Yale Law School professors Samuel Moyn and David Schleicher interview legal scholars and dig into the debates heard inside law school halls.
Ask Me Anything!
45:46You asked -- we answered! In Digging a Hole’s first AMA (or really Ask Us Anything) episode, we answered your most pressing questions: Is it ethical to move into a gentrifying neighborhood? How should one read articles when considering potential academic appointments? What is cooler -- SCOTUS or the Federal Reserve? What is a professional failure we’ve experienced? Who is our dream sponsor for the pod? In addition to these and many more questions, we also do a speed segment -- “overrated or underrated” -- about a list of topics, including the bar exam, lawyer credentialing, and Third World Approaches to International Law (TWAIL). Come for the legal theory and hot takes, stay for Dave's unified field theory of Sam Moyn projects. There’s something for everyone!
1:10:54Our final guest for Season 3 is Nikolas Bowie, assistant professor of law at Harvard Law School and board member of the ACLU of Massachusetts, Lawyers for Civil Rights, the People’s Parity Project, and MassVote. In this episode, we dive into two of his recent articles -- “Antidemocracy” and “The Constitutional Right of Self-Government.” We begin by discussing the Court’s recent ruling in Cedar Point Nursery v. Hassid (2021) and how it ties to Heart of Atlanta Motel, Inc. v. United States (1964). As part of this conversation, we touch on the implications of Cedar Point moving forward, whether the Court is operating as a democratic institution, and how our institutions can move toward isocracy, a system of government where citizens have equal political power. Next, we discuss the Assembly Clause of the First Amendment and how early in the country’s founding, activists used their right to assemble to defend their right of self-governance. This history of the Assembly Clause offers new possibilities of interpretation that would lead to a greater protection of self-governance. Our last episode of the season will be an “Ask Me Anything!” You can submit questions for us at our website, DiggingAHolePodcast.com Referenced Readings: Nikolas Bowie, “The Constitutional Right of Self-Government,” Yale Law Journal (2021). Nikolas Bowie, “Antidemocracy,” Harvard Law Review (2021). Nikolas Bowie, “Do We Have to Pay Businesses To Obey the Law?” New York Times (2021).
Jeannie Suk Gersen
1:04:16This week on the pod we have Jeannie Suk Gersen, the John H. Watson Professor of Law at Harvard Law School and a columnist for The New Yorker! We begin by discussing Professor Suk Gersen’s documentary “The Crits,” which focuses on the development and legacy of the Critical Legal Studies (CLS) movement. Several modern ideas and movements have come out of and splintered from CLS. We compare the evolution of CLS to the law and economics movement, debating both why law and economics has become institutionalized in the mainstream and what constitutes success for a legal movement. After, we transition to discussing “The Sex Burueacracy,” which covers the govenrment regulatory apparatus and university bureaucracies that stem from Title IX and similar policies. Professor Suk Gersen leaves us with thoughts on what might happen under the Biden Administrations Department of Education after educational guidances in the sex bureaucracy varied during the Obama and Trump presidencies. Referenced Readings: Duncan Kennedy, “Sexual Abuse, Sexy Dressing and the Eroticization of Domination,” New England Law Revew (1991). Jacob Gersen and Jeannie Suk, “The Sex Bureaucracy,” California Law Review (2016). Calvin Trillin, “Harvard Law,” The New Yorker (1984).
36:22We’re back with more state, local, and urban issues -- maybe Sam has become a full convert! In this week’s episode, we’re joined by renowned urban economist Edward Glaeser, the Fred and Eleanor Glimp Professor of Economics and the Chairman of the Department of Economics at Harvard University. We begin by discussing The Survival of the City, Professor Glaeser’s new book written with David Cutler. In just over half an hour, we get through several topics. How will cities adapt to pandemics, will work-from-home continue as it currently exists, and will insider groups continue to dominate local politics? What does the future of work look like in cities; will we ever approach the post-work urban future that Keynes described? Beyond exploring these questions, we also discuss how cities can and should think about race and inequality, both through administration and legislation. All of this and more in less time than it takes to commute on most U.S. subways (and find out why that is while you’re listening)! Referenced Readings: Ken Auletta, The streets were paved with gold, (1980). Eric Bosio, Simeon Djankov, Edward Glaeser, & Andrei Shleifer, “Public Procurement in Law and Practice,” NBER Working Paper, (2020) Leah Brooks & Zachary Liscow, “Infrastructure Costs,” (2020) Edward Glaeser, Triumph of the City (2012). Edward Glaeser & David Cutler, Survival of the City (2021). Edward Glaeser & Andrei Shleifer, “The Curley Effect: The Economics of Shaping the Electorate,” The Journal of Law, Economics and Organization, (2005). Tracy Gordon & David Schleicher, “High costs may explain crumbling support for US infrastructure,” Urban Wire (2015). John Maynard Keynes, “Economic Possibilities for Our Grandchildren,” (1930).
Noah Feldman & Christopher Kang
1:05:43It’s SCOTUS reform time! We are joined by Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, and Christopher Kang, the co-founder and chief counsel of Demand Justice and former Deputy Counsel to President Obama. Both of our guests testified to the Presidential Commission on the Supreme Court of the United States. On the pod, our guests explain what they think the Commission should do. We talk through and debate whether the Court is political and/or partisan and whether Supreme Court rulings are un-democratic or lack democratic accountability. Given divergent views on these questions, we also have stark disagreements on the degree to which court reform is necessary and what the ideal reform would be. Our guests are leading thinkers on this timely issue, and their varying perspectives demonstrate the political, institutional, and legal complexities of altering the Supreme Court. Referenced Readings: Presidential Commission on the Supreme Court of the United States Testimonies: Noah Feldman on “The Contemporary Debate over Supreme Court Reform: Origins and Perspectives” Christopher Kang on “Perspectives on Supreme Court Reform” Samuel Moyn on “The Court’s Role in Our Constitutional System”
Rodriguez & Seifter
1:08:09This week, we have an all-star duo in Daniel B. Rodridguez, the Harold Washington Professor of Law at Northwestern Law School, and Miriam Seifter, Associate Professor of Law at the University of Wisconsin Law School! Much to David’s joy, we get Sam deep into the muck of state and local government law. We begin by talking about Daniel and Miriam’s new projects -- The SLoG Law Blog and The State Democracy Research Initiative. Sam then asks our guests which issues in state and local government law they’re thinking about right now. We discuss ongoing battles of state legislatures stripping power from governors, how states and localities are using COVID-related federal aid, and state constitutional law. As part of the conversation, we also get into institutional design of state and local governments and how these institutions promote or hinder majoritarianism. Referenced readings: Daryl J. Levinson and Richard H. Pildes, “Separation of Parties, Not Powers,” The Harvard Law Review, (June 2006). David Schleicher, “The Beginning of the End of the Progressive Era in State Constitutional Law?” SLoG Law Blog, (September 17, 2017). Miriam Seifter, “Gubernatorial Administration,” Harvard Law Review (March 4, 2017).
1:00:56In this week’s episode, we interview New Yorker staff writer and principal contributor to the Q. & A. interview series Isaac Chotiner. We begin by discussing his challenging interviewing style, which has led to many notable and controversial moments. Seeking controversy himself, David asks why Isaac has seemingly interviewed every Yale Law School professor other than him. Isaac also describes the mission behind his interviews and why he thinks a Q&A format is best for bringing academic ideas to light. Beyond Isaac’s own interviewing and writing styles, we talk about the state of journalism overall, including the role of public intellectuals and the effect of nationalized media coverage. Lastly, we get Isaac’s takes on a variety of topics, including the lack of India coverage in American journalism, the media coverage on Biden’s withdrawal from Afghanistan, media coverage on the War on Terror, and SubStack! Referenced Readings: Isaac Chotiner, “LeBron James’s Agent Is Transforming the Business of Basketball,” The New Yorker (June 7, 2021). Isaac Chotiner, “V.S. Naipaul on the Arab Spring, Authors He Loathe, and the Books He will Never Write,” The New Republic (Dec. 7, 2012). Isaac Chotiner, “The Limits of Resistance: Are Democrats focused on the wrong things?” Slate (Dec. 12, 2017).
John Witt and Sam Moyn
1:04:56Season 3 is here! In the first episode, John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law at Yale Law School, joins host David Schleicher to interview host Sam Moyn on his new book Humane: How the United States Abandoned Peace and Reinvented War. In the book, Sam interrogates efforts to make war more humane and the ramifications of this shift. We also discuss the chronology of when the American state began to craft more humane war; the risks that making any practice, such as war or driving cars, more humane might help legitimate it; and whether appeals toward making war humane are recent phenomena or cyclical occurrences. There’s also a sharp debate over methodology in legal history, for all you methodology heads out there, and some stern questions about what exactly Sam has against passion fruit panna cotta. You join our new podcast newsletter for episode updates and a chance to win merch on our website: DiggingAHolePodcast.com. Referenced Readings, listed below, are available at our website. Will Smiley & John Fabian Witt, To Save the Country: A Treatise on Martial Law, (2019). Justin Desautels-Stein & Samuel Moyn, On the Domestication of Critical Legal History, 60 History & Theory 2 (June 9, 2021). Samuel Moyn, Humane: How the United States Abandoned Peace and Revived War (2021).
Ian Ayres and Frederick E. Vars
43:21On our last episode of Season 2, Ian Ayres, professor of law and of professor of management at Yale University, and Frederick E. Vars, professor of law at the University of Alabama, join us to discuss their new book Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights. In the book, Ayres and Vars outline decentralized and voluntary policies that can be immediately adopted at the state or federal level to prevent gun-related deaths. We discuss the benefit and the possible downside of presuming second amendment rights and pursuing a neoliberal approach to the issue. We also discuss the politics of the proposal, including the professors’ lobbying efforts. Additional readings, including any referenced during the episode, are available on our website: DiggingAHolePodcast.com.
Oona Hathaway and Craig Jones
1:04:11On this week’s episode, Oona Hathaway, professor of law at Yale Law School, and Dr. Craig Jones, lecturer in political geography at Newcastle University, discuss their views on law’s role in war and national security. Professor Hathaway’s recent article, National Security Lawyering in the Post-War Era: Can Law Constrain Power?, argues that our current system lacks external constraints on executive branch national security lawyers and suggests division of powers and increased accountability could help remedy these issues. In The War Lawyers: The United States, Israel, and Juridicial Warfare, Dr. Jones focuses more specifically on how military operations have come to rely on lawyers and discusses the consequences of a system where law and war are co-constitutive. The professors discuss where they find common ground and where they diverge, and answer the question of whether there is too much or too little law in war.