Sunday, July 13, 2014

"Ism" Claims and Rule 12(b)(6)

A twitter conversation I had today made me think, oddly enough, of Federal Rule of Civil Procedure 12(b)(6).

Rule 12(b)(6) enables a plaintiff's case to be dismissed for "failure to state a claim upon which relief can be granted," prior to there being any discovery or fact-finding. It can be invoked when the plaintiff's claims, on their face, don't make out a legal violation. The most obvious example would be a lawsuit accusing the defendant of "being a jerk". "Being a jerk" is not against the law, so there's no point in allowing discovery or fact-finding to figure out what "really" happened (or even what the parties' respectively say happened) -- even if everything the plaintiff alleges to have occurred was believed by a jury, the plaintiff still could not win.

A more recent (and subtle) variation is when the plaintiff superficially claims a real legal violation, but it is implausible that the facts she alleges actually would prove the claim. For example, suppose a plaintiff claims two companies conspired to violate anti-trust laws, and her evidence was "I saw them eating lunch together once". Conspiracy to violate anti-trust laws is a real legal breach, and it's possible that it occurred here (maybe the topic of the lunch conversation was "how to best form a cartel"), but it is exceptionally implausible that those alleged facts would actually get any reasonable jury to find for the plaintiffs.

Of course, the plaintiff will cry, he can't demonstrate facts that prove the law was violated unless he has the opportunity for discovery to determine what the facts are. And so 12(b)(6) dismissals, at least outside first outlined scenario where on face no legal violation is plead, tread delicate ground. On the one hand, denying them means forcing defendants (and the judiciary) to go through time-consuming litigation on claims that may well be frivolous and in which the plaintiff can't win even if he finds what he putatively seeks. On the other hand, allowing them means blocking off potentially valid claims based on a judges -- as opposed to a jury's -- sense of what's "plausible", uninformed by any sort of comprehensive factual record.

What does all of this have to do with the above conversation? Well, Mr. Black's initial assertion was that "No matter how hard you try to smear, being anti-Israel is NOT being anti-semitic." And I answered back with my typical rejoinder, that whether a particular stance on Israel is or isn't anti-Semitic is context-dependent; it's not something one can declare one way or another in a vacuum. And Mr. Black agreed that "I'm sure anti-semites are also anti-Israel," but argued it's "still total bullshit to smear someone opposing Israel as anti-S[emitic without] proof."

This, to me, is somewhat of a strange reply given the position I had laid out. An "anti-Israel" position may or may not be anti-Semitic; to determine which requires a careful and sensitive inquiry into the totality of the surrounding circumstances. It's not something that we can usually state with definitiveness one way or another simply by looking at the face of things -- certainly not at the level of generality that "being anti-Israel" implies. Anti-Semitism requires inquiry -- it can neither be proven affirmatively true or categorically denied without a hard look into motives, consequences, and other like considerations.

Juxtapose that with Mr. Black's response: "still total bullshit to smear someone opposing Israel as anti-Semitic without proof." Arguably, this takes aim only at people who definitively declare (prior to engaging in any analysis) that their anti-Israel interlocutor is anti-Semitic. But if so, that's a substantial retreat from his initial statement: that, flatly, "being anti-Israel is NOT being anti-semitic." Mr. Black instead seems to be aggrieved by the initial allegation of anti-Semitism. He does not seem to think that the claim of anti-Semitism is something that requires thorough consideration of detailed facts. He thinks that the claim is implausible on its face. In essence, he wants to dismiss the charge without having to go through the discursive equivalent of discovery -- of digging through the facts and context to determine whether the claim has validity. While he concedes that there could be a case where an anti-Israel position was anti-Semitic, he thinks that in general the juxtaposition of anti-Semitism alongside an anti-Israel position is so implausible as to not require any further thought.

This is, in essence, a request for Rule 12(b)(6) dismissal. It stems from the belief that such charges are so unfair, so manifestly implausible on their face, that they should be dismissed without any further analysis. As I observed last year, there is a perceived entitlement to be free from the vicinity of an anti-Semitism discussion:
Well let's approach it from the opposite angle. Why would it be a bad thing? The answer, it seems to be, is that it is generally unfair to be accused of anti-Semitism (or forwarding an anti-Semitic position, or being insufficiently attentive of anti-Semitism). There is a perceived entitlement of people to not have to deal with it unless the case is exceptionally egregious. . . .

I honestly do not understand the foundation for this entitlement. Why is this something that people are owed? Why is there any right to be free from the vicinity of an anti-Semitism claim? At best, one could say that it stems from an obligation of presumed good faith -- we should not assume our interlocutors' positions stem from evil motives. There are three problems with this argument, though: (1) It's internally contradictory, since the objection to being called anti-Semitic inevitably takes the form of claiming the accuser made the charge in bad faith, (2) It isn't altogether clear why Jews should be forced to assume good faith of non-Jews with respect to matters of Jewish equality, given that historically such trust has not exactly been earned, and (3) It relies on a particular (and particularly narrow) conception of anti-Semitism wherein it only exists if it is the product of conscious and overt antipathy towards Jews. This definition of anti-Semitism is debatable at best, and in the context of the instant discussion seems to serve more as a way of shielding a wider-ranging discussion of the subject by transforming it from a systematic discussion of what Jews are owed as equal global citizens into an investigation of the personal character of the individual.

Consequently, I reject the notion that there is any special entitlement to not have anti-Semitism raised as an issue when Israel is discussed.
Of course, this isn't to say that there could never be a claim of anti-Semitism that was so implausible on its face we could wave it aside -- a charge based on the statement "I can't stand lox and bagels", for example, or (to use my preferred Israel-related example), "the traffic in Tel Aviv is awful". But the 12(b)(6) style averments seem to extend much beyond that -- basically innocent until proven Nazi. There's simply no reason to agree to such a broad shield against full and honest inquiry into how anti-Semitism may or may not intersect with particular positions vis-a-vis Israel.

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