Digging a Hole: The Legal Theory Podcast

As Punxsutawney Phil to winter are we to summer; and today, we celebrate a very special end-of-season episode. Sam is joined by guest co-host Noah Rosenblum, Assistant Professor of Law at New York University School of Law, to discuss work by our very own David Schleicher. David’s new book, In a Bad State: Responding to State and Local Budget Crises, which is both a romp through the American history of state and local debt as well as a mirror-for-princes for bankruptcy judges and administrators, all while standing at a parsimonious 171 pages, is out today.

David first introduces his concept of the fiscal trilemma: that when responding to state and local budget crises, the American federal government must choose between bailing out state local and governments, imposing austerity measures, or letting them default. This framework opens up a wide-ranging conversation from infrastructure financing, where we discuss the Erie Canal and Alexandria Ocasio-Cortez, to the value-added tax, where David argues that the European tax system is a third way between AEI and Brookings. Oh, and because we’re a legal theory podcast, there’s lots of discussion of history, the nineteenth- and twentieth-century Supreme Court as a bunch of political hacks, and how the Great Recession and COVID have changed the political and legal landscape of public finance. Listen to this pod, buy David’s book, have a wonderful summer, and we’ll see you back in the fall.

This podcast is generously supported by Themis Bar Review.

Referenced Readings

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

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

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

• The Prince by Niccolò Machiavelli

The sun is shining, the flowers are blooming, and David’s back on the pod. More importantly, we’re thrilled this week to be joined by Julie Suk, Professor of Law at Fordham University School of Law in New York City, to discuss her new book After Misogyny: How the Law Fails Women and What to Do about It. After Misogyny, like much of Professor Suk’s scholarship, including her first book, is impressively interdisciplinary, centering women and gender in the legal, historical, sociological, and political stories of liberal constitutionalism. 

After Sam lays out all of the different fields that After Misogyny contributes to, ranging from feminist legal theory to comparative constitutionalism, Professor Suk explains her focus on the structural and legal aspects of misogyny. We discuss Professor Suk’s appropriation of the term “unjust enrichment” from private law, and how it explains what, on her view, is wrong with misogyny. Come with us on a journey through Prohibition and the fight for the Equal Rights Amendment in America and cross the pond to Sweden, Ireland, and France. We round out our wide-ranging conversation discussing the limits, but also the necessity, of legal and constitutional approaches to social problems. All this and more on this week’s pod – take a listen and find out.

This podcast is generously supported by Themis Bar Review.

Referenced Readings

• Down Girl: The Logic of Misogyny by Kate Manne

• The War on Alcohol by Lisa McGirr

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

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

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

• “Legal Formality” by Duncan Kennedy

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

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

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

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

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

This week, we’re joined by dual-wielding complex and aggregate litigation and law of democracy scholar Samuel Issacharoff to discuss his new book Democracy Unmoored: Populism and the Corruption of Popular Sovereignty. Sam Issacharoff, the Bonnie and Richard Reiss Professor of Constitutional Law at NYU Law and one of our leading democratic theorists, has written extensively on the role of courts in strengthening and protecting democracy and the democratic process.

Sam and David begin the podcast by poking the bear – isn’t populism a little passe? Professor Issacharoff doesn’t back down, pointing to his Argentine background and global focus, as well as his institutional expertise, as offering a new perspective on the conversation. Professor Issacharoff then talks economics and inequality before defending, championing, and even glamorizing (?!) political parties. This is a legal theory podcast, so we turn to courts and his theory of judicial intercession, but it’s also our legal theory podcast, so we learn some theology lessons along the way. We end the way we started, with Sam being a little cheeky and Sam Issacharoff demonstrating the timeliness of his book.

This podcast is generously supported by Themis Bar Review.

Referenced Readings

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

Another episode, another student of David and Sam’s on the podcast. Except this time, we have a current student instead of a former one! In this episode, a joint Lillian Goldman Law Library book talk-Digging a Hole production that took place in front of a live audience on January 23, 2023, we interview Yale Law student Jake Mazeitis and Wick Cary Associate Professor at the University of Oklahoma Andrew Porwancher on their book The Prophet of Harvard Law: James Bradley Thayer and His Legal Legacy.

We begin by discussing just who exactly James Bradley Thayer was and his contributions to the structure of American constitutional law. We dive into his intellectual and personal legacies, his litany of students who shaped American jurisprudence, and ruminate on the student-teacher relationship. Our guests develop an idea of what it means to be Thayerian, and how we all live with Thayer’s legacy – and even praise/accuse Sam of being a bona fide Thayerian. Finally, we discuss Thayer’s democratic motivations and the limits of his legal realism before turning it over to the audience for a few questions.

This podcast is generously supported by Themis Bar Review.

Referenced Readings

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

Happy new year and welcome to season six of Digging a Hole! We’re kicking this season off with a bang as Sam welcomes one of his former students – Timothy Shenk! Tim Shenk is an Assistant Professor in History at George Washington University and a prolific public writer who you may have read in the New York Times, Jacobin, or Dissent. More importantly for us, Professor Shenk is the author of the recently published book Realigners: Partisan Hacks, Political Visionaries, and the Struggle to Rule American Democracy.

In this episode, we dive into Realigners. What is a realigner? Who is a realigner? Can we understand the development of American democracy without realigners? The answer to the last question, says Professor Shenk, is no. From Madison to Obama, DuBois to Trump, and especially FDR and the New Deal Coalition, we talk about American history and the history of its greatest political actors as the history of realigners and realignment. And along the way, we discuss what it means to do presentist history and if there’s any hope for majority-making, self-government, and democracy in America.

This podcast is generously supported by Themis Bar Review.

Referenced Readings

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

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

• “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

• 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

• 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

• 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

• 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

• 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.

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.

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.

• 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.

• 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.

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!

• 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).

• 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 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.

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.

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

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.

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.

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