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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.