Digging a Hole: The Legal Theory Podcast

Things are looking up, dear listeners. The semester is over, summer is nearly here, and David’s beloved Knicks are up 2-0 in the NBA Finals. In this week’s episode, we take a step back and do some introspection. Here to discuss whether you should trust Yale, and other elite universities, more than Jalen Brunson in the fourth quarter is friend and colleague Sarath Sanga, Professor of Law at Yale Law School and Co-Director of the Yale Law School Center for the Study of Corporate Law. Sanga joins us to discuss both his new article, A Theory of Trust in Institutions, co-authored by Yehonatan Givati, and the recent Report by the Yale Committee on Trust in Higher Education, of which Sanga was a member.Sanga kicks off the episode by explaining his view of why higher education is hemorrhaging public trust. Sanga argues that universities, and other institutions, pre-commit to doing specific things, and they lose trust whenever they stray from this initial commitment. Sam questions whether universities are now, and always have been, finishing schools for elites and, if so, whether it makes sense to talk about institutions like Yale having a mandate. And David brings up a variety of counterexamples that call into question whether an institution going against its mandate, such as when a university fields varsity sports teams, actually decreases trust in the real world. We hope you enjoy!Referenced ReadingsA Theory of Trust in Institutions, by Sarath Sanga and Yehonatan GivatiReport of the Yale Committee on Trust in Higher Education, by Yale University"Shut Up and Dribble", by Ian AyresA Running List of Nominations for the Canon of American Legal Thought (1975-2025)A Matter of Interpretation, by Antonin Scalia [Grove]“A Neo-Federalist View of Article III”, by Akhil Reed Amar [Grove]“The Anticanon”, by Jamal Greene [Grove]The Economic Structure of Corporate Law, by Frank Easterbrook and Daniel Fischel [Macey]“The Costs of Employment Segregation: Evidence from the Federal Government Under Woodrow Wilson”, by Abhay Aneja and Guo Xu [Sanga]This episode is all about how Yale, and other elite institutions, are losing public trust. As Yale Law School insiders, what’s your best solution for making YLS more trustworthy? Sam: I’m very suspicious of law schools, especially ours-why shouldn’t everyone else be?David: I’m not sure that there is one quick trick in a polarized country, unless we can ensure that none of our graduates ever have an opinion that anyone of any political party ever disagrees with. That said, the best plan is to focus on what we’re good at, teaching brilliant students (like Daniel Browning, our out-going EP and all-around superstar!) and producing a broad range of excellent and rigorous scholarship.

Now that classes are over and the end of the semester is near, we’re back for several weeks of podcastmaxxing. So stay tuned for some great episodes in the coming weeks, dear listeners! Here to help us understand our current political moment and to diversify David’s reading list is Anton Jäger, a Departmental Lecturer in the History of Political Thought and Political Theory at University College, Oxford. Jäger joins the pod this week to discuss his new book, Hyperpolitics: Extreme Politicization without Political Consequences, where he offers a European’s perspective on the American political moment. This episode begins with an explanation of what, exactly, hyperpolitics is and how it differs from other, older forms of politics. Jäger suggests that hyperpolitics is characterized by a high degree of political involvement but a corresponding deinstitutionalization of politics. Sam queries whether our current moment might be more continuous with the past, with both characterized by a quiescent politics. And David asks about the degree to which our politics has been causally determined by economic forces. Along the way, we also discuss whether it’s helpful to label the Trump movement as fascist, whether hyperpolitics is the product of liberalism’s failure, and whether the smartphones are really to blame for everything. We hope you enjoy!Referenced ReadingsThe Hollow Parties, by Daniel Schlozman and Sam Rosenfeld Bowling Alone, by Robert PutnamThe Dark Side of Democracy, by Michael MannThe Project-State and its Rivals, by Charles MaierA Running List of Nominations for the Canon of American Legal Thought (1975-2025)A Matter of Interpretation, by Antonin Scalia [Grove]“A Neo-Federalist View of Article III”, by Akhil Reed Amar [Grove]“The Anticanon”, by Jamal Greene [Grove]The Economic Structure of Corporate Law, by Frank Easterbrook and Daniel Fischel [Macey]On this week’s episode, Jäger offered a European outsider’s take on American politics. Flipping the script, what’s your best outsider’s take on European politics?Sam: The first wave of right-wing victory is over, and now it is coming for France and Germany. Get ready.David: I can’t believe that British politics is not full of people with their hair on fire about why the country’s economic growth has been so slow – Poland is likely to catch up in per capita GDP in a few years! And, if anything, de-growther forces, on both the right and left, are rising. It’s like the frogs in slowly boiling water croaking requests to turn up the temperature.

Reports of the pod’s death are greatly exaggerated, dear listeners. Despite the lengthy hiatus, we’re finally back with a terrific episode on judicial method, judicial power, and much more. To kick off the Spring installment of the pod, we’re incredibly fortunate to be joined by Tara Leigh Grove, the Vinson & Elkins Chair in Law at the University of Texas at Austin School of Law, who comes on the pod to discuss her article, “The Power to Impose Method,” forthcoming in the Yale Law Journal. The episode begins with a general discussion about the Supreme Court’s power to impose an interpretive methodology on lower courts, what is often called “methodological stare decisis.” Grove advocates for something resembling a middle ground—the Supreme Court has a limited, bounded power to impose method on lower courts. We then get into the nitty gritty of the distinction between holding and dictum and of Article III’s case and controversy requirement. David asks why the Supreme Court can’t just do what it wants regarding method, and he queries whether the Supreme Court also has power to narrow the precedential force of its interpretive holdings. Sam asks why we should care whether the Supreme Court could impose method in one fell swoop if it’s clear that it can impose method in a piecemeal, case-by-case fashion. We conclude our discussion of Grove’s article by debating the normative credentials of interpretive pluralism. Before wrapping up the pod, we launch a brand new featured segment on The Canon of American Legal Thought, where we ask guests for (at least) one nomination for a list of the most important legal scholarship of the last fifty years. Grove offers not one, but three, excellent nominations, and Sam and David resist the urge to nominate their own work. We hope you enjoy!This podcast is generously supported by Themis Bar Review.Referenced Readings“The Power to Impose Method”, by Tara GroveA Running List of Nominations for the Canon of American Legal Thought (1975-2025)A Matter of Interpretation, by Antonin Scalia [Grove]“A Neo-Federalist View of Article III”, by Akhil Reed Amar [Grove]“The Anticanon”, by Jamal Greene [Grove]H.L.A. Hart’s “no vehicles in the park” hypothetical has been described as “the most famous hypothetical in the common law world.” In the spirit of this episode, give us your hottest take on this chestnut of statutory interpretation. Are airplanes vehicles? Tricycles?Sam: Anything is a vehicle that an adequately powerful consensus decides is one. Do the math.David: As is often the case, the fight over legal interpretation missed the big policy change – many parks closing their internal roads to cars, leaving more space for bikes and runners alike. The closing of Central Park to cars (other than the separated cross-town thoroughfares) is a huge policy success, and far more important than edge cases about motorized scooters.

As one New York political dynasty comes to a close and as the government shutdown rampages on, it’s only fitting to have Natasha Piano on the pod to discuss elitism and the crisis of American democracy. Natasha Piano is an Assistant Professor of Political Theory in the Department of Political Science at UCLA. Piano joins us this week to discuss her new book, Democratic Elitism: the Founding Myth of American Political Science. In her book, Piano offers a revisionist intellectual history of three Italian (or Italian-adjacent) thinkers – Pareto, Mosca, and Michels. These three thinkers, Piano argues, have been violently misappropriated by American political scientists of the likes of Robert Dahl. Piano aims to show that Pareto, Mosca, and Michels are better understood as democratic theorists of elitism–not elitist theorists of democracy.Before Piano can officially set the record straight, she has to take on a barrage of skeptical questions from Sam and David. David asks whether American political science really misappropriated these three thinkers or rather borrowed from them for their own purposes. After an extended excursus exploring how best to interpret Pareto’s and Schumpeter’s political thought, Sam then presses Piano to explain the contemporary relevance of her three thinkers’ work. In response, Piano both makes the case for not conflating democracy with elections and warns of the plutocratic threats facing electoral democracy. We hope you enjoy!This podcast is generously supported by Themis Bar Review.Referenced ReadingsCapitalism, Socialism, and Democracy, by Joseph SchumpeterA Preface to Democratic Theory, by Robert DahlWho Governs? Democracy and Power in the American City, by Robert DahlThe Discourses, by Niccolò MachiavelliThis episode discussed Robert Dahl’s book on how democracy works in our very own New Haven, Connecticut. So who actually governs New Haven? Sam: Whoever will have the courage to resurface the Wilbur Cross tennis courts, while driving out the pickleball interlopers.David: It’s hard to say. Overlapping groups of elites, only some who are members of the New Haven Lawn Club? The ghost of Frank Pepe? The Jitter Bus guys? If we’re voting, I’d give my support to anyone who promises to bring back The Beast of New Haven, a professional hockey team famous for having the ugliest logo and mascot in all of sports.

It’s been a long (and eventful) summer. But the leaves are just beginning to turn and there’s a cool breeze in the air, which means it’s time for a new season of Digging a Hole! We kick off this season with a wide-ranging discussion on the limits of executive power, the role of courts in checking the executive branch, and what progressives should do after Trump 2.0. To help guide us through these thorny issues, we’re thrilled to welcome to the pod Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at NYU School of Law.In 2020, at the end of Trump 1.0, Bauer, with Jack Goldsmith, authored After Trump: Reconstructing the Presidency. Bauer and Goldsmith’s title did not prove prescient, however, and the second Trump administration presents a bevy of new challenges to our constitutional system. We begin the episode by discussing the expansion of executive authority and the extent to which the Supreme Court is responsible for enabling the second Trump administration. Sam and David query when and how we can know whether the Court is rolling over for the administration. Sam then continues prosecuting the case against courts generally, and Bauer parries by explaining why it remains necessary for progressives to engage with the courts. David closes the pod by teasing out Bauer’s views on whether progressives should change their approach to election law. We hope you enjoy!This podcast is generously supported by Themis Bar Review.Referenced ReadingsAfter Trump by Bob Bauer and Jack Goldsmith“Progressives and the Supreme Court” by Bob Bauer“Election Law for the New Electorate” by Nicholas StephanopoulosNYU Law Democracy ProjectWhat are Sam & David reading?Sam is reading Sarah Bilston’s The Lost Orchid.David is reading Vladimir Kogan’s really amazing new book No Adult Left Behind: How Politics Hijacks Education and Hurts Kids

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 ReadingsGreat Barrington Declaration“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-WellsThe Swine Flu Affair: Decision-Making on a Slippery Disease by Richard E. Neustadt and Harvey V. Fineberg

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

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

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

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

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

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

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