Digging a Hole: The Legal Theory Podcast

Brian Highsmith Oct 08, 2024

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

Federalist 10 by James Madison
Crack-Up Capitalism: Market Radicals and the Dream of a World Without Democracyby Quinn Slobodian
“The For-Profit City That Might Come Crashing Down” by Rachel Corbett
“Regulating Location Incentives” by Brian Highsmith
“Worthwhile Canadian Initiative” by Flora Lewis

Melissa Schwartzberg Sep 24, 2024

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

On Compromise and Rotten Compromises by Avishai Margalit
Democracy and Legal Change by Melissa Schwartzberg
Counting the Many: The Origins and Limits of Supermajority Rule by Melissa Schwartzberg
“Worthwhile Canadian Initiative” by Flora Lewis

Jack Balkin Sep 10, 2024

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

Constitutional Interpretation by Philip Bobbitt
The Philosophy of History by G.W.F. Hegel
State Repression and the Labors of Memory by Elizabeth Jelin
“Interdisciplinarity as Colonization” by Jack Balkin
“The Crystalline Structure of Legal Thought” by Jack Balkin
Introduction to the Philosophy of History by G.W.F. Hegel
Zahkor: Jewish History and Jewish Memory byYosef Hayim Yerushalmi
“Collective Memory and Historical Consciousness” by Amos Funkenstein
“What is a Nation?” by Ernest Renan

Dylan Penningroth May 30, 2024

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 Legacyby Eric Foner
Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Normsby 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

Mehrsa Baradaran May 23, 2024

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 Delusionby 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

Kunal Parker Apr 30, 2024

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, 1900-1940by Daniel Ernst
On Democracy by Robert Dahl
The Public and its Problems by John Dewey
Age of Fracture by Daniel Rodgers

Noah Feldman Apr 16, 2024

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 Centuryby 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

David Pozen Mar 12, 2024

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 Mindby Michael Pollan

Daryl Levinson Mar 05, 2024

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

Robert Post Feb 20, 2024

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

A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937by William G. Ross

Cass Sunstein Dec 11, 2023

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

“Blasphemy and the Original Meaning of the First Amendment”
“The Forum of Principle” by Ronald Dworkin
“Efficiency vs. Welfare in Benefit-Cost Analysis: The Case of Government Funding” by Zachary Liscow and Cass Sunstein

Jennifer Burns Dec 04, 2023

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

“The Mighty Wurlitzer Plays On” by Tim Barker

Will Baude Nov 16, 2023

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

A Matter of Interpretationby Antonin Scalia
“Finding Law” by Stephen Sachs
“General Law and the Fourteenth Amendment” by Will Baude, Jud Campbell, and Stephen Sachs
Legalism by Judith Shklar
“The ‘Common-Good’ Manifesto” by Will Baude and Stephen Sachs
“The Real Enemies of Democracy” by Will Baude

Daniel Ziblatt Oct 24, 2023

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 Dieby 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

Emma Kaufman Oct 17, 2023

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

J.B. Ruhl and Jim Salzman Sep 29, 2023

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 Liberalismby Paul Sabin

David Schleicher Jun 01, 2023

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

Julie Suk Apr 11, 2023

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 Itby Richard Reeves

Duncan Kennedy Apr 04, 2023

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

Sam Issacharoff Mar 14, 2023

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 Courtsby 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

James Bradley Thayer Feb 21, 2023

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

Timothy Shenk Jan 24, 2023

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

Greg Sargent & the Midterm Election Nov 12, 2022

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

Kate Klonick & the Twitter Takeover Nov 07, 2022

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

Jacob Grumbach Nov 03, 2022

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

Gary Gerstle Oct 21, 2022

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

Taisu Zhang Oct 14, 2022

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 Oct 06, 2022

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

Mary Ziegler Sep 06, 2022

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.

Live Show! May 13, 2022

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

Rick Pildes Mar 15, 2022

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.

Lauren Benton & Rohit De Mar 10, 2022

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.

Ukraine & Legal Theory Feb 27, 2022

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.

Osita Nwanevu Feb 17, 2022

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.

Linda Greenhouse Feb 08, 2022

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.

Joseph Fishkin & William Forbath Feb 01, 2022

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!

Ask Me Anything! Dec 06, 2021

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!

Nikolas Bowie Nov 16, 2021

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).

Jeannie Suk Gersen Nov 01, 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).

Ed Glaeser Oct 12, 2021

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).

Noah Feldman & Christopher Kang Oct 04, 2021

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”

Rodriguez & Seifter Sep 27, 2021

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).

Isaac Chotiner Sep 20, 2021

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).

John Witt and Sam Moyn Sep 07, 2021

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).

Ian Ayres and Frederick E. Vars Apr 20, 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.

Oona Hathaway and Craig Jones Apr 06, 2021

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.

Kate Andrias and Ben Sachs Mar 30, 2021

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.

Maggie Blackhawk and K-Sue Park Mar 23, 2021

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 Mar 16, 2021

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 Mar 09, 2021

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.

Gabriel Winant Feb 23, 2021

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.

Claire Priest Feb 16, 2021

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.

Kate Shaw & Leah Litman Feb 09, 2021

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.

Omar Wasow Dec 15, 2020

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.

Tracey Meares Dec 01, 2020

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 and Benjamin Zipursky Nov 24, 2020

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 Nov 17, 2020

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.

Michael Klarman and Amna Akbar Nov 10, 2020

Join us on this episode as we unpack the election with legal scholars Michael Klarman, Professor at Harvard Law School, and Amna Akbar, Professor at the Ohio State University Moritz College of Law. Michael’s forthcoming Harvard Law Review foreword outlines the threat President Donald Trump and the Republicans pose to democracy and how the Supreme Court has enabled them. Amna’s response article outlines what she views as the key movements of our time, including defund the police, cancel rent, and others, that seek to deepen democratic participation.

Matt Yglesias Oct 30, 2020

On this episode, we talk to Vox co-founder and noted political and economics journalist Matt Yglesias about his new book One Billion Americans: The Case for Thinking Bigger. Matt argues that the U.S. should take active steps — allowing greater immigration and adopting a suite of policies that encourage people to have children — to increase the size of the U.S. population to one billion. Doing so, he argues, would improve the U.S. economy and allow the country to remain the most powerful nation in the world. The book then discusses a number of other policies that would have to change, from transportation to housing to environmental policy, to accommodate the increased population. We discuss the nationalist framing of the book, the politics of increasing the housing supply, mitigating climate change, the stability of American political institutions and the future of local governance in an age of national media.

Also, hang on to the end for a little surprise: a bonus question from David! Here’s a hint: Sveriges Riksbank hasn’t established the answer to this question yet.

Stephen Wertheim and Afroditi Giovanopoulou Oct 27, 2020

On this episode we discuss the legal theory of the origins of American empire. Stephen Wertheim, Deputy Director of Research and Policy at the Quincy Institute for Responsible Statecraft, and Afroditi Giovanopoulou, PhD Candidate at Columbia University, join us to discuss their recent works on this subject and debate the role law played in U.S. efforts to reshape the postwar global order.

Wertheim’s book, Tomorrow the World: The Birth of U.S. Global Supremacy, discusses intellectual developments during the crucial period before and during World War II when the U.S. decided to “extend its form of law and order to the globe and back it at gunpoint.” Rather than a dispute between internationalists and isolationists, Wertheim argues the period was marked by differences among those committed to an America playing a role in global affairs and a quick but radical shift toward American armed supremacy. Giovanopoulou’s article, “Pragmatic Legalism: Revisiting America’s Order After World War II,” argues that neither adherence to a norms-based international order nor realist dismissal of that project defined wartime and postwar efforts. Instead, the intellectual influence of legal realists and New Dealers led to a view of law as a tool rather than as a constraint, in reaction to the legal sensibilities of prewar foreign policy makers, who promoted the codification of international norms and the judicial resolution of international disputes.

Cristina Rodríguez and Adam B. Cox Oct 20, 2020

Cristina Rodríguez, Professor of Law at Yale Law School, and Adam B. Cox, Professor of Law at NYU, join us to discuss their new book, The President and Immigration Law, where they outline how the Executive Branch gained nearly-unchecked discretion over immigration policy, the implications of this are for the future of immigration policy, and what this system says about the nature of executive power more broadly.

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

Steven Teles Oct 13, 2020

On our third episode, we speak to Steven Teles, Professor of Political Science at Johns Hopkins University and Senior Fellow at the Niskanen Center about his new book, Never Trump: The Revolt of the Conservative Elites, co-authored with Robert P. Saldin. He outlines what he thinks drove “Never Trumpers” (elite conservatives) to campaign against then-candidate Donald Trump and the role this group now plays at the margins of the Republic Party. He also touches on the theories underlying his views on Never Trumpers—including the role played by elite policymakers, ideologues, and outsiders in political parties.

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

Amy Kapczynski Oct 09, 2020

On this episode, we speak to Amy Kapczynski, Professor of Law at Yale Law School, about about her new article in the Yale Law Journal, “Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis,” co-authored with Jedediah Britton-Purdy, David Singh Grewal, and K. Sabeel Rahman. The article outlines how approaches to law that center questions of market efficiency, neutrality, and formal equality render certain forms of power invisible, and “encases” the market from questions of politics and claims of justice. While various scholars have been writing in this vein for some time, this article synthesizes that work and offers a new approach to legal analysis, one that centers questions of power, equality, and democracy. We also discuss with her the Law and Political Economy Project, of which she is a co-director, and how the “LPE” approach is catching on at law schools across the country.

Jack Goldsmith Sep 30, 2020

With the end of Donald Trump’s presidency potentially imminent, debates have begun about how to reform American politics—and the powers of the executive branch in America’s constitutional system. On this episode, we speak with Jack Goldsmith, professor of law at Harvard University, who recently coauthored After Trump: Reconstructing the Presidency. In this episode, he discusses his vision for reforms that should—and possibly could—be used to reform the presidency after Donald Trump. A leading conservative in the legal academy, Goldsmith also talks to us about the medium- to long-term evolution of right-of-center legal arguments about the presidency.

Jack Goldsmith writes books and articles on topics related to terrorism, national security, international law, federal courts, conflicts of law, and law and technology. Before joining Harvard, he served as Assistant Attorney General in the Office of Legal Counsel from 2003 to 2004 and as Special Counsel to the General Counsel to the Department of Defense from 2002 to 2003.

Additional reading:

· Samuel Moyn, “The Guardians: Does ‘The Resistance’ Actually Want More Democracy or Less?” in The Nation

· Jack Goldsmith, The Terror Presidency: Law and Judgment in the Bush Administration

· Jack Goldsmith and Eric A. Posner, The Limits of International Law

· Jack Goldsmith, Power and Constraint: The Accountable Presidency after 9/11

· Eric A. Posner, The Executive Unbound: After the Madisonian Republic

· John Yoo, Defender in Chief: Donald Trump’s Fight for Presidential Power

· John Yoo, Crisis and Command: A History of Executive Power from George Washington to George W. Bush