Libya will be any better than the old. The new Libyan government includes many different groups, including an influential radical Islamist faction..... If radical Islamists do take over Libya, the result could well be a regime that is just as oppressive as Gadhafi's and much more hostile to American interests.
The United States may also pay a price for violating our 2003 agreement with Libya, under which Gadhafi agreed to stop supporting terrorism and give up his nuclear program in exchange for the US and Britain implicitly committing themselves to not seeking his overthrow....
Obviously, Gadhafi deserved to be overthrown. He certainly had no "right" to tyrannize over the people of Libya. But, after seeing what happened to him, other dictatorships such as Iran may be less willing to sign similar deals....
Finally, by going to war without congressional authorization, the president violated both the Constitution and the 1973 War Powers Act. Then-Senator Barack Obama got it right back in 2007, when he wrote that "[t]he president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."
I previously wrote on these issues in more detail here, here, here, and here.
Brilliant Man, Dumb Choice
In his last years, Steven P. Jobs veered from exotic diets to cutting-edge treatments as he fought the cancer that ultimately took his life, according to a new biography to be published on Monday. His early decision to put off surgery and rely instead on fruit juices, acupuncture, herbal remedies and other treatments — some of which he found on the Internet — infuriated and distressed his family, friends and physicians, the book says.
Really? A man on the cutting edge of technology like Jobs eschewed scientifically proven treatments (at least initially) for new age nonsense? How disappointing, and sad for him and his family.
"Occupier" Provides a Succinct Argument against Anarchism
As the communal sleeping bag argument between Lauren Digion and Sage Roberts threatened to get out of hand, a facilitator in a red hat walked by, brow furrowed. "Remember? You're not allowed to do any more interviews," he said to Digion. She nodded and went back to work. But when Roberts shouted, "Don't tell me what to do!" Digion couldn't hold back.
"Someone has to be told what to do," she said. "Someone needs to give orders. There's no sense of order in this fucking place."
From a very amusing piece in New York Magazine, via Ted Frank on Facebook.
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