Sunday, January 03, 2016

New Draft Posted: Dismissal

A draft of my latest article, "Dismissal", has been posted on and SSRN. An abstract is below: 
One of the earliest steps in civil litigation is the motion to dismiss under Rule 12(b). Dismissal offers the opportunity to preemptively dispose of a given claim that does not present a legally-judiciable case or controversy prior to expending time or energy on matters like discovery or a trial. Everyday talk, of course, is not bound by such procedural rules. Yet in normal conversations we often engage in something very similar to legal dismissal. When faced with discomforting claims our instinct is not to engage in reasoned deliberation over them. Instead, we frequently brush them aside without considering their merits. By delegitimizing the claim as entirely unworthy of substantive public deliberation, we need not reason over it. This carries significant dignitary harms. Who we talk and listen to is an important marker of who we consider to be our moral and political equals. The decision to dismiss—casting the speaker as wholly unworthy of engagement and entirely incapable of transmitting useful knowledge—implicitly (sometimes not so implicitly) rejects that equal status. It represents an “epistemic injustice”—a wrong aimed at one’s status as a knower. Yet despite being a ubiquitous part of everyday conversation, this broader understanding of dismissal has not been independently identified or assessed.  
Dismissal is thus an important phenomenon in all deliberative forums, not just courts. But courts do possess one characteristic that makes them worth assessing independently: they are a site where—some of the time—deliberators have to listen. This places them on very different terrain than politicians, pundits, or everyday citizens, all of whom are relatively free to brush aside discomforting claims at their discretion. Courts may play an important role in protecting unpopular groups not because judges are wiser, less prejudiced, or more insulated from democratic pressures, but simply because courts offer a space where—some of the time—arguments must be heard and reasons must be given. This quality is not the whole game for marginalized groups. But it is not nothing either. It is a significant and valuable epistemic niche that courts can occupy in a broader deliberative system.
Any and all comments are of course welcome.


Binyamin Arazi said...

Hello, David. I saw your articles on Feministe and I loved them. There aren't many people who discuss antisemitism from a Critical Race Theory standpoint. Did you ever complete the rest of your series? I only saw parts 1 and 2.

David Schraub said...

Goodness, that brings me back. I moved the series over to Alas, a Blog, albeit in a more informal and unnumbered fashion (but most of what I planned to write made it in). You can read the posts hers (all but the most recent two posts -- the series ended with "Hitting that Dusty Trail."

8e1c37d4-d286-11e4-b580-4b7432e703be said...

After reading this comment thread I googled yr name + Feministe and found this wonderful exchange between you and some other Feministe commenters. You're so consistently otm on this issue that I find myself wishing there was a definitive article or book I could point people to instead of explaining for the 100th time why calling Jewish Israelis "European colonists" set on committing genocide against the native Palestinians is antisemitic.