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Digging a Hole: The Legal Theory Podcast

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With AI’s ability to augment in-house creative teams, how does that change the way organizations should approach both their creative strategies and how they evaluate the value of creative as a business function? Today, we’re joined by Jen Rapp, Chief Marketing Officer at Superside. Jen has had key roles at iconic brands like Patagonia, Arc’teryx, DoorDash, Owlet Baby, and Klaviyo. Now, she’s leading Superside’s rebrand with a focus on AI-powered creative services that augment in-house teams. RESOURCES Superside website: https://www.superside.com Wix Studio is the ultimate web platform for creative, fast-paced teams at agencies and enterprises—with smart design tools, flexible dev capabilities, full-stack business solutions, multi-site management, advanced AI and fully managed infrastructure. https://www.wix.com/studio Don't miss Medallia Experience 2025, March 24-26 in Las Vegas: Registration is now available: https://cvent.me/AmO1k0 Use code MEDEXP25 for $200 off registration Don't Miss MAICON 2025, October 14-16 in Cleveland - the event bringing together the brights minds and leading voices in AI. Use Code AGILE150 for $150 off registration. Go here to register: https://bit.ly/agile150 Connect with Greg on LinkedIn: https://www.linkedin.com/in/gregkihlstrom Don't miss a thing: get the latest episodes, sign up for our newsletter and more: https://www.theagilebrand.show Check out The Agile Brand Guide website with articles, insights, and Martechipedia, the wiki for marketing technology: https://www.agilebrandguide.com The Agile Brand podcast is brought to you by TEKsystems. Learn more here: https://www.teksystems.com/versionnextnow The Agile Brand is produced by Missing Link—a Latina-owned strategy-driven, creatively fueled production co-op. From ideation to creation, they craft human connections through intelligent, engaging and informative content. https://www.missinglink.company…

3 роки тому 55:00

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

If you have any guest ideas for next season or ideas for a future live show, shoot us an email at diggingaholepodcast@gmail.com

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Digging a Hole: The Legal Theory Podcast

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Digging a Hole: The Legal Theory Podcast

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If you have any guest ideas for next season or ideas for a future live show, shoot us an email at diggingaholepodcast@gmail.com

68 епізодів

#Science #Social Sciences #Dig A Hole

Усі епізоди

Digging a Hole: The Legal Theory Podcast

1
Allison Powers Useche 1:01:38

5 weeks тому1:01:38

1:01:38

Happy February, listeners, and welcome to season ten of Digging a Hole ! When we started the pod five years ago, we had our eyes on the Grammys, or maybe the Emmys, whatever award show we could finagle our way into. Turns out we have bigger fish to fry than whether or not we’re more deserving of an award than Call Her Daddy — Greenland, anyone? We’re thrilled to be kicking off this season with someone who knows a great deal about United States Empire: Allison Powers Useche, Assistant Professor of History at the University of Wisconsin–Madison, and author of the new book, Arbitrating Empire : United States Expansion and the Transformation of International Law . Powers Useche kicks us off with a discussion of the use of the arbitration forum as a place to hear what we now think of as international public law claims, including challenges to racial violence and Jim Crow. We dive into some case studies about how ordinary people across the Americas fought the United States in arbitration and offer competing interpretations about how to think about what happened from a legal realist perspective. Finally, we get Powers Useche’s take on how environmentalists, Indigenous groups, and others are using the tools of private economic law to contest empire today. This podcast is generously supported by Themis Bar Review. Referenced Readings Mestizo International Law: A Global Intellectual History 1842–1933 by Arnulf Becker Lorca The Hidden History of International Law in the Americas: Empire and Legal Networks by Juan Pablo Scarfi Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century by Benjamin Allen Coates The Injustice Never Leaves You: Anti-Mexican Violence in Texas by Monica Muñoz Martinez…

Digging a Hole: The Legal Theory Podcast

1
Karen Tani 53:24

11 weeks тому53:24

53:24

The start of a new year, the slouch towards the first days of the new semester, the last episode of yet another season of the pod: we’re feeling sentimental here at Digging a Hole HQ. As you take down your old calendars and put up the new, we’re going to take some time to engage in a tradition of ours at the pod and discuss the 2024 Harvard Law Review Supreme Court foreword, “ Curation, Narration, Erasure: Power and Possibility at the U.S. Supreme Court ,” with its indomitable author and the Seaman Family University Professor at Penn Carey Law, Karen M. Tani. We begin by discussing the genre of the Harvard Law Review foreword, and how Tani’s approach differs from forewords of yore. Next, we dive deeply into each prong of Tani’s framework of curation, narration, and erasure. We turn to familiar themes of the law-politics divide and the relationship between law and history, with Tani clarifying how this past Supreme Court term adds to our understanding of these big ideas. Finally, we conclude the pod with a discussion of prophecy (and here’s one: you’re going to have a ball with this episode, so hurry up and hit play!). This podcast is generously supported by Themis Bar Review. Referenced Readings “ A Century-Old Law’s Aftershocks Are Still Felt at the Supreme Court ” by Adam Liptak “ Nomos and Narrative ” by Robert M. Cover “ Selling Originalism ” by Jamal Greene The Prophetic Imagination by Walter Brueggemann “ Demosprudence Through Dissent ” by Lani Guinier “ A Plea to Liberals on the Supreme Court: Dissent With Democracy in Mind ” by Ryan D. Doerfler and Samuel Moyn…

Digging a Hole: The Legal Theory Podcast

1
Dan Rodriguez 48:54

13 weeks тому48:54

48:54

Now that the election is done and dusted, and we’ve had a chance to process somehow one of the least controversial presidential races of the last few decades, America’s back to business, with Congressmen threatening international institutions, the American public spending gobsmacking amounts of money for the holiday season, and California declaring a state of emergency over bird flu. Wait a second—can states even do that? Lucky for us, today’s podcast guest is an expert on state and local government law and state constitutional law who’s written a book on the very subject. We’re thrilled to welcome back the Harold Washington Professor of Law at the Northwestern University Pritzker School of Law, Daniel B. Rodriguez, to discuss his new (open-access!) book Good Governing : The Police Power in the American States . Ever wondered what the terms sic utere and salus populi mean? We kick off the podcast discussing those two different approaches to the police power of the states. Rodriguez expounds on his thesis about the development of state police power by discussing all the state cases he’s read, and why legal scholars focused on the federal courts usually get things wrong. Next, we discuss the different kinds of checks that exist on state power: structural, rights-based, and democratic. We then turn to the interplay between police power on the one hand, and the state and local government relationship on the other. (Sam’s out for this one, so you know we really get into the weeds of state and local governments.) Finally, we wrap up with Rodriguez’s argument for why state capacity is a problem of state constitutional law and good governing. This podcast is generously supported by Themis Bar Review. Referenced Readings The People’s Welfare: Law and Regulation in Nineteenth-Century America by William J. Novak “ The Purposes of American State Constitutions ” by Donald S. Lutz How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart by Jamal Greene…

Digging a Hole: The Legal Theory Podcast

1
2024 Election with Benjamin Wallace-Wells 1:08:16

18 weeks тому1:08:16

1:08:16

The year is 2025. Department of Government Efficiency dons Elon Musk and Vivek Ramaswamy have broken ground on their new taxpayer-funded palace, the architectural plans of which look suspiciously like a Cybertruck. HHS Secretary RFK Jr. has received a standing ovation from Congress after announcing that children will be given brain worms at birth instead of vaccines. Attorney General Matt Gaetz has just announced that people who successfully stand their ground will be mailed a sticker from DOJ. How did we get here? To help us break down the results of last week’s elections, and to offer a sounding board to Sam and David’s hot takes, joining the pod is New Yorker staff writer and political reporter Benjamin Wallace-Wells. We start off by discussing swing voters, the failures of the Democrats and the Harris campaign, and what the election results hint about the future of the Republican party. (FWIW, we recorded before the Hegseth/Gabbard/Gaetz nominations.) We work through how the election was shaped by local concerns including perceptions of crime and disorder all the way to big international topics like the Russia-Ukraine war. Putting their heads together, Sam, David, and Wallace-Wells come up with a grand unified theory of local, national, and cultural politics in America today. Listen to find out everything you need to know about the election—and let us know if we got it right. This podcast is generously supported by Themis Bar Review. Referenced Readings Grand New Party: How Republicans Can Win the Working Class and Save the American Dream by Ross Douthat and Reihan Salam “ The Future Is Faction ” by Steven M. Teles and Robert P. Saldin “ Trump Is About to Face the Choice That Dooms Many Presidencies ” by Oren Cass “ The Improbable Rise of J. D. Vance ” by Benjamin Wallace-Wells “ This Is All Biden’s Fault ” by Josh Barro “ The Failures of Urban Governance ” by David Schleicher…

Digging a Hole: The Legal Theory Podcast

1
Brian Highsmith 48:22

24 weeks тому48:22

48:22

On this week’s podcast, we’re going more local than we’ve ever gone before, discussing the pleasures and perils of the company town. Here to be our local guide through this topic, and discussing his forthcoming paper, “Governing the Company Town” is Brian Highsmith — a former student of David’s, Ph.D. candidate in Government and Social Policy at Harvard University, an academic fellow in law and political economy at Harvard Law School, and an affiliated senior researcher at Yale Law School’s Arthur Liman Center for Public Interest Law. We begin this conversation by discussing what the company town was and what it wasn’t, legally and historically. Highsmith proposes that Madison’s theory of factions is the best conceptual framework to understand company towns, while Sam pushes back on company towns as being uniquely subject to private power. After we engage in a bit of democratic theory, David presses Highsmith on whether the answer to bad localism is good localism, and how we might regulate the municipal race to the bottom. Give the pod a listen and find out. This podcast is generously supported by Themis Bar Review. Referenced Readings Federalist 10 by James Madison Crack-Up Capitalism: Market Radicals and the Dream of a World Without Democracy by Quinn Slobodian “ The For-Profit City That Might Come Crashing Down ” by Rachel Corbett “ Regulating Location Incentives ” by Brian Highsmith “ Worthwhile Canadian Initiative ” by Flora Lewis…

Digging a Hole: The Legal Theory Podcast

1
Melissa Schwartzberg 51:08

26 weeks тому51:08

51:08

Good news, listeners! Our rational and responsive representatives in Washington have agreed to keep the federal government running through December 20. (As far as we know, anyway.) You might be tired of the all the backroom dealing it seems to take to keep national parks open and the wheels of our country turning. Get it together, you grumble. But as realists in the world of legal theory, we wanted to ask: what would it mean to take legislative dealmaking seriously, and is it possible for deals to be good and just? (Shoot for the moon.) And here to help with that question, hitting our pod is an expert in democratic theory and the law, a former editor of NOMOS, and the Silver Professor of Politics at New York University, Melissa Schwartzberg. On this episode, we discuss Schwartzberg and co-author Jack Knight’s doozy of a new book, Democratic Deals: A Defense of Political Bargaining . To help with orienting our readers, Sam asks Schwartzberg to explain how political theorists and political scientists think of legislative dealmaking—and what’s missing. Schwartzberg introduces the book’s main conceptual yardstick, the equitable treatment of interests, and how looking to contract and constitutional law helps illuminate what a well-functioning legislature looks like. David, realest of the realists, pushes Schwartzberg on how her theory applies to state and local legislative bodies like the Los Angeles County Commission, before we end with a democratic-theory-inflected discussion on the role of courts in a legislative democracy. This podcast is generously supported by Themis Bar Review. Referenced Readings On Compromise and Rotten Compromises by Avishai Margalit Democracy and Legal Change by Melissa Schwartzberg Counting the Many: The Origins and Limits of Supermajority Rule by Melissa Schwartzberg “ Worthwhile Canadian Initiative ” by Flora Lewis…

Digging a Hole: The Legal Theory Podcast

1
Jack Balkin 1:08:59

28 weeks тому1:08:59

1:08:59

Welcome back, dear listeners, to season nine of Digging a Hole ! We’re just as surprised as you are that we haven’t been taken off the air yet, but we’re here and ready to keep producing hit after hit— at least while Yale Law School keeps funding us, anyway. After a summer of roller-coaster legal and political action, we’re ready to help you navigate the turbulent times ahead. But before we get to current events, it’s worth dwelling on history. And today we’re excited to have on the pod our colleague Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, to discuss his new book, sure to be a classic in constitutional theory, Memory and Authority : The Uses of History in Constitutional Interpretation . To start off, Sam engages Balkin over the question of why, under the latter’s taxonomy, history isn’t a unique modality of constitutional interpretation. Next, Balkin explains what constitutional lawyers do, what makes their argumentative tools unique, and the relationship between history, memory, and the rhetoric of law. We dive into (what else?) originalism, both as an academic discipline with fancy conferences in San Diego and as a political ideology that reigns supreme in the courts (at least in cafeteria-form). If we haven’t piqued your interest, this episode features for the first time on the pod, according to our memory but perhaps not our history, one Mr. Hegel. Strap in and enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings Constitutional Interpretation by Philip Bobbitt The Philosophy of History by G.W.F. Hegel State Repression and the Labors of Memory by Elizabeth Jelin “ Interdisciplinarity as Colonization ” by Jack Balkin “ The Crystalline Structure of Legal Thought ” by Jack Balkin Introduction to the Philosophy of History by G.W.F. Hegel Zahkor: Jewish History and Jewish Memory by Yosef Hayim Yerushalmi “ Collective Memory and Historical Consciousness ” by Amos Funkenstein “ What is a Nation? ” by Ernest Renan…

Digging a Hole: The Legal Theory Podcast

1
Dylan Penningroth 1:02:22

42 weeks тому1:02:22

1:02:22

With the long weekend in the books, summer’s officially here. School’s out, and we can’t imagine why people would be thinking about American universities – has anything interesting or controversial been happening on campus recently? (Our field correspondent David Pozen reports .) Anyway, today’s episode is the last episode of the season, and we’re excited to let this one linger in your minds for the next few months. Today’s very special guest is the MacArthur “Genius” Award-winning Dylan C. Penningroth, Professor of Law and Alexander F. and May T. Morrison Professor of History at the University of California, Berkeley, here to discuss his wonderful new book Before the Movement : The Hidden History of Black Civil Rights . Penningroth begins by showing how his research expands the scope of African American history to everyday legal relations between Black individuals and discusses his great-great-great-uncle as a great example. After Sam and Penningroth frame the conversation as one about Black people using private rights in support of the southern economy, David follows up with a question about the inevitability of capitalism. Next, Penningroth makes the case that his account complements, instead of contradicts, the politically-focused work of W.E.B. DuBois and historians like Risa Goluboff and Eric Foner. We end this semester with some advice for social movements. See you on the other side, listeners. This podcast is generously supported by Themis Bar Review. Referenced Readings “ The Privilege of Family History ” by Kendra T. Field “ Race in Contract Law ” by Dylan C. Penningroth “ Why the Constitution was Written Down ” by Nikolas Bowie Nothing But Freedom: Emancipation and Its Legacy by Eric Foner Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms by Richard R. W. Brooks and Carol M. Rose The Lost Promise of Civil Rights by Risa L. Goluboff Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality by Richard Kluger…

Digging a Hole: The Legal Theory Podcast

1
Mehrsa Baradaran 1:04:14

43 weeks тому1:04:14

1:04:14

We’re almost at the end of our season, just as the biggest sports leagues in the world come to the end of theirs (as our guest today says, it all revolves around oil, and maybe a bit of corruption and looting). Speaking of today’s guest, we’ve got on an expert in banking and the racial wealth gap whose biography will probably surprise you at every turn: Mehrsa Baradaran, Professor of Law at the University of California Irvine School of Law, who takes us on a tour of her new book The Quiet Coup : Neoliberalism and the Looting of America . Even though Sam and David’s respective views on neoliberalism are what makes this a podcast divided, Baradaran opens the podcast by telling us that neoliberalism is synonymous with corruption and looting, but also that she’s a big fan of markets. Next, Baradaran gives us a brief and maybe controversial account of the post-World War Two era, placing empire and race, not economics or ideology, at the center. Sam presses Baradaran on her thesis: that conmen and grifters, big oil and big tobacco, used neoliberalism, which then gained a life of its own as law and economics. David valiantly defends law and economics (sadly, no one seems to be convinced). We end with exposing the quietest coup: maybe Baradaran, in aiming to bare everything wrong with our economic system, was the real neoliberal all along. This podcast is generously supported by Themis Bar Review. Referenced Readings The Wretched of the Earth by Franz Fanon The Color of Money: Black Banks and the Racial Wealth Gap by Mehrsa Baradaran Public Citizens: The Attack on Big Government and the Remaking of American Liberalism by Paul Sabin The End of Ideology: On the Exhaustion of Political Ideas in the Fifties by Daniel Bell The God Delusion by Richard Dawkins Racecraft: The Soul of Inequality in American Life by Karen E. Fields and Barbara J. Fields “ Protestors Criticized For Looting Businesses Without Forming Private Equity Firm First ” in The Onion…

Digging a Hole: The Legal Theory Podcast

1
Kunal Parker 56:44

47 weeks тому56:44

56:44

Dear listeners, this season has been riveting, and it’s been a little controversial. Some of you have written in (if you listen to this episode, you’ll see we’ve graced certain aggrieved parties with a response). We see you, we hear you, and boy, do we have a classic legal theory podcast for you. Today’s guest is Kunal Parker, Professor and Dean's Distinguished Scholar at the University of Miami School of Law, here to talk about his fabulous new book The Turn to Process : American Legal, Political, and Economic Thought, 1870–1970 . If you liked his first book–and if you didn’t, you’re probably a wretched anti-foundationalist–you’ll love this spiritual sequel. We begin by asking Parker to lay out his thesis, which is, surprise, surprise, that there was a turn from substance to process in economic, political, and most saliently for us, legal thought in the twentieth century. Next, we discuss how much the phenomenon Parker describes is its own thing versus concomitant with American pragmatism and the disciplinification of the modern research university. We make sure everything gets filtered through big important legal thinkers–Holmes and Fortas, Frankfurter and Bickel–before turning to today’s neo-formalistic approaches to the law: neo-Aristotelians, the new private law theorists, et al. (and if we’ve missed anyone, we can guarantee that our listeners will let us know). This podcast is generously supported by Themis Bar Review. Referenced Readings “ Radical Mismatch ” by Stephen Holmes Rules for the Direction of the Mind by René Descartes “ Mr. Justice Black and the Living Constitution ” by Charles Reich Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940 by Daniel Ernst On Democracy by Robert Dahl The Public and its Problems by John Dewey Age of Fracture by Daniel Rodgers…

Digging a Hole: The Legal Theory Podcast

1
Noah Feldman 53:28

49 weeks тому53:28

53:28

On today’s podcast, we’re excited to welcome back former Digging a Hole guest Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School. We take a break from legal theory and indulge Feldman in a discussion about his new book, To Be a Jew Today : A New Guide to God, Israel, and the Jewish People . In this episode, which was adapted from a conversation between Feldman and Sam at Yale Law School, we dive into Feldman’s theory of Judaism as a theology of struggle, his taxonomy of Jewry, and his insistence that a relationship to Israel and contestation over Zionism is at the heart of what it means to be a Jew today. This podcast is generously supported by Themis Bar Review. Referenced Readings The Jewish Century by Yuri Slezkine “ She Pioneered Internet Fame, He Helped Draft a Constitution. Now They’re in Love ” by Joseph Bernstein “ Orthodox Paradox ” by Noah Feldman “ The Great Rupture in American Jewish Life ” by Peter Beinart…

Digging a Hole: The Legal Theory Podcast

1
David Pozen 1:05:52

1 year тому1:05:52

1:05:52

Have you ever wondered about the legal history of the war on drugs? Even if you haven’t, we won’t mollycoddle you – this episode’s a trip. Our guest on today’s podcast is a scholar of constitutional law and information law known for really getting in the weeds and dunking what we think we know in an acid bath. We’re delighted to have joining us today the radical David Pozen, Charles Keller Beekman Professor at Columbia Law School, here to talk about his far out new book, The Constitution of the War on Drugs . In this episode, we dive into the law, politics, and history of drug legalization and criminalization in the United States. We begin by Pozen giving an impassioned plea for how the war on drugs implicates racial justice, equal protection, federalism, and cruel and unusual punishment. Next, Sam dunks on history. Throughout the episode, we discuss the political economy of drugs (New York’s botched marijuana rollout) and generational divides (Clinton’s “I didn’t inhale”). We end by contemplating the brain-bending, otherworldly potential of the First Amendment to protect heightened brain states. Pour yourself a Coke and enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings “ Silver Blaze ” by Arthur Conan Doyle “ Beyond Carolene Products ” by Bruce Ackerman The American Disease: Origins Of Narcotic Control by David Musto “ The Crisis in Teaching Constitutional Law ” by Jesse Wegman The Age of Addiction: How Bad Habits Became Big Business by David Courtwright How to Change Your Mind by Michael Pollan…

Digging a Hole: The Legal Theory Podcast

1
Daryl Levinson 1:01:07

1 year тому1:01:07

1:01:07

Listeners, law professors have been having a bit of a crisis. Those poor souls have been asking: is international law real? (No comment.) What about constitutional law – that has to be real, right? The New York Times ran an op-ed this week where con law professors more or less said, “no, but we’ll keep pretending as long as we can.” (As Calvin Trillin wrote in 1984, what if con law “really wasn’t the ideal place for a smart boy with a social conscience to go?”) Feeling down in the dumps, we brought on this week’s guest, David Boies Professor of Law at NYU Daryl Levinson, to dispel disenchantment through a discussion of his new book, Law for Leviathan : Constitutional Law, International Law, and the State . Levinson begins by assuring us that not only are international law and constitutional law both real, they’re real in the same way – as sub-species of a law for states. Next, we clarify that the Levinsonian law for states is a functionalist account of law and place it in both the Anglo-American and continental European international law traditions. Finally, we talk about how each of international and constitutional law relate to democracy – and what happens when a class of economic leviathans grows powerful enough to challenge the state. This podcast is generously supported by Themis Bar Review. Referenced Readings The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India by Philip J. Stern “ Private Supreme Courts ” by David Fontana and David Schleicher “ Separation of Parties, Not Powers ” by Daryl Levinson and Richard Pildes…

Digging a Hole: The Legal Theory Podcast

1
Robert Post 1:17:11

1 year тому1:17:11

1:17:11

Welcome back, devoted listeners, and say hello to season eight of Digging a Hole , where we’ve got an extraordinarily stacked lineup just waiting in the wings. To make up for the cold, cold months where you had to get your legal theory fix from reading articles (boring) or attending faculty workshops (ugh), we’re kicking off the season with a mammoth episode about a mammoth book. Today’s guest is the former dean and current Sterling Professor of Law at Yale Law School, and Co-Reporter for the American Law Institute, Robert Post, here to talk about Volume 10 of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States (aka the official biography of SCOTUS), The Taft Court : Making Law for a Divided Nation, 1921 to 1930 . From the outset, Post sets the stage for his argument that the Taft Court and the 1920s are an important but underappreciated time in American legal history. We discuss how the Taft Court grows out of and evolves according to two social questions wrenching the nation – the First World War and Prohibition. Next, we talk about the different theories of sovereignty and democracy as represented by the different wings of the court, with Taft playing counterpoint to lionized jurists Brandeis and Holmes. Sam, angling for his dream job of author of Volume 14 of the Devise, peppers Post with questions about formalism, realism, and consequentialism. We’re not kidding when we say that’s only half the episode – but, listeners, the second half is a can’t-miss if you care about Taft the master administrator, judicial politics, and the power of the Supreme Court. We hope you enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 by William G. Ross…

Digging a Hole: The Legal Theory Podcast

1
Cass Sunstein 1:04:26

1 year тому1:04:26

1:04:26

Like George Santos’s tenure in Washington and Tim Scott’s rousing presidential campaign, all good things must come to an end, and so we wave goodbye to season seven of Digging a Hole . Our last guest of this season needs no introduction: according to our team of in-house scientists, if you stacked a penny for each citation he’s received, the tower of pennies would reach almost 1,000 feet high (which, frankly, is not as tall as our scientists expected but is taller than any other scholar’s penny tower). That’s right – our guest today is an author of a best-selling book about Star Wars, the former Administrator of the Office of Information and Regulatory Affairs, and current Robert Walmsley University Professor at Harvard Law School: Cass Sunstein, here to talk about his new book, How to Interpret the Constitution . We begin by laying out the thesis of the book: that we must have a theory of interpreting the Constitution that comes from outside the Constitution, and that we should choose the interpretive theory that makes our nation the best off. That simple? Sam and David don’t think so, and we discuss what it means to make our nation better off, why we need to choose an interpretive theory in the first place, and how we might revise the thesis on a more institutional view. Next, we look at judicial politics and restraint through the specter that haunts our podcast, James Bradley Thayer. And finally, we get to the bottom of Sunstein’s predictive judgments about the future of constitutional interpretation and American democracy. See you next year. This podcast is generously supported by Themis Bar Review. Referenced Readings “ Blasphemy and the Original Meaning of the First Amendment ” “ The Forum of Principle ” by Ronald Dworkin “ Efficiency vs. Welfare in Benefit-Cost Analysis: The Case of Government Funding ” by Zachary Liscow and Cass Sunstein…

Digging a Hole: The Legal Theory Podcast

1
Jennifer Burns 56:24

1 year тому56:24

56:24

It’s the last month of the year and soon (but not yet!), it’ll be the last podcast of the season. We had a lot of people write in about our last episode and so this Christmas, on behalf of all of you, we’ll ask Santa for more Digging a Hole . But before we leave out some milk and cookies, we’ve still got some great episodes for you. Today, we’ve got a pre-recorded episode that – can you believe it – couldn’t be aired for contracts (?!) reasons. But the embargo has been lifted! And here on the pod to talk about no less than a prince of free trade is Jennifer Burns, Associate Professor of History at Stanford University, discussing her new book, Milton Friedman : The Last Conservative . David and Sam start off by making Burns defend the subtitle of the book – was Friedman really the last conservative? Then we discuss the breadth of Friedman’s life and the breadth of Burns’s book, which travels the terrain of the intellectual history of economics to the study of Friedman as libertarian and television celebrity. We get deep into the debate between Keynesianism and monetarism – no math required, but make sure you’ve done your macro readings. Sam wants to know if the book is too easy on Friedman, especially his involvement in Chile. David wants to know if Friedman surrounded himself by sycophants to duck debates. And amidst all of that, Burns makes the case for Friedman as an underappreciated economic thinker who might be right about charter schools. Yes, we know that’s a lot. We hope you enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings “ The Mighty Wurlitzer Plays On ” by Tim Barker…

Digging a Hole: The Legal Theory Podcast

1
Will Baude 57:24

1 year тому57:24

57:24

Listeners – our apologies. We’ve given you interesting topic after interesting topic, distinguished guest after distinguished guest. But we’ve strayed from the promise of the podcast, which is legal theory, and legal theory means arguing ad nauseam about whether we’re positivists or normativists. For a recent intervention in that debate, we’re delighted to bring you today’s guest, William Baude, the Harry Kalven, Jr. Professor of Law and Faculty Director of the Constitutional Law Institute at the University of Chicago Law School and a member of the Presidential Commission on the Supreme Court of the United States, to discuss his 2023 Scalia Lecture at Harvard Law School, “ Beyond Textualism? ”. We recommend you give the paper a skim before listening – Sam and David don’t waste any time getting into it on this episode. David presses Baude on the relationship between textualism and democracy while Sam is skeptical that Baude’s project is properly textualist at all. Next, we try to make sense of how the law-policy distinction maps onto the common law and the so-called general law past and present. Our tour continues to statutory interpretation before we get to the normativist-positivist debate (or: what’s the difference between Will Baude and Adrian Vermeule?). We end by discussing Baude’s recent foray into celebrity and whether the Constitution bars Donald Trump from running for president. This podcast is generously supported by Themis Bar Review. Referenced Readings A Matter of Interpretation by Antonin Scalia “ Finding Law ” by Stephen Sachs “ General Law and the Fourteenth Amendment ” by Will Baude, Jud Campbell, and Stephen Sachs Legalism by Judith Shklar “ The ‘Common-Good’ Manifesto ” by Will Baude and Stephen Sachs “ The Real Enemies of Democracy ” by Will Baude…

Digging a Hole: The Legal Theory Podcast

1
Daniel Ziblatt 57:43

1 year тому57:43

57:43

Squarely in the heart of the Trump administration, Steven Levitsky and Daniel Ziblatt published a book titled How Democracies Die which proved enormously popular. Celebrities read it. Obama read it. Most people you know probably pretended to have read it. Five years later, Levitsky and Ziblatt are back with a sequel of sorts, arguing that in the United States, democracy might never have been fully alive in the first place, strangled in the cradle by our very own constitution. To explain how their thinking has changed since How Democracies Die and discuss the new book, Tyranny of the Minority , we’re thrilled to have on today’s podcast Daniel Ziblatt, Eaton Professor of Government at Harvard University and director of the Transformations of Democracy group at Berlin's Social Science Center. In this episode, we poke around into all of the different ways the United States privileges minoritarian politics. Ziblatt explains that a major contribution of Tyranny of the Minority is showing how regular politics interact with our constitution’s minoritarianism to create a particularly potent anti-democratic danger for the United States. We discuss the legislative advantage minorities have in the U.S. thanks to our love of holding onto grand old traditions like the filibuster and what that means for statutory interpretation. Democratic backsliding, the advantages of party politics, papal smoke and mirrors–it’s all in there. We hope you enjoy. This podcast is generously supported by Themis Bar Review. Referenced Readings How Democracies Die by Steven Levitsky and Daniel Ziblatt Democratic Justice : Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment by Brad Snyder “ Inside or Outside the System? ” by Eric Posner and Adrian Vermuele After Misogyny : How the Law Fails Women and What to Do about It by Julie Suk The Anti-Oligarchy Constitution : Reconstructing the Economic Foundations of American Democracy by Joseph Fishkin and William Forbath “ The Insulation of Local Governance from Black Electoral Power: Northern Cities and the Great Migration ” by Jacob Grumbach, Robert Mickey, and Daniel Ziblatt…

Digging a Hole: The Legal Theory Podcast

1
Emma Kaufman 56:14

1 year тому56:14

56:14

As the Supreme Court moves forward with its administrative state agenda, we thought we’d get in on the action and make sure we understand what exactly that agenda even is . Lucky for us, we’ve got some friends who can shed light on that matter. On today’s episode, we’re joined by Emma Kaufman, Professor of Law at New York University Law School, to discuss her paper, co-authored with previous pod guest Adam Cox, “ The Adjudicative State .” In this episode, we talk about the administrative state as a neglected site of adjudication and agency adjudication as a neglected site of administration. First, Professor Kaufman explains how her past research on immigration helped her identify and break through these blind spots. Next, we talk about how best to achieve equal justice under the law. Should we follow the legal academy, and half the op-eds in the New York Times , and leave politics out of courts? Or should we politicize justice entirely? (It turns out politicizing administration is complicated anyway!) Finally, Professor Kaufman leaves us with a bit of a cliff-hanger – stay tuned for her history of private prosecution and tune in to find out how it related to the rest of the topics on today’s pod. This podcast is generously supported by Themis Bar Review. Referenced Readings “ 1930s Redux: The Administrative State Under Siege ” by Gillian Metzger…

Digging a Hole: The Legal Theory Podcast

1
J.B. Ruhl and Jim Salzman 49:48

1 year тому49:48

49:48

After a long summer vacation, we’re thrilled to be back for season seven of Digging a Hole ! Just a couple of weeks ago we were baking; now we’re surviving storm after storm, quivering and quaking. Climate change, huh? Here on the pod to discuss their forthcoming paper on how environmental law can help get us out of our existential crisis, “ The Greens' Dilemma: Building Tomorrow's Climate Infrastructure Today ” are J.B. Ruhl, the David Daniels Allen Distinguished Chair in Law at Vanderbilt Law School, and Jim Salzman, the Donald Bren Distinguished Professor of Environmental Law at the UCLA School of Law. What is the Greens’ Dilemma – and is it even a dilemma exactly? Sam and David have their doubts, but Professors Ruhl and Salzman lay out what they think the dilemma that environmentalists face is, why it’s a dilemma, and their proposed solution to it. Professors Ruhl and Salzman discuss coalition building for green infrastructure and why they might be able to get both progressives and conservatives on board. Is a rapid transition to clean energy and negative emissions compatible with environmental justice (EJ)? Our guests answer with an emphatic yes but ask you, our argumentative listeners, to engage and disagree. This podcast is generously supported by Themis Bar Review. Referenced Readings “ Samuel Moyn Can’t Stop Blaming Trumpism on Liberals ” by Jonathan Chait Mine!: How the Hidden Rules of Ownership Control Our Lives by Michael Heller and Jim Salzman “ What Happens When the Green New Deal Meets the Old Green Laws? ” by J.B. Ruhl and Jim Salzman Public Citizens: The Attack on Big Government and the Remaking of American Liberalism by Paul Sabin…

Digging a Hole: The Legal Theory Podcast

1
David Schleicher 1:14:47

2 years тому1:14:47

1:14:47

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…

Digging a Hole: The Legal Theory Podcast

1
Julie Suk 52:55

2 years тому52:55

52:55

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…

Digging a Hole: The Legal Theory Podcast

1
Duncan Kennedy 48:12

2 years тому48:12

48:12

This episode, we swap out one legend of legal theory for another. Goodbye David, hello to our guest – the one and only Duncan Kennedy! As part of a course he’s teaching at Yale Law School, Foundations of American Legal Thought, Sam interviewed Professor Kennedy in front of a live audience on March 8, 2023. Professor Kennedy, the Carter Professor of General Jurisprudence, Emeritus, at Harvard Law School, is a legal and social theorist and one of the founding members of the Critical Legal Studies movement. We learn about Professor Kennedy’s experience as a student at Yale Law School (three cheers for insider baseball) and his experience with so-called generational revolt. Next, we turn to his academic accomplishments: Professor Kennedy discusses some of his early articles, which were instrumental in the origins of the so-called Critical Legal Studies movement. Finally, we conclude the conversation with a discussion of the Law and Political Economy movement. Many of our listeners might be familiar with LPE, and might even have wondered what the CLS vanguard have to say about it. Give this pod a listen to find out. This podcast is generously supported by Themis Bar Review. Referenced Readings The Transformation of American Law, 1780-1860 by Morton Horwitz “ Legal Formality ” by Duncan Kennedy The Rise and Fall of Classical Legal Thought by Duncan Kennedy “ Form and Substance in Private Law Adjudication ” by Duncan Kennedy Social Thought in America: The Revolt Against Formalism by Morton White “ The Structure of Blackstone’s Commentaries ” by Duncan Kennedy “ ⁠In Defense of Rent Control and Rent Caps⁠ ” by Duncan Kennedy…

Digging a Hole: The Legal Theory Podcast

1
Sam Issacharoff 1:09:01

2 years тому1:09:01

1:09:01

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…

Digging a Hole: The Legal Theory Podcast

1
James Bradley Thayer 47:48

2 years тому47:48

47:48

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…

Digging a Hole: The Legal Theory Podcast

1
Timothy Shenk 1:05:15

2 years тому1:05:15

1:05:15

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…

Digging a Hole: The Legal Theory Podcast

1
Greg Sargent & the Midterm Election 1:12:13

2 years тому1:12:13

1:12:13

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…

Digging a Hole: The Legal Theory Podcast

1
Kate Klonick & the Twitter Takeover 44:45

2 years тому44:45

44:45

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…

Digging a Hole: The Legal Theory Podcast

1
Jacob Grumbach 57:57

2 years тому57:57

57:57

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…

Digging a Hole: The Legal Theory Podcast

1
Gary Gerstle 1:12:34

2 years тому1:12:34