February 14, 2007: Features
leader in the law
By Kathryn Beaumont ’96
The topic of the evening was women in the legal profession — and who better to give it than Elena Kagan ’81, the first female dean of the country’s most celebrated law school.
“Last year, a working group of Harvard law students issued a study on women’s experiences,” Kagan told 150 people in a stirring lecture to the New York City Bar Association in November 2005. “Most troubling are disparities in the academic arena in major law schools. Women law students are less likely to speak up in class. They graduate with fewer honors. And when asked to assess their own abilities, they give themselves far lower marks than men do on a range of legal skills. ... In the disturbing words of one female law student from the University of Pennsylvania: ‘Guys think law school is hard, and we just think we’re stupid.’”
It was not a glowing status report, but many in the audience — mostly older and middle-aged lawyers with their own stories to tell — could appreciate the evidence before them that at least some very important things have changed. Four decades earlier, the state of women in the profession was so sorry that at the school Kagan now leads, certain professors called on women to speak only on one day each year: Halloween.
Kagan, 46, and in her fourth year as dean, was, as of mid-January, considered a strong candidate to become the next president of Harvard University. An announcement was expected by early this spring, and — Kagan won’t discuss it — one online betting site listed her as the odds-on favorite, at 3 to 1.
Whether she gets that job or not, many in the world of legal academe say her accomplishments at Harvard’s law school reflect a rare mix of political savvy, determination, and pure smarts. Barbara Kelly, a lawyer at the firm Skadden, Arps, Slate, Meagher & Flom in New York, attended Kagan’s talk and came away impressed. Kagan is “the best of the profession, who has chosen to go into academics to provide a role model for other women,” Kelly says. Though Kagan’s name is known by few outside the worlds of law and education, many in those fields say her contributions have been immense. She is perhaps the most influential and visible woman in legal education, says Susan Plum, head of the Skadden Fellowship Foundation, which gives fellowships to students just out of law school or clerkships so that they can work with the poor. Kagan has overhauled the Harvard Law School’s first-year curriculum, a move likely to influence legal education across the country; expanded Harvard’s focus on public-interest law; and unblocked the clogged and politically charged hiring pipeline. Early in her tenure she endeared herself to students by renovating the student center and the woefully out-of-date gymnasium, and by making sure free coffee and hot chocolate were available in the main classroom building and in the library.
“Elena has an extraordinary talent for not making enemies,” says Anne-Marie Slaughter ’80, dean of the Woodrow Wilson School, who became friendly with Kagan when both were Sachs Scholars at Oxford (Kagan coxed the boat in which Slaughter rowed), and later taught with her at Chicago and Harvard law schools. “She knows how to pick her battles and stand up for what she needs to stand up for without alienating people unnecessarily. That’s a very valuable skill set, particularly at a place as political as Harvard Law School.” Slaughter and others say Kagan has a rare mix of brilliance and approachability. “She has a foot in many camps — the political, the corporate — and she is a huge public-interest supporter,” says Plum.
Kagan had no interest in becoming a lawyer when she entered Princeton. Her father practiced law in a small real estate firm, but that type of practice held little appeal. She entered the Woodrow Wilson School, but lasted there only three weeks before switching to history in search of a more “academic experience,” she says. “It never bothered me that history didn’t have a direct path to anywhere. I figured I could do whatever I wanted afterward.”
She was passionate about politics. She worked on Democratic political campaigns and became a rising star at The Daily Princetonian, ultimately serving as editorial chair and writing daily columns for the paper. Bruce Reed ’82, for whom she would eventually work at the White House Domestic Policy Council, recalls working under Kagan at the Prince. “She let me write my column about national politics, even though we were supposed to be putting out a campus newspaper,” he says. “Unlike most, she liked the editorial side not for the chance to rant, but for the thrill of making a cogent argument.”
Kagan spent two years at Oxford University as a Sachs scholar and then started at Harvard Law School, which, she had decided, “seemed a good preparation for any number of things,” though she still wasn’t sure she wanted to practice. It turned out to be a perfect fit. “Every problem that I picked up seemed to raise all these important questions, in terms of the way people live their lives. Boy, if you could solve these problems, you’d be doing something that would be pretty important in the world.” Just as at Princeton, colleagues remember both her intelligence and her hard work. Adam Cohen, a year behind Kagan at Harvard, and now a member of The New York Times editorial board, recalls her stint as supervising editor of the Harvard Law Review: “I remember wandering around Gannett House late at night and opening the door to the room at the very top of the building, and you’d just see Elena all by herself with a cigarette and a pen, editing late into the night.”
After Harvard, Kagan clerked for Judge Abner Mikva on the Washington, D.C., Circuit Court of Appeals, and then for Justice Thurgood Marshall on the U.S. Supreme Court. A natural raconteur, Marshall regaled his clerks with stories about his life in the law, which taught the young Kagan how important the law can be to individual human beings. “Clerking for Marshall reminded you that you should always be cognizant of not just the intellectual challenge of the law, but the power and ability that the law has to improve or worsen people’s lives,” she says.
In private practice after her clerkship, Kagan handled First Amendment cases, which propelled her into teaching at the University of Chicago Law School and would come to inform her most important legal arguments. In one 1996 article in The University of Chicago Law Review, for example, Kagan wrote that much of First Amendment law, particularly law governing freedom of speech, could be explained as the result of concern that government would regulate expression in order to serve its own political ends. Until then, most analyses of First Amendment law focused on the effects of a given regulation; Kagan shifted the discussion from consequence to motivation, writing that “over the past several decades [First Amendment law] has as its primary, though unstated, object the discovery of improper governmental motives.” David Strauss, a Chicago law professor, considers the argument among the leading articles on First Amendment law.
Kagan left academia in 1995 when Mikva, her old mentor, became counsel to President Clinton and asked Kagan to work for him again, as lawyer to the policymakers in the White House. After the 1996 election, however, her former Prince colleague, Reed — who had become Clinton’s chief domestic policy adviser — invited her to become one of the president’s top policy people herself. “I thought, ‘I can’t pass that up!’” Kagan says. She accepted, and as deputy assistant to the president for domestic policy was instrumental in White House efforts to reform welfare, raise education standards, and reduce youth smoking. “Faced with a recalcitrant Congress, we wanted to do as much as we could through executive action,” Reed says, “and Elena knew how to get it done.” Kagan, he says, was a “top-notch legal mind who could outwit the bureaucracy and the Congress. ... For a president like Clinton, who always had more questions than his staff had answers, she was indispensable.” Former deputy attorney general Jamie Gorelick, who describes herself as an admirer, told the New York Sun last spring that some in the Clinton administration viewed Kagan as brusque and overly demanding — but no one quibbled with her effectiveness.
In 1999, while still working for the White House, Kagan was nominated to the D.C. Circuit Court, in which a Democratic nominee is notoriously difficult to confirm in a Republican Congress. The nomination stalled through the end of the Clinton presidency, and Kagan headed back to academia, at Harvard. (She jokingly would thank Sen. Orrin Hatch, R-Utah, then chairman of the Senate Judiciary Committee, for her later appointment as dean.) With her government experience, Kagan’s focus as a professor shifted to administrative law — the law that governs federal agencies. One result was an article she wrote on presidential administration, which was published in The Harvard Law Review in 2001 and argued that the president should have the power to oversee administrative and regulatory policy in a way that furthers his own policy objectives. “What I saw in the government wasn’t well reflected in legal literature up to this point,” she says. The article won the American Bar Association’s award for the year’s top scholarly article in the field of administrative law, and it solidified Kagan’s reputation as a scholar. Her argument that the president should be in a commanding position in relation to administrative agencies hasn’t changed with the Bush administration. “I’m critical of many aspects of the Bush administration,” Kagan says, “but the basic points I was making about the White House and the executive branch agencies have not changed.”
As a professor, Kagan taught administrative law, but also was appointed chair of the committee to investigate a possible law school move to Harvard’s extensive land holdings in nearby Allston. Colleagues say she played a vital role in her capacity as committee chair in exploring alternatives and preparing a balanced report — a leadership role that was instrumental in her being named dean in 2003. (The school ultimately remained in Cambridge.)agan’s tenure at Harvard has not been without its wrinkles — she has been criticized for responding weakly when professors were accused of plagiarism, and for some faculty hires (critics have suggested that she was pushing the school to the right, while supporters pointed out that both conservatives and liberals have been hired) — but in general, she is credited with revitalizing the law school. In October, the law faculty unanimously approved sweeping changes to the first-year curriculum, the first major revision in more than a century, adding courses on public law, international law, and complex problem-solving in an attempt to modernize what students learn. The vote marked two years of behind-the-scenes work by Kagan. “Our students are not practicing in 1871,” Kagan says, referring to the year in which a series of changes that came to dominate legal education began. “You need to be much more steeped in international and transnational issues, and much more steeped in statutes and regulations as opposed to judge-made private law [traditional law and contracts doctrines].”
Just as important, Kagan hopes to emphasize the problem-solving nature of a law school education. “In the end,” she says, “lawyers are problem-solvers, even more than they are advocates. Clients expect their lawyers to help them through very complicated, difficult problems involving all different kinds of law and facts that are sticky. We wanted to make sure that, early on, we were training our students in that most important aspect of legal practice.”
Kagan’s experience in the public sector also has influenced her agenda at the law school. Kagan “sets the tone for the law school by emphasizing that public service is one of her top priorities. ... She makes clear that she believes that all Harvard Law School graduates, not just those who pursue full-time postgraduate public-service work, should feel an obligation to give back,” says Alexa Shabecoff, the school’s assistant dean for public service and director of the Bernard Koteen Office of Public Interest Advising. To that end, Kagan remains committed to establishing new clinical programs in areas such as international human-rights, environmental, Internet, and intellectual-property law. “It is critically important that we give students some real-world experience in what it means to practice law,” Kagan says.
When Kagan addressed the New York City Bar in 2005, it was this real-world experience that she had in mind, particularly as it relates to women. “I thought it was important to make the speech because although women have made great gains in the legal profession, a fair number of problems remain,” she says. “It will require a lot of work to ensure that the profession is taking full advantage of all the talent and initiative women have to offer.” She told the lawyers in attendance that she hoped to “start a conversation between law schools and the legal profession about where we go from here — and about how we might work together to expand women’s choices and, by doing that, improve our profession and society.”
Kagan called upon law schools to bolster midcareer advising for alumni, a great help for women lawyers at midcareer who want to re-enter the field after taking some time off to raise children. (Kagan herself has no children.) She noted a study by the Center for Work-Life Policy in New York that found that more than half of “on-ramping women” in law — women who want to re-enter the workforce — want to change professions or fields, with more than 60 percent hoping to move from the corporate to the not-for-profit sector. “And the need for midcareer advising is not just a women’s issue,” Kagan reminded those present. “Unlike their predecessors, all of today’s young lawyers — both women and men — are likely to hold multiple jobs in the course of their careers, making a series of transitions. Their biggest career decisions may well come five or 10 or even 20 years after law school graduation.”
She called for more extensive mentoring: Among other things, she said, mentors can “help other women see that power and authority are compatible with an ethic of decency and a fulfilling personal life.” And she requested closer links between law schools and the bar, so that each side can understand the issues faced by the other. Harvard Law School itself is exploring what steps to take as it prepares for “Celebration 55: The Women’s Leadership Summit,” a 2008 event that will mark 55 years since the first woman graduated.
Her own career, Kagan reflected later, has been largely uncharted. “I feel very, very lucky because mostly I’ve made decisions in my career sort of at the time I [needed to] make them. I don’t plan a whole lot,” she says. “I tell our students that. They are great planners. They have their entire lives mapped out. ... The most fun things that happen to you in your career happen as a result of serendipity. If you plan too much, when they happen to you, you might be afraid to grab them.”
Kathryn Beaumont ’96, a freelance writer in Boston, is a second-year law student at Boston College Law School.