Digging a Hole: The Legal Theory Podcast

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.  

It’s been quite an eventful month, dear listeners. After a few flight cancellations, Democrats decided it was time to finally reopen the government. The House released a cache of Epstein files that name President Trump. And Zohran Mamdani has officially been named king of New York. In these turbulent times, we’re lucky to be joined by Jerusalem Demsas—journalist, grade A pundit, and Editor & CEO at The Argument magazine—who is here to talk Mamdani, liberalism, and much more.The episode begins with reflections from Demsas and David about what Mamdani’s election means for New York. Will his affordability platform transform New York for the better? Or will his vision be foiled by New York’s entrenched and inefficient bureaucracy? Beyond the Big Apple, Sam asks for predictions on whether Mamdani (or his coalition) can scale to the national level. We then discuss the significance of the elections in Georgia, where Democrats notched a big victory in some less important state-wide elections. Finally, Sam asks Demsas to reflect on the future of liberalism in America. Should liberalism be canned for a progressive alternative, or is it, as Demsas will argue, the only way we can live together in a pluralistic country?Most importantly, this episode gives Sam and David their annual opportunity to play political pundits. We hope you enjoy!This podcast is generously supported by Themis Bar Review.Referenced ReadingsAbundance, by Ezra Klein and Derek Thompson“How do we live with each other?”, by Jerusalem Demsas“This Is the Way You Beat Trump — and Trumpism”, by Ezra KleinLiberalism Against Itself, by Samuel MoynIn this episode, there was a general skepticism that Mamdani could lead the Democratic party at the national level. So, in this episode’s spirit of hot-take punditry, who is your pick to be on the top of the Democratic ticket in the 2028 election?Sam: No clue. We are in the democratic equivalent of Deuteronomy 18 territory: a prophet will be raised up from among the people, but we don’t know who it is yet. Dan Osborn?David: I’m hoping not for a prophet, but for someone who can fulfill Biden’s promise to make national politics less interesting and, as we suggest in the episode, return a little power to Congress even if it is not in his/her short-run political and policy interests.  A midwestern governor or western senator, perhaps.  But I’m afraid it’s going to a battle of meme lords and discourse makers.

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.  

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