Interview with Then-Dean Of Harvard Law School, Elena Kagan (current Associate Justice of the Supreme Court)
Q: Maybe we will just begin with what is the opt out revolution ?
A: Well, I am not sure I like the term but I think when people refer to the opt-out revolution what they are talking about is the tendency of many women to leave the full time workforce at least for some period of time.
Q: I know that the term was coined from a reporter at the New York Times, what would you prefer it be called and why?
A: You know, I don' t have an alternative term. I think the Opt-out Revolution makes it seem like a new thing when I am not sure it is a new thing and makes it seem as though it is more irrevocable than it is. I mean, women are not opting out in the sense of leaving the workforce permanently or at least many women are not. What women are doing are thinking about leaving the workforce for some period of time or thinking about how to work part time rather than full time. So those are issues that women are dealing with and ways that women are responding. But I don't want to get into the terminology.
Q: How serious is it?
A: How serious?
Q: For these women? I mean, how serious is it?
A: I think many women are trying to figure out how to leave the workforce for some period of time or how to work part time rather than full time and that is for many reasons which we can talk about. The question is: how can they do that and then return to the workforce in the way they wish to? How can we make sure that women who leave the workforce can then come back or work part time but then work full time? So, how can we create a work place with the kind of flexibility in it that will allow women to work full time or part time, to take off but then to come back in the way that matches their various needs and desires?
Q: How did you become interested in this issue?
A: I think just as a law school dean, I see law school graduates all the time. I see, of course, law school students thinking about these issues, thinking about how to reconcile work and family, thinking about the kinds of work lives that they want and wondering whether the kinds of work lives that they want, those sorts of work lives, can be made to match the way that law firms and other legal employers operate. And I think that there is no doubt that women, and for that matter men, are struggling with that attempt to reconcile the two.
Q: You called it a mirage? So, what do you see as the specific problems that you face?
A: The real problem is how to get the most out of both women and men and how to make sure that they can fully contribute and go as far as they wish to in their legal careers and at the same time take the time that they need to have a good and satisfying and fulfilling family life. The real question is how both women and men can do those two things at once. In order for that to happen, employers in law firms and other legal employers need to give people the sort of flexibility that is required.
Q: What do law firms need to do to become a part in helping here?
A: We know that many lawyers in mid-career, and certainly many women lawyers, want to work part time rather than full time and we know that many lawyers, again in the early to mid-career, want to take off a few years and then return to the workforce. And so, the two most necessary things are for law firms and other employers to give women and men who wish to do this first the ability to work part time, and second the ability to come back to the practice of law after they have taken a few years off. So, women often, sometimes it is known that they go on the off-ramp. Well, then you have to provide an on ramp to enable women to return to the kind of professional careers that they would like to have.
Q: When you talk about the off ramp and the on ramp, what specifically you think they should be doing? In other words, if there is this period of time that they are not involved in the legal world and they fall behind on the fast changing information, what should firms be doing? Or what shouldn't they be doing? I just wanted more specifics.
A: Law firms need to give women and men who take these options the opportunity to come back. So, rather than say, Oh well, they have dropped out to say, They didn't drop out. They took a few years off, now they want to come back and we are going to enable them to do so. Working together, I think, these women and men who want to create these alternative kinds of careers with law firms and other legal employers should be able to do that.
Q: What about the critics who say that it can't work, that it is just not realistic?
A: I suspect that they haven't tried as hard as they could. I don't see why it couldn't work. I think that, in fact, these are win-win solutions. When law firms and other legal employers do this what they will discover is that they are enabling people to come back and to contribute to those law firms and to the other enterprises in ways that they are not right now. So, the law firms win, the lawyers win. It seems to me that everybody can win if everybody works together to try and construct flexible creative solutions to these issues.
Q: How important is all of this to the legal profession?
A: It is hugely important. I mean, right now when lawyers leave the workforce and cannot come back or when they cannot work part time, we are losing their talents and we are losing their abilities permanently. There is no reason to do that. All these lawyers want to contribute. All these lawyers or most of them, many of them want to contribute, want to work, want to give of themselves to the legal profession. It is a win for the legal profession to find ways to enable them to do that. It is a win for the legal profession to create a world in which it is not an on/off switch and you don't have to choose total commitment or no commitment. It is a win for the legal profession when you can create new ways and opportunities for people to contribute and give of themselves even if they are doing other things as well.
Q: I am just curious, though, because you said it is a win-win situation for law firms but nobody seems over the decades to be very interested.
A: I think that some law firms have and I think that some law firms have found that it works well but there is no doubt that it requires law firms and other employers to think in new ways, to think creatively, to stretch themselves. My own view is that the law firms that have done so Band there are many of them have found that the returns are great and that other law firms will find the same.
Q: You have addressed this to some degree, but what are some of the returns for a law firm? What are the positives?
A: These lawyers have a lot to contribute. You know, there are many ways to contribute and some people contribute by working 100 hours a week every week of the year every year of their lives. But the people who don't want to go that route, who want to spend more time with family or with other competing obligations, those people too have something to contribute. Even if they are not going to work full time all the time, even if they are not going to work every year, when they are going to work they are going to give of themselves, they are going to contribute to the profession and its activities. The profession should find it within itself to make sure that it can reap the rewards of those people and the contributions that they can make.
Q: Do you see resistance out there?
A: You know, there is always resistance to new ways of doing things. There is always resistance to flexibility and to creativity and structure and work arrangements. But innovative employers do that and innovative employers see that there is much to be gained from doing that because they can get a lot of people whom they otherwise would get nothing from.
Q: Bare with me because I am just curious, how did you become so interested to be in the forefront of this?
A: This is one of the main legal issues of the time, I think. I just don't think that there is any doubt that many lawyers find that they want to exit the workforce for some period of time, that they want to work part time for some period of their lives, certainly many women, many men as well. And in constructing a professional workforce in which that can be accomplished, it seems to me, is one of the great challenges that the legal profession faces right now.
Q: How can these work, the mentorship, collaboration, etc.?
A: I think that law schools have a real obligation to work with the legal professions on these issues and I think law schools have a lot to provide, have a lot to contribute to the solution of these issues. So, one thing that law schools can do is law schools provide career training, career advice for their students but generally fail to provide it for their graduates. It turns out that people more often need advice not when they are getting their first job but when they are in the middle of their career and trying to think where their careers are going and how their careers can be reconciled with their family and with other interests. For law schools, at that point to come in and give career advice to mid-career folks Bto people who have been out of law school for five years, ten years, even twenty years--would be an incredibly valuable thing. I know that our graduates, our alumni, have enormously appreciated our offers of assistance at that point in their careers where sometimes they need advice a lot more. So, that is one thing that law schools can do and that is one thing that I am proud that Harvard is now doing. Another thing we can do is to make sure that our students are fully thinking about these issues: how to reconcile family and work and other interests and how to put a full package together and how to lead a wonderful life in the law; that they are thinking about those issues even as they go out and get their first job. That means that we should be introducing our students early to thinking about these issues, telling them that these are the kinds of issues that they will be thinking about five or ten years from now so that they should start thinking about what they can do and how they are going to address those issues. But also, matching up our students with people already in mid-career stream so that mentoring relationships can exist and so that young lawyers, and young women lawyers in particular, can see the various ways in which more experienced lawyers have found in reconciling their family and their other interests and their careers. That is very important as well.
Q: That sounds just great from my perspective. Tell us about the leadership?
A: I do feel very strongly that the legal profession and the legal academy needs to work together on these issues. We, in law schools, see students at a very early point in their legal careers and we can start doing things at that early point that can make their lives easier later on and make them more able to address these issues. Also, we, in law schools, can provide research. We can look at the economics of the legal profession, we can look at the way the legal workforce is structured and provide research that can help law firms and other legal employers to solve these problems. So, there is a real opportunity for collaboration and for cooperation between law schools and the legal profession on this set of issues. One thing that I am incredibly excited about is that next year Harvard Law School is going to be hosting a kind of summit of leaders from the legal profession and interested people in the academy to address these issues; to address how it is that women and other lawyers can make sure that the legal workforce is structured so as to enable people to satisfy their career objectives without sacrificing their personal lives.
Q: I think that a number of people might say, Well, this is great for Yale or for other schools like that. What about smaller schools as we certainly have large numbers of people graduating from school like that. Do programs like that seem realistic for those kinds of schools, other schools?
A: Harvard is very lucky. We have a great deal in the way of resources and we can provide services to our students and to our graduates that maybe other law schools won't be able to. But I think that all law schools can contribute. They can contribute their ideas and their energy and their commitment even if they don't have huge amounts of resources to pour into this question and I think that they would like to do that. I think law schools, law professors, law deans look at their students and understand that their students are going to be, even while they are in law school, thinking about how to address this set of issues, thinking about how to reconcile good work lives with good personal lives and law schools would like to make a difference in that regard and help their students lead really fulfilling work lives, professional lives as well as personal lives.