We’ve had a lot of fun this spring, but a sweet summer scent is on the wind, and so we’re going to have to wrap up another successful season of Digging a Hole with today’s episode—it’s a real clambake. Courts have paid a lot of attention in recent years to what the executive branch can and can’t do: non-delegation, major questions, student loans, DOGE. The question of what the federal government as a whole can and can’t do, on the other hand, has been settled for a while. Settled, but wrongly, says our guest. Arguing against the weight of constitutional law, history, and memory, we’re delighted to welcome to the pod Richard Primus, the Theodore J. St. Antoine Collegiate Professor of Law at the University of Michigan, to discuss his Straussian reading of the Constitution and new book, The Oldest Constitutional Question: Enumeration and Federal Power.
We start off the episode by defining enumerationism, what it is as a theory, and whether or not it works as a matter of practice. Primus tells us about how Congress’s enumerated powers are important to both federalism and the separation of powers, but shouldn’t actually limit the authority of the federal government. Sam and David jump in with questions about whether a legal theory taught to first-year constitutional law students actually does the work in constraining the exercise of power by the federal government. In response, Primus dives into the structural and historical underpinnings of his pro-federal government argument and ends with his hope for constitutional change. We hope you enjoy.
This podcast is generously supported by Themis Bar Review.
Referenced Readings
Liberals have been introspecting (some may say self-flagellating) since the 2024 election, to varying degrees of convincingness and success. There’s the usual genre of complaints—NIMBYism, identity politics, the crisis of masculinity, forgetting about the factory man—but the one thing liberals agree on is that they can’t be blamed for following their good, apolitical science. Today’s guests want you to rethink that. We’re thrilled to have on Frances Lee, Professor of Politics and Public Affairs, and Stephen Macedo, Laurance S. Rockefeller Professor of Politics and the University Center for Human Values, both at Princeton University, to discuss their new book, In Covid’s Wake: How Our Politics Failed Us.
We open up the book by asking our guests why they wrote this book—why attack liberals’ response to the COVID pandemic, and why now? Lee and Macedo argue that liberal science and policymaking early in the pandemic faced multiple epistemic failures, from undisclosed conflicts of interest to the silencing of opinions outside the mainstream. David defends the United States’s COVID policy response, but Lee and Macedo press their point that value-laden judgments were made by state and local officials who avoided responsibility by claiming to follow the science. We wrap up the episode with a discussion of scientific expertise in modern democracies.
This podcast is generously supported by Themis Bar Review.
Referenced Readings
“Is the Coronavirus as Deadly as They Say?” by Eran Bendavid and Jay Bhattacharya
“What Sparked the COVID Pandemic? Mounting Evidence Points to Raccoon Dogs” by Smriti Mallapaty
“Statement in Support of the Scientists, Public Health Professionals, and Medical Professionals of China Combating COVID-19” by Charles Calisher et al.
“Everyone Wore Masks During the 1918 Flu Pandemic. They Were Useless.” by Eliza McGraw
“The Covid Alarmists Were Closer to the Truth Than Anyone Else” by David Wallace-Wells
The Swine Flu Affair: Decision-Making on a Slippery Disease by Richard E. Neustadt and Harvey V. Fineberg
In the face of what is inarguably bad governance and fake—but spectacular!—technocracy (the list goes on and on, but we’ll stop at AI-generated tariffs), we thought we’d take a moment to join the conversation about what good governance looks like. A couple of weeks ago, one of us reviewed Ezra Klein and Derek Thompson’s new book, Abundance, for the New York Times, and then the other one of us reviewed the review. So we figured: let’s work it out on the pod? No guests on this episode, just the two of us in a brass-tacks, brass-knuckles discussion of the abundance agenda and the goals of twenty-first century economic policy.
We dive right into what the abundance agenda is and who its enemies are: innovators and builders against NIMBYs and environmentalists on David’s account; techno-utopians who discount the environment and politics on Sam’s. We agree that housing policy, at least, has helped the better-off create a cycle of entrenching their position through stymieing construction and production. We find another point of agreement on how Klein and Thomson’s abundance agenda attempts to harness the power of the state to build, and that certain left-wing critiques are off base, but disagree about whether their proposal is a break from the neoliberal era of governance and what that even was. In some ways, we end up right where we started, disagreeing about whether the abundance agenda seeks to unleash a dammed-up tide that can lift all boats, or whether the abundance agenda leaves behind everyone but a vanguard of “innovators” in the technology and finance sectors. Let us know if you’ve got a convincing answer.
This podcast is generously supported by Themis Bar Review.
Referenced Readings
Why Nothing Works: Who Killed Progress―and How to Bring It Back by Marc Dunkelman
Stuck: How the Privileged and the Propertied Broke the Engine of American Opportunity by Yoni Appelbaum
On the Housing Crisis: Land, Development, Democracy by Jerusalem Demsas
One Billion Americans: The Case for Thinking Bigger by Matthew Yglesias
“Kludgeocracy: The American Way of Policy” by Steven Teles
The Rise and Fall of American Growth: The U.S. Standard of Living since the Civil War by Robert Gordon
The Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era by Gary Gerstle
Public Citizens: The Attack on Big Government and the Remaking of American Liberalism by Paul Sabin
“The State Capacity Crisis” by Nicholas Bagley and David Schleicher
Red State Blues: How the Conservative Revolution Stalled in the States by Matt Grossmann
The Captured Economy: How the Powerful Enrich Themselves, Slow Down Growth, and Increase Inequality by Brink Lindsey and Steven Teles
“Why has Regional Income Convergence in the U.S. Declined?” by Peter Ganong and Daniel Shoag
“Exclusionary Zoning’s Confused Defenders” by David Schleicher
“Cost Disease Socialism: How Subsidizing Costs While Restricting Supply Drives America’s Fiscal Imbalance” by Steven Teles, Samuel Hammond, and Daniel Takash
”On Productivism” by Dani Rodrik
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
