Justice Ginsburg

Fri Feb 6 13:11:50 PST 2009

I stand by my initial objection to Bobby's post.  I also should say what motivated my post:  this entire thread strikes me as unseemly.  Let's take up the question after Justice Ginsburg is released from the hospital.  I'd like to avoid us sending "bad karma" her way.  We owe her that.  I'm confident she has the integrity to make whatever decision she needs to make.

With respect to Mark Graber's post, context is important.  Tenured faculty with heavy teaching loads shouldn't be removed for not writing much.  Faculty  with research teaching loads should be required to write.  That's the deal and everyone knows it.

Have a nice weekend,
Scott

*****************************
Scott Douglas Gerber
Ella & Ernest Fisher Chair in Law
Professor of Law
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html

-----Original Message-----
From: rjlipkin at aol.com [mailto:rjlipkin at aol.com]
Sent: Fri 2/6/2009 3:48 PM
To: s-gerber at onu.edu; JBAER at politics.tamu.edu; SLevinson at law.utexas.edu; Hamilton02 at aol.com; jca at stanford.edu; CONLAWPROF at lists.ucla.edu
Subject: Re: Justice Ginsburg

?????? Splitting hairs? Raising the level of generality from Supreme Court Justices whose removal from office is virtually impossible short of impeachment and tenured faculty members who,?in comparison, can be easily removed to the general category of "tenured people not doing tbheir jobs"?unhelpfully conflats two?very different kinds of problems. Additionally, the move to "tenured people not doing their jobs" obscures the reasons for this failure.? I'm talking about individuals who are "not doing their jobs" because they are incapacitated, not because they've made choices about what activities thery prefer, for example, writing, teaching, and so forth. Conflating incapacitation with voluntary choices of limiting?responsibilities obscures a fundamentally important issue about American constitutionalism and contributes nothing to the problem of academic "dead wood." Finally, tenure implicates issues about academic freedom. But I'm certainly not averse to discussing whether the
  need for academic freedom still warrants tenure.? Conflating the issue of judicial incapacitation and the decision not to be academically productive in whatever sense of that term promises to obscure both issues.

Bobby

-----Original Message-----
From: Gerber, Scott <s-gerber at onu.edu>
To: RJLipkin at aol.com; s-gerber at onu.edu; JBAER at politics.tamu.edu; SLevinson at law.utexas.edu; Hamilton02 at aol.com; jca at stanford.edu; CONLAWPROF at lists.ucla.edu
Sent: Fri, 6 Feb 2009 1:39 pm
Subject: RE: Justice Ginsburg

I think Bobby is splitting hairs.  Both contexts involve tenured people not 
doing their jobs.  The fact that tenure faculty don't wish to discuss it 
suggests that we should be careful about demanding that Supreme Court justices 
step aside.
Scott

*****************************
Scott Douglas Gerber
Ella & Ernest Fisher Chair in Law
Professor of Law
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html

________________________________

From: RJLipkin at aol.com [mailto:RJLipkin at aol.com]
Sent: Fri 2/6/2009 11:51 AM
To: s-gerber at onu.edu; JBAER at politics.tamu.edu; SLevinson at law.utexas.edu; 
Hamilton02 at aol.com; jca at stanford.edu; CONLAWPROF at lists.ucla.edu
Subject: Re: Justice Ginsburg

        There's a difference between an incapacitated individual on a Court or 
faculty and an unproductive individual on either. While perhaps we should 
reconsider the desirability of faculty tenure, that is not the primary concern 
of this thread.  I'm not sure what a non-incapacitated, "unproductive" Supreme 
Court Justice is. Someone whose opinions are not well-written or who doesn't 
know the law? If a faculty member is incapacitated, in the way that the examples 
depict an incapacitated Justice, he or she can be removed.  Nothing analogous 
can happen on the Court at least in the formal sense that it can occur at a 
University. In my view, we muddy the waters by introducing the idea of the 
absence of productivity when that refers to a faculty member who chooses not to 
publish.

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 11:28:01 A.M. Eastern Standard Time, 
s-gerber at onu.edu writes:

    Also for Sandy:
    By way of analogy, what about tenured professors who have been phoning it in

for years?  Some folks who've had tenure for a long time remain productive (like 
Sandy, for example), but many others don't.  Should the nonproductive tenured 
professors be forced out?
    Scott

    *****************************
    Scott Douglas Gerber
    Ella & Ernest Fisher Chair in Law
    Professor of Law
    Ohio Northern University
    Ada, OH 45810
    419-772-2219
    http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html

    ________________________________

    From: conlawprof-bounces at lists.ucla.edu on behalf of Judith Baer
    Sent: Fri 2/6/2009 10:32 AM
    To: 'Sanford Levinson'; hamilton02 at aol.com; RJLipkin at aol.com; 
jca at stanford.edu; CONLAWPROF at lists.ucla.edu
    Subject: RE: Justice Ginsburg

    So, Sandy, is RBG suffering from Rehnquist Syndrome if she refuses to resign 
under similar circumstances?
    Judy

    It's his refusal to resign when, at the age of 79 or 80, he's diagnosed with 
a form of cancer that requires him to undergo the ordeal of chemotherapy.  He 
was either in denial about the seriousness of his situation or narcissistic 
about his indispensability to the Court.  (One might also simply say that he was 
all too human.)

    Sandy

    ----- Original Message -----
    From: hamilton02 at aol.com <hamilton02 at aol.com>
    To: Sanford Levinson; RJLipkin at aol.com <RJLipkin at aol.com>; jca at stanford.edu 
<jca at stanford.edu>; CONLAWPROF at lists.ucla.edu <CONLAWPROF at lists.ucla.edu>
    Sent: Thu Feb 05 19:48:32 2009
    Subject: Re: Justice Ginsburg

    Sandy--  I'm sincerely curious here.  What is "Rehnquist-like
    denial/narcissism?"

    Marci

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