Digging a Hole: The Legal Theory Podcast

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

In a matter dear to Sam and Dave’s livelihoods, we have a timely podcast to discuss Elon Musk’s Twitter takeover. There is no one better to get into the weeds of this issue than Kate Klonick. Kate is an Associate Professor of Law at St. John’s University Law School and a Visiting School at Harvard University’s Rebooting Social Media Initiative. She is a leading expert on social media companies, content moderation, and the private governance of online speech.

If you want to understand why Elon Musk bought Twitter and the likely implications, you’ve come to the right post. David (Sam’s away) begins by asking the obvious – why is Elon doing this and what is his plan? Is he a tech genius or is this a completely irrational pet project? A lot has also been said about Twitter’s content moderation policy and Elon’s purported issues with it. Kate explains to us how Twitter’s policies are unique from those of other social media companies. She also delves into the consequences of Elon messing with these policies and, potentially, laying off much of Twitter’s staff that works on content moderation (right before an election!).

The short- and long-term consequences of this takeover will be felt throughout society, so come learn more!

Referenced Readings

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

This week we have Jacob Grumbach on the pod! Jake is an Associate Professor of Political Science at the University of Washington and the producer of fantastic Twitter content @JakeMGrumbach. His new book Laboratories against Democracy discusses the causes and consequences of the nationalization of state politics.

To begin, Jake walks us through the three consequences. First, national partisan and activist groups have nationalized state politics and transformed state governments. Second, this has made policy more varied across states depending on which political party has control in a state. Third, national groups have used state government to suppress the vote, gerrymander, and erode the foundations of democracy. We also dive into the formation and implications of Jake’s State Democracy Index.

Going beyond the book, we discuss some of our favorite topics. Sam asks for the comparative angle – is nationalization occurring across federal systems worldwide and is nationalization inevitable? David asks about progressive federalism and if state politics is a viable path for liberals seeking national reform. Lastly, we dive into potential solutions to the negative consequences of nationalization of state politics. Should we just abolish states?

This is a really fun episode and we think you'll enjoy it as much as we did!

Referenced Readings

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

Professor Gary Gerstle enters the arena to join our ongoing debate about neoliberalism. Gary, a leading historian of the United States, is the Paul Mellon Professor of American History Emeritus and Paul Mellon Director of Research in American History at the University of Cambridge. On today’s episode, we discuss his brilliant new book The Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era.

To begin, Gary defines a political order and discusses what happened in the shift from the New Deal political order to the recent neoliberal order. We then debate capitalism’s role in political orders – whether it’s something outside of a political order or rather the source of political order.

After establishing this framing, we analyze, as we often do, modern neoliberalism. David questions if there even was a neoliberal political order, given that recent decades were also marked by increases of government regulation in some areas, such as land use. If there a neoliberal political order, will we look back on it as good, as there have not been world wars and global poverty has fallen? Gary and Sam address David’s concerns, and talk about how it was taboo to even use the term neoliberal to describe the political moment until a few years ago.

Throughout our discussion, we situate this book against other scholars and existing theories (see the lengthy reading list)! This is a fascinating topic and we know you’ll enjoy hearing about Gary’s latest scholarship.

Referenced Readings

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

Another podcast, another Metropolitan movie reference. This time we are joined by our colleague and friend, Taisu Zhang, Professor of Law at Yale Law School. We give you a sneak peak of Professor Zhang’s new book The Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions, which comes out in November. Taisu starts by explaining why understanding the Qing dynasty is a prerequisite to understanding the modern era of Chinese history and modern Chinese politics. We then debate theories of the Great Divergence, or why many countries in the Western world emerged as the most powerful economies in the 19th and 20th centuries while Qing China, Mughal India, and others failed to launch. Taisu argues that the absence of the Chinese fiscal state and agricultural taxes led to a military and economic decline because of a lack of state investment. He also argues that the Qing dynasty was wrong to assume that agricultural taxes would lead to rebellion, pointing to similar taxation elsewhere in the world.

As we love to do here at Digging a Hole, we also took a step back to think about broader methodological and institutional questions. First, Sam and Taisu discuss humanist and social science approaches to history and causal arguments. Taisu intentionally makes his work structured, clear, and empirically falsifiable, putting it against most causal theories of Chinese fiscal decline, which are done by economists. Second, David jumps in to ask whether the broader question here is about institutions. Can divergence be explained by excessive centralization in the Qing government or the role of underdeveloped financial markets? In addition, we delve in constitutional questions and interrogate whether Qing China had a constitutional system and the role that system played.

Referenced Readings

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

We are thrilled to welcome Professors Ran Abramitzky and Leah Boustan to the podcast to discuss their groundbreaking new book on immigration in America! Ran is the Stanford Federal Credit Union Professor of Economics at Stanford and Leah is a Professor of Economics at Princeton, where she also serves as the Director of the Industrial Relations Section. They are on the forefront of economic research on immigration and just published Streets of Gold: America’s Untold Story of Immigrant Success.

In this episode, we break down the three immigration myths that the book addresses. First, there is the false story about the speediness of the American Dream and how class mobility occurs (or doesn’t) over generations. Second, the data tell a counterintuitive story about how the “Ellis Island generation” of immigrants compares to current immigrants to the United States. Third, a common political argument is that new immigrants make present Americans worse off economically – a theory the data debunk.

Beyond these myths, we also touch on several other topics. Professors Abramitzky and Boustan walk through their methodology and the data they collected from the census and Ancestry.com. They also explain why the immigrant story has been consistent for generations in America, despite the fact that immigration today occurs in a vastly different America with modern technology, more resources, and immigrants from new countries. The story that the book tells also is one of optimism, which differs from that told by historians. Much to Sam’s delight, we discuss why and how the history and economics disciplines tell different stories about American immigration. Lastly, we talk about common political criticisms of immigration and how this book deals with those, especially when opposition comes from emotional arguments rather than facts.

Referenced Readings

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

Much like 2000s fashion – we’re back! The long wait is over. Digging a Hole’s new season is here!

After a summer of landmark Supreme Court cases, we are excited to start the season with Mary Ziegler, one of the nation’s leading experts and historians of U.S. abortion politics. Professor Ziegler is the Martin Luther King, Jr. Professor of Law at the University of California Davis School of Law. She has written four books on the social movements around reproductive rights, including, most recently, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.

We begin our conversation by asking Professor Ziegler of how we got to Dobbs – how the Republican Party, campaign finance laws, and the anti-abortion movement created the conditions for overturning Roe. Professor Ziegler then builds upon her op-ed in The Atlantic, discussing what implications Dobbs may have for the future of substantive due process, including for precedents related to contraception and gay marriage. We also discuss the implications of reproductive rights politics for future elections and if the elections in the past several weeks offer insights for how November might go. Lastly, we talk more broadly about what the future might look like -- what cases the Court will take on, what legislation will pass in states or in Congress, and what political conflicts will emerge.

Referenced Readings

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

For the last episode of the season, Digging a Hole hosted its first live show in front of a live student audience! David interviewed two current Yale Law School students – Nina Oishi and Caroline Grueskin – about recent papers they’ve written. We started by asking Nina about her recent paper “Rating Racial Equity: Examining BlackRock and Goldman’s New Racial Equity Initiatives in the Municipal Bond Market.” Yes, there are people other than David who write about the munibonds! Next, we talked to Caroline about her paper “At Least As Effective: OSHA, the State Plans, and Divergent Worker Protections from COVID-19.” We get deep in the weeds on OSHA and administrative law, and now you can too! Lastly, we brought an additional audience member in to do a “overrated” and “underrated” game with our interviewees. Come for the great student scholarship, stay for their hot takes.

If you have any guest ideas for next season or ideas for a future live show, shoot us an email at [email protected]

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

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

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

Referenced Readings

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

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

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

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

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

Referenced Readings

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

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

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

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

Referenced Readings

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

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

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

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

Referenced Readings

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

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

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

Are we finally at the brink?

Referenced Readings

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

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

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

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

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

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

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

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

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

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

Referenced Readings:

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

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

Referenced Readings:

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

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

Referenced Readings:

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

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

Referenced Readings:

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

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

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

Referenced readings:

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

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

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

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

Referenced Readings:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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, 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.

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.

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.

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