Justice Ginsburg

[RJLipkin at aol.com]

Steve Jamar wrote:
 
        "Strikes me as  over-the-mark positivist to say that the court can't 
do anything unless there is  positive language in the constitution saying so."
 
        I don't think positivism  has anything to do with this issue. In a 
so-called "limited government"  possessing so-called "enumerated powers," I 
don't think discussion of these  issues requires one to take a stance on 
jurisprudential theories. In any  institution unstated practices will inevitably 
develop.  That hardly means  democratic citizens seeking accountability should 
simply accept whatever the  institution does as legitimate.
 
        Consequently, as to a  discussion of the internal organization of the 
Court, including  decision-procedures, I can only say such a discussion is a 
long time  overdue. 

 
Bobby

Robert Justin  Lipkin
Distinguished Professor of Law
Widener University School of  Law
Delaware

Ratio Juris
,  Contributor: _  http://ratiojuris.blogspot.com/_ 
(http://ratiojuris.blogspot.com/) 
Essentially Contested  America, Editor-In-Chief 
_http://www.essentiallycontestedamerica.org/   

 
In a message dated 2/6/2009 8:28:40 A.M. Eastern Standard Time,  
stevenjamar at gmail.com writes:






On Feb 6, 2009, at 7:54 AM, 



_ (http://www.essentiallycontestedamerica.org/) _RJLipkin at aol.com_ 
(mailto:RJLipkin at aol.com) _ wrote:_ (http://www.essentiallycontestedamerica.org/)  
 
[snip]
 
        Finally,  wherein lies the authority of the Court to decide when an 
incapacitated  Justice's vote should or should not apply.  
 
Bobby

Robert Justin  Lipkin
Distinguished Professor of Law
Widener University School of  Law
Delaware







Well, Bobby, if we start down that road, where is the authority for the  
Court to do just about anything about how it does business or organizes itself  
internally?  Or even decides things by  majority vote instead of  requiring 
unanimity?


Strikes me as over-the-mark positivist to say that the court can't do  
anything unless there is positive language in the constitution saying  so.


Steve



 
 
 
-- 
Prof. Steven D.  Jamar       vox:  202-806-8017
Associate  Director, Institute of Intellectual Property and Social Justice 




_http://iipsj.org_ (http://iipsj.org/)  
(http://www.essentiallycontestedamerica.org/)  
Howard University  School of Law           fax:  202-806-8567

_http://iipsj.com/SDJ/_ (http://iipsj.com/SDJ/)  
(http://www.essentiallycontestedamerica.org/) 


"Enduring high school is not the  same as growing up Jewish in Prague or 
fighting in the French Resistance. I  had no solid basis for being cool in that 
existential motorcycle James Dean  absurdist chain-smoking hero sort of way, so 
I gave up being cool and settled  for being pleasant."


Garrison  Keillor


=

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