Author: import

From Bryce Newell (Oregon).

Posted by Howard Wasserman on August 4, 2025 at 11:30 PM

The Wall Street Journal reports that two members of the Trump Family political/financial criminal enterprise–presidential sons Eric and Donald Jr.–are “helping to launch a SPAC targeting American manufacturers, adding to the array of companies the president’s sons are involved in beyond their family’s real-estate empire.” The story continues:

New America Acquisition I Corp. on Monday filed paperwork for what it hopes will be a $300 million public offering on the New York Stock Exchange. SPACs, or special-purpose acquisition companies, are blank-check firms that look for a private company to merge with. The private company then takes the SPAC’s listing, essentially going public while avoiding some of the red tape of a traditional initial public offering.

New America will search for merger targets “that play a meaningful role in revitalizing domestic manufacturing, expanding innovation ecosystems, and strengthening critical supply chains,” a securities filing said.

The filing said the SPAC aims to buy one or more businesses with a combined enterprise value of at least $700 million. (SPACs can raise additional capital after going public.)

As part of their involvement in New America as advisers, Donald Trump Jr. was awarded an interest in two million founder shares in the entity and Eric Trump received three million. Those shares can convert to common stock when the SPAC merges with its acquisition target, according to the filing, paper holdings that could be worth millions of dollars based on New America’s target share price.

The obvious value-added justifying the sons’ involvement and the generous stake they are receiving is, of course, the boys’ germ plasm. And the mechanism by which they provide value is not their keen ability to spot areas that are key to domestic manufacturing–again, obviously. Rather, it is their father’s keen interest in a) a centralized, semi-“planned” economy (an interest Trump shares with his vice president, who is eager to redefine conservatism as the rejection of economics in favor of vibes) in which b) exceptions to tariffs are made on a piecemeal basis in favor of c) connected industries and individuals who take advantage of an economic model that is d) a “breeding ground for rent-seeking and corruption,” made easier because Donald Trump e) insists on a trumped-up, Schmittian, unilateral model of personal/presidential control over the economy, in which Trump f) leverages declarations of “emergencies” to justify long-term economic interventions and g) relies on legal doctrines fashioned for ordinary rather than openly corrupt and dishonest governments to argue that no one may question those declarations. The result is a form of mercantilism that even defenders of mercantilism say “embodies all its worst defects” with none of its benefits and is “riddled with cronyism.”

None of this is a surprise, of course. It is part of a larger skein of economic illiteracy and dynastic cronyism and corruption. It is not limited to the Trump family itself. But it’s a system in which Trump and his family continue to act in a way that would make Caligula blush. Hunter Biden is a dreadful man: a lifelong failure, corrupt and corrupting, who demonstrates that being willing to do anything for one’s own flesh and blood is a surefire way for a president to tarnish his entire career. But, as Matt Welch of Reason recently wrote, “The scale and brazenness” of the Trump family’s “self-dealings make previous White House personal-enrichment scandals look quaint.”

Unsurprising, then. But it’s worth, noting, and noting often, for several reasons. The first is that there are so many areas in which the regime is rightly criticized for its contempt for the rule of law, its lying, its authoritarianism, and its corruption–leaving aside entirely mere disagreements over policy, no matter how meritorious–that it is easy at any given moment to focus on the big story of the day and neglect the stunning public and private corruption that is advanced by the Trump family every day, and will be until 2029 at the earliest. That ought to matter. An alert citizen must neither ignore nor succumb to the regime’s own focuses and distractions. The corruption is always also the story.

As I noted the other day, the second reason is that it complicates the story of the Trump regime as being all about Donald Trump, or even Trumpism. While many high-ranking individuals within the administration, such as Howard Lutnick, may be corrupt, I’m sure there are plenty who are there primarily for ideological or policy-oriented reasons. (Of course these individuals, like the average high official in any Democratic or Republican administration, will find plenty of legal but small-c corrupt ways to advance and enrich themselves when they leave office.) Some of those individuals–Miller, Vought, Vance, Kennedy, Rubio, and a few others–are effectively serving as acting presidents across a wide range of policy areas while Trump, in his attention-deficit-disordered way, chases after one whim or appetite or another. For these individuals, I would suggest, Trump’s own corruption, and his own focus on using the presidency for wealth-seeking and the scratching of various eccentric itches (e.g., Pete Rose, making the White House unspeakably vulgar and ugly), is somewhere between a price they are willing to pay for the sake of power and an actual positive. It’s a positive to them inasmuch as it allows them to focus on running the country while he occupies himself with his schemes, only sometimes having to put up with whimsical presidential interventions such as the latest Loomer-driven White House directive to fire someone.

The focus on presidentialism, personal loyalty, and a “unified” presidency makes it easy to overlook the degree to which the Trump regime includes a large number of people who are disgusted with Trump but willing to put up with him. (The same goes for its intellectual apologists elsewhere. I doubt, for example, that the New Digest types are pro-corruption. Their willingness to support the regime anyway, and to fix their eyes anywhere but on what it does every day to enrich itself, is perhaps best thought of as a case of the road to good intentions being paved with Hell. That does not make them any less morally complicit in the toleration of and implicit apologetics for corruption, of course.) All this matters for two reasons. First, it’s a reminder that the story of the second Trump regime is also a story of the internecine battles among his would-be successors and competitors for the favor of the mob. Second, it’s a reminder of the degree to which the Trump regime’s particular, personalist vision of presidentialism allows and encourages the kind of court politics that always flourishes under Great Leader-style rule. As a friend wrote recently, “When Milton said bad men ‘love not freedom, but license, which never hath more scope, or more indulgence than under tyrants,’ he meant that bad men group themselves around terrible leaders not out of actual loyalty or admiration, but because they hope to have a chance to get away with their stuff or manipulate the tyrant to their own desires.”

Finally, to flog the usual horse, it matters because it’s not incidental or orthogonal, but central, to the question of the “unitary executive” and the Trump regime. Not because a unitary executive is necessarily corrupt, but because this unitary executive is corrupt. As such, it is a constant reminder of the perils of this approach; of the essential role that character, virtue, and a proper sense of honor and office—or their absence—play in this approach; and of the need to write and think about guardrails, including the duty of executive branch officials to forswear personal loyalty. It’s also an apparently necessary reminder that these things are as if not more important as questions of power and ostensible authority, and demand attention and discussion. People who write about Trump and the unitary executive without writing about his corruption are just not writing about Trump or the unitary executive.

Posted by Paul Horwitz on August 4, 2025 at 03:31 PM

The Knight Foundation (located at Columbia) identifies the ways it surrenders academic control (or the way an anti-university administration can deliberately misuse it to strip academic control). The authors are consistent with what I and others have written.

Michael Dorf breaks down the provisions in the Columbia and Brown agreements regarding references to race in admissions, arguing that the schools did not agree to do anything beyond what SFFA already requires and that they left themselves room to allow applicants to discuss their experiences with respect to race (and both schools continue to do so). True, the independent monitor might take an aggressive approach to the use of race even if SFFA allows it; but that would indicate larger problems for Columbia with respect to the monitor.

Posted by Howard Wasserman on August 4, 2025 at 01:17 PM

My new essay for The Hill draws a cautionary lesson for Donald Trump from an unexpected source – Oscar Wilde. Here is the gist:

What Trump should learn from Oscar Wilde’s doomed lawsuit

Over a century before Trump’s “powerhouse” defamation case against the Wall Street Journal for publishing an article about his supposed birthday note to Epstein, another outsize figure came to grief by filing an ill-advised libel action that he knew was false.

In 1895, the poet and playwright Oscar Wilde was the most renowned literary figure in the English-speaking world. By sheer force of personality, Wilde led an artistic movement that defied convention, offended propriety and created an esthetic revolution.

Then he wrecked it all by subjecting himself to a relentless cross-examination about his then-scandalous intimate life in a case he could not win.

Trump appears to be making the same mistake. His lawsuit against the Wall Street Journal can expose him to extensive questioning under oath about escapades he has kept mostly under wraps.

You can read the full piece at The Hill.

Posted by Steve Lubet on August 4, 2025 at 12:33 PM

Here is what the three-judge District Court in West Virginia v. Barnette said on that issue. Might be of interest to courts considering Humphrey’s Executor claims.

Ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States whether we agreed with it or not. It is true that decisions are but evidences of the law and not the law itself; but the decisions of the Supreme Court must be accepted by the lower courts as binding upon them if any orderly administration of justice is to be attained. The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority. Of the seven justices now members of the Supreme Court who participated in that decision, four have given public expression to the view that it is unsound, the present Chief Justice in his dissenting opinion rendered therein and three other justices in a special dissenting opinion in Jones v. City of Opelika, 316 U.S. 584, 62 S.Ct. 1231, 1251, 86 L.Ed. 1691. The majority of the court in Jones v. City of Opelika, moreover, thought it worth while to distinguish the decision in the Gobitis case, instead of relying upon it as supporting authority. Under such circumstances and believing, as we do, that the flag salute here required is violative of religious liberty when required of persons holding the religious views of plaintiffs, we feel that we would be recreant to our duty as judges, if through a blind following of a decision which the Supreme Court itself has thus impaired as an authority, we should deny protection to rights which we regard as among the most sacred of those protected by constitutional guaranties.

Posted by Gerard Magliocca on August 4, 2025 at 12:05 PM

I accept Steve’s amendment to the paragraph in my post about UCLA:

It is true that Jews were central to the Nazi attack on universities and on everything in society; I did not mean to suggest otherwise. (One reason the Holocaust is not a generalized assault on many groups is that the Jews were the central obsession; the Nazis dragged other groups along). Saying the Nazi attack on universities was not “exclusively” about the Jews better captures what I tried to say.

My broader point stands: The Nazis destroyed their universities through many efforts and tactics aside from or in addition to excluding Jews (even if Judenhaase was the main tactic and even it was the primary motivator). By making the Nazi example only about Jews (as opposed to state diktat) in his 2024 remarks, Frenk missed the bigger picture and, potentially, the current threat of government attempting to control who and what teaches and is taught. Which is why I fear how willing or able UCLA will be to hold the line.

Posted by Howard Wasserman on August 3, 2025 at 08:52 AM

Posted by Gerard Magliocca on August 3, 2025 at 08:45 AM

Howard writes that the Nazi purge of Jews from German universities “was not about excluding Jews per se but a broader attempt to control the generation and dissemination of knowledge that uniquely targeted Jews as part of a broader project.”

I think the passage was inartfully written (which is uncharacteristic of Howard). The Nazi program was very much about excluding Jews per se, not only from universities but also from schools at every level, as well as the professions and most other jobs, while also confiscating their property.

It would therefore be more accurate to say that the Nazi program was not exclusively about excluding Jews, as they had other plans for controlling education and information. So it is wrong to say that “target[ing] Jews was part of a broader project,” as though it was a secondary objective. If anything, the opposite was the case. Targeting Jews was actually the broader project, while controlling curriculums — which the Nazis called ridding them of Jewish influence — was the co-occurring part.

Posted by Steve Lubet on August 2, 2025 at 08:29 PM

UCLA became the latest target of the Trump Administration. It lost more than $ 180 million from 300 NSF grants, along with additional grants from the NIH and Department of Energy. Chancellor Julio Frenk addressed the losses, while emphasizing everything UCLA has used to attempt “to extinguish antisemitism completely and definitively” including managing campus protests.

I hope to be wrong, but for several reasons, I expect UCLA to fold faster than any of the other schools.

First, there is this piece from the Science piece:

Judea Pearl, a UCLA computer scientist who has been publicly critical of campus protests, is the co–principal investigator of a $1.2 million suspended grant to apply genetics to large-scale electronic health records. Most of the funding has been spent, Pearl says, adding, “I’ve been a principal investigator for NSF for maybe 50 years, so I’ll be very upset if my grant gets cut.” Nearly one-quarter of the suspended NSF grants fund computer science. “It’s unfair,” Pearl says. “They should look into the [UCLA] departments that have been delinquent in antisemitism.”

This is the first time I have heard a faculty member at a targeted school applaud the government stripping funds from his institution but urge it to take the funds from other people at that school while leaving him alone. I predicted that the administration might divide federally funded researchers from other scholars and the broader university; here it is. (Update: Pearl is the father of Daniel Pearl, a journalist kidnapped and murdered by ISIS in 2002).

Second, I am curious (but not confident) in how Frenk will handle this. In spring 2024, while president at University of Miami, Frenk spoke on a panel discussing campus protests. Two points have stuck with me. First, he proudly announced how he had rejected “institutional neutrality” post-October 7. Second, he proudly announced that UM’s tough policies against antisemitism ensured there were few or no campus protests. Third, he said Nazi Germany destroyed its universities by driving away Jewish faculty and students and German universities have not recovered–no German university is among the top universities in the world.

I have wondered what Frenk would say now that the U.S. government is destroying its universities in the supposed name of protecting Jews. The Nazis destroyed their universities by attempting to control who teaches and learns at those universities and what can be taught and how; it was not about excluding Jews per se but a broader attempt to control the generation and dissemination of knowledge that uniquely targeted Jews as part of a broader project. Frenk’s basic response in his letter–” look at all we have done to protect Jews, we’re really, really trying, please don’t take our lunch money”–suggests he is likely to cave by agreeing to many things to (purportedly but not really) help Jews on campus and many other things to screw over other groups and to surrender control over basic pieces of the university mission.

Third, I wish people would stop talking about “extinguish[ing] antisemitism completely and definitively.” It has been with us for thousands of years; we are not going to magically get rid of it now. No one agrees about what it means, making everything potentially antisemitic. It smacks of thought and speech control–I do not want the government to have the power to define and stop some speech, however noxious I find that speech. And it fails (as Frenk did in his remarks at that 2024 panel) to even attempt to distinguish obnoxious-but-protected antisemitic speech–which must be part of any society (including an academic community)–from genuine antisemitic harassment (which should be punished but cannot be stopped in advance).*

[*] UCLA had one of the starkest examples of the latter: Students blocked certain library entrances, and asked students attempting to enter whether they were “Zionists,” and tried to force them to use other entrances.

Posted by Howard Wasserman on August 2, 2025 at 04:22 PM

Some songs have a fast tempo, such as Bob Dylan’s “Subterranean Homesick Blues.” Little Richard was said to be so annoyed by Pat Boone’s down-tempo cover of “Tutti Frutti” that he recorded “Long Tall Sally” so fast that “Pat Boone couldn’t sing it.” This post is about even faster songs, the ones so challenging that most vocalists won’t even try them, and that cannot be slowed down without losing the whole point.

NOTE: This post was originally scheduled for late December, but I’ve moved it up to commemorate Tom Lehrer’s passing. “The Elements” is the fifth clip at The Faculty Lounge.

Posted by Steve Lubet on August 2, 2025 at 05:34 AM

On a recent trip, I read an excellent biography of Edmund Burke by Jesse Norman. Being me, though., my attention was caught by a footnote explaining that until 1998 MPs were required to wear a top hat to raise a point of order in the Commons. How did this work? The report abolishing this rule explained:

“In practice this means that an opera hat which is kept at each end of the Chamber has to be produced and passed to the Member concerned. This inevitably takes some time, during which the Member frequently seeks to use some other form of covering such as an Order Paper. This particular practice has almost certainly brought the House into greater ridicule than almost any other, particularly since the advent of television.’”

Here’s an example.

The quirks of the British Constitution are endless.

Posted by Gerard Magliocca on August 1, 2025 at 08:22 AM

Judge Pernell of M.D. Fla. issued a universal preliminary injunction barring enforcement of the state’s anti-drag law, in an action by an Orlando-based bar owner. The state sought to stay the injunction as to its universal scope; the Eleventh Circuit and SCOTUS declined, with Justice Kavanaugh (joined by Justice Barrett) agreeing with the denial because First Amendment overbreadth confuses the universality analysis.*

[*] It shouldn’t, if the Court thought carefully about what is going on with overbreadth and facial challenges. But that ship has sailed.

AG James Uthmeier has subpoened a different bar over an all-ages drag show; the subpoena demands the names of guests, employees, and performers, as well as security footage, contracts, employee schedules, and reservation logs.

In the normatively proper world pre-CASA and the descriptively proper world post-CASA, Florida is on solid legal footing. CASA cites Doran v. Salem Inn (a case involving strip clubs–we have not evolved as a society) for the proposition that government remains free to enforce the challenged statute against non-parties who violate it. Though enjoined from enforcing v. Orlando-based Hamburger Mary’s, officials are not enjoined from enforcing against Vero Beach-based Kilted Mermaid (owned by the Vero Beach mayor). The Kilted Mermaid has two options. It could attempt to join the existing suit and ask Judge Pernell to extend his injunction (which may raise some venue issues–Vero Beach is in the Southern District). Or it could bring a new lawsuit in the Southern District and use HM as persuasive authority and see what happens (this is how percolation is supposed to function).

In the actual world, Florida is violating the injunction. The injunction remains unstayed, including as to scope (even if that scope is improper post-CASA). As an entity protected by the injunction, Kilted Mermaid should be able to stop the subpoena by filing a motion to enforce. Under the collateral bar rule, Florida cannot defend the motion by arguing that the injunction is improper. It must ask the district court to modify the injunction to only protect Hamburger Mary’s in light of CASA; the court should grant that motion, unless it wants to follow Kavanaugh’s overbreadth nonsense. Florida then (perhaps) can pursue a renewed enforcement action, which Kilted Mermaid must challenge as described above.

Posted by Howard Wasserman on July 31, 2025 at 03:12 PM