Digging a Hole: The Legal Theory Podcast

Latest Episodes:

Rick Pildes Mar 15, 2022

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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).

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