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Supremely Corrupt

If you are reading this blog post, you probably have already heard about Justice Clarence Thomas's receipt of gifts and free travel worth millions of dollars from various donors. The list of such gifts is staggering. Before we get to that, however, let's discuss corruption. In McCutcheon v. FEC , the Supreme Court held that federal limits on aggregate political contributions violated the first amendment. It is a horrible decision written by Chief Justice Roberts, who said that the government can only target direct quid pro quo bribery when regulating campaign spending. Roberts pointed to nothing in text or history suggesting that the government is disabled from going after other, less direct, forms of political corruption.  Retired Judge Richard Posner was quite upset with this decision and wrote the following (while still an active judge): C hief Justice Roberts’ opinion in  McCutcheon v. Federal Election Commission   ...  in the name of free speech, further diminished Congre

Advertising Everywhere as a Collective Action Problem: Yes, There Are Too Many Ads

It is possible to live in a world in which there is objectively too much advertising.  As it happens, we currently live in such a world.  Notably, one can reach that conclusion without rejecting modern capitalism as a whole, or anything even close to that.  I am not trying to dissuade anyone from rejecting capitalism if they are so inclined, mind you, but that is simply a different argument.  For what it might be worth, I continue to be in the camp of those who say that carefully governed market economies are about as good as we can hope for in a fallen world, but the point here is that even a true believer in the magic of market competition can (and should) conclude that the current glut of advertising is evidence that something has gone off the rails. Back when I taught undergraduate economics classes, it was unusual to question the concept of market efficiency itself , because that would reveal that the emperor truly had no clothes.  It was, however, quite normal to talk about "

Was the Columbia Law Review Shutdown Really About Editing?

Last week, I made some observations about the turmoil within the Columbia Law Review (CLR) and between the student-editor leadership and its outside Board of Directors, focusing mostly on what I described as the oddity of the board's having completely shut down the CLR website as an interim measure--odd because it did not seem responsive to the concerns expressed by the board. A little less than a day after I published my observations, and after the website had been down for the better part of a business week, the board restored it, including the article by Rabea Eghbariah ( Toward Nakba as a Legal Concept )   at the center of the controversy. By my estimation, the student-editor leadership won the showdown. The website was restored but no disclaimer appears anywhere in or accompanying the article. Instead, the bottom of the website includes a link  to a statement by the board. I don't know whether that was the result of a negotiated compromise or imposed by the board in some

Oh Golly, Are They Really Angry Now?

To hear them tell it, the Trump cultists -- which now evidently includes all but a tiny number of elected Republicans, along with the drones who attend his rallies and buy his crummy merch -- are now angry.  I mean, angry .  Really, truly p.o.'ed!  Weeping with rage.  Spitting fuckin' nails, man!!  And everyone else is going to pay the price.  Just you watch. The question is whether the price that anyone pays will be any worse because of Trump's epic loss in criminal court in New York last week.  The answer to that question is no. There is no point in quoting any of Trump's rantings on this topic, and the Speaker of the House with the generic name is so far gone on everything else that he is now effectively Trump's mini-me, using his dear leader's exact words in a one-man echo chamber.  And Johnson has recently decided to move on to new areas of depravity, responding to Senator Bernie Sanders's opposition to Israeli Prime Minister Benjamin Netanyahu's i

The Power Struggle at the Columbia Law Review

For several days, the Columbia Law Review (CLR) website has been offline. Clicking on it produces the statement "Website is under maintenance." That's not true in any real sense. There's nothing technically wrong with the website that requires maintenance. Rather, the CLR website went dark because its outside board of directors had concerns about publication of Rabea Eghbariah's article  Toward Nakba as a Legal Concept .   After some recapping, I'll offer a couple of thoughts about where I think the board went wrong. Readers who follow me on  X  know that yesterday evening I posted a thread about this topic . This essay covers some of the same ground as that thread, updated to reflect what I've since learned. * * * Back in the fall, the Harvard Law Review (HLR) solicited an essay by Eghbariah for its online blog but, after the full membership voted on the matter, opted not to publish the essay after all. Among the reasons given to Eghbariah was a worry th

Should Students and/or Faculty Play a Role in Higher Education Finance Decisions?

My latest column for Verdict begins with a discussion of the recent revelation in The Intercept   that Leonard Leo, having made substantial progress in filling the federal bench with very conservative jurists, has in the last few years turned his attention--and the vast pile of money he controls --to the legal academy. The story reports on an unsuccessful attempt by Leo to donate $25 million to Cornell Law School to establish a "Center for the Study of the Structural Constitution." As the story reports (and as I confirm in the Verdict column in light of the fact that the story itself quotes my colleague George Hay confirming), that's accurate. We turned down the money. In principle, the study of the structural Constitution has no ideological valence. I've written numerous articles and essays from a liberal/progressive perspective focusing on principles of separation of powers and federalism--the two pillars of structural constitutionalism. Accordingly, there's no

Nothing is ‘Legally and Politically Tricky’ When There Is No Rule of Law

Because this is my first column published after a New York County jury found Donald Trump guilty on multiple felony counts, I suppose I ought to say something about the importance of the verdict.  For starters, I agree with everything that Professor Dorf wrote last Friday in " Will the Trump Guilty Verdict Make a Difference to Enough Voters to Affect the Election's Outcome? " much of which rhymes with my own analyses in four previous columns on Dorf on Law ( June 28 and August 4 of last year, February 29 and March 21 of this year) along with one column on Verdict on March 21: " Delaying Trump’s Trials Is What Savvy Democrats Should Have Wanted All Along ." The bottom line is that no one knows whether this is good or bad politically for Trump, Biden, or anyone down-ballot.  We do know that the worst possible outcomes -- acquittal or a hung jury -- did not come about.  Because that was my foremost worry, do I feel better?  Obviously yes, at least in the sam

Justice Alito Fails Both Constitutional Law and Property Law

Among the more eyebrow-raising statements by Justice Alito in the course of blaming his wife for flying insurrectionist flags was this : My wife and I own our Virginia home jointly. . . .  She therefore has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly. The legal  right? What legal right?  Let's begin with the obvious. The First Amendment has no bearing on the claim asserted by Justice Alito because with respect to intra-marital disputes with Mrs. Alito, he is not a state actor. Suppose that as soon as Justice Alito saw the upside-down flag flying on the flagpole on the property he jointly owns with his wife (as what the law calls "joint tenants") he had said to her: "Sweetheart, can you please take down that flag? As you know, I'm a Supreme Court Justice. Flying it creates an appearance of impropriety that could jeopardize my ability to sit on some cases.&

Will the Trump Guilty Verdict Make a Difference to Enough Voters to Affect the Election's Outcome?

Polling over the last several months revealed some number of voters who said they would likely vote for Donald Trump for President in November but that a criminal conviction could change their minds. People who said such things were, by definition, swing voters. No one who was planning not to vote for Trump would change their mind and support him because he was convicted of 34 counts of felony falsification of documents. Well, perhaps not no one. I've never understood Trump's appeal to anyone. I suppose that voting for Trump because he's a felon is not that much crazier than voting for him because he physically hugs flags . How many of those people who said they would change their mind and not cast ballots for Trump based on a conviction were both sincere and accurately projecting their conduct? Not all, surely. Perhaps not even most. But in a close election, even a small shift could be the difference. There is reason to believe that James Comey's announcement on the ev

The Turning Point in a Cult of Personality: Everyone Starts Copying the Leader's Insanity

Here is part of a recent statement issued by Donald Trump's campaign spokesman: Joe Biden is responsible for all this antisemitic hate on campuses across the country. Whereas there has been no bigger friend to Israel and the Jewish people than President Trump, and his strong record reflects that. And here is a key sentence from a letter sent by Samuel Alito to two United States senators: I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal. The stylistic and substantive similarities of the two statements -- the insulting self-righteousness and the assertion that up is down and day is night -- are jarring, to say the least.  In the first quotation, the smear of President Biden is blunt, so I suppose it now counts as "good judicial temperament" that Alito's respons