[Peace-discuss] Kagan: the fix was in

[C. G. Estabrook]

	Elena Kagan's Harvard
	By FRANK MENETREZ

When Elena Kagan was dean of Harvard Law School, her mishandling of a plagiarism 
case cost an innocent person his job while allowing the plagiarist, Professor 
Alan Dershowitz, to escape punishment.  Dershowitz has said that when Kagan was 
dean “it was a golden age” and “a very good time for the faculty.”  The Senate 
and the public deserve to know about the dark side of that “golden age.”

In 2003, an untenured professor at DePaul University named Norman Finkelstein 
accused Dershowitz of plagiarism.  Dean Kagan ordered an investigation the 
following year.  The investigation completely cleared Dershowitz, concluding 
that no plagiarism had occurred.

Harvard is the nation’s most prestigious institution of higher learning, so its 
vindication of Dershowitz was widely perceived as definitive.  Armed with that 
vindication, Dershowitz relentlessly attacked Finkelstein in letters to DePaul 
faculty and every available media outlet.  Those attacks would likely have been 
dismissed as sour grapes if the Kagan-ordered investigation had come out the 
other way.

My independent research later revealed, however, that Dershowitz did in fact 
commit plagiarism and that no honest and competent investigation could have 
missed it.  The University of California Press (and CounterPunch) published my 
findings in 2008, but by then it was too late.  Dershowitz and his official 
exoneration by Harvard had already killed his tenure application, and 
effectively ended his academic career.

One reason the whole episode is so mystifying is that, from the start, the case 
against Dershowitz seemed to be supported by powerful evidence.  Finkelstein 
argued that Dershowitz’s book The Case for Israel contained obvious errors that 
were identical to errors in an earlier book by a different author, so Dershowitz 
must have just copied that author’s work, errors and all.  Finkelstein explained 
the point in detail in an exchange with Dershowitz that was published in The 
Harvard Crimson in October 2003.

The identical errors issue was consequently well known and central to the 
plagiarism dispute when Kagan ordered an investigation in 2004.  But the 
Kagan-commissioned investigation still concluded that no plagiarism had 
occurred.  What happened?  Were there really no identical errors after all?

I decided to check for myself, and I quickly discovered enough identical errors 
to prove the plagiarism charge against Dershowitz beyond any reasonable doubt. 
I looked at one of the passages identified by Finkelstein, a long quotation from 
Mark Twain, and found that Dershowitz’s version of the quotation and the version 
in the book Dershowitz was accused of plagiarizing contained 20 identical errors 
in a mere 21 lines of text.  Some of the errors were large (such as the omission 
of 87 pages of text without an ellipsis) and some were small (such as altered or 
missing words or punctuation), but the cumulative weight of the evidence was 
overwhelming.  There was no way Dershowitz could have independently generated 
exactly those 20 errors—he must have copied them.  It was an open-and-shut case.

So what exactly did the Kagan-commissioned investigation look at?  Did it 
address the identical errors issue?  (I put that question to the Harvard Law 
School administration myself when Kagan was still dean, but they refused to 
answer.)  If not, why not?  Did the investigation not even go so far as to read 
Harvard’s own student paper, in which the identical errors point had been 
raised?  And now that the truth has come out, does Kagan (or anyone else at 
Harvard) have anything they’d like to say to Finkelstein, the innocent man whose 
career was ruined?  To date, Kagan and Harvard have remained resolutely silent.

  Granted, these questions might seem of limited significance for Kagan’s 
Supreme Court nomination.  The answers will not tell us what she thinks about 
originalism or abortion or the scope of federal executive power.  But they are 
still relevant, because they will shed light on something equally important.  In 
the end, all of us will be forced to assess Kagan on the basis of what we make 
of her character, because the written record of her judicial philosophy is so 
sparse.

We consequently have no choice but to cast about for evidence that she has a 
good heart, a genuine commitment to justice.  Her answers to questions about the 
Dershowitz-Finkelstein affair might reassure us that she does.  But continuing 
silence would give us reason to be skeptical.

Frank Menetrez  contributed a detailed report on the Finkelstein/Dershowitz 
affair on this site in April of 2007.  He can be reached at 
frankjmenetrez at gmail.com



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