Digging a Hole: The Legal Theory Podcast

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

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!

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

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

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

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

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

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

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

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

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

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

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

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

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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 [email protected]

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

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

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

Referenced Readings

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

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

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

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

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

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

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

Referenced Readings