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Sunday, June 05, 2005

Judge Posner on Mandatory Mental Acuity Tests for Judges and Profs Age 70+

Judge Richard Posner has a provocative post on the Becker-Posner blog about a proposal to require mandatory mental acuity tests for judges and professors over 70 years of age:

I wish to make a suggestion that would achieve the principal benefits of mandatory retirement without the principal costs. It is simply this: beginning at age 70, require every life-tenured professor and every life-tenured judge to take a test of mental acuity every five years. (I use these simply as examples of "light" jobs from which the occupant is unlikely to be forced to retire by the demands that the job places on him.) The test results would be available to the members of the professor’s department or the judge’s court but to no others. The results would not be a basis for a determination of incapacity; they would not even be admissible in a competence hearing. The expectation rather is that a poor test result would persuade the individual, perhaps by persuading his colleagues who would in turn persuade him, or persuade members of his family to persuade him, to retire voluntarily.

I am skeptical of this proposal.  Beyond difficulties in designing the test, which Posner duly notes, I wonder whether the primary problem with older judges and professors is the loss of mental acuity.  Is there really a widespread problem here?  I suspect the reason why institutions may want older colleagues to retire is because some of these colleagues may have simply overstayed their welcome.  When there’s life tenure, as on the federal bench and with law school professorships, retirement is often the most effective remedy for dealing with a lazy or problem-generating judge or faculty member.  I believe that tenure is very important, and folks sticking around when they’re not wanted anymore is one of the costs.  There are certainly cases where mental acuity becomes an issue, but I do not see much evidence from Posner that this is really a central problem requiring much attention.  Making faculty members 70 and over take a mental acuity test seems like a needless and demeaning exercise unless it really delivers significant benefits.  The real problem is how to preserve tenure while at the same time dealing more effectively with problematic colleagues.  My speculation is that mental infirmity is only a small percentage of the problems encountered with a judge or professor.  Without examining the scope or nature of the problem, Posner has not made a convincing case.

Posted by Daniel Solove on June 5, 2005 at 10:01 PM in Daniel Solove, Law and Politics | Permalink


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» Retirement and Feeding the Old from The Anti-Becker-Posner Blog
Oh lordie, lordie, me. Both Becker and Posner want to repeal ADEA. Posner also wants to give out competence tests, which would be a good idea, except he wants to exempt incompetent young people for reasons that totally escape me. Lets start with t... [Read More]

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