Melissa Schwartzberg

Digging a Hole: The Legal Theory Podcast

Good news, listeners! Our rational and responsive representatives in Washington have agreed to keep the federal government running through December 20. (As far as we know, anyway.) You might be tired of the all the backroom dealing it seems to take to keep national parks open and the wheels of our country turning. Get it together, you grumble. But as realists in the world of legal theory, we wanted to ask: what would it mean to take legislative dealmaking seriously, and is it possible for deals to be good and just? (Shoot for the moon.) And here to help with that question, hitting our pod is an expert in democratic theory and the law, a former editor of NOMOS, and the Silver Professor of Politics at New York University, Melissa Schwartzberg. On this episode, we discuss Schwartzberg and co-author Jack Knight’s doozy of a new book, Democratic Deals: A Defense of Political Bargaining.

To help with orienting our readers, Sam asks Schwartzberg to explain how political theorists and political scientists think of legislative dealmaking—and what’s missing. Schwartzberg introduces the book’s main conceptual yardstick, the equitable treatment of interests, and how looking to contract and constitutional law helps illuminate what a well-functioning legislature looks like. David, realest of the realists, pushes Schwartzberg on how her theory applies to state and local legislative bodies like the Los Angeles County Commission, before we end with a democratic-theory-inflected discussion on the role of courts in a legislative democracy.

This podcast is generously supported by Themis Bar Review.

Referenced Readings

• On Compromise and Rotten Compromises by Avishai Margalit

• Democracy and Legal Change by Melissa Schwartzberg

• Counting the Many: The Origins and Limits of Supermajority Rule by Melissa Schwartzberg

• “Worthwhile Canadian Initiative” by Flora Lewis