Elena Kagan's Undergraduate Thesis
William Galston Asks: "My Question Is Not Whether Larry Summers Is a Brilliant Brain but Whether There Is Anyone Who Has the Ability to Challenge His Point of View"

The Garance on the Kagan Thesis

Garance Franke-Ruta:

Kagan theses to be available online: The White House announced Monday that it would make Supreme Court nominee Elena Kagan's Princeton senior thesis available for online publication. Her Oxford graduate thesis would also be made available for online posting, a White House official said, as "a demonstration of our commitment to transparency." Permission... will be granted when the White House sends the Senate Judiciary Committee Kagan's responses to questions from the panel about her background.... Princeton University had sent news organizations and blogs copies of the thesis for research and personal use purposes -- hence the many excerpts from it in news stories -- but objected when a conservative blog posted the full document online late last week. The university... [said] Friday that only Kagan could give that permission because she was the copyright holder on the 1981 document detailing the collapse of the Socialist Party in New York.

Asked by The Post for permission to publish the document Friday, the White House said it would review the matter. Other major media outlets also requested permission last week to publish the paper. Access to the senior thesis... threatened to become a point of controversy after conservative blog RedState.com published it online Thursday, only to receive a letter Friday from Princeton demanding that it be taken down. RedState complied, but over the weekend liberal blogger and economist Brad DeLong also objected to the university's stringent defense of its former student's copy rights and published the thesis, sparking anew attention to the question of why Princeton was seeking to keep the full document out of the public record.

Blog Infidels Are Cool also had published the thesis Thursday and on Friday a Washington state man uploaded it onto Scribd, further demonstrating the difficulty of keeping documents off the Web once they have been formatted electronically, especially in a media environment in which small, nontraditional outlets routinely flout copyright laws and citizens have access to powerful document-sharing technology. By opening access to the theses, the White House seemed to be signaling that it recognized the theses would be less of an issue -- conservative bloggers have seized on the Princeton thesis to argue that Kagan, and by extension Obama, are socialists -- if made freely available to the public.

I have two points:

First, as I wrote before:

Elena Kagan's Undergraduate Thesis: UPDATE: Elena Kagan's thesis does not seem to have brought any clarity of thought. Interpretations of it seem to depend on whether the phrase "those who" (in "those who, more than half a century after socialism's decline, still wish to change America [in a radical way]") means "people like my advisor Sean Wilentz and my brother" or "people like my advisor and my brother and me."

I believe it is much more likely than not that "those who" carries the first meaning. Remember, she was crafting the thesis to resonate with those who would grade it--with Sean Wilentz and his colleagues. I think it highly probable that if she had placed herself among "those who" she would have used a different phrase: "we who."

I think that her takeaway from her thesis was Clintonian (and Obamaian): radicals in America need to shut up, take their place at an oar, and row like hell for minor reformist victories.

The thesis is, I believe, mostly an argument against Glenn Greenwald and his fears that Elena Kagan is really John Roberts in disguise...

Second, Princeton's letter:

Daniel J. Linke of Princeton University Writes to Erick Son of Erick:

From: Daniel J. Linke
Subject: Kagan senior thesis copyright violation
Date: May 14, 2010 3:04:42 PM EDT

To: contact@redstate.com

Dear Sir or Madam:

It has been brought to my attention that you have posted Elena Kagan’s senior thesis online. (See: http://www.redstate.com/erick/2010/05/13/breaking-we-have-elena-kagans-college-thesis/) Copies provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only. Any electronic distribution is prohibited, as noted on the first page of the copy that is on your website. Therefore I request that you remove it immediately before further action is taken.

Please notify me as soon as possible that you have removed it from your web site.

Sincerely yours,
Daniel J. Linke

University Archivist and Curator of Public Policy Papers
Seeley G. Mudd Manuscript Library
Princeton University

is misleading in two respects:

  • it does not say "electronic distribution is prohibited without the permission of the copyright holder, Elena Kagan"; it says "electronic distribution is prohibited."
  • it does not say "I request that you remove it or we will inform the copyright holder, Elena Kagan, that you may be in violation of her copyright"; it says "I request that you remove it immediately before further action is taken."

I don't think that either of those misleading statements is misleading by accident.