John Harvard's Journal
At the HLS Helm
"Elena Kagan is an imaginative scholar, a gifted teacher, a public-spirited lawyer, and an energetic leader admired for her sound judgment and her capacity to inspire trust," said President Lawrence H. Summers. "She understands both legal academia and legal practice, and has excelled in both domains...and she combines exceptional intelligence with a remarkable ability to bring people together around issues of academic and institutional importance." She becomes dean, Summers said, at a time "when legal education faces intriguing questions, and when the legal profession confronts profound changes."
|Photograph by Justin Ide / Harvard News Office|
A scholar of constitutional and administrative law, Kagan takes over from Robert C. Clark, who announced last November his decision to step down. He returns full-time to the faculty as Scott professor of law and Harvard University Distinguished Service Professor, a newly created honorific title.
In an interview, Kagan expressed her gratitude to Clark, who "has left meleft all of usa school strong in all of its fundamentals. I come in with the luxury of trying to build on strengths rather than trying to fix problems." The magna cum laude HLS graduate, who has served on the faculty since 1999, has wasted no time in familiarizing herself with the task at hand. Shortly after her appointment, she began meeting individually with all 81 members of the faculty in order, she said, to get a "better sense of [them] as people," to learn more about their teaching and research, and to talk about issues that face the school.
"There's lots to do," she said, HLS's strengths notwithstanding. Maintaining a great law school means making great appointmentsfinding people whose scholarship is "cutting edge" and "socially useful," she explained. It means developing "a vibrant, energetic, intellectual community,...looking at what we teach and how we teach itasking ourselves whether this is the right curriculum and pedagogy for these times. And it means," she continued, "thinking about our ties to the legal profession, which I think, increasingly over the yearsat all law schoolshave been attenuated."
Law schools, she noted, have become more academic and scholarly, even as the practice of law has become more commercialized and market-driven. Renewing ties between the academy and the profession would be of mutual benefit. Kagan's own background is a testament to the value of such cross-fertilization. Her 2001 Harvard Law Review article on "Presidential Administration," describing the way the president of the United States uses power over the regulatory agencies to effect policy, was named that year's top scholarly article by the American Bar Association's section on administrative law and regulatory practice; she said that her White House experience made her realize that much of what had been written about the subject "didn't focus on some of the key issues" and added, "I'm a big believer that practice of various kinds can inform scholarship in very important and good ways."
Kagan has jumped several times between the academic and professional spheres. After law school, she clerked for Judge Abner Mikva of the U.S. Court of Appeals for the Washington, D.C., Circuit. Mikva, who has served as congressman, judge, and then counsel to the president, "knows how the federal government works in all three of its branches," she said, "and he communicates that knowledge to the people who work for him." Kagan went on to clerk for Justice Marshall, and then worked for two years in a Washington, D.C., law firm before joining the University of Chicago Law School faculty in 1991.
She served in the White House from 1995 to 1996 as associate counsel to the president, and then, from 1997 to 1999, as deputy assistant to the president for domestic policy and deputy director of the Domestic Policy Council. Those years in public service, she said, "were a great opportunity to work on issues I care about in a way that really affects people's lives""a great responsibility." As dean, Kagan plans to "promote public-service opportunities and the understanding that public service is an integral part of a career in the law. I think it is very important that we make students aware of the many contexts and ways in which they can do public service," and at the same time communicate to them that such service is "an important part of being a lawyerthat they really do have a responsibility to give back after having received this degree."
And what of the concerns of students themselves? At the same time that she began meeting with faculty members, Kagan held a town meeting with students to learn what they think are the most pressing issues facing the law school. Most of the discussion centered on educational matters: "Whether there should be a January term, what the writing requirement should look like, how we can get more international focus into our courses, and the unfortunate gap in the faculty in the area of environmental law." Kagan came away thinking that this kind of discussion about "how we can make the educational experience even stronger than it is" is exactly "what students should be talking about and questioning and pushing on."
But she also knows that even though the school has some "absolutely magnificent" facilities, including Langdell Hallhome to what is "beyond doubt the greatest law library in the world""the dormitories, the gymnasium, and the student center are really not as good as they ought to be in a world-class institution." Kagan chaired the law school's locational-options committee, which in 2001-2002 explored the potential advantages and disadvantages of various future scenarios for the space-challenged institution, including a move to Allston. The committee produced a report that is, she said, "in general straightforward and honest." She said the committee strove to make its discussion of the move balanced "because we understood that in the end this is...a decision that involves a lot of different parts of the University and it involves the future of the University as a whole." Although "the faculty expressed itself fairly clearly some years back as to its preference for staying here," noted Kagan, "it is a great testament that it [has now] stepped back and said, 'Let's be analysts, rather than advocates, and let's provide the best information and analysis we can.'" Although a move is unlikely to occur during Kagan's deanship, a decision about what would be best for Harvard's future will almost certainly come fairly soon.
As law schools go, HLS, with about 540 students in a class, is big. Kagan compared it to a city, and said that being big makes HLS more diverse and lends it a "kind of excitement, a kind of vibrancy and dynamism that smaller institutions can't hope to match." On the other hand, "big cities find it harder to create community, to really make individuals feel as if they are an integral part of the whole."
The racially motivated incidents that rocked the school last year highlight this challenge. They demanded "a strong response from the administration," said Kagan. "As much as we would like to think that it is not true, racism continues to exist at Harvard Law School as well as at every other institution in America. We should be aware of that and should strive...to promote good relations and good understandings among people of different races...religions...ideologies.... Everybody deserves to be a full member of this community."
Kagan recalled that during her student years in the 1980s the faculty was in the throes of an ideological civil warand the intellectual community was "vibrant in a way that I don't think anybody wants to repeat." (The law school basically did no hiring because of the feuds; later, she said, Clark managed to bring the faculty together sufficiently to "make lots of hires.")
"But part of the price of making peace," she said, "is that people stopped talking to each other a little; the way to create a peace was to separate from each other. I think it is now timeand the law school is readyfor people to come back together...to engage constructively with each other on intellectual matters...faculty and students alike."
One of the first tests of that commitment will be curricular reform. Much of what she hopes to do is articulated in the school's strategic plan, developed by Clark and others over the last few years. It will now be Kagan's responsibilityshe is "looking forward to it"to spearhead the related fundraising effort, which kicks off June 13 (see the next issue for a full report). Internationalization is a principal goal. Kagan intends to add to the school's "strong international-law faculty," and also work to bring international- and comparative-law topics into the regular curriculum so that these subjects are an integral component of every course. "I think the leading law schools of the twenty-first century are going to have to be world law schools in composition and in orientation," said the new dean. "And Harvard is perfectly positioned to do that because of its size and its international connections. We just have to make sure that we grab hold of the opportunities."