Digging a Hole: The Legal Theory Podcast Digging a Hole Podcast

With the long weekend in the books, summer’s officially here. School’s out, and we can’t imagine why people would be thinking about American universities – has anything interesting or controversial been happening on campus recently? (Our field correspondent David Pozen reports.) Anyway, today’s episode is the last episode of the season, and we’re excited to let this one linger in your minds for the next few months. Today’s very special guest is the MacArthur “Genius” Award-winning Dylan C. Penningroth, Professor of Law and Alexander F. and May T. Morrison Professor of History at the University of California, Berkeley, here to discuss his wonderful new book Before the Movement: The Hidden History of Black Civil Rights.

Penningroth begins by showing how his research expands the scope of African American history to everyday legal relations between Black individuals and discusses his great-great-great-uncle as a great example. After Sam and Penningroth frame the conversation as one about Black people using private rights in support of the southern economy, David follows up with a question about the inevitability of capitalism. Next, Penningroth makes the case that his account complements, instead of contradicts, the politically-focused work of W.E.B. DuBois and historians like Risa Goluboff and Eric Foner. We end this semester with some advice for social movements. See you on the other side, listeners.

This podcast is generously supported by Themis Bar Review.

Referenced Readings


“The Privilege of Family History” by Kendra T. Field


“Race in Contract Law” by Dylan C. Penningroth


“Why the Constitution was Written Down” by Nikolas Bowie


Nothing But Freedom: Emancipation and Its Legacy by Eric Foner


Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms by Richard R. W. Brooks and Carol M. Rose


The Lost Promise of Civil Rights by Risa L. Goluboff


Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality by Richard Kluger

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

Dear listeners, this season has been riveting, and it’s been a little controversial. Some of you have written in (if you listen to this episode, you’ll see we’ve graced certain aggrieved parties with a response). We see you, we hear you, and boy, do we have a classic legal theory podcast for you. Today’s guest is Kunal Parker, Professor and Dean's Distinguished Scholar at the University of Miami School of Law, here to talk about his fabulous new book The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970. If you liked his first book–and if you didn’t, you’re probably a wretched anti-foundationalist–you’ll love this spiritual sequel. 

We begin by asking Parker to lay out his thesis, which is, surprise, surprise, that there was a turn from substance to process in economic, political, and most saliently for us, legal thought in the twentieth century. Next, we discuss how much the phenomenon Parker describes is its own thing versus concomitant with American pragmatism and the disciplinification of the modern research university. We make sure everything gets filtered through big important legal thinkers–Holmes and Fortas, Frankfurter and Bickel–before turning to today’s neo-formalistic approaches to the law: neo-Aristotelians, the new private law theorists, et al. (and if we’ve missed anyone, we can guarantee that our listeners will let us know).

This podcast is generously supported by Themis Bar Review.

Referenced Readings


“Radical Mismatch” by Stephen Holmes


Rules for the Direction of the Mind by René Descartes


“Mr. Justice Black and the Living Constitution” by Charles Reich


Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940 by Daniel Ernst


On Democracy by Robert Dahl


The Public and its Problems by John Dewey


Age of Fracture by Daniel Rodgers

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

Have you ever wondered about the legal history of the war on drugs? Even if you haven’t, we won’t mollycoddle you – this episode’s a trip. Our guest on today’s podcast is a scholar of constitutional law and information law known for really getting in the weeds and dunking what we think we know in an acid bath. We’re delighted to have joining us today the radical David Pozen, Charles Keller Beekman Professor at Columbia Law School, here to talk about his far out new book, The Constitution of the War on Drugs.

In this episode, we dive into the law, politics, and history of drug legalization and criminalization in the United States. We begin by Pozen giving an impassioned plea for how the war on drugs implicates racial justice, equal protection, federalism, and cruel and unusual punishment. Next, Sam dunks on history. Throughout the episode, we discuss the political economy of drugs (New York’s botched marijuana rollout) and generational divides (Clinton’s “I didn’t inhale”). We end by contemplating the brain-bending, otherworldly potential of the First Amendment to protect heightened brain states. Pour yourself a Coke and enjoy.

This podcast is generously supported by Themis Bar Review.

Referenced Readings


“Silver Blaze” by Arthur Conan Doyle


“Beyond Carolene Products” by Bruce Ackerman


The American Disease: Origins Of Narcotic Control by David Musto


“The Crisis in Teaching Constitutional Law” by Jesse Wegman


The Age of Addiction: How Bad Habits Became Big Business by David Courtwright


How to Change Your Mind by Michael Pollan

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