Meet the Dean

BY CLINTON DICK

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Barely two months on the job and the Law School has already felt the impact of Dean Kagan’s tenure. The Pound Hall classrooms are more alluring and technologically friendly and more students than ever can now lounge outside the Hark at the newly-built plaza or burn off calories at Hemenway without spending forty minutes in silent hatred at the person who has obviously violated the twenty-minute rule of treadmill use.

But the new dean is not stopping there.

She is examining what further changes need to be made for the Law School to be more appealing to students; a question many students who live or have lived on campus would answer by simply pointing to Gropius. But the physical is not the only thing she is concerned about. Kagan is reviewing the Law School curriculum and examining other law schools’ programs to determine what has worked and what is in desperate need of resuscitation. She is an intellectual who has carried over her admittedly “tough” Socratic teaching methods to a position that requires more than making students nervously squirm in their seats while she glances over the face chart to find her next victim.

From the preceding description, one could easily describe this new dean as a hard-nosed individual who has a certain vision of the school and will do what she has to do to ensure it is implemented. But students who have encountered Dean Kagan during her frequent walks through the campus, asked her questions during town hall meetings, or met with her during her open office hours each week know that she is willing – more than that, committed – to listening to what others have to say about the future of our school. Of course she has a vision, and others will disagree with decisions that she makes, but her willingness to engage others in a dialogue shows that her vision is open to change. As Prof. Minow said to the New York Times, “There’s an extraordinary feeling of a new beginning at the law school right now.”

Starting Out

Kagan was a New York kid who grew up on the west side of Manhattan (making her comment that HLS is the “New York City of law schools” all the more flattering). She majored in history at Princeton and graduated summa cum laude in 1981. It was during her time as opinion editor of The Daily Princetonian that she met Bruce Reed, a columnist at the time, but who in the next decade would become one of President Clinton’s top domestic advisers. She attended Worcester College, Oxford, as Princeton’s Daniel M. Sachs Graduating Fellow, and received an M. Phil. in 1983.

After Oxford, Kagan attended HLS, where she was the supervising editor of the Harvard Law Review. She said that during law school she thought about being a professor, but was still unsure of where her career would lead her. “I thought I should get some practice experience before making a decision whether to become a professor,” Kagan explained, “And that’s what I did.”

After graduating magna cum laude from HLS in 1986, Kagan spent the next year clerking for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit. The following year she moved up the clerkship ladder to Justice Thurgood Marshall of the United States Supreme Court.

Her clerkship days ended, and after working for the Dukakis campaign, Kagan took her own advice to get some practice experience and went to work as an associate in the Washington, D.C. law firm of Williams & Connolly in 1989. It was a short stint in garnering practice experience, however, as the lure of an academic setting enticed Kagan to move in 1991 from the capital of the nation to the capital of the Midwest. She joined the faculty of the University of Chicago Law School as an assistant professor in 1991 and became a tenured professor in 1995, receiving the graduating students’ award for teaching excellence in 1993.

Kagan described the faculty and students at the University of Chicago in glowing terms and remarked that she loved the time she spent there. She said of the faculty and students, “They taught me an enormous amount about how to be a legal scholar and teacher.” But, she continued, “at a certain point in time I decided I was ready to leave it.”

The White House

In 1995 Kagan left the University of Chicago to again work in Washington, D.C. and to again work for the federal government, though she now moved from the judicial branch to the executive. She first worked in the White House counsel’s office as Associate Counsel to the President, but she decided to leave the following year to return to the University of Chicago.

Dana Milbank writes in The New Republic about Kagan’s move (“White House Watch: Wonderwonk,” 18 May 1998): “She had already scheduled the movers, and 120 law students in Chicago had registered for her class. Colleagues had even given her a sendoff in the White House mess.” What, or who, was able to convince Kagan to stay? Milbank writes, “Bruce Reed, Clinton’s new domestic policy chief, begged her to stay, offering her the number two spot on the Domestic Policy Council and promising her an equal partnership running the White House policy shop.”

What emerged from her old columnist friend’s lobbying was a job that placed Kagan as the lead negotiator on tobacco during the tobacco settlements of the late 1990s. Milbank reports that Kagan was a teenage smoker and quit in 1993 after 17 years. “I love smoking, and I still miss it,” Milbank quotes Kagan as saying. “It’s completely clear to me how addictive this product is. But it’s also clear to me how much people can enjoy smoking.”

Milbank writes that while Erskine Bowles and Bruce Reed were the White House’s public faces for the tobacco legislation, it was Kagan who worked behind the scenes to convince McCain and fellow Senate Republicans at the time “to give the Food and Drug Administration full regulatory authority over tobacco, while keeping the administration’s bureaucrats at bay.”

But it was Kagan’s intellect that impressed people at the White House. When President Summers announced Kagan as the next dean of HLS he remarked that many people in the Clinton Administration thought they were smart, but “she is really smart. She is really, really smart.” But it was not only the domestic policy chief and the Treasury Secretary who were impressed with Kagan. Milbank writes about an episode in May of 1998: “When aides were preparing the president for a meeting, he was stumped about a question on Supreme Court rulings on federalism. Instead of calling the Justice Department or the counsel’s office, Clinton sent for Kagan. Clinton and Kagan sat in the Oval Office discussing various rulings, wonk to wonk.”

Academia Calls Again

“I miss the academic life,” Kagan told Mibank in 1998 when asked whether she would stick with the White House until the end. Clinton likely knew he could not keep Kagan in his administration until the end, so he sought to bestow a gift upon the judiciary by nominating her in 1999 to serve as a judge on the United States Court of Appeals for the D.C. Circuit. The nomination to such an influential court during the reign of a Republican Senate, coupled with the Clinton administration’s lack of political pull as it entered its twilight years doomed Kagan’s nomination. Congress’s adjournment in the fall of 2000 sealed the fate of Kagan’s nomination.

“It was politics,” Kagan said of the episode. “The Judiciary Committee thought it could stall the nomination, and it was right. How did I feel? I obviously wasn’t pleased, but I also wasn’t particularly surprised. And I didn’t take anything personally because it really had nothing to do with me – neither with my qualifications nor with my views about judging.”

At the time Kagan shrugge
d off her senatorial slight and took a position as a HLS visiting professor in 1999 and Professor of Law in 2001. President Summers announced Kagan as Dean Clark’s replacement during a ceremony in the Ropes Gray Room in late March.

“I am honored. I am humbled. And I am thrilled, ecstatic, exhilarated, overjoyed,” Kagan said at the ceremony. Later she said to The Record, “I think my appointment says something about the progress women have made at Harvard and in the profession. And I’m gratified that the appointment seems to have meant a great deal to many alumnae.”

A New Beginning

It is a Saturday and Kagan is dressed very casually with jeans and a tucked in shirt, picking at a meal she has obviously ordered too many times while taking students out to lunch at a certain Massachusetts Avenue restaurant. She gives a curious look when asked about Harvey Greenfield and the missing will. “I have no official comment about that,” she says.

Her excitement overflows, however, when she talks about the changes she thinks will enable the Law School to retain its excellence. Calling it the “Achilles Heel for most law schools,” Kagan says she is completely open to making all necessary changes to the FYL program. She acknowledged that even scrapping the program entirely remains an option: “Everything is on the table because there is a lot for me to learn about it. A decision will be made this year whether to continue it, scrap the program, and what changes will be made.”

She was also excited about the new Campaign to raise $400 million and how that money can be used to improve HLS. “The money will be used for hiring more faculty, reducing the student/faculty ratio. We also want to improve facilities and attract leading faculties in their areas. It is a nice campus for faculty and not a nice one for students,” she said.

“There is also an enormous amount for scholarships and loan forgiveness, which allows students to go to a job they want without worrying about money,” she continued.

Despite her busy schedule as the new dean, Kagan is continuing to teach this fall. “I have a reading group in the fall, and we will meet every two weeks to read something I want to read. About fifteen students have signed up so far. I’ll see how that goes and if I have enough free time. I did have to drop both courses I was going to teach.” Prof. Tribe will teach her Constitutional Law course while Visiting Prof. Richard Pildes will relieve her of her duty for Administrative Law.

Walking back to the Law School after lunch Kagan asks about how The Record is organized and what changes are envisioned for the coming year. The small talk ended, Kagan turns to head back to her office, but stops when she reaches the sidewalk as if struck by a sudden thought. She calls back and says, “E-mail me or stop in if you ever need my thoughts on a story or if you just want to offer a suggestion.” The dean is certainly off to an excellent start.

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