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

• “The Privilege of Family History” by Kendra T. Field

• “Race in Contract Law” by Dylan C. Penningroth

• “Why the Constitution was Written Down” by Nikolas Bowie

• Nothing But Freedom: Emancipation and Its Legacy by Eric Foner

• Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms by Richard R. W. Brooks and Carol M. Rose

• The Lost Promise of Civil Rights by Risa L. Goluboff

• Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality by Richard Kluger

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

• The Wretched of the Earth by Franz Fanon

• The Color of Money: Black Banks and the Racial Wealth Gap by Mehrsa Baradaran

• Public Citizens: The Attack on Big Government and the Remaking of American Liberalism by Paul Sabin

• The End of Ideology: On the Exhaustion of Political Ideas in the Fifties by Daniel Bell

• The God Delusion by Richard Dawkins

• Racecraft: The Soul of Inequality in American Life by Karen E. Fields and Barbara J. Fields

• “Protestors Criticized For Looting Businesses Without Forming Private Equity Firm First” in The Onion

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

• How Democracies Die by Steven Levitsky and Daniel Ziblatt

• Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment by Brad Snyder

• “Inside or Outside the System?” by Eric Posner and Adrian Vermuele

• After Misogyny: How the Law Fails Women and What to Do about It by Julie Suk

• The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy by Joseph Fishkin and William Forbath

• “The Insulation of Local Governance from Black Electoral Power: Northern Cities and the Great Migration” by Jacob Grumbach, Robert Mickey, and Daniel Ziblatt

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

• “1930s Redux: The Administrative State Under Siege” by Gillian Metzger

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

• “Samuel Moyn Can’t Stop Blaming Trumpism on Liberals” by Jonathan Chait

• Mine!: How the Hidden Rules of Ownership Control Our Lives by Michael Heller and Jim Salzman

• “What Happens When the Green New Deal Meets the Old Green Laws?” by J.B. Ruhl and Jim Salzman

• Public Citizens: The Attack on Big Government and the Remaking of American Liberalism by Paul Sabin

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

• Why Cities Lose: The Deep Roots of the Urban-Rural Political Divide by Jonathan Rodden

• “The Dilemma of Odious Debts” by Mitu Gulati, Lee C. Buchheit, and Robert. B. Thompson

• Courthouse Architecture, Design and Social Justice edited by Kristy Duncanson and Emma Henderson

• The Prince by Niccolò Machiavelli

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

• Down Girl: The Logic of Misogyny by Kate Manne

• The War on Alcohol by Lisa McGirr

• Last Call: The Rise and Fall of Prohibition by Daniel Okrent

• Of Boys and Men: Why the Modern Male Is Struggling, Why It Matters, and What to Do about It by Richard Reeves

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

• The Transformation of American Law, 1780-1860 by Morton Horwitz

• “Legal Formality” by Duncan Kennedy

• The Rise and Fall of Classical Legal Thought by Duncan Kennedy

• “Form and Substance in Private Law Adjudication” by Duncan Kennedy

• Social Thought in America: The Revolt Against Formalism by Morton White

• “The Structure of Blackstone’s Commentaries” by Duncan Kennedy

• “⁠In Defense of Rent Control and Rent Caps⁠” by Duncan Kennedy

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

• “Would You Date a Podcast Bro?” by Gina Cherelus
• Fragile Democracies: Contested Power in the Era of Constitutional Courts by Sam Issacharoff
• The Narrow Corridor: States, Societies, and the Fate of Liberty by Daron Acemoglu and James A. Robinson
• “Revenge of the Centrist Dads” by Janan Ganesh

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

• “Constitutionality Of Legislation: The Precise Question for a Court” by James Bradley Thayer
• “The Origin and Scope of the American Doctrine of Constitutional Law” by James Bradley Thayer
• “Becoming Brahmin: A Country Boy's Journey to Harvard Yard” by Andrew Porwancher and Austin Coffey

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

• Inventing the People by Edmund Morgan
• The American Political Tradition by Richard Hofstadter
• Fear Itself by Ira Katznelson
• “A Lost Manuscript Shows the Fire Barack Obama Couldn’t Reveal on the Campaign Trail” by Tim Shenk

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

• “Why Some States Went in Different Directions in Midterms,” by Nate Cohn
• “It’s Time for the Democrats to Move Past Donald Trump,” by Samuel Moyn
• “Why the Red Wave Didn’t Materialize,” by Sohrab Ahmari
• “Resist, Persist, and Transform: The Emergence and Impact of Grassroots Resistance Groups Opposing the Trump Presidency,” by Leah Gose & Theda Skocpol

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

• “Radical Mismatch” by Stephen Holmes

• Rules for the Direction of the Mind by René Descartes

• “Mr. Justice Black and the Living Constitution” by Charles Reich

• Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940 by Daniel Ernst

• On Democracy by Robert Dahl

• The Public and its Problems by John Dewey

• Age of Fracture by Daniel Rodgers

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

• “Elon Musk’s Management Style Is a Threat to Global Democracy,” by Kate Klonick
• “Elon Musk, Plus a Circle of Confidants, Tightens Control Over Twitter,” by Mike Isaac, Ryan Mac, & Kate Conger
• “Twitter, Once a Threat to Titans, Now Belongs to One,” by Kevin Roose
• “Elon Musk is Busy With Twitter,” by Matt Levine
• “Inside the Making of Facebook’s Supreme Court,” by Kate Klonick
• “Implications of Revenue Models and Technology for Content Moderation Strategies,” by Yi Liu, Pinar Yildirim, & Z. John Zhang

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

• Laboratories against Democracy, by Jacob Grumbach
• “Laboratories of Democratic Backsliding,” by Jacob Grumbach
• “Policy Preferences and Policy Change: Dynamic Responsiveness in the American States, 1936-2014,” by Devin Caughey and Christopher Warshaw
• “It’s No Longer the Economy, Stupid: Selective Perception and Attribution of Economic Outcomes,” by Sean Freeder
• The Increasingly United States, by Daniel J. Hopkins
• Accountability in American Legislatures, by Steven Rodgers
• “The Political Economies of Red States,” by Jacob Grumbach, Jacob Hacker, and Paul Pierson
• “Why Has Regional Income Convergence in the U.S. Declined?,” by Peter Ganong and Daniel W. Shoag

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

• The Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era, by Gary Gerstle
• Liberty and Coercion: The Paradox of American Government from the Founding to the Present, by Gary Gerstle
• “The Rise and Fall(?) of America’s Neoliberal Order,” by Gary Gerstle
• “How ‘Neoliberalism’ Became the Left’s Favorite Insult of Liberals,” by Jonathan Chait
• “The Uses and Abuses of Neoliberalism,” by Daniel Rodgers
• Public Citizens: The Attack on Big Government and the Remaking of American Liberalism, by Paul Sabin
• The Triumph of Broken Promises: The End of the Cold War and the Rise of Neoliberalism, by Fritz Bartel
• Family Values: Between Neoliberalism and the New Social Conservatism, by Melinda Cooper
• The End of History and the Last Man, by Francis Fukuyama
• “Regulation and the Collapse of the New Deal Order, or How I Learned to Stop Worrying and Love the Market,” by Reuel Schiller

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

• The Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions, by Taisu Zhang
• The Laws and Economics of Confucianism: Kinship and Property in Pre-Industrial China and England, by Taisu Zhang

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

• Streets of Gold, by Ran Abramitzky & Leah Boustan.
• The Chinese Must Go, by Beth Lew-Williams
• The Chinese Question: The Gold Rushes and Global Politics, by Mae Ngai
• “The Effects of Immigration on the Labor Market Outcomes of Less-Skilled Natives,” by Joseph Altonji and David Card

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

• Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, Mary Ziegler.
• “How to move forward after the destruction of Roe v. Wade,” Mary Ziegler.
• “If the Supreme Court Can Reverse Roe, It Can Reverse Anything,” Mary Ziegler.
• “Why Exceptions for the Life of the Mother Have Disappeared,” Mary Ziegler.

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

On this week’s pod, Dave welcomes one of his former professors – Rick Pildes! Professor Pildes is the Sudler Family Professor of Constitutional Law at New York University Law School, an appointee to President Biden’s Commission on the Supreme Court of the United States, and a contributor to the New York Times. He’s a leading scholar on the legal issues concerning democracy, and in this episode, we focus on his recent article “Political Fragmentation in Democracies of the West.”

To begin, Professor Pildes provides evidence for his main claim that center-left, center-right, and establishment political authority has fragmented across the west, from first-past-the-post to proportional representation systems. Having established this fragmentation, we then discuss potential explanations for why political power has fragmentented. Beyond a slew of economic issues, including globalization, the 2008 financial crisis, and rising income inequality, we also push on the role of immigration and race both in American politics and in other countries. Next, we talk about another big pillar of Professor Pildes’ paper – the communications revolution and how it enables politicians to act more as individual actors rather than a cog in their party. After, we overview several potential remedies to this fragmentation of democracy.

Lastly, we ask Professor Pildes about his recent work on reforming the electoral college process, including changes to the primary election structure and creating competitive election districts.

Referenced Readings

• “Political Fragmentation in Democracies of the West,” Richard Pildes.
• Political Ideologies and Political Parties in America, Hans Noel.
• “How Congress can fix the Electoral Count Act,” Edward B. Foley, Michael W. McConnell, Richard H. Pildes, and Bradley Smith.

This week, Digging a Hole explores global legal theory and history to match up with Sam’s European adventures! We are lucky to be joined by two of our Yale colleagues, Lauren Benton, Barton M. Biggs Professor of History and Professor of Law, and Rohit De, Associate Professor of History and Associate Research Scholar in Law.

We begin by discussing global legal theory and the way that thinking about legal ideas from a non-Western perspective can change the way we think about legal theory here and everywhere. In this conversation, we also talk about the disconnect between the recent explosion of work in global legal history and the American legal academy. We also touch on whether the personnel teaching in law schools plays a role in that disconnect.

Next, we talk about Lauren’s project “On Small Wars: Legalities of Violence in European Empires.” Through the project, Lauren seeks to answer what patterns of violence can one suss out that we have not regarded as legal in character and how they influenced global order and emerging international law. Sam, our resident international scholar, teases out whether law is doing much in this story or if the violence is producing the law. Lastly, we quibble over whether there has been continuity in violence and the legality of it or if the 20th and 21st century have had novelties in this area.

Then we overview the Yale Law and Modernization Project, which had a significant impact on postcolonial legal intellectuals. We also take up Rohit’s ongoing work on progressive lawyering after decolonization.

Referenced Readings

• “Context in the History of International Law,” Andrew Fitzmaurice.
• “India's Grand Advocates: A Legal Elite Flourishing in the Era of Globalization,” Marc Galantar and Nick Robinson.
• Savage Wars of Peace, Max Boot.
• Ideology of Popular Justice in Sri Lanka: A Socio-Legal Inquiry, Neelan Thiruchelvam.
• “Legal Education and the End of Empire: Renewing Cosmopolitan Kinship,” John Harrington and Ambreena Manji.

This week we have an emergency podcast episode on the war in Ukraine. We’re joined by our two colleagues and leading international law scholars – Oona Hathaway, the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, and Scott Shapiro, the Chalres F. Southmayd Professor of Law and Professor of Philosophy at Yale Law School.

In this conversation, which took place Sunday, February 27 even as a fluid situation evolved, we focus on the legal theory implications of the war. We get into Oona and Scott’s book The Internationalists and whether Putin’s invasion constitutes a challenge to the global legal order described in their book. In addition, even if in the global order a norm exists against aggression and conquest, do some countries seem to be exempt from operating under these norms? We next compare the American domestic criminal law system to the international legal system and ask why internationally we tolerate a system where one actor can veto attempts to make it operate within the system. A debate emerges if Russia is actually avoiding the norms of the legal system right now given the costs it is facing through the global response to their invasion. In the conversation, we discuss the efficacy of “outcasting” and whether current American and European sanctions can be effective. After, we touch on Putin’s case for war and how his justification compares to other historic “war manifestos.”

There’s a lot to discuss here and we’re lucky to have two of the experts in the field here to break it down.

Referenced Readings

• The Internationalists: How a Radical Plan to Outlaw War Remade the World, Oona A. Hathaway and Scott J. Shapiro
• “Outcasting: Enforcement in Domestic and International Law,” Oona A. Hathaway & Scott J. Shapiro.
• “Putin Can’t Destroy the International Order by Himself,” Oona A. Hathaway & Scott J. Shapiro
• “War Manifestos,” Oona A. Hathaway, Scott J. Shapiro, et al.
• “Putin’s Case for War, Annotated,” Max Fisher.
• “The Economic Weapon: The Rise of Sanctions as a Tool of Modern War,” Nicholas Mulder.
• The Concept of the Political, Carl Schmitt.
• “Forms of Modern Imperialism in International Law,” Carl Schmitt.

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

• The Jewish Century by Yuri Slezkine

• “She Pioneered Internet Fame, He Helped Draft a Constitution. Now They’re in Love” by Joseph Bernstein

• “Orthodox Paradox” by Noah Feldman

• “The Great Rupture in American Jewish Life” by Peter Beinart

On this week’s pod we have Osita Nwanevu, contributing editor at The New Republic, columnist at The Guardian, and author of the forthcoming book The Right of the People: Democracy and the Case for a New American Founding! In the interview, Osita discusses many of the major issues around media institutions today. Somehow David relates journalism to both roasted vegetables and dessert, so we either got really metaphorical or were just hungry!

We talk about how to write about politics today from a leftist view point, especially as it seems that the left has energy and new ideas but has trouble garnering broad appeal. We debate whether people are capable or want to absorb news and political analysis that challenges their preexisting beliefs. We zoom out and take a broader look at the role of legacy institutions, like the New York Times, and newer institutions with more ideological missions, examining the role each places in advancing political thought. Osita also defends his New York Times guest essay on January 6th, emphasizing the role political institutions played not only on January 6th, but also in the rightward shift of the GOP and rise of Donald Trump. We end by talking about whether the Constitution is fundamental to the crisis facing American democracy and what that means for reform efforts from the left.

Look out for Osita’s book and sign up for his newsletter!

Referenced Readings

• “What is Political Writing For?,” Osita Nwanevu.
• “Trump Isn’t the Only One to Blame for the Capitol Riot,” Osita Nwanevu.
• “The Constitution is the Crisis,” Osita Nwanevu
• “Doing Popular Things Won’t Save the Democratic Party,” Osita Nwanevu.

For the second episode of Season 4, Linda Greenhouse joins the pod to discuss her new book Justice on the Brink about the Supreme Court! There is no one who better understands the evolution, context, and operations of the Court than Linda. She is a Clinical Lecturer in Law and a Senior Research Scholar in Law at Yale Law School. After covering the Supreme Court for the New York Times as a reporter, she has written a frequent column for the opinion section since. In her latest book, Linda chronicles the Court with the three new Trump justices.

In our discussion, we ask Linda the major questions about the Court and its future. Should the Court be public-facing and, if so, how? As the Court breaks the fourth wall, engaging fully with today’s politics and polarization, is what is really on the brink the idea of a Court separate from politics? How will justices operate as the Court engages more explicitly in politics, and who are their intended audiences in their opinions and public engagements? What does this Court do next after taking on abortion and affirmative action?

Are we finally at the brink?

Referenced Readings

• Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court, Linda Greenhouse.
• Becoming Justice Blackmun, Linda Greenhouse.
• The Burger Court and the Rise of the Judicial Right, Michael J. Graetz and Linda Greenhouse.
• “The Impeachment Question,” Linda Greenhouse.
• “Law and Politics,” Linda Greenhouse
• “Do We Have the Supreme Court We Deserve?,” Linda Greenhouse
• “Address by Justice Samuel Alito,” Justice Samuel Alito.
• “Is the Supreme Court on Its Way to Becoming a Conservative Bastion,” Noah Feldman.
• “Decision-Making in a Democracy: The Role of the Supreme Court in National Policy-Making,” Robert Dahl.

Guess who’s back, back again?! Back by popular demand, Digging a Hole returns for a 4th season! We have a star-studded line-up of guests this spring. Tired – guessing the Supreme Court nominee. Wired – guessing upcoming Digging a Hole guests.

You don’t have to guess for this week, though! We’re thrilled to kick off this season with Joseph Fishkin and William Forbath discussing their upcoming book The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy. Professor Fishkin, Professor of Law at UCLA School of Law, is also the author of the excellent book Bottlenecks: A New Theory of Equal Opportunity. Professor Forbath, the Lloyd M. Bentsen Chair in Law at The University of Texas at Austin School of Law and a Professor of History, has published more articles than you can count.

In this episode, sub-fusc adorned Sam and noted constitutional law scholar David ask the guests how their highly anticipated book addresses how the United States Constitution could and should force legislatures to tackle economic inequality and oligarchy. We discuss why only one side of the political spectrum appears to make strong claims on the constitution regarding economic life during a time of mounting inequality, and, to do so, we trace the tradition of thought regarding the Constitution’s relationship to economic power. As part of the conversation, our guests also tie their findings to the problems Democrats have to passing their agenda today and why they seem loath to proactively draw on the Constitution in their messaging.

We couldn’t have asked for better guests to kick off a new season!

You asked -- we answered! In Digging a Hole’s first AMA (or really Ask Us Anything) episode, we answered your most pressing questions: Is it ethical to move into a gentrifying neighborhood? How should one read articles when considering potential academic appointments? What is cooler -- SCOTUS or the Federal Reserve? What is a professional failure we’ve experienced? Who is our dream sponsor for the pod?

In addition to these and many more questions, we also do a speed segment -- “overrated or underrated” -- about a list of topics, including the bar exam, lawyer credentialing, and Third World Approaches to International Law (TWAIL).

Come for the legal theory and hot takes, stay for Dave's unified field theory of Sam Moyn projects. There’s something for everyone!

Our final guest for Season 3 is Nikolas Bowie, assistant professor of law at Harvard Law School and board member of the ACLU of Massachusetts, Lawyers for Civil Rights, the People’s Parity Project, and MassVote. In this episode, we dive into two of his recent articles -- “Antidemocracy” and “The Constitutional Right of Self-Government.” We begin by discussing the Court’s recent ruling in Cedar Point Nursery v. Hassid (2021) and how it ties to Heart of Atlanta Motel, Inc. v. United States (1964). As part of this conversation, we touch on the implications of Cedar Point moving forward, whether the Court is operating as a democratic institution, and how our institutions can move toward isocracy, a system of government where citizens have equal political power. Next, we discuss the Assembly Clause of the First Amendment and how early in the country’s founding, activists used their right to assemble to defend their right of self-governance. This history of the Assembly Clause offers new possibilities of interpretation that would lead to a greater protection of self-governance.

Our last episode of the season will be an “Ask Me Anything!” You can submit questions for us at our website, DiggingAHolePodcast.com

Referenced Readings:

• Nikolas Bowie, “The Constitutional Right of Self-Government,” Yale Law Journal (2021).
• Nikolas Bowie, “Antidemocracy,” Harvard Law Review (2021).
• Nikolas Bowie, “Do We Have to Pay Businesses To Obey the Law?” New York Times (2021).

This week on the pod we have Jeannie Suk Gersen, the John H. Watson Professor of Law at Harvard Law School and a columnist for The New Yorker! We begin by discussing Professor Suk Gersen’s documentary “The Crits,” which focuses on the development and legacy of the Critical Legal Studies (CLS) movement. Several modern ideas and movements have come out of and splintered from CLS. We compare the evolution of CLS to the law and economics movement, debating both why law and economics has become institutionalized in the mainstream and what constitutes success for a legal movement. After, we transition to discussing “The Sex Burueacracy,” which covers the govenrment regulatory apparatus and university bureaucracies that stem from Title IX and similar policies. Professor Suk Gersen leaves us with thoughts on what might happen under the Biden Administrations Department of Education after educational guidances in the sex bureaucracy varied during the Obama and Trump presidencies.

Referenced Readings:

• Duncan Kennedy, “Sexual Abuse, Sexy Dressing and the Eroticization of Domination,”  New England Law Revew (1991).
• Jacob Gersen and Jeannie Suk, “The Sex Bureaucracy,” California Law Review (2016).
• Calvin Trillin, “Harvard Law,” The New Yorker (1984).

We’re back with more state, local, and urban issues -- maybe Sam has become a full convert! In this week’s episode, we’re joined by renowned urban economist Edward Glaeser, the Fred and Eleanor Glimp Professor of Economics and the Chairman of the Department of Economics at Harvard University. We begin by discussing The Survival of the City, Professor Glaeser’s new book written with David Cutler. In just over half an hour, we get through several topics. How will cities adapt to pandemics, will work-from-home continue as it currently exists, and will insider groups continue to dominate local politics? What does the future of work look like in cities; will we ever approach the post-work urban future that Keynes described? Beyond exploring these questions, we also discuss how cities can and should think about race and inequality, both through administration and legislation. All of this and more in less time than it takes to commute on most U.S. subways (and find out why that is while you’re listening)!

Referenced Readings:

• Ken Auletta, The streets were paved with gold, (1980).
• Eric Bosio, Simeon Djankov, Edward Glaeser, & Andrei Shleifer, “Public Procurement in Law and Practice,” NBER Working Paper, (2020)
• Leah Brooks & Zachary Liscow, “Infrastructure Costs,” (2020)
• Edward Glaeser, Triumph of the City (2012).
• Edward Glaeser & David Cutler, Survival of the City (2021).
• Edward Glaeser & Andrei Shleifer, “The Curley Effect: The Economics of Shaping the Electorate,” The Journal of Law, Economics and Organization, (2005).
• Tracy Gordon & David Schleicher, “High costs may explain crumbling support for US infrastructure,” Urban Wire (2015).
• John Maynard Keynes, “Economic Possibilities for Our Grandchildren,” (1930).

It’s SCOTUS reform time! We are joined by Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, and Christopher Kang, the co-founder and chief counsel of Demand Justice and former Deputy Counsel to President Obama. Both of our guests testified to the Presidential Commission on the Supreme Court of the United States. On the pod, our guests explain what they think the Commission should do. We talk through and debate whether the Court is political and/or partisan and whether Supreme Court rulings are un-democratic or lack democratic accountability. Given divergent views on these questions, we also have stark disagreements on the degree to which court reform is necessary and what the ideal reform would be. Our guests are leading thinkers on this timely issue, and their varying perspectives demonstrate the political, institutional, and legal complexities of altering the Supreme Court.

Referenced Readings:

Presidential Commission on the Supreme Court of the United States Testimonies:

• Noah Feldman on “The Contemporary Debate over Supreme Court Reform: Origins and Perspectives”
• Christopher Kang on “Perspectives on Supreme Court Reform”
• Samuel Moyn on “The Court’s Role in Our Constitutional System”

This week, we have an all-star duo in Daniel B. Rodridguez, the Harold Washington Professor of Law at Northwestern Law School, and Miriam Seifter, Associate Professor of Law at the University of Wisconsin Law School! Much to David’s joy, we get Sam deep into the muck of state and local government law. We begin by talking about Daniel and Miriam’s new projects -- The SLoG Law Blog and The State Democracy Research Initiative. Sam then asks our guests which issues in state and local government law they’re thinking about right now. We discuss ongoing battles of state legislatures stripping power from governors, how states and localities are using COVID-related federal aid, and state constitutional law. As part of the conversation, we also get into institutional design of state and local governments and how these institutions promote or hinder majoritarianism.

Referenced readings:

Daryl J. Levinson and Richard H. Pildes, “Separation of Parties, Not Powers,” The Harvard Law Review, (June 2006).

David Schleicher, “The Beginning of the End of the Progressive Era in State Constitutional Law?” SLoG Law Blog, (September 17, 2017).

Miriam Seifter, “Gubernatorial Administration,” Harvard Law Review (March 4, 2017).

In this week’s episode, we interview New Yorker staff writer and principal contributor to the Q. & A. interview series Isaac Chotiner. We begin by discussing his challenging interviewing style, which has led to many notable and controversial moments. Seeking controversy himself, David asks why Isaac has seemingly interviewed every Yale Law School professor other than him. Isaac also describes the mission behind his interviews and why he thinks a Q&A format is best for bringing academic ideas to light. Beyond Isaac’s own interviewing and writing styles, we talk about the state of journalism overall, including the role of public intellectuals and the effect of nationalized media coverage. Lastly, we get Isaac’s takes on a variety of topics, including the lack of India coverage in American journalism, the media coverage on Biden’s withdrawal from Afghanistan, media coverage on the War on Terror, and SubStack!

Referenced Readings:

Isaac Chotiner, “LeBron James’s Agent Is Transforming the Business of Basketball,” The New Yorker (June 7, 2021).

Isaac Chotiner, “V.S. Naipaul on the Arab Spring, Authors He Loathe, and the Books He will Never Write,” The New Republic (Dec. 7, 2012).

Isaac Chotiner, “The Limits of Resistance: Are Democrats focused on the wrong things?” Slate (Dec. 12, 2017).

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

• “Silver Blaze” by Arthur Conan Doyle

• “Beyond Carolene Products” by Bruce Ackerman

• The American Disease: Origins Of Narcotic Control by David Musto

• “The Crisis in Teaching Constitutional Law” by Jesse Wegman

• The Age of Addiction: How Bad Habits Became Big Business by David Courtwright

• How to Change Your Mind by Michael Pollan

Season 3 is here! In the first episode, John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law at Yale Law School, joins host David Schleicher to interview host Sam Moyn on his new book Humane: How the United States Abandoned Peace and Reinvented War. In the book, Sam interrogates efforts to make war more humane and the ramifications of this shift. We also discuss the chronology of when the American state began to craft more humane war; the risks that making any practice, such as war or driving cars, more humane might help legitimate it; and whether appeals toward making war humane are recent phenomena or cyclical occurrences. There’s also a sharp debate over methodology in legal history, for all you methodology heads out there, and some stern questions about what exactly Sam has against passion fruit panna cotta.

You join our new podcast newsletter for episode updates and a chance to win merch on our website: DiggingAHolePodcast.com.

Referenced Readings, listed below, are available at our website.

Will Smiley & John Fabian Witt, To Save the Country: A Treatise on Martial Law, (2019).

Justin Desautels-Stein & Samuel Moyn, On the Domestication of Critical Legal History, 60 History & Theory 2 (June 9, 2021).

Samuel Moyn, Humane: How the United States Abandoned Peace and Revived War (2021).

On our last episode of Season 2, Ian Ayres, professor of law and of professor of management at Yale University, and Frederick E. Vars, professor of law at the University of Alabama, join us to discuss their new book Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights. In the book, Ayres and Vars outline decentralized and voluntary policies that can be immediately adopted at the state or federal level to prevent gun-related deaths. We discuss the benefit and the possible downside of presuming second amendment rights and pursuing a neoliberal approach to the issue. We also discuss the politics of the proposal, including the professors’ lobbying efforts.

Additional readings, including any referenced during the episode, are available on our website: DiggingAHolePodcast.com.

On this week’s episode, Oona Hathaway, professor of law at Yale Law School, and Dr. Craig Jones, lecturer in political geography at Newcastle University, discuss their views on law’s role in war and national security. Professor Hathaway’s recent article, National Security Lawyering in the Post-War Era: Can Law Constrain Power?, argues that our current system lacks external constraints on executive branch national security lawyers and suggests division of powers and increased accountability could help remedy these issues. In The War Lawyers: The United States, Israel, and Juridicial Warfare, Dr. Jones focuses more specifically on how military operations have come to rely on lawyers and discusses the consequences of a system where law and war are co-constitutive. The professors discuss where they find common ground and where they diverge, and answer the question of whether there is too much or too little law in war.

Professors Kate Andrias, of the University of Michigan Law, and Benjamin L. Sachs, of Harvard Law School, join us to discuss their new article, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality. They argue the law can facilitate organizing by lower-income groups and that doing so can increase their political power in this new Gilded Age. We also discuss what the politics of labor politics and labor history can tell us about the authors’ proposal.

Additional readings, including any referenced during the episode, are available on our website: DiggingAHolePodcast.com.

Professors Maggie Blackhawk and K-Sue Park join us to discuss their recent work diving into the erasure of Native people in legal scholarship, pedagogy, and doctrine. Professor Blackhawk tells us about her recent article, Federal Indian Law as Paradigm Within Public Law, which argues that Native history and federal Indian law are necessary to better understand and develop Constitutional law. Professor Park discusses her draft article, Conquest and Slavery as Foundational to Property Law, which argues for acknowledging histories of Native dispossession and slavery in legal pedagogy and scholarship.

Additional readings, including any referenced during the episode, are available on our website: DiggingAHolePodcast.com.

Jamal Greene, Professor of Law at Columbia Law School, joins us to discuss his new book, How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart, in which he argues that we need a new approach to adjudicating rights claims. We discuss the flaws he sees in our current system—namely his assessment that courts either offer an absolute right or total deference to legislatures, depending on the right at issue. He also proposes an alternative approach where we can take everyone’s rights claims seriously.

Additional readings, including any referenced during the episode, are available on our website: DiggingAHolePodcast.com.

Stephen Sachs and Ernest Young, professors of law at Duke University, join us for a debate on the Erie doctrine. We pit these two scholars against one another to find out whether Erie was wrongly decided. Should state courts have the “last word” on interpretations of state law? Should we limit the role of general law? Does any of this matter?

Additional readings, including any referenced during the episode, are available on our website: DiggingAHolePodcast.com.

On this week’s episode we talk to Gabriel Winant, Assistant Professor of U.S. History at the University of Chicago, about his forthcoming book, The Next Shift: The Fall of Industry and the Rise of Health Care in Rust Belt America. In it, he focuses on the political economy of Pittsburgh since World War II—specifically, how blue-collar manufacturing jobs were eventually replaced by female-dominated, yet lower-paid and less stable, positions in healthcare services. In this conversation, we mostly just try to understand his deep and informative argument. We also speculate about the future of work and discuss what this story should tell us about the working class.

Additional readings, including any referenced during the episode, are available on our website: DiggingAHolePodcast.com.

On this episode we speak to our colleague, Claire Priest, about her new book, Credit Nation: Property Laws and Institutions in Early America. We discuss her research into the early American laws that commodified real and personal property as well as how those laws facilitated the rise of credit markets and helped entrench slavery. We also discuss the relationship between property owners and the state as well as the formalization of property rights during this period.

Additional readings, including any referenced during the episode, are available on our website: DiggingAHolePodcast.com.

We’re kicking off Season 2 by chatting with the hosts of the Strict Scrutiny podcast, Kate Shaw and Leah Litman, about the future of the Supreme Court, reform proposals, and the Court’s past and present legitimacy.

Additional reading, including any referenced during the episode, are available on our website: DiggingAHolePodcast.com.

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

• The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India by Philip J. Stern

• “Private Supreme Courts” by David Fontana and David Schleicher

• “Separation of Parties, Not Powers” by Daryl Levinson and Richard Pildes

On our last episode this season, we speak with Omar Wasow, assistant professor of politics at Princeton, about his new article that studies how 1960s Black-led protests impacted voting patterns. A key finding is that, while peaceful protests improved Democratic vote share in the 1968 election, violent protests likely led to a shift towards Republicans. We discuss the role of media in framing the protests then and today, and the moral and ethical considerations behind violent and nonviolent protest. Lastly, we also discuss the conversation and controversy the article generated this summer.

Additional reading, including articles or books referenced during the episode, are available on our website: DiggingAHolePodcast.com.

Yale Law School professor Tracey Meares joins us to discuss the past and future of police reform, including her government and academic work in this area. We touch on what the Obama administration did and didn’t do after Ferguson. We also discuss how calls for defunding the police and prison abolition play out in the policy sphere.

Additional reading, including those referenced during the episode, are available on our website: DiggingAHolePodcast.com.

John Goldberg, professor at Harvard Law School, and Benjamin Zipursky, professor at Fordham University School of Law, join us this week to discuss their new book Recognizing Wrongs in which they outline what principles underly tort law and why tort law matters. We discuss why they think tort law is more than just “accident law” or “ regulation” or an archaic leftover from a different era of social policy.  The authors also touch on how their theory of tort law fits into constitutional law, jurisprudence, the “new private law,” and other theories of tort and private law.

Additional reading, including those referenced during the episode, are available on our website: DiggingAHolePodcast.com.

Ross Douthat, a New York Times columnist and conservative political analyst, joins us this week to unpack the election. We discuss the ongoing political realignment. We dig into the future of economic populism on the right and the left. We also debate how each party might build its future coalition, including who might win the hotly-contested neoliberal vote.

Additional reading, including those referenced during the episode, are available on our website: DiggingAHolePodcast.com.