Saturday, January 09, 2016

Disgusting Sandy Hook Conspiracy Theorists Have Academic Freedom Too

Time for an unpopular opinion: I lean towards the position that Florida Atlantic University violated academic freedom requirements when it fired James Tracy, a tenured communications professor. Tracy became notorious for his wild-eyed conspiratorial beliefs about the Sandy Hook massacre -- namely, that it didn't happen at that at least one of the family's involved actually faked having a child for money. He has pursued this line of inquiry quite vocally, including sending demands to the grieving family demanding that they "prove" their child is real. Bonus irony points: Tracy's area of study is conspiracy theories.

FAU claims to be firing Tracy not for his views on Sandy Hook, but because he failed to file certain disclosures regarding out-of-classroom activities. Like Paul Campos and Ken White, I smell a pretextual rat. It is almost impossible to imagine this misbehavior, if it would be punished at all, would be grounds for dismissal were it not for Tracy's public airing of his repulsive views.

In the Steven Salaita case, I took the firm position that
Yes, I think Salaita made anti-Semitic tweets, yes, I think his academic freedom was violated, no, clause "a" and clause "b" should not have anything to do with one another. Academic freedom includes the right to make anti-Semitic (or racist, or sexist, or whatever) statements; Salaita should not have been effectively stripped of his position for doing so; and he was entitled to (and I'm glad he received) a significant cash payout given that he detrimentally relied on Illinois' failure to adhere to basic academic freedom standards.
One could say similar things about Tracy. His outlook regarding Sandy Hook is truly appalling, but he nonetheless retains the academic freedom to promote said views, and clause one and two of this sentence should bear no relationship with one another. Nonetheless, it is obvious that the response to this case will not parallel the Salaita case, because it was evident that the passion with which Salaita was defended was entirely unrelated to the academic freedom issues in play, and instead stemmed from the belief that Salaita's beliefs were not just "protected by academic freedom" but actually salutary on their merits (lest one think that Tracy is the exception and Salaita is the rule in terms of the ferocity of the academic response, witness the comparatively muted response to LSU's firing of Teresa Buchanan, a case where the challenged conduct seems almost ludicrously trivial).

Even though academic freedom by its nature should not depend on whether one agrees with the behavior of Tracy, Salaita, or Buchanan, it is evident that the manner in which these debates play is inextricably linked to such substantive appraisals. This is not to say that people don't "really" believe in academic freedom and were simply cynically deploying it in the Salaita case. It is not agreement with the principle, but the ferocity with which it is dependent, that varies based on how one feels about the substance. Nobody will call for boycotts of FAU or LSU, and so it is fair to say that the boycott effort against UIUC was not motivated by "academic freedom" but by a desire to defend Salaita on the substance.

Friday, January 08, 2016

The Nation Plays with Cards

The Nation publishes a column by Steven Salaita which Rabbi Jill Jacobs (Executive Director of "T'ruah: The Rabbinic Call for Human Rights") contends contains anti-Semitic tropes. Specifically, Rabbi Jacobs argues that Salaita characterizes Zionism in such sweeping, world-encompassing terms -- "It is necessary to connect  this Zionist presence with the suppression of all radical ideas," "Zionism is part and parcel of unilateral administrative power," or, "[support for Israel is] an omnipresent but invisible accoutrement to swivel chairs, mineral water, and mahogany tables" -- that it evokes " the well-known bogeyman of a Jewish conspiracy that controls banks, governments, and other seats of authority."

Here is The Nation's reply, in full:
We take it very seriously whenever one of our readers raises the specter of anti-Semitism, racism, or any other form of a targeted prejudice in our pages. As a magazine founded by abolitionists and committed to principles of justice, inclusion, and equality, we abhor anti-Semitism and are acutely sensitive to the dangers it poses. We also recognize how charges of anti-Semitism, wrongly applied, have the power to defame, ruin careers, and silence criticism. While we respect Rabbi Jacobs, we reject her claims about this article. Zionism and Judaism are, indeed, different, just as Zionists and Jews are different. Zionism is a political and national movement—a discourse, as academics, might say; Judaism is a religion, heritage, tradition, and way of life for millions of people. It is our strong belief that critique of the movement, even harsh or challenging critique, is not an attack on the religion or the people.
What's fascinating about this response is how it is conspicuously non-responsive. Rabbi Jacobs' objection did not state that "Steven Salaita's column is anti-Semitic because it criticized Zionism". She leveled specific objections to specific passages which, she argued, summon the specter of classic anti-Semitic tropes regarding world-dominating Jewish conspiracies. One can of course disagree with that assessment, and respond by saying why the passages in question do not in fact raise the tropes that Rabbi Jacobs claims that they do.

The Nation's reply does not do this. It is rather a complete non-sequitur: Judaism and Zionism are different. Indeed they are, but so what? Does that mean that any criticism of Zionism, no matter how it is formulated, cannot be anti-Semitic? Surely, The Nation cannot believe that (can it?). But if we do concede that it is possible to criticize Zionism in anti-Semitic ways (e.g., by doing so in ways which raise the spectre of world-dominating Jewish conspiracies), then The Nation hasn't actually said anything in response to Rabbi Jacobs. It has not taken her claim seriously, it has not provided a substantive reply.

Why does The Nation not feel the need to actually address the argument Rabbi Jacobs makes? Why is it comfortable relying on a position that is responsive only if it adopts the absurd position that criticism of Zionism can never be anti-Semitic?

Hints to the answer can be found in my "Playing with Cards" article, which explores how people systematically dismiss discrimination claims (racism, sexism, anti-Semitism, etc.). The article focuses on the common trope that such claims are routinely offered in bad faith ("you're playing the X card!"), hence, they need not be addressed. At one level, it is unsurprising that The Nation goes down this route in its reply; statements of the form "We also recognize how charges of anti-Semitism, wrongly applied, have the power to defame, ruin careers, and silence criticism" are so cliche nowadays that they almost aren't worth remarking on (though one is doubtful about whether The Nation would add a similar caveat to its declaration about how seriously it takes, say, a charge of racism or sexual assault). On another level, though, it is very revealing that it shows up in this specific reply

What, exactly, is the pertinence of this passage over and beyond a normal on-the-merits disagreement (of the sort that The Nation notably does not offer)? Is The Nation suggesting that Rabbi Jacobs has "wrongly applied" the charge?That she did so dishonestly? Is her sincerity relevant to the question? Is any charge that The Nation "rejects" necessarily "wrongly applied", or is there room for disagreement? One gets the sense that all of this is meant to be left deliberately ambiguous. On the one hand, they claim to "respect" Rabbi Jacobs and take anti-Semitism claims seriously, indicating that she didn't do anything out-of-bounds in raising her concerns. On the other hand, talking about the evils of "wrongly applied" anti-Semitism claims is not germane to The Nation's reply unless we're to understand that Rabbi Jacobs is in the same class as those Jews who are always crying anti-Semitism to "silence" critics of Israel.

Finally, it is worth remarking upon the opening line, wherein The Nation dutifully affirms how, as progressives in good standing, it takes the issue of anti-Semitism seriously. I wish we could declare a moratorium on liberals delivering this recitation, as there is nothing about identifying as a progressive that in any way guarantees one takes anti-Semitism (or sexism or racism or anything else) seriously. But in "Playing with Cards", I make a further observation regarding the strange ubiquity of the pairing: general declarations regarding how "serious" the issue of discrimination is coupled with a facial dismissal of the specific discrimination claim on the table. This rhetorical construction serves several purposes, but one major result is that it constructions discrimination as so serious that it cannot actually be applied to anyone -- and certainly not to me.

At first glance, it is odd that The Nation would open by stating how serious it  takes the allegation of anti-Semitism, only to proceed to deliver an irrelevant aside about "wrongful" complaints followed by a complete non-sequitur that is entirely non-responsive to the allegation made. But to those who have observed the patterns through which discrimination claims -- of racism, of sexism, of anti-Semitism -- are routinely dismissed, there is nothing strange at all. The Nation is simply following a well-worn path enabling actors to perform a commitment to taking discrimination seriously while utterly failing to grapple with it.

Thursday, January 07, 2016

Maine Governor: My Statement that Drug Traffickers Named "D-Money" are Impregnating "Young, White Girls" Was Not About Race

I think we just hit peak post-racial, everybody:
Maine Republican Gov. Paul LePage told a town hall audience on Wednesday that heroin use is resulting in white women being impregnated by out-of-state drug dealers named "D-Money."
LePage was asked by an attendee what he was doing to curb the heroin epidemic in his state. "The traffickers—these aren't people that take drugs," he explained. "These are guys with that are named D-Money, Smoothie, Shifty, these types of guys, that come from Connecticut and New York, they come up here, they sell their heroin, then they go back home. Incidentally, half the time they impregnate a young, white girl before they leave, which is a real sad thing because then we have another issue we that we've go to deal with down the road."
But if any of you thought that statements about "D-Money" "from New York" coming up to Maine to "impregnate a young, white girl" has anything to do with race, well, Governor LePage's spokesperson is here to clear that up.

Gosh, will people ever stop playing the race card? Anyway, I'm so glad that we avoided any ridiculous misinterpretations.

Open Hillel: Erasing the Line, Redrawing the Line, or Handing Over the Pen?

Open Hillel has just announced a new academic advisory board. It comprises a range of different viewpoints from along the left-liberal spectrum, ranging from Judith Butler to Peter Beinart to Zachary Braiterman. The announcement offered me the opportunity to ask a few questions clarifying some confusion I had about Open Hillel's mission and principles.

The Open Hillel movement emerged out of objections to the application of Hillel International's "standards of partnership", most specifically a provision preventing partnership with organization which endorse the BDS movement (a rule which, OH maintains, effectively prevents collaboration with most Palestinian groups which have endorsed said movement). Open Hillel objected to this rule as stifling open inquiry and debate regarding Israel (hence the name).

The discourse around Open Hillel has, to my ears at least, conflated three distinct questions:
  1. Is Hillel justified in drawing certain lines whereby certain groups or positions are beyond the pale?
  2. If line-drawing is permissible, has Hillel drawn them in the right place (excluding BDS)?
  3. Should decisions over the above be made by a central organization or by individual Hillel chapters?
We can view these three questions as expressing three potential positions regarding "where to draw the line": First, that there should be no line, second, that the line should be drawn somewhere else from where it is now, or third, that somebody else other than Hillel International should be in charge of the line-drawing decision.

The way I've often thought about this question is by asking whether Open Hillel would think it an injustice if Hillel refused to partner with or host Pam Geller? If the answer is yes, then that means Open Hillel really is taking a principled "open inquiry" stance. If the answer is no, then Open Hillel doesn't object to line-drawing per se, only to where the lines are drawn. And if the answer is "all of these decisions should be made at the chapter level", then the question is simply shifted to a new forum (and Open Hillel's ambitions become a lot narrower than often assumed). Any of these represent a legitimate position, but they are very different positions that raise different arguments in response, and I've never been clear on which one Open Hillel actually takes.

Anyway, I was able to ask the question to Open Hillel on twitter, and their response did help clarify things:
That exchange suggests Open Hillel really does see itself as being inside the "open mic" camp (it answers my first question in the negative), and thinks that any voice -- even if many students find it hateful or offensive -- should be fair game. That principle applies equally to Pam Geller and to BDS acolytes (both of whom many people find hateful and offensive). In this way, Open Hillel can be seen as standing against the "safe space" trend one sees on some college campuses, where certain types of views are said to be so inherently marginalizing so as to be validly excluded from public dialogue. They are closer to the Williams College "uncomfortable learning" group, affirming the importance of hearing ideas many people -- dominant and subordinated group members alike -- might prefer to ignore.

One might question, then, why Open Hillel focuses so much on the BDS issue if its free inquiry commitment really is so non-partisan. But here I think they have a valid response: BDS is right now the predominant flashpoint for Hillel International's interference into local chapter affairs. Indeed, it's notable that while Hillel's partnership standards put several hoops in front of left-wing groups to jump through, there are no corresponding boundaries whereby someone can be beyond the pale on the political right. There are no guidelines that, for example, suggest Hillel would refuse to partner with groups or speakers that demonize Palestinians or engage in racist incitement (let alone prohibitions on right-wing "one-staters"). Indeed, there's nothing that would prevent Pam Geller from having a platform.

This is a serious problem for people who, like me, don't find the idea of "drawing a line" to be inherently problematic. I've often remarked that the Jewish community cannot only have a boundary on its left border. Even people who think that it is reasonable to say "BDS is beyond the pale" can't act surprised if that contention falls on deaf ears where only left-wing movements are so exiled. If Hillel International really does want to preserve its position that BDS should be no platformed, the best thing it could do would be to release similar guidelines, enforced with similar robustness, that demarcate what sorts of right-wing positions, agitation, or incitement (against Palestinians or against Jewish leftists) is also out of bonds.

Hillel's infirmities notwithstanding, it still remains the case that Open Hillel's position depends on the viability of a true "open mic" policy. And there are arguments to be had here. One goes to the last question I posed: who makes the call? Should "openness" be a mandate from Hillel International (an inversion of the guidelines), or do local chapters decide for themselves what voices they think are legitimately worth including in dialogue and who/what should be left out. The tweets imply the latter,  and Open Hillel's about page suggests the same: their prime mission is to change Hillel International's partnership guidelines so as to permit local chapters to adopt their own standards; they then say they will "encourage" these chapters to themselves adopt open policies. So if a local Jewish campus community democratically elects to exclude voices Open Hillel thinks should be included, that seems to be their prerogative. Obviously, OH can (and has said it will) "encourage" chapters to reverse those positions, but it presumably could not demand any sort of centralized rule requiring inclusion.

The larger problem rests in the feasibility of a true "open mic" position. Even if one believes that OH activists, in their bones, think it is equally outrageous to exclude the Pam Geller's of the world and the Jewish Voice for Peace activists of the world, they'd still face the problem of what to do with groups who openly oppose "open dialogue" in any capacity -- perhaps most notably, "anti-normalization" groups. Hillel International's final partnership guideline targets those who "[e]xhibit a pattern of disruptive behavior towards campus events or guest speakers or foster an atmosphere of incivility;" a rule clearly designed to encompass folks who, say, tried to shout down Moshe Halbertal. In this, they seem to be in accord with Open Hillel (which presumably must also view such actions as incompatible with the spirit of open dialogue). And indeed, Open Hillel specifically says "Open Hillel is committed to making its events, programs, membership, and leadership open and accessible to all who share in Open Hillel's mission and values", which leaves the door open to excluding those who are seen as not sharing in its "mission and values." A true commitment to openness isn't as straightforward as it appears, particularly when not everybody shares the principle.

Indeed, one can see shades of the problem in Open Hillel's reference to being open to any speaker who elicits "interest from students." Embedded in that statement, I think, is the valid hope that there are many potential speakers that most students would not be interested in; that private consensus can replace organizational diktat in ensuring that truly ridiculous and repulsive views aren't offered a forum. But which views qualify? It's the "Academic Freedom vs. Academic Legitimacy" debate all over again. If Jewish students on a particular campus expressed an "interest" in bringing in Pam Geller to speak, I don't think most of us would react by lauding their commitment to open inquiry and hearing various points of view. Even if we concede their "right" to extend the invitation, we would be dismayed at the students' appraisal of what sorts of views are worthy entrants in serious conversation. Certainly, I would think that a community which thought that Pam Geller was presenting something "interesting" has gone badly off the rails. But many view the proposition that the world's only Jewish state should be exiled from the global community in the exact same way. So we're right back into the "where to draw the line" question; the only difference is that the forum has changed. And while Open Hillel obviously has substantive opinions on where the line should be drawn (specifically, that BDS advocacy should remain in-bounds), its entire rhetorical arsenal acts as if the line drawing endeavor can be avoided entirely.

In short, Open Hillel does seem to be attempting to take a genuinely "open mic" approach to discourse within Hillel, applicable to controversial left and right speakers alike. That's a perfectly respectable position (albeit one that perhaps cuts against some of the current left-liberal zeitgeist, and one which OH seems willing to subordinate to the broader value of chapter control). Unfortunately, the "open mic" approach actually cannot eliminate the question of "where to draw the line", it can only shift the forum in which that question is debated over. One can legitimately say, as OH apparently does, that such questions should not be made at the national level but rather be devolved to individual campus chapters. But campus Jewish representatives will nonetheless not be able to avoid making decisions about what sorts of views -- from Pam Geller to BDS -- should and should not be seen as legitimate entrants into Jewish communal conversation.

Wednesday, January 06, 2016

The Travails of Combining Public Law and Political Theory

I am a political theorist who is interested in law a site of political and democratic dialogue. This is a very natural connection for me -- the whole reason I got interested in law in the first place was that it felt like the space where the rubber hit the road with regard to our public discussions regarding matters of equality, rights, freedom, etc.. But for whatever reason, pretty much everyone who does public law in political science departments is an empiricist. They study things like judicial behavior using data and models.

One upshot of this is that I'm rather isolated from the political science public law community, but that's not a huge problem since I'm still perfectly tied into the public law scholars at law schools. The bigger issue comes when I try to bring law-centered approach to political theory. Then this happens:
Me: Hello! I am hereby submitting a proposal to present at your political theory conference! My topic is on the role of judges in protecting marginalized groups; specifically, the deliberative advantages of the judiciary being "force to listen" to claims that other political actors can dismiss out of hand.
Conference organizer #1: I don't know. That sounds like a pretty niche area. I mean, does anybody really pay much attention to the intersection of minority rights and the law? I think we need something with a wider base of appeal.
Conference organizer #2: I agree. How about a paper presenting an esoteric reading of five pages of a 19th century German philosopher known to approximately two dozen people outside of this room instead?
Conference organizer #1: That sounds great! But is our conference unbalanced what with eight "history of political thought" papers scheduled and just one contemporary piece?
[Everybody laughs uproariously, and scene]
Learning a new discipline is weird.

Tuesday, January 05, 2016

2016's Opening Roundup

It's a new year, and so it deserves to be kicked off with a roundup!

* * *

Jeannie Suk and Jake Gersen have posted a draft of their forthcoming article "The Sex Bureaucracy" (forthcoming this summer in the California Law Review). I saw them workshop this paper at Berkeley last fall, and it is certainly going to provoke discussion (I think it raises some important points, though there is a lot I disagree with).

The Supreme Court may be about to eviscerate tribal court civil jurisdiction over non-Indians who engage in consensual relations with the tribe or its members. This is unnerving for a host of reasons. First, I thought that the issue was settled by relatively recent precedent (the Tribe's attorney, Neal Katyal, is right that the Supreme Court's "tribal exhaustion" cases make zero sense if civil jurisdiction doesn't exist). Second, it threatens to reverse decades of hard-won progress in the courts to recognize and respect Indian sovereignty. And third, the argument forwarded by several Justices that tribal courts pose an inherent due process risk to non-tribal members because the juries will be comprised of Indians is flatly outrageous, especially given the existence of the Indian Civil Rights Act.  As Justice Breyer observes, this is no different from a citizen of Alabama getting an all-Mississippian jury in Mississippi state court, and just as with diversity jurisdiction generally (which is authorized by Congress but not a due process right) if Congress identifies a problem Congress is free to step in and regulate.

Israel has finally withdrawn its nomination for Dani Dayon to serve as Ambassador to Brazil. Brazil was set to publicly reject the appointment of the former settler leader, and the entire spectacle was yet another unforced diplomatic error by the increasingly hapless Netanyahu foreign policy machine.

An Israeli soldier who passed on confidential IDF information to terrorists (in this case, those of the "price tag" variety) has been sentenced to four years in prison. If only we could do the same to the right-wing MKs who did the exact same thing (Agricultural Minister Uri "If a person who transfers information about IDF movements is a spy, then I am a spy" Ariel, I'm looking at you).

Zeynep Tufekci has a touching editorial in the New York Times about "Why the Postal Service Makes America Great." This hits me where I live. First, I'm never prouder of being an American than when talking with immigrants about how wondrous they are about America. Immigrants, of course, are people who almost by definition made incredible sacrifices (social, financial, sometimes physical) to come here because they believe in their bones in the American dream. They have an excitement about America that is infectious and exhilarating. But separately, I too have long been in awe of the U.S. postal system. It is nothing short of amazing that I can address a letter to anyone in the country, no matter what far-flung flyspeck village they might live in, and have it delivered to them in a timely and reliable fashion.

Binjamin Arazi offers up the progressive case for Israel. It's quite good -- most posts in this vein quickly become smarmy declarations about how good the gays have it or how Israel is "the only democracy in the middle east!" This one, by contrast, puts the focus where I do: on progressive understandings of oppression and liberation (here applied to Jews). Still perhaps a little smarmy, but definitely below median (and who am I to judge on that front, anyway?).

Monday, January 04, 2016

"The Force Awakens" Was Ruined Because Wedge Antilles Wasn't In It

The following is a work of self-parody. Even though I enjoyed "The Force Awakens," I basically believe what I'm writing below because Wedge Antilles is awesome. That said, I also know that my sentiment is abjectly ridiculous, so I'm deliberately writing it in as overblown fashion as possible.

The critics love the new Star Wars movie. Fans are ecstatic that something has washed away the wretched prequels. And I can't say that it didn't have its moments. But The Force Awakens comes with one unforgivable flaw: Wedge Antilles isn't in it.

Now you may be wondering, "David, why do you care so much about a character who got maybe a minute's worth of screen time in each of the original three movies?" First of all, notice the end of that sentence: "each of the original three movies." That's right: Wedge is in all three of the movies comprising the holy trilogy. You know who else makes that cut? Luke, Leia, Han, Chewbacca, C-3PO, R2-D2, and Darth Vader. Oh, and Obi-Wan Kenobi, if you count his blue ghost form. You know who isn't on that list? Boba Fett (being photoshopped into A New Hope doesn't count). Jabba the Hutt. Admiral Ackbar. Yoda. The Emperor. This is an elite crew.

And what does Wedge do during his on-screen time? Well, he kicks things off by being one of three starfighter pilots to survive the first Death Star trench run, serving as a human shield for Luke Skywalker and taking fire for long enough so that Han Solo could bail his buddy out. Then he moves on to Hoth where he is the first snowspeeder pilot to take down an AT-AT using the "tie them up with tow cables" trick. Fancy flying! What was Luke doing? Getting shot down and having his gunner squished by a giant metal foot, that's what. Following that, Wedge leads Red Squadron in the Battle of Endor, surviving another Death Star trench run (the only pilot to have two on his ledger) and blowing the damn thing up from the inside out (Luke's contribution to the battle, by contrast, was to surrender to his daddy at the outset). And that doesn't even get into what he did post-Endor: commanding Rogue Squadron, leading the commando team that captured Coruscant, liberating Thyferra ... the list goes on (and for those of you crying "but that isn't canon anymore," shut it. I'm an Orthodox Star Wars fan. I don't accept the legitimacy of the Disney Reformation).

Wedge Antilles, in other words, has enough heroic deeds in the space of three minutes of screen time to match what any of the "real" stars did over six hours of film. And unlike said celebrities, Wedge does all of this without the benefit of a character shield. George Lucas isn't George R.R. Martin: we could be pretty confident that Han, Luke, and Leia were going to make it until at least the end of the final movie. But someone like Wedge is perfectly dispensable -- just ask Biggs Darklighter -- which makes his protagonist-level accomplishments all the more badass.

And yet, The Force Awakens proceeds with not a single Wedge Antilles sighting! Instead, we get a movie that begins with a lie: the title crawl informs us that "Leia has sent her most daring pilot on a secret mission...." only to find out that it's some dude named Poe Dameron. Poe Dameron? How many Death Stars does he have painted on his X-Wing? Here's a hint: less than two.

The real agony is that the actor who played Wedge, Denis Lawson, was actually offered a role in the new movie and turned it down. Apparently, the role was too small and would be "boring." Now look: like all decent human beings, I was obviously hoping that the new Star Wars movies would center entirely around Wedge and Rogue Squadron. But buck up, man! This is Star Wars, and you're a legend! Take your hundred grand and show these nerf-herders what a real X-Wing ace can do with a one minute cameo appearance.

Was The Force Awakens better than the Star Wards prequels? Yes, obviously -- they didn't have Wedge in them either. But no true successor to the original trilogy can justify ignoring that story's greatest hero. You can keep your Han Solos and your Poe Dameron and your MIA Luke Skywalkers. Wedge Antilles is the greatest starfighter pilot in the galaxy.

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.