1. The action
Recently there has been some controversy about Supreme Court judge Clarence Thomas, who appears to have broken the law by not reporting a series of gifts given to him and his family by a rich donor. A judge breaking the law—that’s not cool!
2. The defense
Oddly enough—or, at least oddly at first glance—one of Thomas’s defenders in this affair is law professor and free-software campaigner Larry Lessig.
Lessig’s involvement seems odd at first because in 2011 he published a book entitled, “Republic, Lost: How Money Corrupts Congress — and a Plan to Stop It.” You’d think that if Lessig believes that money corrupts Congress, he’d think that it would corrupt the court system.
Actually, though, no! Check out this recent post [updated link here] from Lessig. On one hand, I think it’s kinda cool that a bigshot like Lessig is spending his time blogging—he’s just like me! No regular NYT or Fox News gig or whatever so he puts his thoughts out there in the ether, for all to read!—; on the other hand, I’m not so happy with what Lessig has to say:
Yet most of the attacks on Justice Thomas go beyond the failure to report some of his gifts. Most are attacking (1) that he took these or any gifts at all, or (2) that he took them from someone on the Right, or (3) that he took them from someone who is wealthy.
Point (3) seems odd . . . Point (2) is odd as well . . . Which leaves point (1), the point about this reporting that is most odd to me: One might well believe that Justices should not take gifts like this at all — that they should never visit others, or stay with others, that their vacations should be on their own dime. . . .
Whaaaa? So the two alternatives for a federal judge are: (a) take zillions of dollars in undeclared gifts from a political donor, or (b) “never visit others, or stay with others”? That’s just weird. I don’t think anything in the law prohibits judges from visiting people!
I guess that’s something they teach in law school, to introduce ridiculous slippery-slope arguments?
Lessig continues:
But if that’s your view, then fair reporting would ask whether Thomas’ behavior is unique or exclusive to him.
This is absolutely nuts! First off, when he says, “if that’s your view,” “that” refers to the position that Supreme Court judges “should never visit others, or stay with others, that their vacations should be on their own dime. . . .” There’s nobody who has the view that judges should never visit or stay with others, so he’s making a conditional argument (if A then B) for which A is the empty set.
The second weird part of his argument is, if you break the law, it’s not much of a defense to say that you’re not the only person to have broken it. Typically they write laws for offenses that happen more than once!
The third weird part is that he speculates that other judges have done the same thing, but offers no evidence of that happening.
Lessig continues:
Washington is filled with techniques for the modestly paid to live life as if they were rich. . . . Justices on the Supreme Court are paid at the level of mid-tier lawyers at big New York law firms. And when you’re paid less than you think you’re worth, you find ways to justify what most would think corrupt.
I don’t really get why a judge on the Supreme Court should think he’s worth more, financially, than a mid-tier lawyer at a big New York law firms. Mid-tier lawyers have a lot of responsibility, no? They can make or lose a lot of money for their firms, and they get paid a lot. If Thomas or any another federal judge thought he could get more money in this way, he’s free to quit his job and join a law firm, no?
He concludes with a call for change:
If we’re to address these corruptions for real . . . we need to stop pretending that the problem is individual. It is not. It is institutional. The corruptions that are destroying our government are woven into the systems of our government. It is these systems that must change if we’re to have institutions we can trust.
I kinda see where he’s coming from, but the first step toward reform would be to enforce existing laws, no? If your goal is reform, it seems like a step backward to minimize existing violations.
The other odd thing here is that Lessig leads his post with, “Justice Thomas’s interpretation of the reporting requirements applicable to him is wrong. The reading offered by Dahlia Lithwick and Mark Joseph Stern is correct.” The title of Lithwick and Stern’s article is, “Clarence Thomas Broke the Law and It Isn’t Even Close.” But Lessig didn’t say that “Thomas broke the law,” he just said “Thomas’s interpretation of the reporting requirements applicable to him is wrong.” By framing it this way, Lessig took a clear statement of lawbreaking and turned it into a fuzzy-sounding legalism. I guess that’s what bigtime law professors do.
3. The reaction
Paul Campos, a law professor at the University of Colorado, was not happy with Lessig’s post. Campos shared some statistics:
Clarence Thomas has a salary of $285K per year, which puts him in the 98th percentile of individual income in the USA. This seriously understates his true economic position, however, because
(a) He’s guaranteed this salary, COLA adjusted, for life, even if he were to quit tomorrow; and
(b) He. can make as much money as he wants publishing books — or “books” — via whatever wingnut welfare publishing outfit wants to help a brother out; and
(c) His wife gets oodles of money from those same sources for her work, or “work; and
(d) Larry Lessig makes about $600K per year as as senior HLS professor for teaching two classes a year.
I kinda wonder how Campos knows Lessig’s salary and teaching load. I guess the world of law school professors is small, and everyone knows these things, more or less?
Anyway, googling *lawrence lesssig salary* led me to this 2018 post, “Poker the Bear: The Sad Unraveling of Lawrence Lessig.” I have no idea whassup with all that but who knows.
Also this interview with Lessig on academic corruption:
Lessig: They receive money from interested parties to participate in the policymaking process. . . . in fields like economics and law, basically the soft sciences, the temptation to bend or to shade is always there. And if the return from bending or shaving is high, then obviously we have to worry that there’s that kind of a distortion going on.
Interviewer: Is there evidence that a payment’s changed the testimony or research focus or of people who are being paid?
Lessig: Well we know first that it changes the perception of the integrity . . . the perception alone is enough. . . . there’s this incentive to focus on the question in a way that keeps the supplier of the data happy, which again is the kind of dynamic that we would worry about if we’re worried about the actual research being bent in a way that’s not reproductive of the truth. . . .
Lessig seems so passionate about fighting corruption. It seems almost unbelievable that he’d go out and defend a federal judge who’s taken all these freebies.
4. The resolution of the paradox
Again, the paradox is that (a) Lessig hates corruption, he even hates the perception of corruption, especially in “fields like economics and law,” but (b) when a federal judge has been taking tons of money and free trips from a rich political donor, Lessig doesn’t think it’s such a big deal.
I was legitimately puzzled here. In his above-linked post, Campos suggests that Lessig is motivated by some sort of generalized honor-among-plutocrats principle, and that could be: Lessig lives in a rarefied world in which being “paid at the level of mid-tier lawyers at big New York law firms” is considered to be a mark of poverty rather than of comfortable wealth. But still.
Then I came across this news article from 2020, “Lawrence Lessig sues New York Times over MIT and Jeffrey Epstein interview.”
This story is relevant because Lessig was arguing that if you’re going to take money from crooks, you should do it in secret. Here are two quotes from Lessig, reported in that article:


Joi Ito was the academic entrepreneur and friend of Lessig who’s famous as the link between Jeffrey Epstein and MIT. (Incidentally, as an MIT grad, let me just say that the Institute has gone downmarket when it comes to scandals. Back when I was a student, the big debate was whether to accept military funding: at the time, we were all upset about Central America and southern Africa, but in retrospect maybe we should’ve been more bothered by what our military was doing in Afghanistan and Iraq. Now the controversy is about professors hanging out on a private island with sleazy millionaires.)
Anyway, Lessig’s statements leapt out at me: he doesn’t seem to have much of a problem with corruption at all! His problem is with open corruption. Just take your “blood money” (his term) but don’t let anyone know about it. He literally said, “Were I king, I would ban non-anonymous gifts of type 3 [“money from people convicted of a crime”] or type 4 [“blood money”].”
What the hell? If he were king, he presumably would have the ability to ban all blood money, right? But, no, he wouldn’t go that far! He’d only ban “non-anonymous” blood money. All right, then.
I don’t really understand Lessig’s position, but I guess he’s consistent. Payoffs are ok but only if they’re secret. This also is consistent with him being so bothered by perceptions. If the payoff is secret, there’s no perception. No perception, no problem.
The other thing is that I noticed a certain paradox-loving style of writing, the sort of thing that your English teacher in high school or political science teacher in college will really appreciate. I’m thinking of the bit where he says:
Everyone seems to treat it . . . I see it as exactly the opposite . . . rather than repeating unreflective paeans . . .
Geddit? He’s a subtle thinker, not like everybody else.
And now I see how he got this reputation for brilliance. “Paeans”! I don’t even now how to pronounce that word. Dude must have got a really high SAT score, also really good grades in law school. One of my pet peeves of this sort of ethical analysis is people making these clever good-is-bad-and-bad-is-good arguments. Any schlub can say that it’s unethical for a federal judge to take big gifts from political donors, or that a university should avoid taking money from criminals. It takes a very special legal thinker to say that the real problem here is that the donations are not going on in secret.
In all seriousness, sometimes it seems that the main qualification for becoming an elite law professor is to be the kind of person who could get perfect SAT scores and write snappy high school essays and then just stay in that position for the rest of your life. I can only assume that those “mid-tier lawyers at big New York law firms” have more on the ball than this.
5. Why does this have to do with statistical modeling, causal inference, and social science?
The connection is political science, power and influence, and the role of institutions in society in supporting or opposing various forms of political influence. Lessig’s just one guy and this post does not represent any sort of attempt at a systematic study. Indeed, it’s safe to say that Lessig is not representative of left-wing law professors at elite universities, most of whom I expect would not defend a federal judge for accepting large undeclared donations.
In our paper on stories as evidence, Basbøll and I talked about the way that good stories are anomalous and immutable, and the anomalousness would seem to contradict usual statistical principles. In short: a good story is “man bites dog,” but good statistical evidence comes from representative data of the “dog bites man” variety.
We concluded that stories are useful for learning because they represent model checks: a good story is something that really happened and whose facts can be checked (“immutable”) and that is surprising (“anomalous”); that is, it represents a stubborn fact that does not align with our usual view of the world.
The Lessig story is immutable (lots of evidence that he is much more bothered by political influence being public than by the donations themselves, to the extent that he defends the judge in part, it seems, because Thomas did not disclose all that he received from that donor) and it’s anomalous (a political liberal who is opposed to money corrupting politics, but then is not so upset about a prominent instance of money that was potentially corrupting political decisions).
Following our principles, the anomaly is interesting: the surprise is relative to our implicit model that a anti-corruption campaigner would be disturbed by a public case of undisclosed political donations. Indeed, my expectation, without having any clear background on Lessig, would’ve been that he’d jump all over Thomas and use this as another example of why money in politics is a problem. But Lessig didn’t do that; hence the puzzle, which makes it a good story and also makes us realize that more must be going on.
The question is, why did Lessig take this paradoxical position of defending the gift-taking politician. As Imbens and I explained, we can’t in general answer Why questions, but they can motivate further study.
Regarding Lessig, we have a few theories, which I don’t see as mutually exclusive:
1. Celebrity stick together. Perhaps Lessig has sympathy for Thomas because they’re both wealthy celebrity lawyers. That perhaps is more important than their political differences.
2. Law professors have a loyalty to the system. There’s this whole Supreme Court mystique, starting with the idea that the judges on that particular court get to be called “justices” (or even “Justices”). Lessig was once a clerk on that court. The institution just means too much to him.
3. General rich-guy cluelessness combined with Harvard elitism. Perhaps Lessig genuinely thinks of $285,000/year, guaranteed COLA-adjusted for life, as a low salary. And perhaps he thinks it’s beneath someone’s dignity to be paid as much as “mid-tier lawyers at big New York law firms.”
4. Fundraising. Lessig ran for president and he worked with some political foundations. It seems he got some big donations from some rich people on these projects. He was also friends with Joi Ito who got money from at least one famous rich person and I guess others too. The point is that, from Lessig’s perspective, money from rich people is really important, but he realizes that it bothers lots of people, which is why he’d prefer the money to anonymous. It would hard for Lessig to take a hard stance against taking money from rich people, given that he’s done so much of this himself. This leads him into tricky spots in his role as a campaigner against money in politics, and it doesn’t help that he can come up with various ridiculous too-clever-by-half ethical arguments.
Of all these reasons, the bit about the fundraising is the most interesting. I say this because I get a good salary (not in the Lessig range, apparently, but enough to live comfortably and focus my time on research, teaching, and service), and the sources are indirect. You could say that Columbia launders its money for me, in the sense that I don’t really have to worry about where the $ originally come from. Similarly, when I get federal grants and corporate support, I don’t think too hard about whatever bad things the government and the companies might be doing. So, yeah, it’s easy enough for me to get indignant about unreported political donations—I’m not raising money from individuals.
To put it another way: I’ve eaten a lot of meat in my life but I’ve never been to the abattoir. So who am I to criticize Lessig for being cool with anonymously-donated “blood money”? I don’t look at the ultimate sources of my own funds.
I can’t say I agree with Lessig—I still hold the commonsensical (to me) view that transparency is better, that Thomas should’ve followed the law and disclosed the donations, that secrecy is not a “saving grace” to taking money from evil people, etc.—but I can kind of almost see where he’s coming from.
Again, the social-science interest here is partly the direct importance of the influence of money in politics and partly understanding how an anti-corruption campaigner can, paradoxically, come out against transparency and in favor of secret donations.
P.S. One of the benefits of blogging is you get comments! Lessig’s post has 9 comments, almost all of which strongly disagree with him. Maybe this will motivate him to reconsider his views.
P.P.S. In the between when I wrote this post and when it is appearing online, I came across this post from Lessig defending embattled dishonesty researcher Francesca Gino.
Jeffrey Epstein, Clarence Thomas, Francesca Gino . . . quite the collection he’s got there! Paradox-boy is outta control.
In all seriousness, I wonder if one of the problems here is that, in elite law academia, you win by coming up with creative arguments that no one has come up with before. The bad news is that most of the reasonable arguments have already been taken, so to be truly original you need to color outside the lines. Any idiot of a journalist can make the obvious arguments that Clarence Thomas broke the law and that Harvard and MIT shouldn’t be taking anonymous money from the likes of Jeffrey Epstein. It takes a bigshot Harvard Law professor to take the opposite side of these cases. I fear that the system incentivizes the Lessigs of the world to make ridiculous claims. Of course, lots of Harvard law professors aren’t going around defending the recipients of “blood money”—but those professors aren’t getting publicity either. I’m not writing about them, right? If you want the fame along with that $600K salary, it helps to be ridiculous.