LK: So have you been practicing your radio voice?
RG: I was born with my radio voice.
LK: I’m still working on mine. A great face for radio, but I’m still working on my radio voice.
RG: I think your voice sounds great.
Hi, I’m RG.
LK: And I’m LK, and you’re listening to Common Law, a podcast of the University of Virginia School of Law.
RG: So I’m the dean of the University of Virginia Law School, as Leslie knows well.
LK: Yes, and I’m the vice dean and an alum of the law school.
RG: So I think it’s a natural question to ask why two deans of a law school would want to do a podcast, especially given that our day jobs keep us pretty busy.
LK: They do. Here we are. We’re doing a podcast. What are we doing here?
RG: I think we’re here to talk about all the ways that law affects people’s everyday lives, and law, it really lurks behind everything. And I think it constructs so much of what we do that we don’t even realize. I had a professor, Bob Gordon, who was a professor of mine, a legal historian, say to me right after I got married — I walked in after my wedding and a couple of days later and he said, “How does it feel to be institutionalized?”
And I thought I don’t know what you’re talking about. And when I thought about it some more, what he meant was, you are now part of this institution called marriage and that being a wife is a legal category. And it had never occurred to me before that being a wife was a legal category — that there was — obviously I knew there was a legal component to getting married, but law is literally everywhere.
LK: Everywhere. Everywhere. Yeah, and I think we have so many people on our faculty who work on things that deal with how law does affect everyday lives and are trying to improve people’s everyday lives. So their work both in the classroom and when they’re doing research is about how do we use the law as a tool for constructive change in people’s lives. And part of what we want to do is bring people in. We’re going to have lots of different guests whose work is moving the law forward and trying to make positive change in society, and talk to them about what they’re doing and what they’re learning and how their work helps other people.
RG: Yeah, and why it should matter to everybody. And I think at this moment, actually, we have a little bit of an easier sell than such a podcast might have at other times because I think it’s so clear right now how important law is in people’s lives all over the place. And you can think of so many different examples. You can think of laws about voting. You can think about gerrymandering. You can think about immigration laws, health care. In every aspect of people’s lives, the law is in enormous flux right now, and lawyers are playing a huge role in what the law looks like now, what it’s going to look like in the future.
And there are lawyers representing everyday people, representing the government, representing corporations in every aspect of [our] lives. And that’s what our faculty does. They study what the law is. They study how to make the law better. And I think we’re at a moment where our nation, our world really needs to be thinking about these questions of what will the future look like, and what role will the law play in it.
LK: So the first season is going to be about the future of law.
LK: And we’ll be talking about how law is affecting the future and how the future is affecting the law and how together they are shaping the world that we live in.
RG: So I will say, I think a lot about the future as the dean of a law school. I think about the future of our law school, the future of legal education, the future of the legal market, and the legal profession. But by training, I’m actually a historian.
RG: So I also think a lot about the past and maybe before we get to the future of the law, we could talk about me and you and where we come from and why we’re doing this.
LK: Right. And it turns out there are many ways in which we’re similar and some ways in which we’re different. So, yeah, we have a lot in common.
RG: We do. We’re both deans.
LK: Were both deans. You’re a real dean. I’m a vice dean.
RG: I think we’re both real deans. I hear you call Dean Kendrick all the time.
LK: I’m a dean of vice.
RG: Oh, nice. I never thought about that before. I don’t even want to think about what that means.
LK: Right. Right.
RG: So we’re both deans. We’re both women.
LK: We’re both women. We both have background in constitutional law.
RG: We both love to teach. You won that All-University Teaching Award.
LK: Following in your footsteps. You also won that award.
RG: What else do we have in common? We both live in Charlottesville.
RG: We’re both devoted to the University of Virginia.
LK: That’s right. We both started our careers here and have been here for the totality of our careers. Both have kids and yeah.
RG: We — our spouses are both law professors, too.
LK: That’s right. Let’s not forget them. That’s right.
RG: It’s very important.
RG: And there’s some differences.
LK: Yeah. There’s a height difference.
RG: There is a height — just waiting to see if we would start with that —
LK: Does it only come across on a —
RG: Very short, which you might be able to tell in the photograph, but I’m not sure. And Leslie is quite —
LK: I look tall compared with you.
RG: Well, most people look tall compared with me. I often joke when I stand up that you can’t necessarily tell.
So there’s the short and the tall. I’m from New York.
LK: Yeah, and I’m from Kentucky, so those are two very different places.
RG: Those are pretty different.
LK: You’re a city girl, and I’m a hillbilly from the mountains of Kentucky. Yes.
RG: That’s different. And though we both do a constitutional law, we think about it pretty differently, actually.
LK: Yeah, that’s right. We have different specialties, and we have different perspectives that we start with.
RG: I think a lot about equality.
LK: Yeah. You’re in an equality person, and I started as a liberty person. My priors are as a liberty person doing First Amendment work. And you do equal protection.
RG: Yeah, so what do we mean by the difference between liberty and equality? I think we’re both talking about rights. I think we’re both thinking about rights and people’s rights vis-a-vis the government. And I’m more often I think thinking about how the government treats different groups of people and whether the government is treating different groups of people similarly or differently and thinking about should they be treating people similarly or differently. Are people similarly situated, and if they are, then we should treat them the same. But if they’re not similarly situated, then we might need to treat them differently.
LK: Yeah. And I think my background starts with the First Amendment and with thinking about whether or there are some kind of threshold freedoms from government intervention that everyone should have, whether there’s some baseline free speech right that people are entitled to and what that looks like. And so that’s more a focus on the nature of the right — the structure of the right although — it’s interesting it does have equality components to it.
And some of the early First Amendment cases that drive the development of the First Amendment that we have today really located their principles in both the First Amendment and the Equal Protection Clause and said what we care about is making sure that ideas have equal treatment by the government. The government’s not coming in on one side or the other of particular types of ideas. So there are really interesting overlaps, I think, between liberty and equality. They’re not mutually exclusive. Often they’re working in the same direction, but there are some places where they can be intentioned. So it’s always good and interesting to be looking at things from both perspectives.
RG: I agree. And when I’m thinking about equality, it’s often the case that when you’re asking how people are being treated relative to one another, you also need to know how are they being treated absolutely. Are their rights at risk? Are their rights being violated?
So I agree that there is — there are combinations and interactions and synergies as well as tensions. But it is interesting, and I think it will come across in the show that when — our starting points. I start with equality, and then I’ll think about liberty. And I think you start with liberty and then think about equality.
Another difference, I think, between is I’m a lumper, and you’re a splitter.
LK: Yeah. This is one of my favorite differences between us because it’s completely true. It’s always been true. You’re a lumper, and I’m a splitter. You think about the commonalities in things, and I think about the differences in things. And I think both are the — both of those are very important, too, to have both perspectives. But I wonder sometimes if partly — well, I don’t know.
There’s maybe a chicken and egg issue here, but if you’re a lumper because you’re a historian, you’re a historian because you’re a lumper. But you see the big picture forces that have shaped society, and you see the commonalities in different individual stories and different narratives and different actors. And you paint a really compelling picture of how all of these things fit together. I think about your book “Vagrant Nation” and how lumping really helps to see how all of these different cases that were about vagrancy laws in the 20th century — how they come together for this narrative that’s much bigger than maybe the sum of its parts.
RG: So that’s definitely my attitude. And again, I don’t know the chicken and the egg, which is the cause and which is the effect, but it’s definitely how I approach history. But when I do that history and when I’m lumping, I try to be careful about the categories. And what I’ve love so much about your work is the care you take with the category. So you say, well, when we think about intent in the law, we’re not just think about one thing. We’re actually thinking about eight different things.
And so I find in your work that the splitting is so analytically crisp and clear. And so you help us get to the next level of well, when we’re faced with a legal problem, how do we analyze it? We have to break it down into its component parts before we can then put it back together and ask what does this case look like.
LK: Oh, thanks. [INAUDIBLE]
RG: I mean it. Actually when I was reading your work on intent, I was thinking about, there’s another difference between us that I don’t know that we’ve talked about before. But I think you are much more focused on questions of intent, and I’m much more focused on questions of impact.
LK: Yeah. The constitutional law struggle between purpose and effects. What is it that we really care about? That’s the big question I think in constitutional law. And I think they both matter, but I do think people might focus or gravitate more toward one or the other. And I have been focused a lot on intent, and you’re focused more on effect.
RG: Effects. Yeah. And I wonder if that partly has to do with the liberty, equality with the First Amendment, Equal Protection Clause difference, too.
RG: In Equal Protection Clause, you can ask the question, was there an intent to discriminate on the basis of race? And that’s important clearly. But it’s a fairly narrow way to think about racial discrimination in the 20th century given centuries and centuries of slavery and Jim Crow. There’s lots of racial inequality that is the effect of institutional or historical racism. And so it has always seemed to me that focusing on intent becomes too narrow.
LK: Right. Whereas when I’m studying speech, I think if you think about effects, pretty much every law has effects on speech. Every law has effects on what gets said, by whom it gets said, if it gets said at all, when it gets said. So you can think about something as unrelated to speech as a driver’s license law that says you can get a driver’s license when you’re 16 years old, and that means that 15-year-olds can’t drive to the library and they can’t get books and there’s certain types of expressive activities that they’re not going to partake in.
Every single law has effects on people’s speech opportunities one way or the other. And if you have an effects-driven model in speech, you’ll essentially wind up constitutionally using all of law and asking as to every single law on the books, what does this do to people’s speech opportunities?
So that’s not to say you can’t have an effects-driven model, but you’re going to have to define really narrowly what the scope of it is because otherwise everything has speech effects and everything’s up for grabs. So I think that’s part of the reason that the law and maybe scholars also have focused on is the intent of this law to suppress people’s speech. Is the intent of this law to discriminate by viewpoint or by subject matter because otherwise it’s so broad that it’s just it’s unwieldy.
RG: So let me ask you this. How did you get interested in speech in the first place? Where does that come from for you?
LK: Right. Right. So, I don’t know entirely where it comes from. I did — I studied English literature before going to law school. And I was in Oxford working on a dissertation on John Milton, who is a really weird guy but has a special place in my heart, but is a very strange person. But he wrote about all sorts of things, including some of the early tracks advocating for divorce, which are tracks that people don’t read that much anymore, and also advocating for the execution of Charles I. He was very busy.
But something else that he wrote was “Areopagitica,” which is the first modern — as opposed to ancient — the first modern defense of a free press. And I spent a lot of time with that as a graduate student. And then when I came to law school, partly I decided — I’m a Virginia alum, and I decided to come to law school at Virginia partly because of a faculty member who was working here at the time, Vince Blasi, who was working on Milton and working on the ideas behind the First Amendment and the arguments in support of freedom of speech. So here’s someone who knew Milton and was working actively on Milton at the time.
So I took a First Amendment class, a class on the intellectual history of the First Amendment my first year in law school. And I loved it. And I think that that transitioned from working in English literature to working in the law on this subject about when speech is protected by the First Amendment when it falls within the ambit of freedom of speech. That was something that was very special, and I feel really lucky that it happened. And I’ve been focused not entirely but at least partly on free speech ever since.
RG: And doesn’t it go back a little further than that even to your parents?
LK: So it — yeah, it might. It might. So, yeah, as I said I’m a hillbilly from the mountains of eastern Kentucky. My father’s family has lived there for generations. They came through with Daniel Boone. And I grew up on a holler in eastern Kentucky and with two parents who both went to graduate school in English literature. They met there before my father went to law school on the GI bill and then came back to eastern Kentucky to practice law. And so it was a family that was really interested in literature and in words, and I started out studying literature and I think when I was thinking about the law that that interest still remained and the interest in words and their significance and how important the freedom of speech is to people. I think it probably goes back that far.
RG: Do your parents see you as choosing sides and going with your dad as opposed to your mom?
LK: My husband always says I switched parents. I started doing English literature, which my mother is a poet and creative writing instructor, and then I went to law school as my father had. So I’m not very creative. All of the pursuits that I’ve had have been things that my parents already did before me. And you grew up in New York.
RG: I did. I did. Daniel Boone just blows my mind. My family’s America is Ellis Island, Eastern European Jewish immigrants, early 20th century. Going back to Daniel Boone, that’s — it’s hard to wrap my mind around.
But my — I’m from New York. I grew up in Brooklyn and spent most my life until I moved here in the northeast although I became fascinated with the South as an historical subject when I was in college and started coming down to the South for summers and summer jobs. And one time I was the researcher writer for “Let’s Go” guidebooks when I was about 23. I did the whole South. I drove all over the South staying in youth hostels and living on $40 a day.
LK: No kidding.
RG: Yeah, so I’ve lived here before I moved to Charlottesville but for much shorter times. Now it’s been more than 16 years.
But I think my family background had a huge impact on my interests and my thoughts about social justice and racial justice, and I grew up in a family that was always talking about politics and always talking about justice. And my great-grandmother was friends with Ethel Rosenberg, the famous Communist spy, so the stories go. And so we grew up talking about what racial equality looked like in the world.
And I also grew up in Brooklyn in the 1980s when there was an enormous amount of racial tension — Bernhard Goetz, Crown Heights, Howard Beach, Tawana Brawley. My high school didn’t close for snow days. My high school closed when there were days of rage that closed down the Brooklyn Bridge, and the students couldn’t get home. So I think that had a huge impact on what I later studied.
And I — coming out of college, I really wanted to be a professor and wanted to be a historian, but I also wanted to change the world and so doing both a Ph.D. in history and a J.D. helped me do both of those things. And I became a legal historian. And as we were talking about before about law mattering for me and my scholarship, the law matters everywhere in history as I see it.
And more importantly, when I write my history, I’m thinking about, well, how does the law changed and who makes it change. Does it change — because there are big historical forces, it changes because people make it change, and the two groups of people in particular that I think a lot about are regular everyday people who experience harms in their lives and think I need a lawyer. And I can respond to this through the law or regular everyday people who the law comes and clamps down on them. They get arrested. They get called into court for various reasons.
And so the regular everyday people make the law change, and then the lawyers make the law change. And I think we focus a lot on judges and the pieces of cases that we see most publicly, our judges and especially the Supreme Court and justices of the Supreme Court, and they play a hugely important role. But I actually think it’s not quite as important as most people think because before a case ever gets to a judge, there was a plaintiff and there was a defendant and there were lawyers and there were experts and there was all this development of what kind of cases lawyers are going to take and what kinds of harms people identify for themselves that they think are important enough to go to court over.
And so by the time the court gets the case, a lot of the big decisions have been made about who’s involved and what it’s about and what kinds of legal claims are being made. And the judges obviously have enormous power whether they’re going to accept those claims or not, but they’re not generating the nature of the cases. They’re not generating what’s going on in the cases.
So my history is about that and how law changes, especially civil rights law in the 20th century. And so the questions — the motivating questions for me are those questions from my childhood. Why do we still here in 2018 see racial inequality around us, see other forms of inequality around us, and how can history tell us the choices that we’ve made through the law and what the law has done, and where it has made progress and where it has failed and open up our imaginations for the future to ask: what can the law look like going forward given what I hope to show about what the laws look like in the past?
LK: You gave a great talk at the conference that was here at UVA in September of this year on empirical critical race theory, and you gave a talk that I thought just really brought together what the history of civil rights can tell us about what our present moment looks like and what the future of civil rights will be as we move further into the 21st century. And you were sounding some hopeful notes there. You’re also an optimist, which is something that’s really great.
RG: I am an optimist. I am an optimist. I’m a yes person.
LK: I’m not sure I’m a yes person. Yeah. I might be more — I’m certainly more of a no person than you are.
RG: Maybe a maybe person.
LK: I’m a “yes, but” person.
RG: A “yes, but” person. So I’m pretty — I’m a “yes, and” person, and I am an optimist. And it’s interesting because when I look backward at the law, what I often see is the law doesn’t do as much as we want it to. And in most of the scholarship that I write, people want things from the law that they don’t ultimately get. They get some of what they want, but they don’t get all of it. And so that could lead one to be pessimistic, but it actually leads me to think, well, how do we then get to the next stage.
So in my first book — and this is part of what I was talking about in that conference — if the problem today is that Jim Crow was a system of formal legal segregation — separate water fountains, separate schools, separate places to sit on buses — and also a system of real economic exploitation and economic inequality, well, we only really dealt with the first part in Brown. That’s the image of Jim Crow that comes out of Brown. That’s what we say Jim Crow is after looking at Brown. And that’s the part we tried to fix. And then we called victory because we fixed that part to a considerable degree, but there was all this other stuff that we never even recognized as part of the problem in the law at least.
And so today here we are, and we throw up our hands that there’s still racially determined and racially inflected economic inequality, and we think that’s contingent to rethink that’s just happenstance and how did we get to that place. And I look at it, and I think, no, we left in place a huge part of what Jim Crow was all about. And my hope is that once we acknowledge that and once we recognize that and see that historically, we can then start to ask the question so what should the law do now.
The law is an ever-evolving thing. We don’t ever get to a place where the law ends, where law fixes a problem completely because the problems are there in society. And it’s an iterative process. So people have problems. They bring them to the law. The law resolves them. New problems arise. That’s not that’s not a bug. That’s how the system works. And so it’s never over, and so I think we make progress by asking what did we succeed in and what did we fail in in the past.
LK: It’s interesting. The same debates are happening within the First Amendment, and a lot of focus within the First Amendment world is on how First Amendment speech protections have essentially, through the 20th century to the 21st century, have sat on top of existing economic distributions. So that means that some people have many more speech opportunities because they have lots more resources.
And there was within First Amendment history also a period where people were thinking about free speech rights as economic rights more than we’re used to today where they were thinking about the aspects of freedom of speech like the right to protest, the right to have strikes, the right to have demonstrations, the right to advocate for unions. And those had economic implications to them, and at some point the development of First Amendment law through some conscious strategic decision-making turned away from that and turned more toward the civil liberties focus that we have today. And a lot of what people are talking about within First Amendment scholarship now is what are the ramifications of that and how do you move forward from that.
I don’t see the First Amendment — maybe this is my lack of optimism — but I don’t see the First Amendment itself being a tool that can generate economic equality in a society that’s not interested in that value. I don’t — I’m a fan of free speech, but I think there are limits to what it can do. But a free speech right that’s embedded in a society that’s more interested in economic equality I think would look different from what we’ve had over the last decade. So it’s interesting that there are these parallels in your work and what’s going on in First Amendment.
RG: Yeah, and I think maybe what you’re saying also raises the question of — that we started with, which is what’s the relationship between the law and the rest of society. And that’s not one relationship. It’s lots of relations.
LK: It’s a dynamic relationship.
RG: Exactly. So it’s probably clear by now that we spend a lot of time talking to each other.
LK: We definitely do. We definitely do.
RG: An inordinate amount of time talking about everything from student discipline to curriculum to free speech and equal protection actually.
LK: It’s wide-ranging.
RG: It is — and our children. It is very wide-ranging. So the question is why talk to you all and who might want to listen to us, other than the people who have to, like our students and our husbands and each other. But I actually — who do you think the listener is, Leslie?
LK: Well, just to be clear, it’s not going to be us talking to each other for every time.
RG: That’s totally right.
LK: From here on out, we’ll be talking to other people, and you’ll get to hear from them and all the interesting things that they’re working on.
RG: We’re going to have lots of law professors on and some practicing lawyers to tell us about the real world and law professors who can reflect on what’s going on in the real world and give some predictions about the future and what that world’s going to look like going forward.
LK: And we’ll just be the guides on this journey.
RG: Perfect. And our first guests actually are Deirdre Enright, who is the co-director of the Innocence Clinic and the Innocence Project at the Law School, and John Grisham, who needs no introduction.
So other than the fact that we are going to have Deirdre Enright and John Grisham and everyone’s going to want to hear them, who do you think our listeners are?
LK: Yeah, so I hope we’ll connect with lots of different people starting with other law professors, law students. I hope this could be like going to law school but maybe even more fun than going to law school. I think going to law school’s pretty fun, but this is a different format for thinking about the law.
RG: To all those people who thought one day they might go to law school or not.
LK: Yes. Yes. People who are thinking about going to law school. And I think our point is that law is everywhere and law is for everyone, so we hope that this podcast can be for everyone, too.
RG: I couldn’t agree more.
[THEME MUSIC PLAYING]
So we hope you’ll tune in to our episode on wrongful convictions with Deirdre Enright and John Grisham. And we hope you’ll subscribe to our podcast, “Common Law,” on Apple Podcasts, Stitcher, or wherever it is you get your podcasts. We have new episodes coming every couple of weeks. We hope you’ll tune in.