Harvard Law Revamped

As HLS Dean Elena Kagan makes changes around campus, she gives Yale, and others, a wake up call

Harvard Law School Dean Elena Kagan has spent her first half-decade in office shaking up her venerable legal institution, convincing her faculty to approve major revisions to the Law School’s curriculum while raising gobs of cash and laying the groundwork for a large physical upgrade to the school’s campus.

But while Kagan has mastered both complex changes (the new grading system) and simple ones (free coffee and a tiny-but-cute ice rink), none of her reforms has rippled as widely outside of academia as her move to force Harvard back into the lateral hiring market. Indeed, in her half-decade in office, Kagan has poached 20 tenured professors, among them University of Chicago professor Cass R. Sunstein ’75, the most-cited law professor in the United States. Last year alone, six tenured professors accepted offers to come to Harvard.

The Law School’s recent hiring spree comes as part of an effort to decrease class sizes and the student-faculty ratio, and to raise the level of scholarship in fields outside corporate law and other traditionally strong areas. In an interview last spring, Kagan said that she hoped to increase the size of the Law School’s faculty to over 100, from the 90 faculty members at the time. Today, the faculty stands at 101 full-time professors.

Before Kagan assumed the deanship of the Law School in 2003, most faculty members were hired as assistant professors, and the majority of junior faculty would eventually receive tenures offers. In the two decades preceding Kagan, Harvard made only 18 lateral hires. The lack of poaching resulted from the fact that the faculty was often divided over prospective appointments, according to Einer R. Elhauge ’82, a professor at the Law School. “It was more conflicted than now—I think we had a harder time agreeing,” said Elhauge, citing both political and methodological differences among the faculty.

To be hired as a tenured professor, a candidate must be approved by two-thirds of the tenured faculty and two-thirds of the entire faculty. The relatively low number of lateral hires also contributed to a self-perpetuating cycle of faculty failing to approve candidates, Elhauge said. Because Law School professors expected that few tenured professors would be hired, they were concerned that approving one prospective hire would take away a spot for someone they preferred. “Everyone is only voting for the person they consider the best possible for that slot, and that leads to more disagreement,” he said. “People disagree on who the best possible [candidate] is.”

While legal scholarship has become less ideological and more interdisciplinary, making it easier to build consensus among the faculty, Elhauge credits Kagan with breaking the political deadlock in lateral hiring, just as her predecessor, Robert C. Clark, did when it came to the hiring of assistant professors.

Kagan’s reputation for extending offers regardless of political affiliation has made the faculty less likely to oppose candidates based on ideological grounds. New faculty appointments have spanned the political spectrum, including the controversial former U.S. Assistant Attorney General Jack L. Goldsmith, who has drawn fire for his work in formulating Bush administration policies regarding the treatment of enemy combatants. Most importantly, by “eliminating the sense of scarcity” when it came to hiring professors, Kagan reduced the pressure to select the “best possible” candidate every time the faculty voted on a potential lateral offer. Since professors now trust that a number of hires will be made, there is less of a need to oppose any individual professor out of a desire to free up that spot for another candidate.

As Harvard moves to increase the size of its faculty—already large compared to the faculty of 60 full-time professors at Yale and 47 full-time professors at Stanford—it has shaken up the market for legal academics. Brian R. Leiter, a professor at the University of Chicago Law School who publishes the blog Brian Leiter’s Law School Reports, called Harvard “the sleeping giant of legal education,” whose recent faculty expansion has forced its competitors to reconsider their hiring strategies. With a $1.85 billion endowment bolstered by a recent capital campaign that brought in over $450 million, the Law School’s war chest has enabled it to target tenured professors at schools like Columbia, Chicago, and the University of Virginia. To replace the faculty that departed, these law schools must also ramp up their efforts to poach professors.

The ripples created by Harvard have contributed in part to the “enormous increase” in movements between law schools, according to Chicago Law School Dean Saul Levmore. He noted that the movement at Yale, which is reported to see the departure of five to eight professors this year, “would have been unheard of five years ago.” Of the six professors who left Yale last year, three came to Harvard—an unusually high number, according to Leiter. Only three professors have left Harvard in the past five years to take non-administrative positions at other law schools.

For some new professors, the environment at Harvard was the main draw. Jonathan L. Zittrain, a professor of cyberlaw who received tenure from Harvard last June, called HLS “one of the most vibrant academic environments in the world,” adding that “it’s a place that is eager to forge connections with other universities, other disciplines, and with the world beyond academia.”

Harvard’s ability to attract faculty does involve other factors too, like the New England charm of its picturesque campus. Sunstein, a native New Englander who attended both college and law school at Harvard, said he was “excited and thrilled” to return to his alma mater. “I love Cambridge,” he said. “It feels like home.”

—Elias A. Shaya contributed to the reporting of this story.