Digging a Hole: The Legal Theory Podcast

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

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

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

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

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

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

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

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

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

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