Daryl Levinson

Digging a Hole: The Legal Theory Podcast

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