Digging a Hole: The Legal Theory Podcast

Latest Episodes:

James Bradley Thayer Feb 21, 2023

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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