Digging a Hole: The Legal Theory Podcast

Much to Sam’s chagrin, this week’s episode requires him to talk about civil procedure. His verdict on the book? “It’s really compelling, even for me.” David was less conflicted: “It’s a banger.”
Diego Zambrano, professor of law and faculty director of the Neukom Center for the Rule of Law at Stanford Law School, joins the pod to discuss his new book, How Americans Enforce the Law. Why has the United States come to rely so heavily on private lawsuits to enforce public law? Zambrano traces the practice from English penal statutes to modern securities, employment, civil rights, and environmental litigation. His account of “layered path dependence” explains how a fragmented state, expansive procedural rules, and a powerful plaintiffs’ bar helped private enforcement persist and grow.
David presses Zambrano on how far his account departs from explanations based on divided government, why states with large bureaucracies still rely heavily on private lawsuits, and what counting statutes misses about judicial lawmaking. Sam asks whether American distrust of government deserves more weight, and what is really private about enforcement when public judges decide the cases.
We then move beyond explanations and turn to whether private enforcement actually works. Does private enforcement compensate for low state capacity, or does it simply give legislators an excuse to leave executive branch weak? Are courts any less vulnerable to capture than regulators? Diego weaves through a range of contexts (CEQA and clean energy to securities litigation and TikTok) and explains when private lawsuits help, when they get in the way, and how lawmakers should adjust enforcement as conditions change. We close with a question for civil procedure nerds everywhere: Should different kinds of claims have different procedural rules?
Referenced Readings
How Americans Enforce the Law, Diego Zambrano, Stanford University Press (2026).
The Litigation State: Public Regulation and Private Lawsuits in the U.S., Sean Farhang, Princeton University Press (2010).
Adversarial Legalism: The American Way of Law, Robert A. Kagan, Harvard University Press (2001).
Legislative Acorns and Judicial Oaks, Nick Bagley and David Schleicher, Balkinization (2026) (reviewing How Americans Enforce the Law).
The False Claims Act and the English Eradication of Qui Tam Legislation, J. Randy Beck, North Carolina Law Review (2000).
Does Interest Group Theory Justify More Intrusive Judicial Review?, Einer R. Elhauge, Yale Law Journal (1991).
How Private Enforcement Exacerbates Climate Change, Anna A. Mance, Cardozo Law Review (2023).
The Institutional Dimension of Consumer Protection, Samuel Issacharoff and Ian Samuel, New Frontiers of Consumer Protection: The Interplay Between Private and Public Enforcement (2009).
Getting Infrastructure Built: The Law and Economics of Permitting, Zachary Liscow, Journal of Economic Perspectives (2025).

Sam is away this week, dear listeners—presumably offsomewhere arguing with older Americans about why they shouldn’t vote—leaving David to talk bankruptcy with David Skeel. (The two Davids rejoice!)
In this week’s episode, we turn to municipal insolvencyand the largest government debt restructuring in American history. David Skeel, the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School, joins the pod to discuss his new book: Promise Land: The Inside Story of the Puerto Rico Debt Crisis. Drawing on hisexperience serving on (and chairing) Puerto Rico’s Financial Oversight and Management Board during its bankruptcy-like Title III process, the book combines Skeel’s deep expertise in bankruptcy law with a rich account of the conflicts and compromises among bankruptcy lawyers, judges, local and federal officials, Puerto Rico’s citizens, and bondholders of various stripes.
Skeel walks us through the specifics of the crisis: howPuerto Rico got into so much fiscal trouble, the island’s appetite for borrowing, and how federal disaster aid shifted the balance of power between the oversight board and the local government. The two Davids also tackle broader questions about municipal bankruptcy, revisiting Skeel’s support for allowing states to file for bankruptcy, his earlier criticism of how creditors were treated in Detroit, whether pensioners should receive more than bondholders, and how much discretion bankruptcy judges should wield.
Finally, Schleicher presses Skeel on the controversial COFINA bonds, the major legal questions left unanswered by settlements, and the struggle to restructure Puerto Rico’s electric utility. They close by considering whether Puerto Rico offers a preview of future American fiscal crises and what the optimal design for municipal bailouts looks like.
Referenced Readings
Promise Land: The Inside Story of the Puerto Rico DebtCrisis, David Skeel (2026).
Debt’s Dominion: A History of Bankruptcy Law in America, David Skeel (2001).
In a Bad State: Responding to State and Local BudgetCrises, David Schleicher (2023).      
Give States a Way to Go Bankrupt, David Skeel, The Weekly Standard (2010).
A Bankruptcy Law—Not Bailouts—for the States, David Skeel, WSJ  (2011).       
States of Bankruptcy, David Skeel, University of Chicago Law Review, (2012).
Fixing Puerto Rico’s Debt Mess, David Skeel, WSJ (2016).
Can Pensions Be Restructured in (Detroit’s) Municipal Bankruptcy?, David Skeel (2013).
When Cities Go Broke: A Conceptual Introduction toMunicipal Bankruptcy, Michael McConnell and Randal Picker, University of Chicago Law Review (1993).
Governance Reform and the Judicial Role in MunicipalBankruptcy, Clayton Gillette and David Skeel, Yale Law Journal (2016).
Junk Cities: Resolving Insolvency Crises in OverlappingMunicipalities, Aurelia Chaudhury, Adam Levitin, and David Schleicher. California Law Review (2019).
Against Settlement, Owen Fiss, Yale Law Journal (1984).
Brighton Beach Memoirs, Neil Simon (1983).

Summer is over, dear listeners. Sam spent his time reading hate mail from older Americans, while David has just moved around the corner from a senior assisted living facility. But more importantly, Digging a Hole is back for another season.
In this week’s episode, we turn to the history of America’s obsession with land ownership. Here to take us from the rent wars of the 1840s up to the Great Financial Crisis, we have Joshua Specht, associate professor of history at the University of Notre Dame. He joins us to discuss his new book, Property Values: The Rise and Fall of the American Homeowner, which traces the history of American property ownership from the homestead to the modern suburb.
Specht lays out his argument that American history can be understood through two linked ideals: nineteenth-century “landed democracy,” in which widespread land ownership underwrote visions of independence and citizenship, and the twentieth-century “ownership society,” which moved those aspirations to suburban homes. Sam questions whether land ownership and homeownership really belong in a single story and whether Americans might someday manage to untether democracy from owning a piece of land altogether. David, meanwhile, asks whether Specht’s narrative gives too much explanatory power to property ownership and not enough to economic growth and dynamism. He also wonders whether the decisive break in American housing really came with the mortgage revolution of the 1930s or with the rise of anti-growth politics in the 1970s.
Referenced Readings
Property Values: The Rise and Fall of the American Homeowner, by Joshua Specht
Red Meat Republic: A Hoof-to-Table History of How Beef Changed America, by Joshua Specht
“The Price of Meat,” by Samuel Moyn
“How the Gentry Won: Property Law’s Embrace of Stasis,” by Roderick M. Hills Jr. and David Schleicher
“The Significance of the Frontier in American History,” by Frederick Jackson Turner
Crabgrass Frontier: The Suburbanization of the United States, by Kenneth T. Jackson
Americans Against the City: Anti-Urbanism in the Twentieth Century, by Steven Conn

Things are looking up, dear listeners. The semester is over, summer is nearly here, and David’s beloved Knicks are up 2-0 in the NBA Finals. 
In this week’s episode, we take a step back and do some introspection. Here to discuss whether you should trust Yale, and other elite universities, more than Jalen Brunson in the fourth quarter is friend and colleague Sarath Sanga, Professor of Law at Yale Law School and Co-Director of the Yale Law School Center for the Study of Corporate Law. Sanga joins us to discuss both his new article, A Theory of Trust in Institutions, co-authored by Yehonatan Givati, and the recent Report by the Yale Committee on Trust in Higher Education, of which Sanga was a member.
Sanga kicks off the episode by explaining his view of why higher education is hemorrhaging public trust. Sanga argues that universities, and other institutions, pre-commit to doing specific things, and they lose trust whenever they stray from this initial commitment. Sam questions whether universities are now, and always have been, finishing schools for elites and, if so, whether it makes sense to talk about institutions like Yale having a mandate. And David brings up a variety of counterexamples that call into question whether an institution going against its mandate, such as when a university fields varsity sports teams, actually decreases trust in the real world. We hope you enjoy!
Referenced Readings
A Theory of Trust in Institutions, by Sarath Sanga and Yehonatan Givati

Report of the Yale Committee on Trust in Higher Education, by Yale University

"Shut Up and Dribble", by Ian Ayres

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]

“The Costs of Employment Segregation: Evidence from the Federal Government Under Woodrow Wilson”, by Abhay Aneja and Guo Xu [Sanga]

This episode is all about how Yale, and other elite institutions, are losing public trust. As Yale Law School insiders, what’s your best solution for making YLS more trustworthy? 
Sam: I’m very suspicious of law schools, especially ours-why shouldn’t everyone else be?
David:  I’m not sure that there is one quick trick in a polarized country, unless we can ensure that none of our graduates ever have an opinion that anyone of any political party ever disagrees with. That said, the best plan is to focus on what we’re good at, teaching brilliant students (like Daniel Browning, our out-going EP and all-around superstar!) and producing a broad range of excellent and rigorous scholarship.

As gas reaches stratospheric prices and the cost of living continues to climb, war seems to be on everyone’s mind these days. What better time, then, to be joined by Lawrence Douglas, the James J. Grosfeld Professor of Law, Jurisprudence and Social Thought at Amherst College, to discuss his brand new book, The Criminal State: War, Atrocity, and the Dream of International Justice?
 The episode begins with an overview of two paradigms in international criminal law. Douglas argues that international law has replaced the “aggression paradigm,” which emerged out of the Nuremberg trials, in favor of an “atrocity paradigm,” which focuses on sanctioning grievous acts of violence, especially towards civilians. However, Douglas suggests that both the atrocity paradigm and the now-defunct aggression paradigm suffer from serious deficiencies. Sam asks whether there really has been an aggression-atrocity shift or, instead, whether the aggression paradigm utterly failed, with a long delay before the separate construction of an atrocity paradigm — which itself proved short-lived. David queries whether Douglas’s story is too formalistic and already out of date. And, fortunately for everyone, we resist the urge to do the entire episode in Seinfeld voices.
Referenced Readings
Humane, by Samuel Moyn

From Aggression to Atrocity: Rethinking the History of International Criminal Law,” by Samuel Moyn 

The Internationalists, by Oona Hathaway and Scott Shapiro

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]

In this episode, Douglas proposed co-teaching an international law seminar with Sam. If you could teach a seminar on anything, unencumbered by ABA requirements or Yale Law School bureaucracy, what would you teach?
David:  Hmmm… Stoicism: From Marcus Aurelius to O.G. Anunoby.  Or perhaps Art History 601: The Art of Walt “Clyde” Frazier’s suits.  Or maybe Negotiation 401: How Jalen Brunson Won By Taking Less

Sam: “French Pastry”? I would have listed “Why I Dropped Out of Law School and You Should Too” but then I realized I manage to include the material in most of my classes…