Kagan's Legal Legacy

When Harvard Law School Dean Elena Kagan ascended to the masthead of the storied Harvard Law Review, she inherited a journal that had gone unpublished for four issues due to the previous year’s dysfunctional student management. As supervising editor, Kagan played a central role in bringing the journal up to speed, sacrificing much of a summer to complete her predecessors’ unfinished issues.

Nearly 20 years later, Kagan rose to lead the Law School, another institution plagued by infighting and discontent. Though it had begun to experience a revival, the school still faced major unresolved issues when she assumed the deanship in 2003.

The peace and institutional reform during Kagan’s tenure as dean of the Law School have marked a significant shift from the ideological battles in the 1980s and early 1990s, when a warring faculty became symbolic of the school’s larger problems.

Kagan embarked on a wide-ranging reform campaign to address many of the issues she had experienced firsthand as a student at the Law School, hoping to improve the student experience that many describe as cold and unwelcoming.

Hailed by students for providing free coffee and an ice skating rink—which administrators have pledged to spare from of budget cuts—Kagan has achieved a series of major successes including the completion of the largest capital campaign in the history of legal education and the start of a large-scale construction project known as the Northwest Corner.

Kagan’s colleagues and former classmates echo one another in saying that her own experience as a Law School student shaped not only her character, but her vision for the future of the school and her approach to her next would-be position as solicitor general in President Barack Obama’s administration.

‘ONE OF A MILLION’

Kagan speaks fondly of her years at the Law School but acknowledges that her positive memories were the exception rather than the norm.

“When I was here in the mid-80s, those weren’t the best years. That was the baseline I had for the Law School,” Kagan said in an interview last October. “I had a very fine experience, but I was always conscious that most students did not have that view.”

Many of Kagan’s former classmates cite large class size as the driving factor behind the widespread grumbling among the student body. Compared to other top-tier schools such as Yale or Stanford—which have been characterized as having happier students—Harvard’s class size is roughly three times as large.

“It was easy to think you were one of a million,” says William K. Kelley, a fellow student who worked under Kagan on the Law Review.

As Dean, Kagan embarked on an ambitious expansion of the faculty to decrease class sizes, bringing the total number to 102 full-time professors before recent departures for the Obama administration. In the process, she has poached more tenured faculty—including Cass R. Sunstein ’75, the most cited legal scholar in the country—from other institutions during her five-year deanship than during the previous 20 years combined.

Other programs that Kagan introduced testify to the six years she spent soaking up a more collegial atmosphere as a University of Chicago professor, her first academic appointment. In an effort to improve the student experience—academic, residential, and social—she brought both the clinical writing program and that school’s then Dean of Students Ellen M. Cosgrove from Chicago to the Charles.

These changes have caught the attention and acclaim of legal institutions nationwide and have even elicited dismay from administrators at rival schools that have lost top faculty to Harvard.

“Competitors don’t naturally say great things about you, but I think all this has been noticed across the world,” Kagan says.

NO LONGER AN AFTERTHOUGHT

Despite the structural problems that Law School faculty and administrators freely acknowledge, most negative impressions of the Law School from both former and current students seem to com from a vague sense of neglect and disregard from professors and administrators, rather than specific grievances.

Law School Professor Carol S. Steiker ’82, who served as president of the Law Review when Kagan was supervising editor, says the competitive atmosphere was a source of discontent among her fellow students. As a result, only a small subset of the student body, such as many members of the elite Law Review, felt they received attention from the aloof faculty.

“The people who were stars got a lot of pats on the back,” Steiker says, “but those who weren’t, didn’t feel sufficiently appreciated.”

By switching to a pass/fail grading system last fall, Kagan says she has taken a step toward reducing the perceived level of competition—though students acknowledge that competition is a way of life at Harvard.

For her part, Kagan calls her student body “extraordinary” and a “privilege to teach.” Her willingness to hear student views contributes to what has been described as a shift in institutional culture to treat students as more than an afterthought at the august school.

“I very much wanted to instill an attitude that the reason we were doing this was the students, the measure of our success was the student experience,” Kagan says.

BEIRUT ON THE CHARLES

The absence of community cohesion among the student body during the 1980s and early 1990s may have trickled down from the spirited and sometimes vitriolic debates held during classes, as professors from both ends of the political spectrum flaunted their ideological differences.

While many students saw the heated discussions as “amusing” incidents, others felt that they created unnecessary tension and divisiveness outside the classroom. Students who held unpopular views sometimes found themselves the target of personal attacks.

“Students were hissing at unpopular political views and really hot political issues,” Steiker says. “The political dysfunction slopped over into student life.”

Beyond making life uncomfortable for the political minority, the ideological divides among the faculty also hamstrung lateral hiring efforts for the two decades prior to Kagan’s deanship. Because a new candidate requires a two-thirds majority vote of approval in the faculty, professors who were ideologically opposed to new hires could and did grind the hiring process to a halt.

In contrast, Kagan introduced an emphasis on open-minded thinking, welcoming academicians from across the political spectrum, and even hiring noted conservative and Bush administration attorney Jack L. Goldsmith.

Her efforts to reach across divides were already evident during her time as editor of the Law Review, say colleagues at the journal.

They ascribe the success of her leadership as a member of the masthead to her earnest determination to express an idea accurately and to her ability to judge an idea on its merits, instead of through a politicized perspective. They describe working with the future dean as a welcome respite from the school’s political battles, saying she applied a measure of fairness absent from many of the debates that characterized that era at the Law School.

Unlike many argumentative law students who perpetuated the politicized mindset of the time, Kagan was skilled in the art of listening to conflicting viewpoints, her classmates say.

“She was the adult presence in the room, the one who could get people to sit down and reconcile their differences,” says Owen J. Clements, a member of the Law Review under Kagan’s leadership. “She struck me as wise beyond her years.”

D.C.-BOUND

Nominated to the post of solicitor general, Kagan may soon have the opportunity to exercise her diplomatic skills in the political arena, returning to a realm she left in 1999 after working for several years as an adviser in the Clinton White House.

Though critics point to her lack of experience arguing before the Supreme Court—a key duty of the solicitor general—her supporters say that the skills and qualities that served Kagan well since her days as a student will allow her to succeed in her new role.

“A lot of the extraordinary qualities, her brilliance, and the ability to bridge divides were evident then,” Steiker says, “and I think those things are evident now.”

Steiker also pinpoints Kagan’s “very natural, New Yorky” grounding as one of the sources of her likability.

Kagan’s “somewhat self-effacing” sense of humor makes her an engaging personality who can connect well with a diverse group of people, Steiker says. During the Senate confirmation hearing, Kagan elicited chuckles from the panel by calling herself a “pipsqueak” clerking for then-Supreme Court Justice Thurgood Marshall, whom she called “a giant of the law.”

“It’s almost an anti-charisma kind of charisma, but it’s very, very charming,” Steiker says.

When Kagan was passed over for the University presidency two years ago, students at the Law School threw a “We (Heart) Kagan” party to celebrate her continued presence there. As the Senate prepares to vote on her nomination, Kagan will likely depart the institution where students and faculty alike sing her praises.

Kagan, though, reflects back on her accomplishments in a characteristically unassuming manner, pondering the rare missteps that faded out of institutional memory in the face of her many successes.

“You try not to make mistakes.” she says, “but if you never fail, it means you weren’t doing enough.”

—Staff writer Elias J. Groll can be reached at egroll@fas.harvard.edu.

—Staff writer Athena Y. Jiang can be reached at ajiang@fas.harvard.edu.