Digging a Hole: The Legal Theory Podcast

Spring has sprung, dear listeners. Now that this dreadfully cold winter seems to be behind us, our power bills might finally come back down to Earth. Here to explain why your electricity bill is so expensive – and what to do about it – is Joshua Macey, a Professor of Law at Yale Law School. Macey’s research and teaching interests are wide-ranging, from energy and environmental law to bankruptcy and legal theory.
In this episode of the pod, we get into the nitty gritty on energy, utilities, and governance strategies. The episode begins with a discussion of whether, and under what circumstances, centralized government regulation is (and is not) better than competition among private energy providers. We then tackle several big theoretical questions, such as the best methodology for analyzing regulatory policy, whether a carbon tax could be effective, and whether there should be an Abundance agenda for energy. And we also talk practical solutions: Why don’t we create a vast inter-state energy network? Should every state adopt the Texas approach of “surge pricing” during times of increased electricity demand? And more. 
The episode concludes with another excellent nomination for the Canon of American Legal Thought (1975-2025).
Referenced Readings
“Behavior of the Firm under Regulatory Constraint”, by Harvey Averch and Leland Johnson

The Economic Structure of Corporate Law, by Frank Easterbrook and Daniel Fischel 

“The Corporate Governance of Public Utilities”, by Aneil Kovvali and Joshua Macey

“In Defense of Chapter 11 for Mass Torts”, by Anthony Casey and Joshua Macey

“Inside or Outside the System?”, by Eric Posner and Adrian Vermeule 

A 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]

This episode features a discussion of whether a carbon tax could effectively curb climate change. And David has recently called attention to the new property tax revolt. In this spirit, what’s something you think should be taxed, but currently is not?
Sam: In my new book, I argue for a new suite of tax laws that attack the nexus of age and wealth - for example, by incentivizing departure from homes for those who have means to leave and, because they are older, often occupy more square footage than they need.

David: Lots of possibilities – low taxes on different tax bases can be very attractive, as the deadweight loss of taxation gets increasingly worse as a single tax gets higher.  A serious answer is congestion. Driving downtown during busy periods creates huge externalities, and once passed, as NYC’s experience shows, congestion charges become popular because they reduce traffic. 

A less serious but equally strongly-felt answer: a progressive tax on the length of meetings, particularly Zooms.  How happy would the world be if the person who said “one more thing” at the end of meeting faced a stiff penalty! Also, of course, seconds of speeches during faculty meetings!!!
Finally, my wife would also say there should be a tax on exclamation points in emails, as it would encourage people to sound less deranged!!! And by people, she definitely means me :)

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 Grove

A 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 Readings
Abundance, 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 Klein

Liberalism Against Itself, by Samuel Moyn

In 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 Readings
Capitalism, Socialism, and Democracy, by Joseph Schumpeter

A Preface to Democratic Theory, by Robert Dahl

Who Governs? Democracy and Power in the American City, by Robert Dahl

The Discourses, by Niccolò Machiavelli

This 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 Readings
Simple Justice by Richard Kluger

The NAACP's Legal Strategy against Segregated Education, 1925-1950 by Mark Tushnet

The Lost Promise of Civil Rights by Risa Goluboff

Civil Rights and the Making of the Modern American State by Megan Ming Francis
The Taming of Free Speech by Laura Weinrib

Winners Take All by Anand Giridharadas

What 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!