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.
> But if that’s your view, then fair reporting would ask whether Thomas’ behavior is unique or exclusive to him.
That gets it backwards.
It’s not whether his behavior is unique. The point is that he is in a unique position for scrutiny for a good reason – he’s on fucking SCOTUS. Jeez.
The link to his blog didn’t work for me.
Hmmm, maybe he changed his mind and didn’t want to talk about it. Or maybe he forgot to pay the rent on his blog server. Or maybe the software ate his old posts. I lost a couple hundred emails in my inbox once when the computer went down. Lots of possibilities here.
It says here that he’ll speak for a fee. Unfortunately the fee is not given there, but I guess if you pay enough, you can book him for a lecture and ask him what happened to that post. Or you could contact him directly by email. I’d try this myself, but these kinds of interactions are often unpleasant (sometimes I get no response, other times I get evasion or insults), so I can’t bring myself to do it myself. If you do find out from Lessig what happened to his post, please inform us here in the comments.
I found some other blog post of his on Tumblr, but they wanted me to sign up. And that post seem to be on Medium? I’m confused.
I think it’s simpler than that: it works if you use lessig.medium.com instead of medium.lessig.org.
Ryan:
Yes, that seems right. I update the link in the above post.
Andrew’s link doesn’t work, but it looks to be the correct URL. I get a redirect error. I can access the ‘Scapegoating Thomas?’ article just fine from Lessig’s Medium page, though. Maybe just copy the link here and paste it to avoid a redirect.
https://lessig.medium.com/scapegoating-thomas-f8d4cf4b10ee
Snapshot on WebArchive for posterity:
https://web.archive.org/web/20230918062519/https://lessig.medium.com/scapegoating-thomas-f8d4cf4b10ee
Andrew wrote:
“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.”
For those who are unfamiliar with the term, “schlub,” go to
https://www.etymonline.com/word/schlub
where will be found not only
“‘worthless oaf,’ 1964, from Yiddish, perhaps from Polish żłób in a sense ‘blockhead’.”
but also a graph which indicates the term peaked in popularity around 2016.
Andrew suggested, “Check out this recent post from Lessig.” Unfortunately, that link does not work:
——————————
The page isn’t redirecting properly
An error occurred during a connection to medium.lessig.org.
This problem can sometimes be caused by disabling or refusing to accept cookies.
—————————–
This is (the continuation of) a really sad arc for Lessig, perhaps he was disenchanted by the 2016 primary where he was denied the ability to debate/be recognized as a candidate. Or perhaps he decided to take a reactionary turn after the NYT impugned his character (in his eyes at least) when they suggested he was trying to defend Epstein in his medium posts. Maybe I am being too charitable here, but I honestly believe he was a victim here. A victim of two things: the inability to accept a reality where his friend could be a bad person, and of the cruel world of American politics.
It really saddens me to see him take this turn, but I will always remember who he was in 2016 and how the DNC+CNN worked against him. Before then he was interested in issues like campaign finance reform, free software, and net neutrality. https://www.vice.com/en/article/d73aaa/why-is-lawrence-lessig-missing-from-tonights-cnn-debate
Lessig’s slippery-slope argument on judges and gifts is bad for the obvious reasons. Perhaps though there is an interesting case to be made that looking only at the value of the gifts is misleading. Sure amongst us regular people gifting someone a $270K RV might lead you to believe that they’ll be indebted to you, but is this really the case for the wealthy lawyers of the world? I mean really, if Clarence Thomas could be bought for the paltry sum of $400K-$500K, how could we explain him foregoing all that potential income to do us, or really you Americans, all a favour and serve on the Supreme Court?
Lessig followed up his Gino post with one supporting Data Colada and suggesting they should be dropped from the lawsuit. https://lessig.medium.com/on-data-colada-6cf220b5ecb9
I still get annoyed at these kind of defenses of cheaters:
“In Gino’s case, Data Colada was clear that they had identified problems in the data supporting at least four of Gino’s papers. Those problems, they asserted, were “evidence of fraud.” Yet as they have rightly acknowledged, they have no way of knowing who was responsible for the manipulations they identified.”
Maybe they didn’t directly accuse specific people out of fear of liability and possible lawsuits? Oh, right. But these excuses are why the accused fall back on the “blame the research assistant” defense. You didn’t let the RA be a coauthor on the paper, so you can’t blame the RA. You took the credit for “your” contributions, which is why you have to take the blame.
Assuming it was the RA’s fault in every case – which I doubt – means you were a lazy and incompetent researcher at best. That doesn’t seem like a great defense.
Anon:
The weird thing is that Lessig is a lawyer. A lawyer, of all people, should be aware that sometimes people don’t tell the truth, right? The idea that Gino is his friend so he believes her . . . what kind of lawyer-thinking is that???
Also I think it’s kinda weird how he keeps referring to “Data Colada” as if it’s some kind of institution. Harvard’s an institution. Date Colada is 3 people.
Andrew,
The weirder part is that my understanding is that lawyers don’t usually ask their clients about guilt or innocence, since admissions of guilt put the lawyer in the position of potentially suborning perjury.
I also agree that, “I know this person and think they’re honest” is especially… humorous… in this case, since a lot of her pop science reputation is why people SHOULD lie and break the rules. So… was she honest her own research that lying is beneficial (and therefore should be dishonest if she followed her own research and advice), or was she dishonest in her research and just lied? I think the only other explanation I left out is that she believed her research that lying is beneficial but had some moral compulsion against following it herself.
Also very true about Data Colada and his description. It’s a blog of three people. This is a blog with more than three people, so you’re more of an “institution” than they are.
Gino is not Lessig’s client. If he were her lawyer, then the Data Colada trio would not be getting sued by her.
Lessig’s summary of the Gino case has not aged well. Data Colada has a new post up entitled “Exhibits 3, 4, 5” which describes the evidence they recently saw for the first time from the Harvard data forensics team, including information comparing the filed Qualtrics data with the published data. My oh my. Lessig pretty much misrepresents everything that happened, claiming that Data Colada “threatened” Harvard, it-coulda-been-anyone when only her name was on the metadata, etc.
Gino was limping along behind contortionist and obfuscatory statements about what could have happened, but none of that fits anymore with the new evidence. It really could not have been anyone but her.
wow, thanks for noting…
> 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.
We all make mistakes in life, but Lessig’s central role, as a professional teacher of young people, in idolizing and advancing Aaron Swartz from age 17 without properly mentoring that troubled young man, or putting his emotional health first—leading to a sadly predictable end—turned me into a Lessig skeptic before 2016.
The New Yorker’s oral-history-style article, The Dark Side of Aaron Swartz, is instructive.
When he says anonymously he means without the recipient knowing (so the donation can’t influence their decisions) and in his book he discusses ways to accomplish this. I suspect without reading his actual post that he is trying to connect this to a systemic problem rather than focus on it as a moral failure of an individual hence focusing on whether other judges have done it. When he talks about court justices making a mid tier salary I suspect he is contrasting to places like Singapore where government positions are some of the most remunerative jobs available and satisfaction with governance is very high. I really like your blog but I think you did a really bad misread on this one.
DP:
That’s all fine. It’s just funny who he chooses to go out of his way to defend. Harvard and MIT have lots of donors who aren’t child molesters, the Supreme Court has lots of judges who don’t have unreported six-figure donations, there are lots of researchers who manage to have productive careers without being surrounded by fake data . . . but look who’s side he’s on. That’s his choice. Making high-profile defenses of such controversial people is a choice: it gets Lessig some attention and maybe helps him make his points, it’s also fair enough that it makes him look bad to a lot of people.
Andrew claimed: ” the Supreme Court has lots of judges who don’t have unreported six-figure donations,”
Only three, it seems…
My point is that you have it by the wrong end of the stick. Every argument seems backwards because you are assuming he is defending the guy. If you assume he is not interested in defending him and mostly thinks this should be used as an opportunity to address the perverse incentives that exist doesn’t the argument become much more coherent and much more in keeping with Lessig’s whole thing? If it sounds like a defense maybe it’s because he doesn’t believe rooting out a few bad apples is going to improve things. I’m probably not going to read his piece because frankly I have read enough of his stuff but for your own sake consider his arguments from the standpoint of trying to emphasize the general case rather than exonerate the specific case and see if it makes more sense. If it doesn’t I’m probably just wrong and I can live with that.
Dp:
Could be. It may be that I’m so focused on the odiousness of the people who Lessig is going out of his way to defend, that it’s hard for me to see his more general arguments.
I’ll just say again that this was his choice. If you choose extreme examples, that gives some edge to your arguments and you’ll get some attention. The price you pay is that some people (such as me, in this case) will look hard at the examples and consider that they discredit the underlying arguments. I can see that, as a law professor, Lessig is interested in these extreme cases, as his goal could be to sharpen his arguments by taking them to their logical conclusions. Anyone could say that judges don’t need to declare a small gift; Lessig wants to make a bigger point so he chooses a judge who fails to declare a series of large gifts happening over several years. Anyone could say that it’s ok for universities to take some money from questionable sources if the universities spend it well; it takes a Lessig to use the example of a convicted child molester. Etc.
Andrew: Your last paragraph above is an example of what Laurence Tribe (another Larry from HLS) calls an argument “striking thirteen,” which calls into question all of the gongs we’ve heard before.
Kyle:
Yes, Lessig’s posts “struck thirteen” to me in that sense.
In fairness to Lessig, maybe that was his goal: to make some shocking statements regarding “blood money,” etc., and thus to “strike thirteen” and get his readers thinking in unusual ways. I guess that could be effective in a law school class or a law review article, to shake people out of their usual lines of thought. To me, it just made Lessig look like an unserious person, but, again, maybe this was my problem to be focusing on the details of these cases rather than to follow Lessig and use the odious examples as a way to think about larger questions.
Communication is tricky because we have multiple audiences, and it’s possible that Lessig succeeded in communicating with one audience even while failing to communicate with readers such as me.
On Lessing’s anonymous blood money:
Here is my understanding of his argument. It is rooted in the question, “Why refuse blood money at all?” I would argue that universities should not accept blood money because they do not want to reflect favourably on people with whom they would rather not be associated (e.g. Cartel bosses, mass murderers, and such). In other words, donations from known donors are not 100% altruistic because you get something in return (positive publicity). For a few hundred dollars, the effect is probably negligible, but add a few zeros and it becomes a big deal. However, if you donate anonymously, there is no feedback to the donor. So if a Jack-the-Ripper-type person anonymously sends an envelope with $100 “for your charity” to someone who runs a charity, why would they refuse? They do not know the donor, so they do not have to worry about being associated with that person. I think that is the argument Lessing is trying to make. On the other hand, if a person or institution does not want Jack-the-Ripper-type people donating to them, they obviously have to (1) refuse anonymous donations, and (2) discriminate among their donors as to whether they want to accept money from them or not.
You have commented before on Kinsley’s Rule: https://statmodeling.stat.columbia.edu/2022/08/05/the-scandal-isnt-whats-illegal-the-scandal-is-whats-legal-application-of-kinsleys-rule-to-science/
1. We are never going to pay judges enough to ensure they’re too rich to be bribeable… if indeed there is a thing such as too rich to be bribeable. Nor are we ever going to stop the spouses or offspring of public officials from making money even as that money may be related to their spouses job (Paul Pelosi, Virginia Thomas, Elaine Chao, Hunter Biden, Jared Kushner)
2. Supreme Court Justices are naturally going to have a lot of rich friends. Those friends can help their relatively poor friends at little relevant cost to themselves; their motives for doing so can be quite varied without having any desire to peddle influence. Of course, trying to buy a Justice’s vote is a possibility as well. Whether it is a problem in any particular case is both a matter of fact and perception.
3. For better or worse, we allow any such gifts to be essentially unlimited so long as they are reported, and we rely on the justices themselves to recuse in any case *they* judge to represent a conflict. (Lower court judges have a different standard.)
4. The reporting requirements themselves are subject to interpretation. Lawyers (and worse still, lawyers who represent other lawyers and giving them advice they can reasonably say they relied on) may interpret things differently. So when you say “Lessig took a clear statement of lawbreaking and turned it into a fuzzy-sounding legalism. I guess that’s what bigtime law professors do.” You are correct, but many, many times breaking the law *is* a fuzzy legalism that could go either way. I think it is here, but YMMV. I’m not a fan of Lessig at all, but I don’t think his position here is ridiculous.
Jonathan:
Look at the Lessig quote that leads off this post. It’s nuts. Or, to put it more charitably, it’s really stupid, but maybe it’s stupid on purpose, a debating tactic to try to win an argument by giving a ridiculously inaccurate summary of the other side’s position. Either way, I don’t like it.
I’m guessing that Lessig’s mind has been dulled by decades of law school teaching, dealing with people who hang on his every word, etc.
” ‘Have some cash? Call Mr Clean.’”.
“Also inside Aitken’s bag was a secret compartment to hide up to $500,000 in cash that his clients, ranging from legitimate business types to drug dealers, wanted to be moved discreetly around the world.
“Asked how much cash he carried onto international flights over his career as a prolific money launderer, he pauses and says, “Twenty to 25 million [US dollars].”
“In Australia Bruce Aitken was dubbed “Mr Clean”.
“I really like Australian wit,” he says from Hong Kong. “They had an expression: ‘Have some cash? Call Mr Clean.’”
“Aitken and his colleagues had a strict no-questions-asked policy, but over the years police, international security authorities and Australian royal commissions began to ask plenty of questions about him.
“His autobiography, Mr Clean: Cash Drugs and the CIA, places him in an international world of organised crime, mysterious deaths, widespread corruption and shadowy intelligence agencies.
https://www.theage.com.au/national/mr-clean-the-story-of-an-international-money-launderer-20220727-p5b53i.html
And the Italian urban legend Priest, who took suitcases full of cash once a month, from the Mafia, on a mountain side. Finally charged by the authorities, he used the “cleaning the money” defence.
As is Lessig. He thinks his clean hands are better. But forgets the cause of the money is shielded, enabled and “places him in an international world of organised crime, mysterious deaths, widespread corruption and shadowy intelligence agencies”.
Just another guilty parent enabling the slippery slope of drug / money / greed / fear / power addicts.
“P.S. One of the benefits of blogging is you get comments!”
Counter-argument: I followed your link to Campos’ blog post, skimmed the comments, saw a link to William Shatner’s cover of Pulp’s “Common People”, clicked the link, and my ears are still in pain. Pulp’s “Common People” is one of the best songs of the last 30 years. Shatner’s cover: no.
Almost no one comments on my blog posts (and the last was on music and statistical mechanics!), but I am now thankful for that.
One of my college roommates was an original Star Trek treky. She had two Leonard Nimoy albums! On one he sings the Joni Mitchel / Judy Collins song “Both Sides Now”!!!! :o
It’s been 25 years but I still shudder….
There was an ad, perhaps five years ago, in which Leonard Nimoy is driving a car, singing the famously horrible ‘Bilbo Baggins’ song that he had recorded forty years earlier.
Phil, I walked past the whole thing when they were filming that commercial, they arrive to play golf at the Altadena country club. Of course the golf course was sold off to the county 100 years ago, the Altadena country club neighbors the public golf course and only has tennis and a pool. They put on a good fourth of July fireworks show but its usually on the 2nd of July or so.
https://m.youtube.com/watch?v=MVoDnGVkWCA&pp=ygUhbGVvbmFyZCBuZW1veSBhbHRhZGVuYSBjb21tZXJjaWFs
Apparently about 10yrs ago.
To comment on the main points of the post:
“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.”
Uh… everything I’ve read is criticizing the institution, not the person. Alito has also been criticized. So have others. The main calls are for things like ethics disclosure requirements that apply to literally every court EXCEPT the Supreme Court.
As for making blood money anonymous, he’s missing some key things. I get his point that the “blood money” donations are often conditional upon naming buildings or schools after the donor, effectively white-washing (or your preferred term) the actions that generated that money. I was a student at a well-known school when and where such a debate was happening. But anonymous donations could still come with unreported access and “benefits” (and I use that term despicably), such as Epstein and Martin Nowak: https://www.thecrimson.com/article/2021/3/26/gay-sanctions-nowak-epstein/. If neither public nor private benefits are possible, Lessig seems to miss the point that most of those donations would disappear entirely (which I’m OK with).
TLDR: Scumbags are gonna find a way to scumbag for as long as you give them an opportunity to be scumbags. We should do our thorough best to prevent opportunities for scumbaggery.
Great post. An inside-baseball addendum from legal academia: being able to help graduates obtain Supreme Court clerkships is a very valuable coin for profs at top law schools. Though not monetizable, a track record of placing students in Supreme Court clerkships makes faculty members very popular with top students, accrues brownie points with deans, and creates/maintains/improves contact with justices. As a perceived liberal, Lessig’s recommendation naturally may have sway with the three liberal justices. By defending Thomas, Lessig may be aiming to make his recommendations weightier with Thomas and other conservative justices. As long as the liberal justices don’t hold it against him (which I doubt they will), Lessig’s column might well be a very clever way of enhancing his ability to get Supreme Court clerkships for favored students in all nine chambers instead of just three.
Can’t help but editorialize on a separate, more important issue: the Supreme Court’s refusal to impose a real code of ethics on itself is nothing short of scandalous. What a horrible look for the nine people who more than anyone else in the nation should value avoiding even the appearance of impropriety. Power corrupts . . .