Digging a Hole: The Legal Theory Podcast

Another podcast, another Metropolitan movie reference. This time we are joined by our colleague and friend, Taisu Zhang, Professor of Law at Yale Law School. We give you a sneak peak of Professor Zhang’s new book The Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions, which comes out in November. Taisu starts by explaining why understanding the Qing dynasty is a prerequisite to understanding the modern era of Chinese history and modern Chinese politics. We then debate theories of the Great Divergence, or why many countries in the Western world emerged as the most powerful economies in the 19th and 20th centuries while Qing China, Mughal India, and others failed to launch. Taisu argues that the absence of the Chinese fiscal state and agricultural taxes led to a military and economic decline because of a lack of state investment. He also argues that the Qing dynasty was wrong to assume that agricultural taxes would lead to rebellion, pointing to similar taxation elsewhere in the world. As we love to do here at Digging a Hole, we also took a step back to think about broader methodological and institutional questions. First, Sam and Taisu discuss humanist and social science approaches to history and causal arguments. Taisu intentionally makes his work structured, clear, and empirically falsifiable, putting it against most causal theories of Chinese fiscal decline, which are done by economists. Second, David jumps in to ask whether the broader question here is about institutions. Can divergence be explained by excessive centralization in the Qing government or the role of underdeveloped financial markets? In addition, we delve in constitutional questions and interrogate whether Qing China had a constitutional system and the role that system played. Referenced Readings The Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions, by Taisu Zhang The Laws and Economics of Confucianism: Kinship and Property in Pre-Industrial China and England, by Taisu Zhang

Much like 2000s fashion – we’re back! The long wait is over. Digging a Hole’s new season is here! After a summer of landmark Supreme Court cases, we are excited to start the season with Mary Ziegler, one of the nation’s leading experts and historians of U.S. abortion politics. Professor Ziegler is the Martin Luther King, Jr. Professor of Law at the University of California Davis School of Law. She has written four books on the social movements around reproductive rights, including, most recently, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment. We begin our conversation by asking Professor Ziegler of how we got to Dobbs – how the Republican Party, campaign finance laws, and the anti-abortion movement created the conditions for overturning Roe. Professor Ziegler then builds upon her op-ed in The Atlantic, discussing what implications Dobbs may have for the future of substantive due process, including for precedents related to contraception and gay marriage. We also discuss the implications of reproductive rights politics for future elections and if the elections in the past several weeks offer insights for how November might go. Lastly, we talk more broadly about what the future might look like -- what cases the Court will take on, what legislation will pass in states or in Congress, and what political conflicts will emerge. Referenced Readings Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, Mary Ziegler. “How to move forward after the destruction of Roe v. Wade,” Mary Ziegler. “If the Supreme Court Can Reverse Roe, It Can Reverse Anything,” Mary Ziegler. “Why Exceptions for the Life of the Mother Have Disappeared,” Mary Ziegler.

This week, Digging a Hole explores global legal theory and history to match up with Sam’s European adventures! We are lucky to be joined by two of our Yale colleagues, Lauren Benton, Barton M. Biggs Professor of History and Professor of Law, and Rohit De, Associate Professor of History and Associate Research Scholar in Law. We begin by discussing global legal theory and the way that thinking about legal ideas from a non-Western perspective can change the way we think about legal theory here and everywhere. In this conversation, we also talk about the disconnect between the recent explosion of work in global legal history and the American legal academy. We also touch on whether the personnel teaching in law schools plays a role in that disconnect. Next, we talk about Lauren’s project “On Small Wars: Legalities of Violence in European Empires.” Through the project, Lauren seeks to answer what patterns of violence can one suss out that we have not regarded as legal in character and how they influenced global order and emerging international law. Sam, our resident international scholar, teases out whether law is doing much in this story or if the violence is producing the law. Lastly, we quibble over whether there has been continuity in violence and the legality of it or if the 20th and 21st century have had novelties in this area. Then we overview the Yale Law and Modernization Project, which had a significant impact on postcolonial legal intellectuals. We also take up Rohit’s ongoing work on progressive lawyering after decolonization. Referenced Readings “Context in the History of International Law,” Andrew Fitzmaurice. “India's Grand Advocates: A Legal Elite Flourishing in the Era of Globalization,” Marc Galantar and Nick Robinson. Savage Wars of Peace, Max Boot. Ideology of Popular Justice in Sri Lanka: A Socio-Legal Inquiry, Neelan Thiruchelvam. “Legal Education and the End of Empire: Renewing Cosmopolitan Kinship,” John Harrington and Ambreena Manji.

This week we have an emergency podcast episode on the war in Ukraine. We’re joined by our two colleagues and leading international law scholars – Oona Hathaway, the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, and Scott Shapiro, the Chalres F. Southmayd Professor of Law and Professor of Philosophy at Yale Law School. In this conversation, which took place Sunday, February 27 even as a fluid situation evolved, we focus on the legal theory implications of the war. We get into Oona and Scott’s book The Internationalists and whether Putin’s invasion constitutes a challenge to the global legal order described in their book. In addition, even if in the global order a norm exists against aggression and conquest, do some countries seem to be exempt from operating under these norms? We next compare the American domestic criminal law system to the international legal system and ask why internationally we tolerate a system where one actor can veto attempts to make it operate within the system. A debate emerges if Russia is actually avoiding the norms of the legal system right now given the costs it is facing through the global response to their invasion. In the conversation, we discuss the efficacy of “outcasting” and whether current American and European sanctions can be effective. After, we touch on Putin’s case for war and how his justification compares to other historic “war manifestos.” There’s a lot to discuss here and we’re lucky to have two of the experts in the field here to break it down. Referenced Readings The Internationalists: How a Radical Plan to Outlaw War Remade the World, Oona A. Hathaway and Scott J. Shapiro “Outcasting: Enforcement in Domestic and International Law,” Oona A. Hathaway & Scott J. Shapiro. “Putin Can’t Destroy the International Order by Himself,” Oona A. Hathaway & Scott J. Shapiro “War Manifestos,” Oona A. Hathaway, Scott J. Shapiro, et al. “Putin’s Case for War, Annotated,” Max Fisher. “The Economic Weapon: The Rise of Sanctions as a Tool of Modern War,” Nicholas Mulder. The Concept of the Political, Carl Schmitt. “Forms of Modern Imperialism in International Law,” Carl Schmitt.

On this week’s pod we have Osita Nwanevu, contributing editor at The New Republic, columnist at The Guardian, and author of the forthcoming book The Right of the People: Democracy and the Case for a New American Founding! In the interview, Osita discusses many of the major issues around media institutions today. Somehow David relates journalism to both roasted vegetables and dessert, so we either got really metaphorical or were just hungry! We talk about how to write about politics today from a leftist view point, especially as it seems that the left has energy and new ideas but has trouble garnering broad appeal. We debate whether people are capable or want to absorb news and political analysis that challenges their preexisting beliefs. We zoom out and take a broader look at the role of legacy institutions, like the New York Times, and newer institutions with more ideological missions, examining the role each places in advancing political thought. Osita also defends his New York Times guest essay on January 6th, emphasizing the role political institutions played not only on January 6th, but also in the rightward shift of the GOP and rise of Donald Trump. We end by talking about whether the Constitution is fundamental to the crisis facing American democracy and what that means for reform efforts from the left. Look out for Osita’s book and sign up for his newsletter! Referenced Readings “What is Political Writing For?,” Osita Nwanevu. “Trump Isn’t the Only One to Blame for the Capitol Riot,” Osita Nwanevu. “The Constitution is the Crisis,” Osita Nwanevu “Doing Popular Things Won’t Save the Democratic Party,” Osita Nwanevu.