Digging a Hole: The Legal Theory Podcast

This week, we descend from the ivory tower onto the beaches of Martha’s Vineyard for a discussion of the historical significance – and contemporary relevance – of the Garland Fund, the million dollar fund at the epicenter of the early Civil Rights movement. We’re thrilled to welcome our colleague John Witt, the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School, to join us for a celebration of his new book, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America. We begin the pod by exploring the causal impact of the Garland Fund. Witt argues that the Fund is both a window that provides a new angle with which to view the left liberal social movements of the 1920s and 30s and a workshop that created the conditions under which civil libertarians, civil rights organizations, and union leaders were forced to come together to have conversations about how to spend the Fund’s limited resources. Sam then asks Witt to explain the extent to which his book aims to offer a revisionary account of liberal progress in the early 20th century. After a brief detour to discuss the heroes and villains of the book, David and Sam both press Witt to opine on the contemporary relevance of the story of the Garland Fund. The show concludes with reflections on Abundance bros, the Debt Collective, philanthro-capitalism, and nonprofit tax exemptions. We hope you enjoy!This podcast is generously supported by Themis Bar Review.Referenced ReadingsSimple Justice by Richard KlugerThe NAACP's Legal Strategy against Segregated Education, 1925-1950 by Mark TushnetThe Lost Promise of Civil Rights by Risa GoluboffCivil Rights and the Making of the Modern American State by Megan Ming FrancisThe Taming of Free Speech by Laura WeinribWinners Take All by Anand GiridharadasWhat are Sam & David’s favorite restaurants in New Haven?Sam: It’s pretty slim pickings tbh - I guess there’s a case for Pasta Eataliana (which should definitely change its name)?David: I assume we’re skipping the classic apizza joints? If we leave Pepe’s, Sally’s, Modern and Zuppardi’s to the side, my favorites are the terrific Fair Haven Oyster Co. and Tavern on State.  Also, I recommend encouraging Sam to bake for you! Best desserts in town!

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

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“A Question Perpetually Arising: Implied Powers, Capable Federalism, and the Limits of Enumerationism” by David A. Schwartz

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

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 ReadingsWhy Nothing Works: Who Killed Progress―and How to Bring It Back by Marc DunkelmanStuck: How the Privileged and the Propertied Broke the Engine of American Opportunity by Yoni AppelbaumOn the Housing Crisis: Land, Development, Democracy by Jerusalem DemsasOne Billion Americans: The Case for Thinking Bigger by Matthew Yglesias“Kludgeocracy: The American Way of Policy” by Steven TelesThe Rise and Fall of American Growth: The U.S. Standard of Living since the Civil War by Robert GordonThe Rise and Fall of the Neoliberal Order: America and the World in the Free Market Era by Gary GerstlePublic Citizens: The Attack on Big Government and the Remaking of American Liberalism by Paul Sabin“The State Capacity Crisis” by Nicholas Bagley and David SchleicherRed State Blues: How the Conservative Revolution Stalled in the States by Matt GrossmannThe 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