Explore every episode of the podcast Digging a Hole: The Legal Theory Podcast
| Title | Pub. Date | Duration | |
|---|---|---|---|
| 2026 Election with Ben and David Wallace-Wells | 05 Nov 2026 | 00:53:45 | |
Every couple of years, David and Sam get to fulfil their (not so) secret desire of becoming political pundits. Today is that day! For our Midterm post-mortem, we’re joined by two pros who also happen to be brothers: David Wallace-Wells of The New York Times and Ben Wallace-Wells of The New Yorker. Although we recorded this on Wednesday afternoon, and a couple of races are still too close to call, it’s clear that the Democrats had a generational night. Yet so much is in the air and it remains entirely unclear what comes next. The gang tries to make sense of it all: How much of these results are explained by a “normal” midterm backlash or one-offs such as the wars and the cost of living? Did the Trump decade lead us to misread a country that was “blue/purple” all along? What is the future of conservativism if the suburbs of Atlanta, Charlotte, and Dallas move away from the Republican party? And perhaps most importantly: How will this election shape the future Democratic party? Ben and David wonder whether Trump will stick with MAGA or cut a deal with Democrats. Sam asks whether younger politicians will stop governing for old people. David brings it all back to property taxes and the “Buddhist” governors of Connecticut and Vermont. The political order may be in flux, but some things never change. Referenced Readings:
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| Diego Zambrano | 02 Nov 2026 | 01:01:28 | |
Much to Sam’s chagrin, this week’s episode requires him to talk about civil procedure. His verdict on the book? “It’s really compelling, even for me.” David was less conflicted: “It’s a banger.” Diego Zambrano, professor of law and faculty director of the Neukom Center for the Rule of Law at Stanford Law School, joins the pod to discuss his new book, How Americans Enforce the Law. Why has the United States come to rely so heavily on private lawsuits to enforce public law? Zambrano traces the practice from English penal statutes to modern securities, employment, civil rights, and environmental litigation. His account of “layered path dependence” explains how a fragmented state, expansive procedural rules, and a powerful plaintiffs’ bar helped private enforcement persist and grow. David presses Zambrano on how far his account departs from explanations based on divided government, why states with large bureaucracies still rely heavily on private lawsuits, and what counting statutes misses about judicial lawmaking. Sam asks whether American distrust of government deserves more weight, and what is really private about enforcement when public judges decide the cases. We then move beyond explanations and turn to whether private enforcement actually works. Does private enforcement compensate for low state capacity, or does it simply give legislators an excuse to leave executive branch weak? Are courts any less vulnerable to capture than regulators? Diego weaves through a range of contexts (CEQA and clean energy to securities litigation and TikTok) and explains when private lawsuits help, when they get in the way, and how lawmakers should adjust enforcement as conditions change. We close with a question for civil procedure nerds everywhere: Should different kinds of claims have different procedural rules? Referenced Readings
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| David Skeel | 19 Oct 2026 | 00:57:31 | |
Sam is away this week, dear listeners—presumably offsomewhere arguing with older Americans about why they shouldn’t vote—leaving David to talk bankruptcy with David Skeel. (The two Davids rejoice!) In this week’s episode, we turn to municipal insolvencyand the largest government debt restructuring in American history. David Skeel, the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School, joins the pod to discuss his new book: Promise Land: The Inside Story of the Puerto Rico Debt Crisis. Drawing on hisexperience serving on (and chairing) Puerto Rico’s Financial Oversight and Management Board during its bankruptcy-like Title III process, the book combines Skeel’s deep expertise in bankruptcy law with a rich account of the conflicts and compromises among bankruptcy lawyers, judges, local and federal officials, Puerto Rico’s citizens, and bondholders of various stripes. Skeel walks us through the specifics of the crisis: howPuerto Rico got into so much fiscal trouble, the island’s appetite for borrowing, and how federal disaster aid shifted the balance of power between the oversight board and the local government. The two Davids also tackle broader questions about municipal bankruptcy, revisiting Skeel’s support for allowing states to file for bankruptcy, his earlier criticism of how creditors were treated in Detroit, whether pensioners should receive more than bondholders, and how much discretion bankruptcy judges should wield. Finally, Schleicher presses Skeel on the controversial COFINA bonds, the major legal questions left unanswered by settlements, and the struggle to restructure Puerto Rico’s electric utility. They close by considering whether Puerto Rico offers a preview of future American fiscal crises and what the optimal design for municipal bailouts looks like. Referenced Readings
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| Joshua Specht | 23 Sep 2026 | 00:56:20 | |
Summer is over, dear listeners. Sam spent his time reading hate mail from older Americans, while David has just moved around the corner from a senior assisted living facility. But more importantly, Digging a Hole is back for another season. In this week’s episode, we turn to the history of America’s obsession with land ownership. Here to take us from the rent wars of the 1840s up to the Great Financial Crisis, we have Joshua Specht, associate professor of history at the University of Notre Dame. He joins us to discuss his new book, Property Values: The Rise and Fall of the American Homeowner, which traces the history of American property ownership from the homestead to the modern suburb. Specht lays out his argument that American history can be understood through two linked ideals: nineteenth-century “landed democracy,” in which widespread land ownership underwrote visions of independence and citizenship, and the twentieth-century “ownership society,” which moved those aspirations to suburban homes. Sam questions whether land ownership and homeownership really belong in a single story and whether Americans might someday manage to untether democracy from owning a piece of land altogether. David, meanwhile, asks whether Specht’s narrative gives too much explanatory power to property ownership and not enough to economic growth and dynamism. He also wonders whether the decisive break in American housing really came with the mortgage revolution of the 1930s or with the rise of anti-growth politics in the 1970s. Referenced Readings
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| Sarath Sanga | 08 Jun 2026 | 01:09:48 | |
Things are looking up, dear listeners. The semester is over, summer is nearly here, and David’s beloved Knicks are up 2-0 in the NBA Finals. In this week’s episode, we take a step back and do some introspection. Here to discuss whether you should trust Yale, and other elite universities, more than Jalen Brunson in the fourth quarter is friend and colleague Sarath Sanga, Professor of Law at Yale Law School and Co-Director of the Yale Law School Center for the Study of Corporate Law. Sanga joins us to discuss both his new article, A Theory of Trust in Institutions, co-authored by Yehonatan Givati, and the recent Report by the Yale Committee on Trust in Higher Education, of which Sanga was a member. Sanga kicks off the episode by explaining his view of why higher education is hemorrhaging public trust. Sanga argues that universities, and other institutions, pre-commit to doing specific things, and they lose trust whenever they stray from this initial commitment. Sam questions whether universities are now, and always have been, finishing schools for elites and, if so, whether it makes sense to talk about institutions like Yale having a mandate. And David brings up a variety of counterexamples that call into question whether an institution going against its mandate, such as when a university fields varsity sports teams, actually decreases trust in the real world. We hope you enjoy! Referenced Readings
A Running List of Nominations for the Canon of American Legal Thought (1975-2025)
This episode is all about how Yale, and other elite institutions, are losing public trust. As Yale Law School insiders, what’s your best solution for making YLS more trustworthy? Sam: I’m very suspicious of law schools, especially ours-why shouldn’t everyone else be? | |||
| Lawrence Douglas | 05 Jun 2026 | 00:48:23 | |
As gas reaches stratospheric prices and the cost of living continues to climb, war seems to be on everyone’s mind these days. What better time, then, to be joined by Lawrence Douglas, the James J. Grosfeld Professor of Law, Jurisprudence and Social Thought at Amherst College, to discuss his brand new book, The Criminal State: War, Atrocity, and the Dream of International Justice? The episode begins with an overview of two paradigms in international criminal law. Douglas argues that international law has replaced the “aggression paradigm,” which emerged out of the Nuremberg trials, in favor of an “atrocity paradigm,” which focuses on sanctioning grievous acts of violence, especially towards civilians. However, Douglas suggests that both the atrocity paradigm and the now-defunct aggression paradigm suffer from serious deficiencies. Sam asks whether there really has been an aggression-atrocity shift or, instead, whether the aggression paradigm utterly failed, with a long delay before the separate construction of an atrocity paradigm — which itself proved short-lived. David queries whether Douglas’s story is too formalistic and already out of date. And, fortunately for everyone, we resist the urge to do the entire episode in Seinfeld voices. Referenced Readings
A Running List of Nominations for the Canon of American Legal Thought (1975-2025)
In this episode, Douglas proposed co-teaching an international law seminar with Sam. If you could teach a seminar on anything, unencumbered by ABA requirements or Yale Law School bureaucracy, what would you teach?
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| Anton Jäger | 12 May 2026 | 00:55:48 | |
Now that classes are over and the end of the semester is near, we’re back for several weeks of podcastmaxxing. So stay tuned for some great episodes in the coming weeks, dear listeners! Here to help us understand our current political moment and to diversify David’s reading list is Anton Jäger, a Departmental Lecturer in the History of Political Thought and Political Theory at University College, Oxford. Jäger joins the pod this week to discuss his new book, Hyperpolitics: Extreme Politicization without Political Consequences, where he offers a European’s perspective on the American political moment. This episode begins with an explanation of what, exactly, hyperpolitics is and how it differs from other, older forms of politics. Jäger suggests that hyperpolitics is characterized by a high degree of political involvement but a corresponding deinstitutionalization of politics. Sam queries whether our current moment might be more continuous with the past, with both characterized by a quiescent politics. And David asks about the degree to which our politics has been causally determined by economic forces. Along the way, we also discuss whether it’s helpful to label the Trump movement as fascist, whether hyperpolitics is the product of liberalism’s failure, and whether the smartphones are really to blame for everything. We hope you enjoy! Referenced Readings
A Running List of Nominations for the Canon of American Legal Thought (1975-2025)
On this week’s episode, Jäger offered a European outsider’s take on American politics. Flipping the script, what’s your best outsider’s take on European politics?
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| Joshua Macey | 26 Mar 2026 | 00:55:52 | |
Spring has sprung, dear listeners. Now that this dreadfully cold winter seems to be behind us, our power bills might finally come back down to Earth. Here to explain why your electricity bill is so expensive – and what to do about it – is Joshua Macey, a Professor of Law at Yale Law School. Macey’s research and teaching interests are wide-ranging, from energy and environmental law to bankruptcy and legal theory. In this episode of the pod, we get into the nitty gritty on energy, utilities, and governance strategies. The episode begins with a discussion of whether, and under what circumstances, centralized government regulation is (and is not) better than competition among private energy providers. We then tackle several big theoretical questions, such as the best methodology for analyzing regulatory policy, whether a carbon tax could be effective, and whether there should be an Abundance agenda for energy. And we also talk practical solutions: Why don’t we create a vast inter-state energy network? Should every state adopt the Texas approach of “surge pricing” during times of increased electricity demand? And more. The episode concludes with another excellent nomination for the Canon of American Legal Thought (1975-2025). Referenced Readings
A Running List of Nominations for the Canon of American Legal Thought (1975-2025)
This episode features a discussion of whether a carbon tax could effectively curb climate change. And David has recently called attention to the new property tax revolt. In this spirit, what’s something you think should be taxed, but currently is not?
A less serious but equally strongly-felt answer: a progressive tax on the length of meetings, particularly Zooms. How happy would the world be if the person who said “one more thing” at the end of meeting faced a stiff penalty! Also, of course, seconds of speeches during faculty meetings!!! Finally, my wife would also say there should be a tax on exclamation points in emails, as it would encourage people to sound less deranged!!! And by people, she definitely means me :) | |||
| Tara Leigh Grove | 05 Mar 2026 | 00:52:51 | |
Reports of the pod’s death are greatly exaggerated, dear listeners. Despite the lengthy hiatus, we’re finally back with a terrific episode on judicial method, judicial power, and much more. To kick off the Spring installment of the pod, we’re incredibly fortunate to be joined by Tara Leigh Grove, the Vinson & Elkins Chair in Law at the University of Texas at Austin School of Law, who comes on the pod to discuss her article, “The Power to Impose Method,” forthcoming in the Yale Law Journal. The episode begins with a general discussion about the Supreme Court’s power to impose an interpretive methodology on lower courts, what is often called “methodological stare decisis.” Grove advocates for something resembling a middle ground—the Supreme Court has a limited, bounded power to impose method on lower courts. We then get into the nitty gritty of the distinction between holding and dictum and of Article III’s case and controversy requirement. David asks why the Supreme Court can’t just do what it wants regarding method, and he queries whether the Supreme Court also has power to narrow the precedential force of its interpretive holdings. Sam asks why we should care whether the Supreme Court could impose method in one fell swoop if it’s clear that it can impose method in a piecemeal, case-by-case fashion. We conclude our discussion of Grove’s article by debating the normative credentials of interpretive pluralism. Before wrapping up the pod, we launch a brand new featured segment on The Canon of American Legal Thought, where we ask guests for (at least) one nomination for a list of the most important legal scholarship of the last fifty years. Grove offers not one, but three, excellent nominations, and Sam and David resist the urge to nominate their own work. We hope you enjoy! This podcast is generously supported by Themis Bar Review. Referenced Readings
A Running List of Nominations for the Canon of American Legal Thought (1975-2025)
H.L.A. Hart’s “no vehicles in the park” hypothetical has been described as “the most famous hypothetical in the common law world.” In the spirit of this episode, give us your hottest take on this chestnut of statutory interpretation. Are airplanes vehicles? Tricycles?
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| Jerusalem Demsas | 14 Nov 2025 | 01:10:42 | |
It’s been quite an eventful month, dear listeners. After a few flight cancellations, Democrats decided it was time to finally reopen the government. The House released a cache of Epstein files that name President Trump. And Zohran Mamdani has officially been named king of New York. In these turbulent times, we’re lucky to be joined by Jerusalem Demsas—journalist, grade A pundit, and Editor & CEO at The Argument magazine—who is here to talk Mamdani, liberalism, and much more. The episode begins with reflections from Demsas and David about what Mamdani’s election means for New York. Will his affordability platform transform New York for the better? Or will his vision be foiled by New York’s entrenched and inefficient bureaucracy? Beyond the Big Apple, Sam asks for predictions on whether Mamdani (or his coalition) can scale to the national level. We then discuss the significance of the elections in Georgia, where Democrats notched a big victory in some less important state-wide elections. Finally, Sam asks Demsas to reflect on the future of liberalism in America. Should liberalism be canned for a progressive alternative, or is it, as Demsas will argue, the only way we can live together in a pluralistic country? Most importantly, this episode gives Sam and David their annual opportunity to play political pundits. We hope you enjoy! This podcast is generously supported by Themis Bar Review. Referenced Readings
In this episode, there was a general skepticism that Mamdani could lead the Democratic party at the national level. So, in this episode’s spirit of hot-take punditry, who is your pick to be on the top of the Democratic ticket in the 2028 election?
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| Natasha Piano | 10 Nov 2025 | 01:05:12 | |
As one New York political dynasty comes to a close and as the government shutdown rampages on, it’s only fitting to have Natasha Piano on the pod to discuss elitism and the crisis of American democracy. Natasha Piano is an Assistant Professor of Political Theory in the Department of Political Science at UCLA. Piano joins us this week to discuss her new book, Democratic Elitism: the Founding Myth of American Political Science. In her book, Piano offers a revisionist intellectual history of three Italian (or Italian-adjacent) thinkers – Pareto, Mosca, and Michels. These three thinkers, Piano argues, have been violently misappropriated by American political scientists of the likes of Robert Dahl. Piano aims to show that Pareto, Mosca, and Michels are better understood as democratic theorists of elitism–not elitist theorists of democracy. Before Piano can officially set the record straight, she has to take on a barrage of skeptical questions from Sam and David. David asks whether American political science really misappropriated these three thinkers or rather borrowed from them for their own purposes. After an extended excursus exploring how best to interpret Pareto’s and Schumpeter’s political thought, Sam then presses Piano to explain the contemporary relevance of her three thinkers’ work. In response, Piano both makes the case for not conflating democracy with elections and warns of the plutocratic threats facing electoral democracy. We hope you enjoy! This podcast is generously supported by Themis Bar Review. Referenced Readings
This episode discussed Robert Dahl’s book on how democracy works in our very own New Haven, Connecticut. So who actually governs New Haven?
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| John Witt | 28 Oct 2025 | 01:06:41 | |
This week, we descend from the ivory tower onto the beaches of Martha’s Vineyard for a discussion of the historical significance – and contemporary relevance – of the Garland Fund, the million dollar fund at the epicenter of the early Civil Rights movement. We’re thrilled to welcome our colleague John Witt, the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School, to join us for a celebration of his new book, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America. We begin the pod by exploring the causal impact of the Garland Fund. Witt argues that the Fund is both a window that provides a new angle with which to view the left liberal social movements of the 1920s and 30s and a workshop that created the conditions under which civil libertarians, civil rights organizations, and union leaders were forced to come together to have conversations about how to spend the Fund’s limited resources. Sam then asks Witt to explain the extent to which his book aims to offer a revisionary account of liberal progress in the early 20th century. After a brief detour to discuss the heroes and villains of the book, David and Sam both press Witt to opine on the contemporary relevance of the story of the Garland Fund. The show concludes with reflections on Abundance bros, the Debt Collective, philanthro-capitalism, and nonprofit tax exemptions. We hope you enjoy! This podcast is generously supported by Themis Bar Review. Referenced Readings
What are Sam & David’s favorite restaurants in New Haven?
David: I assume we’re skipping the classic apizza joints? If we leave Pepe’s, Sally’s, Modern and Zuppardi’s to the side, my favorites are the terrific Fair Haven Oyster Co. and Tavern on State. Also, I recommend encouraging Sam to bake for you! Best desserts in town! | |||
| Bob Bauer | 19 Sep 2025 | 01:06:24 | |
It’s been a long (and eventful) summer. But the leaves are just beginning to turn and there’s a cool breeze in the air, which means it’s time for a new season of Digging a Hole! We kick off this season with a wide-ranging discussion on the limits of executive power, the role of courts in checking the executive branch, and what progressives should do after Trump 2.0. To help guide us through these thorny issues, we’re thrilled to welcome to the pod Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at NYU School of Law. In 2020, at the end of Trump 1.0, Bauer, with Jack Goldsmith, authored After Trump: Reconstructing the Presidency. Bauer and Goldsmith’s title did not prove prescient, however, and the second Trump administration presents a bevy of new challenges to our constitutional system. We begin the episode by discussing the expansion of executive authority and the extent to which the Supreme Court is responsible for enabling the second Trump administration. Sam and David query when and how we can know whether the Court is rolling over for the administration. Sam then continues prosecuting the case against courts generally, and Bauer parries by explaining why it remains necessary for progressives to engage with the courts. David closes the pod by teasing out Bauer’s views on whether progressives should change their approach to election law. We hope you enjoy! This podcast is generously supported by Themis Bar Review. Referenced Readings
What are Sam & David reading?
David is reading Vladimir Kogan’s really amazing new book No Adult Left Behind: How Politics Hijacks Education and Hurts Kids | |||
| Richard Primus | 27 May 2025 | 00:58:55 | |
We’ve had a lot of fun this spring, but a sweet summer scent is on the wind, and so we’re going to have to wrap up another successful season of Digging a Hole with today’s episode—it’s a real clambake. Courts have paid a lot of attention in recent years to what the executive branch can and can’t do: non-delegation, major questions, student loans, DOGE. The question of what the federal government as a whole can and can’t do, on the other hand, has been settled for a while. Settled, but wrongly, says our guest. Arguing against the weight of constitutional law, history, and memory, we’re delighted to welcome to the pod Richard Primus, the Theodore J. St. Antoine Collegiate Professor of Law at the University of Michigan, to discuss his Straussian reading of the Constitution and new book, The Oldest Constitutional Question: Enumeration and Federal Power. We start off the episode by defining enumerationism, what it is as a theory, and whether or not it works as a matter of practice. Primus tells us about how Congress’s enumerated powers are important to both federalism and the separation of powers, but shouldn’t actually limit the authority of the federal government. Sam and David jump in with questions about whether a legal theory taught to first-year constitutional law students actually does the work in constraining the exercise of power by the federal government. In response, Primus dives into the structural and historical underpinnings of his pro-federal government argument and ends with his hope for constitutional change. We hope you enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings | |||
| Frances Lee and Stephen Macedo | 25 Apr 2025 | 01:10:08 | |
Liberals have been introspecting (some may say self-flagellating) since the 2024 election, to varying degrees of convincingness and success. There’s the usual genre of complaints—NIMBYism, identity politics, the crisis of masculinity, forgetting about the factory man—but the one thing liberals agree on is that they can’t be blamed for following their good, apolitical science. Today’s guests want you to rethink that. We’re thrilled to have on Frances Lee, Professor of Politics and Public Affairs, and Stephen Macedo, Laurance S. Rockefeller Professor of Politics and the University Center for Human Values, both at Princeton University, to discuss their new book, In Covid’s Wake: How Our Politics Failed Us. We open up the book by asking our guests why they wrote this book—why attack liberals’ response to the COVID pandemic, and why now? Lee and Macedo argue that liberal science and policymaking early in the pandemic faced multiple epistemic failures, from undisclosed conflicts of interest to the silencing of opinions outside the mainstream. David defends the United States’s COVID policy response, but Lee and Macedo press their point that value-laden judgments were made by state and local officials who avoided responsibility by claiming to follow the science. We wrap up the episode with a discussion of scientific expertise in modern democracies. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Abundance | 07 Apr 2025 | 01:01:29 | |
In the face of what is inarguably bad governance and fake—but spectacular!—technocracy (the list goes on and on, but we’ll stop at AI-generated tariffs), we thought we’d take a moment to join the conversation about what good governance looks like. A couple of weeks ago, one of us reviewed Ezra Klein and Derek Thompson’s new book, Abundance, for the New York Times, and then the other one of us reviewed the review. So we figured: let’s work it out on the pod? No guests on this episode, just the two of us in a brass-tacks, brass-knuckles discussion of the abundance agenda and the goals of twenty-first century economic policy. We dive right into what the abundance agenda is and who its enemies are: innovators and builders against NIMBYs and environmentalists on David’s account; techno-utopians who discount the environment and politics on Sam’s. We agree that housing policy, at least, has helped the better-off create a cycle of entrenching their position through stymieing construction and production. We find another point of agreement on how Klein and Thomson’s abundance agenda attempts to harness the power of the state to build, and that certain left-wing critiques are off base, but disagree about whether their proposal is a break from the neoliberal era of governance and what that even was. In some ways, we end up right where we started, disagreeing about whether the abundance agenda seeks to unleash a dammed-up tide that can lift all boats, or whether the abundance agenda leaves behind everyone but a vanguard of “innovators” in the technology and finance sectors. Let us know if you’ve got a convincing answer. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Allison Powers Useche | 18 Feb 2025 | 01:01:38 | |
Happy February, listeners, and welcome to season ten of Digging a Hole! When we started the pod five years ago, we had our eyes on the Grammys, or maybe the Emmys, whatever award show we could finagle our way into. Turns out we have bigger fish to fry than whether or not we’re more deserving of an award than Call Her Daddy — Greenland, anyone? We’re thrilled to be kicking off this season with someone who knows a great deal about United States Empire: Allison Powers Useche, Assistant Professor of History at the University of Wisconsin–Madison, and author of the new book, Arbitrating Empire: United States Expansion and the Transformation of International Law. Powers Useche kicks us off with a discussion of the use of the arbitration forum as a place to hear what we now think of as international public law claims, including challenges to racial violence and Jim Crow. We dive into some case studies about how ordinary people across the Americas fought the United States in arbitration and offer competing interpretations about how to think about what happened from a legal realist perspective. Finally, we get Powers Useche’s take on how environmentalists, Indigenous groups, and others are using the tools of private economic law to contest empire today. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Karen Tani | 03 Jan 2025 | 00:53:24 | |
The start of a new year, the slouch towards the first days of the new semester, the last episode of yet another season of the pod: we’re feeling sentimental here at Digging a Hole HQ. As you take down your old calendars and put up the new, we’re going to take some time to engage in a tradition of ours at the pod and discuss the 2024 Harvard Law Review Supreme Court foreword, “Curation, Narration, Erasure: Power and Possibility at the U.S. Supreme Court,” with its indomitable author and the Seaman Family University Professor at Penn Carey Law, Karen M. Tani. We begin by discussing the genre of the Harvard Law Review foreword, and how Tani’s approach differs from forewords of yore. Next, we dive deeply into each prong of Tani’s framework of curation, narration, and erasure. We turn to familiar themes of the law-politics divide and the relationship between law and history, with Tani clarifying how this past Supreme Court term adds to our understanding of these big ideas. Finally, we conclude the pod with a discussion of prophecy (and here’s one: you’re going to have a ball with this episode, so hurry up and hit play!). This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Dan Rodriguez | 20 Dec 2024 | 00:48:54 | |
Now that the election is done and dusted, and we’ve had a chance to process somehow one of the least controversial presidential races of the last few decades, America’s back to business, with Congressmen threatening international institutions, the American public spending gobsmacking amounts of money for the holiday season, and California declaring a state of emergency over bird flu. Wait a second—can states even do that? Lucky for us, today’s podcast guest is an expert on state and local government law and state constitutional law who’s written a book on the very subject. We’re thrilled to welcome back the Harold Washington Professor of Law at the Northwestern University Pritzker School of Law, Daniel B. Rodriguez, to discuss his new (open-access!) book Good Governing: The Police Power in the American States. Ever wondered what the terms sic utere and salus populi mean? We kick off the podcast discussing those two different approaches to the police power of the states. Rodriguez expounds on his thesis about the development of state police power by discussing all the state cases he’s read, and why legal scholars focused on the federal courts usually get things wrong. Next, we discuss the different kinds of checks that exist on state power: structural, rights-based, and democratic. We then turn to the interplay between police power on the one hand, and the state and local government relationship on the other. (Sam’s out for this one, so you know we really get into the weeds of state and local governments.) Finally, we wrap up with Rodriguez’s argument for why state capacity is a problem of state constitutional law and good governing. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| 2024 Election with Benjamin Wallace-Wells | 14 Nov 2024 | 01:08:16 | |
The year is 2025. Department of Government Efficiency dons Elon Musk and Vivek Ramaswamy have broken ground on their new taxpayer-funded palace, the architectural plans of which look suspiciously like a Cybertruck. HHS Secretary RFK Jr. has received a standing ovation from Congress after announcing that children will be given brain worms at birth instead of vaccines. Attorney General Matt Gaetz has just announced that people who successfully stand their ground will be mailed a sticker from DOJ. How did we get here? To help us break down the results of last week’s elections, and to offer a sounding board to Sam and David’s hot takes, joining the pod is New Yorker staff writer and political reporter Benjamin Wallace-Wells. We start off by discussing swing voters, the failures of the Democrats and the Harris campaign, and what the election results hint about the future of the Republican party. (FWIW, we recorded before the Hegseth/Gabbard/Gaetz nominations.) We work through how the election was shaped by local concerns including perceptions of crime and disorder all the way to big international topics like the Russia-Ukraine war. Putting their heads together, Sam, David, and Wallace-Wells come up with a grand unified theory of local, national, and cultural politics in America today. Listen to find out everything you need to know about the election—and let us know if we got it right. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Brian Highsmith | 08 Oct 2024 | 00:48:22 | |
On this week’s podcast, we’re going more local than we’ve ever gone before, discussing the pleasures and perils of the company town. Here to be our local guide through this topic, and discussing his forthcoming paper, “Governing the Company Town” is Brian Highsmith — a former student of David’s, Ph.D. candidate in Government and Social Policy at Harvard University, an academic fellow in law and political economy at Harvard Law School, and an affiliated senior researcher at Yale Law School’s Arthur Liman Center for Public Interest Law. We begin this conversation by discussing what the company town was and what it wasn’t, legally and historically. Highsmith proposes that Madison’s theory of factions is the best conceptual framework to understand company towns, while Sam pushes back on company towns as being uniquely subject to private power. After we engage in a bit of democratic theory, David presses Highsmith on whether the answer to bad localism is good localism, and how we might regulate the municipal race to the bottom. Give the pod a listen and find out. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Melissa Schwartzberg | 24 Sep 2024 | 00:51:08 | |
Good news, listeners! Our rational and responsive representatives in Washington have agreed to keep the federal government running through December 20. (As far as we know, anyway.) You might be tired of the all the backroom dealing it seems to take to keep national parks open and the wheels of our country turning. Get it together, you grumble. But as realists in the world of legal theory, we wanted to ask: what would it mean to take legislative dealmaking seriously, and is it possible for deals to be good and just? (Shoot for the moon.) And here to help with that question, hitting our pod is an expert in democratic theory and the law, a former editor of NOMOS, and the Silver Professor of Politics at New York University, Melissa Schwartzberg. On this episode, we discuss Schwartzberg and co-author Jack Knight’s doozy of a new book, Democratic Deals: A Defense of Political Bargaining. To help with orienting our readers, Sam asks Schwartzberg to explain how political theorists and political scientists think of legislative dealmaking—and what’s missing. Schwartzberg introduces the book’s main conceptual yardstick, the equitable treatment of interests, and how looking to contract and constitutional law helps illuminate what a well-functioning legislature looks like. David, realest of the realists, pushes Schwartzberg on how her theory applies to state and local legislative bodies like the Los Angeles County Commission, before we end with a democratic-theory-inflected discussion on the role of courts in a legislative democracy. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Jack Balkin | 10 Sep 2024 | 01:08:59 | |
Welcome back, dear listeners, to season nine of Digging a Hole! We’re just as surprised as you are that we haven’t been taken off the air yet, but we’re here and ready to keep producing hit after hit— at least while Yale Law School keeps funding us, anyway. After a summer of roller-coaster legal and political action, we’re ready to help you navigate the turbulent times ahead. But before we get to current events, it’s worth dwelling on history. And today we’re excited to have on the pod our colleague Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, to discuss his new book, sure to be a classic in constitutional theory, Memory and Authority: The Uses of History in Constitutional Interpretation. To start off, Sam engages Balkin over the question of why, under the latter’s taxonomy, history isn’t a unique modality of constitutional interpretation. Next, Balkin explains what constitutional lawyers do, what makes their argumentative tools unique, and the relationship between history, memory, and the rhetoric of law. We dive into (what else?) originalism, both as an academic discipline with fancy conferences in San Diego and as a political ideology that reigns supreme in the courts (at least in cafeteria-form). If we haven’t piqued your interest, this episode features for the first time on the pod, according to our memory but perhaps not our history, one Mr. Hegel. Strap in and enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Dylan Penningroth | 30 May 2024 | 01:02:22 | |
With the long weekend in the books, summer’s officially here. School’s out, and we can’t imagine why people would be thinking about American universities – has anything interesting or controversial been happening on campus recently? (Our field correspondent David Pozen reports.) Anyway, today’s episode is the last episode of the season, and we’re excited to let this one linger in your minds for the next few months. Today’s very special guest is the MacArthur “Genius” Award-winning Dylan C. Penningroth, Professor of Law and Alexander F. and May T. Morrison Professor of History at the University of California, Berkeley, here to discuss his wonderful new book Before the Movement: The Hidden History of Black Civil Rights. Penningroth begins by showing how his research expands the scope of African American history to everyday legal relations between Black individuals and discusses his great-great-great-uncle as a great example. After Sam and Penningroth frame the conversation as one about Black people using private rights in support of the southern economy, David follows up with a question about the inevitability of capitalism. Next, Penningroth makes the case that his account complements, instead of contradicts, the politically-focused work of W.E.B. DuBois and historians like Risa Goluboff and Eric Foner. We end this semester with some advice for social movements. See you on the other side, listeners. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Mehrsa Baradaran | 23 May 2024 | 01:04:14 | |
We’re almost at the end of our season, just as the biggest sports leagues in the world come to the end of theirs (as our guest today says, it all revolves around oil, and maybe a bit of corruption and looting). Speaking of today’s guest, we’ve got on an expert in banking and the racial wealth gap whose biography will probably surprise you at every turn: Mehrsa Baradaran, Professor of Law at the University of California Irvine School of Law, who takes us on a tour of her new book The Quiet Coup: Neoliberalism and the Looting of America. Even though Sam and David’s respective views on neoliberalism are what makes this a podcast divided, Baradaran opens the podcast by telling us that neoliberalism is synonymous with corruption and looting, but also that she’s a big fan of markets. Next, Baradaran gives us a brief and maybe controversial account of the post-World War Two era, placing empire and race, not economics or ideology, at the center. Sam presses Baradaran on her thesis: that conmen and grifters, big oil and big tobacco, used neoliberalism, which then gained a life of its own as law and economics. David valiantly defends law and economics (sadly, no one seems to be convinced). We end with exposing the quietest coup: maybe Baradaran, in aiming to bare everything wrong with our economic system, was the real neoliberal all along. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Kunal Parker | 30 Apr 2024 | 00:56:44 | |
Dear listeners, this season has been riveting, and it’s been a little controversial. Some of you have written in (if you listen to this episode, you’ll see we’ve graced certain aggrieved parties with a response). We see you, we hear you, and boy, do we have a classic legal theory podcast for you. Today’s guest is Kunal Parker, Professor and Dean's Distinguished Scholar at the University of Miami School of Law, here to talk about his fabulous new book The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970. If you liked his first book–and if you didn’t, you’re probably a wretched anti-foundationalist–you’ll love this spiritual sequel. We begin by asking Parker to lay out his thesis, which is, surprise, surprise, that there was a turn from substance to process in economic, political, and most saliently for us, legal thought in the twentieth century. Next, we discuss how much the phenomenon Parker describes is its own thing versus concomitant with American pragmatism and the disciplinification of the modern research university. We make sure everything gets filtered through big important legal thinkers–Holmes and Fortas, Frankfurter and Bickel–before turning to today’s neo-formalistic approaches to the law: neo-Aristotelians, the new private law theorists, et al. (and if we’ve missed anyone, we can guarantee that our listeners will let us know). This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Noah Feldman | 16 Apr 2024 | 00:53:28 | |
On today’s podcast, we’re excited to welcome back former Digging a Hole guest Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School. We take a break from legal theory and indulge Feldman in a discussion about his new book, To Be a Jew Today: A New Guide to God, Israel, and the Jewish People. In this episode, which was adapted from a conversation between Feldman and Sam at Yale Law School, we dive into Feldman’s theory of Judaism as a theology of struggle, his taxonomy of Jewry, and his insistence that a relationship to Israel and contestation over Zionism is at the heart of what it means to be a Jew today. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| David Pozen | 12 Mar 2024 | 01:05:52 | |
Have you ever wondered about the legal history of the war on drugs? Even if you haven’t, we won’t mollycoddle you – this episode’s a trip. Our guest on today’s podcast is a scholar of constitutional law and information law known for really getting in the weeds and dunking what we think we know in an acid bath. We’re delighted to have joining us today the radical David Pozen, Charles Keller Beekman Professor at Columbia Law School, here to talk about his far out new book, The Constitution of the War on Drugs. In this episode, we dive into the law, politics, and history of drug legalization and criminalization in the United States. We begin by Pozen giving an impassioned plea for how the war on drugs implicates racial justice, equal protection, federalism, and cruel and unusual punishment. Next, Sam dunks on history. Throughout the episode, we discuss the political economy of drugs (New York’s botched marijuana rollout) and generational divides (Clinton’s “I didn’t inhale”). We end by contemplating the brain-bending, otherworldly potential of the First Amendment to protect heightened brain states. Pour yourself a Coke and enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Daryl Levinson | 05 Mar 2024 | 01:01:07 | |
Listeners, law professors have been having a bit of a crisis. Those poor souls have been asking: is international law real? (No comment.) What about constitutional law – that has to be real, right? The New York Times ran an op-ed this week where con law professors more or less said, “no, but we’ll keep pretending as long as we can.” (As Calvin Trillin wrote in 1984, what if con law “really wasn’t the ideal place for a smart boy with a social conscience to go?”) Feeling down in the dumps, we brought on this week’s guest, David Boies Professor of Law at NYU Daryl Levinson, to dispel disenchantment through a discussion of his new book, Law for Leviathan: Constitutional Law, International Law, and the State. Levinson begins by assuring us that not only are international law and constitutional law both real, they’re real in the same way – as sub-species of a law for states. Next, we clarify that the Levinsonian law for states is a functionalist account of law and place it in both the Anglo-American and continental European international law traditions. Finally, we talk about how each of international and constitutional law relate to democracy – and what happens when a class of economic leviathans grows powerful enough to challenge the state. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Robert Post | 20 Feb 2024 | 01:17:11 | |
Welcome back, devoted listeners, and say hello to season eight of Digging a Hole, where we’ve got an extraordinarily stacked lineup just waiting in the wings. To make up for the cold, cold months where you had to get your legal theory fix from reading articles (boring) or attending faculty workshops (ugh), we’re kicking off the season with a mammoth episode about a mammoth book. Today’s guest is the former dean and current Sterling Professor of Law at Yale Law School, and Co-Reporter for the American Law Institute, Robert Post, here to talk about Volume 10 of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States (aka the official biography of SCOTUS), The Taft Court: Making Law for a Divided Nation, 1921 to 1930. From the outset, Post sets the stage for his argument that the Taft Court and the 1920s are an important but underappreciated time in American legal history. We discuss how the Taft Court grows out of and evolves according to two social questions wrenching the nation – the First World War and Prohibition. Next, we talk about the different theories of sovereignty and democracy as represented by the different wings of the court, with Taft playing counterpoint to lionized jurists Brandeis and Holmes. Sam, angling for his dream job of author of Volume 14 of the Devise, peppers Post with questions about formalism, realism, and consequentialism. We’re not kidding when we say that’s only half the episode – but, listeners, the second half is a can’t-miss if you care about Taft the master administrator, judicial politics, and the power of the Supreme Court. We hope you enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings | |||
| Cass Sunstein | 11 Dec 2023 | 01:04:26 | |
Like George Santos’s tenure in Washington and Tim Scott’s rousing presidential campaign, all good things must come to an end, and so we wave goodbye to season seven of Digging a Hole. Our last guest of this season needs no introduction: according to our team of in-house scientists, if you stacked a penny for each citation he’s received, the tower of pennies would reach almost 1,000 feet high (which, frankly, is not as tall as our scientists expected but is taller than any other scholar’s penny tower). That’s right – our guest today is an author of a best-selling book about Star Wars, the former Administrator of the Office of Information and Regulatory Affairs, and current Robert Walmsley University Professor at Harvard Law School: Cass Sunstein, here to talk about his new book, How to Interpret the Constitution. We begin by laying out the thesis of the book: that we must have a theory of interpreting the Constitution that comes from outside the Constitution, and that we should choose the interpretive theory that makes our nation the best off. That simple? Sam and David don’t think so, and we discuss what it means to make our nation better off, why we need to choose an interpretive theory in the first place, and how we might revise the thesis on a more institutional view. Next, we look at judicial politics and restraint through the specter that haunts our podcast, James Bradley Thayer. And finally, we get to the bottom of Sunstein’s predictive judgments about the future of constitutional interpretation and American democracy. See you next year. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Jennifer Burns | 04 Dec 2023 | 00:56:24 | |
It’s the last month of the year and soon (but not yet!), it’ll be the last podcast of the season. We had a lot of people write in about our last episode and so this Christmas, on behalf of all of you, we’ll ask Santa for more Digging a Hole. But before we leave out some milk and cookies, we’ve still got some great episodes for you. Today, we’ve got a pre-recorded episode that – can you believe it – couldn’t be aired for contracts (?!) reasons. But the embargo has been lifted! And here on the pod to talk about no less than a prince of free trade is Jennifer Burns, Associate Professor of History at Stanford University, discussing her new book, Milton Friedman: The Last Conservative. David and Sam start off by making Burns defend the subtitle of the book – was Friedman really the last conservative? Then we discuss the breadth of Friedman’s life and the breadth of Burns’s book, which travels the terrain of the intellectual history of economics to the study of Friedman as libertarian and television celebrity. We get deep into the debate between Keynesianism and monetarism – no math required, but make sure you’ve done your macro readings. Sam wants to know if the book is too easy on Friedman, especially his involvement in Chile. David wants to know if Friedman surrounded himself by sycophants to duck debates. And amidst all of that, Burns makes the case for Friedman as an underappreciated economic thinker who might be right about charter schools. Yes, we know that’s a lot. We hope you enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Will Baude | 16 Nov 2023 | 00:57:24 | |
Listeners – our apologies. We’ve given you interesting topic after interesting topic, distinguished guest after distinguished guest. But we’ve strayed from the promise of the podcast, which is legal theory, and legal theory means arguing ad nauseam about whether we’re positivists or normativists. For a recent intervention in that debate, we’re delighted to bring you today’s guest, William Baude, the Harry Kalven, Jr. Professor of Law and Faculty Director of the Constitutional Law Institute at the University of Chicago Law School and a member of the Presidential Commission on the Supreme Court of the United States, to discuss his 2023 Scalia Lecture at Harvard Law School, “Beyond Textualism?”. We recommend you give the paper a skim before listening – Sam and David don’t waste any time getting into it on this episode. David presses Baude on the relationship between textualism and democracy while Sam is skeptical that Baude’s project is properly textualist at all. Next, we try to make sense of how the law-policy distinction maps onto the common law and the so-called general law past and present. Our tour continues to statutory interpretation before we get to the normativist-positivist debate (or: what’s the difference between Will Baude and Adrian Vermeule?). We end by discussing Baude’s recent foray into celebrity and whether the Constitution bars Donald Trump from running for president. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Daniel Ziblatt | 24 Oct 2023 | 00:57:43 | |
Squarely in the heart of the Trump administration, Steven Levitsky and Daniel Ziblatt published a book titled How Democracies Die which proved enormously popular. Celebrities read it. Obama read it. Most people you know probably pretended to have read it. Five years later, Levitsky and Ziblatt are back with a sequel of sorts, arguing that in the United States, democracy might never have been fully alive in the first place, strangled in the cradle by our very own constitution. To explain how their thinking has changed since How Democracies Die and discuss the new book, Tyranny of the Minority, we’re thrilled to have on today’s podcast Daniel Ziblatt, Eaton Professor of Government at Harvard University and director of the Transformations of Democracy group at Berlin's Social Science Center. In this episode, we poke around into all of the different ways the United States privileges minoritarian politics. Ziblatt explains that a major contribution of Tyranny of the Minority is showing how regular politics interact with our constitution’s minoritarianism to create a particularly potent anti-democratic danger for the United States. We discuss the legislative advantage minorities have in the U.S. thanks to our love of holding onto grand old traditions like the filibuster and what that means for statutory interpretation. Democratic backsliding, the advantages of party politics, papal smoke and mirrors–it’s all in there. We hope you enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Emma Kaufman | 17 Oct 2023 | 00:56:14 | |
As the Supreme Court moves forward with its administrative state agenda, we thought we’d get in on the action and make sure we understand what exactly that agenda even is. Lucky for us, we’ve got some friends who can shed light on that matter. On today’s episode, we’re joined by Emma Kaufman, Professor of Law at New York University Law School, to discuss her paper, co-authored with previous pod guest Adam Cox, “The Adjudicative State.” In this episode, we talk about the administrative state as a neglected site of adjudication and agency adjudication as a neglected site of administration. First, Professor Kaufman explains how her past research on immigration helped her identify and break through these blind spots. Next, we talk about how best to achieve equal justice under the law. Should we follow the legal academy, and half the op-eds in the New York Times, and leave politics out of courts? Or should we politicize justice entirely? (It turns out politicizing administration is complicated anyway!) Finally, Professor Kaufman leaves us with a bit of a cliff-hanger – stay tuned for her history of private prosecution and tune in to find out how it related to the rest of the topics on today’s pod. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| J.B. Ruhl and Jim Salzman | 29 Sep 2023 | 00:49:48 | |
After a long summer vacation, we’re thrilled to be back for season seven of Digging a Hole! Just a couple of weeks ago we were baking; now we’re surviving storm after storm, quivering and quaking. Climate change, huh? Here on the pod to discuss their forthcoming paper on how environmental law can help get us out of our existential crisis, “The Greens' Dilemma: Building Tomorrow's Climate Infrastructure Today” are J.B. Ruhl, the David Daniels Allen Distinguished Chair in Law at Vanderbilt Law School, and Jim Salzman, the Donald Bren Distinguished Professor of Environmental Law at the UCLA School of Law. What is the Greens’ Dilemma – and is it even a dilemma exactly? Sam and David have their doubts, but Professors Ruhl and Salzman lay out what they think the dilemma that environmentalists face is, why it’s a dilemma, and their proposed solution to it. Professors Ruhl and Salzman discuss coalition building for green infrastructure and why they might be able to get both progressives and conservatives on board. Is a rapid transition to clean energy and negative emissions compatible with environmental justice (EJ)? Our guests answer with an emphatic yes but ask you, our argumentative listeners, to engage and disagree. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| David Schleicher | 01 Jun 2023 | 01:14:47 | |
As Punxsutawney Phil to winter are we to summer; and today, we celebrate a very special end-of-season episode. Sam is joined by guest co-host Noah Rosenblum, Assistant Professor of Law at New York University School of Law, to discuss work by our very own David Schleicher. David’s new book, In a Bad State: Responding to State and Local Budget Crises, which is both a romp through the American history of state and local debt as well as a mirror-for-princes for bankruptcy judges and administrators, all while standing at a parsimonious 171 pages, is out today. David first introduces his concept of the fiscal trilemma: that when responding to state and local budget crises, the American federal government must choose between bailing out state local and governments, imposing austerity measures, or letting them default. This framework opens up a wide-ranging conversation from infrastructure financing, where we discuss the Erie Canal and Alexandria Ocasio-Cortez, to the value-added tax, where David argues that the European tax system is a third way between AEI and Brookings. Oh, and because we’re a legal theory podcast, there’s lots of discussion of history, the nineteenth- and twentieth-century Supreme Court as a bunch of political hacks, and how the Great Recession and COVID have changed the political and legal landscape of public finance. Listen to this pod, buy David’s book, have a wonderful summer, and we’ll see you back in the fall. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Julie Suk | 11 Apr 2023 | 00:52:55 | |
The sun is shining, the flowers are blooming, and David’s back on the pod. More importantly, we’re thrilled this week to be joined by Julie Suk, Professor of Law at Fordham University School of Law in New York City, to discuss her new book After Misogyny: How the Law Fails Women and What to Do about It. After Misogyny, like much of Professor Suk’s scholarship, including her first book, is impressively interdisciplinary, centering women and gender in the legal, historical, sociological, and political stories of liberal constitutionalism. After Sam lays out all of the different fields that After Misogyny contributes to, ranging from feminist legal theory to comparative constitutionalism, Professor Suk explains her focus on the structural and legal aspects of misogyny. We discuss Professor Suk’s appropriation of the term “unjust enrichment” from private law, and how it explains what, on her view, is wrong with misogyny. Come with us on a journey through Prohibition and the fight for the Equal Rights Amendment in America and cross the pond to Sweden, Ireland, and France. We round out our wide-ranging conversation discussing the limits, but also the necessity, of legal and constitutional approaches to social problems. All this and more on this week’s pod – take a listen and find out. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Duncan Kennedy | 04 Apr 2023 | 00:48:12 | |
This episode, we swap out one legend of legal theory for another. Goodbye David, hello to our guest – the one and only Duncan Kennedy! As part of a course he’s teaching at Yale Law School, Foundations of American Legal Thought, Sam interviewed Professor Kennedy in front of a live audience on March 8, 2023. Professor Kennedy, the Carter Professor of General Jurisprudence, Emeritus, at Harvard Law School, is a legal and social theorist and one of the founding members of the Critical Legal Studies movement. We learn about Professor Kennedy’s experience as a student at Yale Law School (three cheers for insider baseball) and his experience with so-called generational revolt. Next, we turn to his academic accomplishments: Professor Kennedy discusses some of his early articles, which were instrumental in the origins of the so-called Critical Legal Studies movement. Finally, we conclude the conversation with a discussion of the Law and Political Economy movement. Many of our listeners might be familiar with LPE, and might even have wondered what the CLS vanguard have to say about it. Give this pod a listen to find out. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Sam Issacharoff | 14 Mar 2023 | 01:09:01 | |
This week, we’re joined by dual-wielding complex and aggregate litigation and law of democracy scholar Samuel Issacharoff to discuss his new book Democracy Unmoored: Populism and the Corruption of Popular Sovereignty. Sam Issacharoff, the Bonnie and Richard Reiss Professor of Constitutional Law at NYU Law and one of our leading democratic theorists, has written extensively on the role of courts in strengthening and protecting democracy and the democratic process. Sam and David begin the podcast by poking the bear – isn’t populism a little passe? Professor Issacharoff doesn’t back down, pointing to his Argentine background and global focus, as well as his institutional expertise, as offering a new perspective on the conversation. Professor Issacharoff then talks economics and inequality before defending, championing, and even glamorizing (?!) political parties. This is a legal theory podcast, so we turn to courts and his theory of judicial intercession, but it’s also our legal theory podcast, so we learn some theology lessons along the way. We end the way we started, with Sam being a little cheeky and Sam Issacharoff demonstrating the timeliness of his book. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| James Bradley Thayer | 21 Feb 2023 | 00:47:48 | |
Another episode, another student of David and Sam’s on the podcast. Except this time, we have a current student instead of a former one! In this episode, a joint Lillian Goldman Law Library book talk-Digging a Hole production that took place in front of a live audience on January 23, 2023, we interview Yale Law student Jake Mazeitis and Wick Cary Associate Professor at the University of Oklahoma Andrew Porwancher on their book The Prophet of Harvard Law: James Bradley Thayer and His Legal Legacy. We begin by discussing just who exactly James Bradley Thayer was and his contributions to the structure of American constitutional law. We dive into his intellectual and personal legacies, his litany of students who shaped American jurisprudence, and ruminate on the student-teacher relationship. Our guests develop an idea of what it means to be Thayerian, and how we all live with Thayer’s legacy – and even praise/accuse Sam of being a bona fide Thayerian. Finally, we discuss Thayer’s democratic motivations and the limits of his legal realism before turning it over to the audience for a few questions. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Timothy Shenk | 24 Jan 2023 | 01:05:15 | |
Happy new year and welcome to season six of Digging a Hole! We’re kicking this season off with a bang as Sam welcomes one of his former students – Timothy Shenk! Tim Shenk is an Assistant Professor in History at George Washington University and a prolific public writer who you may have read in the New York Times, Jacobin, or Dissent. More importantly for us, Professor Shenk is the author of the recently published book Realigners: Partisan Hacks, Political Visionaries, and the Struggle to Rule American Democracy. In this episode, we dive into Realigners. What is a realigner? Who is a realigner? Can we understand the development of American democracy without realigners? The answer to the last question, says Professor Shenk, is no. From Madison to Obama, DuBois to Trump, and especially FDR and the New Deal Coalition, we talk about American history and the history of its greatest political actors as the history of realigners and realignment. And along the way, we discuss what it means to do presentist history and if there’s any hope for majority-making, self-government, and democracy in America. This podcast is generously supported by Themis Bar Review. Referenced Readings
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| Greg Sargent & the Midterm Election | 12 Nov 2022 | 01:12:13 | |
It’s time for an election recap! We’re joined by Greg Sargent, who covers elections for the Washington Post and who slides into Sam’s DMs regularly. We recorded this episode on Friday, November 11th as election returns are still coming in, but it’s clear that the “red wave” did not transpire. It looks like Democrats will hold the Senate and they have a small hope of retaining the House. What lessons can we draw from this election (without just confirming our priors and takes)? Were any issues – abortion, inflation, democracy – most salient? Did candidates cover these issues (they certainly didn’t run on legislation Congress passed!) and what messaging was relevant to voters? Was candidate quality a bigger element than normal? What's the deal with racial de-polarization? We discuss how to disentangle these factors and their effects on the election nationally, regionally, and in localities. We also debate what this means for the future of politics and governing. As a starting point, Sam summarizes the argument of his recent article: “It’s time for the Democrats to move past Donald Trump.” Yes, his thesis relates to neoliberalism, and, yes, David disagrees with it (somehow by analogizing it with the SNL cowbell sketch). We had a very fun discussion with lots of healthy disagreement over the current state of American politics and the future! We’d love to hear your thoughts, too, sound off on Twitter while it’s still there! Referenced Readings
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| Kate Klonick & the Twitter Takeover | 07 Nov 2022 | 00:44:45 | |
In a matter dear to Sam and Dave’s livelihoods, we have a timely podcast to discuss Elon Musk’s Twitter takeover. There is no one better to get into the weeds of this issue than Kate Klonick. Kate is an Associate Professor of Law at St. John’s University Law School and a Visiting School at Harvard University’s Rebooting Social Media Initiative. She is a leading expert on social media companies, content moderation, and the private governance of online speech. If you want to understand why Elon Musk bought Twitter and the likely implications, you’ve come to the right post. David (Sam’s away) begins by asking the obvious – why is Elon doing this and what is his plan? Is he a tech genius or is this a completely irrational pet project? A lot has also been said about Twitter’s content moderation policy and Elon’s purported issues with it. Kate explains to us how Twitter’s policies are unique from those of other social media companies. She also delves into the consequences of Elon messing with these policies and, potentially, laying off much of Twitter’s staff that works on content moderation (right before an election!). The short- and long-term consequences of this takeover will be felt throughout society, so come learn more! Referenced Readings
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| Jacob Grumbach | 03 Nov 2022 | 00:57:57 | |
This week we have Jacob Grumbach on the pod! Jake is an Associate Professor of Political Science at the University of Washington and the producer of fantastic Twitter content @JakeMGrumbach. His new book Laboratories against Democracy discusses the causes and consequences of the nationalization of state politics. To begin, Jake walks us through the three consequences. First, national partisan and activist groups have nationalized state politics and transformed state governments. Second, this has made policy more varied across states depending on which political party has control in a state. Third, national groups have used state government to suppress the vote, gerrymander, and erode the foundations of democracy. We also dive into the formation and implications of Jake’s State Democracy Index. Going beyond the book, we discuss some of our favorite topics. Sam asks for the comparative angle – is nationalization occurring across federal systems worldwide and is nationalization inevitable? David asks about progressive federalism and if state politics is a viable path for liberals seeking national reform. Lastly, we dive into potential solutions to the negative consequences of nationalization of state politics. Should we just abolish states? This is a really fun episode and we think you'll enjoy it as much as we did! Referenced Readings
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| Gary Gerstle | 21 Oct 2022 | 01:12:34 | |
Professor Gary Gerstle enters the arena to join our ongoing debate about neoliberalism. Gary, a leading historian of the United States, is the Paul Mellon Professor of American History Emeritus and Paul Mellon Director of Research in American History at the University of Cambridge. On today’s episode, we discuss his brilliant new book The Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era. To begin, Gary defines a political order and discusses what happened in the shift from the New Deal political order to the recent neoliberal order. We then debate capitalism’s role in political orders – whether it’s something outside of a political order or rather the source of political order. After establishing this framing, we analyze, as we often do, modern neoliberalism. David questions if there even was a neoliberal political order, given that recent decades were also marked by increases of government regulation in some areas, such as land use. If there a neoliberal political order, will we look back on it as good, as there have not been world wars and global poverty has fallen? Gary and Sam address David’s concerns, and talk about how it was taboo to even use the term neoliberal to describe the political moment until a few years ago. Throughout our discussion, we situate this book against other scholars and existing theories (see the lengthy reading list)! This is a fascinating topic and we know you’ll enjoy hearing about Gary’s latest scholarship. Referenced Readings
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| Taisu Zhang | 14 Oct 2022 | 01:01:38 | |
Another podcast, another Metropolitan movie reference. This time we are joined by our colleague and friend, Taisu Zhang, Professor of Law at Yale Law School. We give you a sneak peak of Professor Zhang’s new book The Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions, which comes out in November. Taisu starts by explaining why understanding the Qing dynasty is a prerequisite to understanding the modern era of Chinese history and modern Chinese politics. We then debate theories of the Great Divergence, or why many countries in the Western world emerged as the most powerful economies in the 19th and 20th centuries while Qing China, Mughal India, and others failed to launch. Taisu argues that the absence of the Chinese fiscal state and agricultural taxes led to a military and economic decline because of a lack of state investment. He also argues that the Qing dynasty was wrong to assume that agricultural taxes would lead to rebellion, pointing to similar taxation elsewhere in the world. As we love to do here at Digging a Hole, we also took a step back to think about broader methodological and institutional questions. First, Sam and Taisu discuss humanist and social science approaches to history and causal arguments. Taisu intentionally makes his work structured, clear, and empirically falsifiable, putting it against most causal theories of Chinese fiscal decline, which are done by economists. Second, David jumps in to ask whether the broader question here is about institutions. Can divergence be explained by excessive centralization in the Qing government or the role of underdeveloped financial markets? In addition, we delve in constitutional questions and interrogate whether Qing China had a constitutional system and the role that system played. Referenced Readings | |||
| Ran Abramitzky & Leah Boustan | 06 Oct 2022 | 00:55:44 | |
We are thrilled to welcome Professors Ran Abramitzky and Leah Boustan to the podcast to discuss their groundbreaking new book on immigration in America! Ran is the Stanford Federal Credit Union Professor of Economics at Stanford and Leah is a Professor of Economics at Princeton, where she also serves as the Director of the Industrial Relations Section. They are on the forefront of economic research on immigration and just published Streets of Gold: America’s Untold Story of Immigrant Success. In this episode, we break down the three immigration myths that the book addresses. First, there is the false story about the speediness of the American Dream and how class mobility occurs (or doesn’t) over generations. Second, the data tell a counterintuitive story about how the “Ellis Island generation” of immigrants compares to current immigrants to the United States. Third, a common political argument is that new immigrants make present Americans worse off economically – a theory the data debunk. Beyond these myths, we also touch on several other topics. Professors Abramitzky and Boustan walk through their methodology and the data they collected from the census and Ancestry.com. They also explain why the immigrant story has been consistent for generations in America, despite the fact that immigration today occurs in a vastly different America with modern technology, more resources, and immigrants from new countries. The story that the book tells also is one of optimism, which differs from that told by historians. Much to Sam’s delight, we discuss why and how the history and economics disciplines tell different stories about American immigration. Lastly, we talk about common political criticisms of immigration and how this book deals with those, especially when opposition comes from emotional arguments rather than facts. Referenced Readings
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| Mary Ziegler | 06 Sep 2022 | 00:56:14 | |
Much like 2000s fashion – we’re back! The long wait is over. Digging a Hole’s new season is here! After a summer of landmark Supreme Court cases, we are excited to start the season with Mary Ziegler, one of the nation’s leading experts and historians of U.S. abortion politics. Professor Ziegler is the Martin Luther King, Jr. Professor of Law at the University of California Davis School of Law. She has written four books on the social movements around reproductive rights, including, most recently, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment. We begin our conversation by asking Professor Ziegler of how we got to Dobbs – how the Republican Party, campaign finance laws, and the anti-abortion movement created the conditions for overturning Roe. Professor Ziegler then builds upon her op-ed in The Atlantic, discussing what implications Dobbs may have for the future of substantive due process, including for precedents related to contraception and gay marriage. We also discuss the implications of reproductive rights politics for future elections and if the elections in the past several weeks offer insights for how November might go. Lastly, we talk more broadly about what the future might look like -- what cases the Court will take on, what legislation will pass in states or in Congress, and what political conflicts will emerge. Referenced Readings
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| Live Show! | 13 May 2022 | 00:55:00 | |
For the last episode of the season, Digging a Hole hosted its first live show in front of a live student audience! David interviewed two current Yale Law School students – Nina Oishi and Caroline Grueskin – about recent papers they’ve written. We started by asking Nina about her recent paper “Rating Racial Equity: Examining BlackRock and Goldman’s New Racial Equity Initiatives in the Municipal Bond Market.” Yes, there are people other than David who write about the munibonds! Next, we talked to Caroline about her paper “At Least As Effective: OSHA, the State Plans, and Divergent Worker Protections from COVID-19.” We get deep in the weeds on OSHA and administrative law, and now you can too! Lastly, we brought an additional audience member in to do a “overrated” and “underrated” game with our interviewees. Come for the great student scholarship, stay for their hot takes. If you have any guest ideas for next season or ideas for a future live show, shoot us an email at diggingaholepodcast@gmail.com | |||