been practicing your radio voice? RISA GOLUBOFF: I was
born with my radio voice. [LAUGHTER] LESLIE KENDRICK: I’m
still working on mine. A great face for
radio but I’m still working on my radio voice. RISA GOLUBOFF: I think
your voice sounds great. [THEME MUSIC] Hi, I’m Risa Goluboff. LESLIE KENDRICK: And
I’m Leslie Kendrick, and you’re listening
to Common Law, a podcast of the University
of Virginia School of Law. RISA GOLUBOFF: So I’m the
Dean of the University of Virginia Law School
as Leslie knows well. LESLIE KENDRICK: Yes,
and I’m the vice dean and an alum of the law school. RISA GOLUBOFF: 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. LESLIE KENDRICK: They do. Here we are. We’re doing a podcast. What are we doing here? RISA GOLUBOFF: 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. LESLIE KENDRICK: 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. RISA GOLUBOFF: 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 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. LESLIE KENDRICK:
So the first season is going to be about
the future of law. RISA GOLUBOFF: Yes! LESLIE KENDRICK:
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. RISA GOLUBOFF: 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 legal education,
the future of the legal market, and the legal profession. But by training, I’m
actually a historian. LESLIE KENDRICK: Right. RISA GOLUBOFF: 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. LESLIE KENDRICK: 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. RISA GOLUBOFF: We do. We’re both deans. LESLIE KENDRICK:
Were both deans. You’re a real dean. I’m a vice dean. RISA GOLUBOFF: I think
we’re both real deans. I hear you call Dean
Kendrick all the time. LESLIE KENDRICK:
I’m a dean of vice. RISA GOLUBOFF: Oh, nice. I never thought
about that before. I don’t even want to think
about what that means. LESLIE KENDRICK: Right. Right. RISA GOLUBOFF: So
we’re both deans. We’re both women. LESLIE KENDRICK:
We’re both women. We both have background
in constitutional law. RISA GOLUBOFF: We
both love to teach. You won that All
University Teaching Award. LESLIE KENDRICK: Following
in your footsteps. You also won that award. RISA GOLUBOFF: What else
do we have in common? We both live in Charlottesville. LESLIE KENDRICK: Yeah. RISA GOLUBOFF: We’re both
devoted to the University of Virginia. LESLIE KENDRICK: That’s right. We both started our careers
here and have been here for the totality of our careers. Both have kids and yeah. RISA GOLUBOFF: We– our spouses
are both law professors, too. LESLIE KENDRICK: That’s right. Let’s not forget them. That’s right. RISA GOLUBOFF: It’s
very important. LESLIE KENDRICK: Yeah. RISA GOLUBOFF: And
there’s some differences. LESLIE KENDRICK: Yeah. There’s a height difference. RISA GOLUBOFF:
There is a height– just waiting to see if we
would start with that– LESLIE KENDRICK: Does it
only come across on a– RISA GOLUBOFF: Very
short, which you might be able to tell in the
photograph, but I’m not sure. And Leslie is quite. LESLIE KENDRICK: I look
tall compared with you. RISA GOLUBOFF: 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. LESLIE KENDRICK: Yeah,
and I’m from Kentucky, so those are two very
different places. RISA GOLUBOFF: Those
are pretty different. LESLIE KENDRICK:
You’re a city girl, and I’m a hillbilly from
mountains of Kentucky. Yes. RISA GOLUBOFF: That’s different. And though we both do
a constitutional law, we think about it pretty
differently actually. LESLIE KENDRICK:
Yeah, that’s right. We have different
specialties, and we have different perspectives
that we start with. RISA GOLUBOFF: I think
a lot about equality. LESLIE KENDRICK: 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. RISA GOLUBOFF:
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. LESLIE KENDRICK: 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. RISA GOLUBOFF: 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. LESLIE KENDRICK: 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. RISA GOLUBOFF: 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. LESLIE KENDRICK: Oh, thanks. [INAUDIBLE] RISA GOLUBOFF: 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. LESLIE KENDRICK: 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. RISA GOLUBOFF: Effects. Yeah. And I wonder if that
partly has to do with the liberty, equality
with the First Amendment, Equal Protection Clause
difference, too. LESLIE KENDRICK: Right. RISA GOLUBOFF: 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. LESLIE KENDRICK: 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. RISA GOLUBOFF: So
let me ask you this. How did you get interested
in speech in the first place? Where does that
come from for you? LESLIE KENDRICK: 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 Blasey, 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. RISA GOLUBOFF: And doesn’t
it go back a little further than that
even to your parents? LESLIE KENDRICK: 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 and 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. RISA GOLUBOFF: Do
your parents see you as choosing sides and going
with your dad as opposed to your mom? LESLIE KENDRICK: 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. RISA GOLUBOFF: 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. LESLIE KENDRICK: No kidding. RISA GOLUBOFF: 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 PhD in history and a JD 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. Doesn’t 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? LESLIE KENDRICK: 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. RISA GOLUBOFF: I am an optimist. I am an optimist. I’m a yes person. LESLIE KENDRICK: 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. RISA GOLUBOFF: Maybe
a maybe person. LESLIE KENDRICK: I’m
a yes-but person. RISA GOLUBOFF: 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. LESLIE KENDRICK:
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 we’d 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. RISA GOLUBOFF: 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. LESLIE KENDRICK: It’s
a dynamic relationship. RISA GOLUBOFF: Exactly. So it’s probably clear by
now that we spend a lot of time talking to each other. LESLIE KENDRICK:
We definitely do. We definitely do. RISA GOLUBOFF: An
inordinate amount of time talking about everything
from student discipline to curriculum to free speech
and equal protection actually. LESLIE KENDRICK:
It’s wide ranging. RISA GOLUBOFF: 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? LESLIE KENDRICK: Well,
just to be clear, it’s not going to be us talking
to each other for every time. RISA GOLUBOFF:
That’s totally right. LESLIE KENDRICK:
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. RISA GOLUBOFF: 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. LESLIE KENDRICK: And we’ll just
be the guides on this journey. RISA GOLUBOFF: Perfect. And our first guests actually
are Deirdre Enwright, 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
Enwright and John Grisham and everyone’s going
to want to hear them, who do you think
our listeners are? LESLIE KENDRICK:
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. RISA GOLUBOFF: To
all those people who thought one day they
might go to law school or not. LESLIE KENDRICK: 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. RISA GOLUBOFF: I
couldn’t agree more. [THEME MUSIC PLAYING] So we hope you’ll tune in to our
episode on wrongful convictions with Deirdre Enwright
and John Grisham. And we hope you’ll subscribe
to our podcast, Common Law on Apple Podcast,
Stitcher, or wherever it is you get your podcasts. We have new episodes coming
every couple of weeks. We hope you’ll tune in.

Author Since: Mar 11, 2019

  1. Thanks, Risa and Leslie, for undertaking the “Common Law” podcast project. It’s a perfect time for you to be doing this and both of you are so well qualified to talk with people about this topic. It was great to get to know both of you in Episode 0 — you are off to a great start!

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