Discursive Dismissal

72 Pages Posted: 4 Jan 2016 Last revised: 6 May 2018

See all articles by David H. Schraub

David H. Schraub

University of California, Berkeley - School of Law

Date Written: May 1, 2018

Abstract

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.

Keywords: civil procedure, epistemic injustice, race card, constitutional law, discrimination, motivated cognition

Suggested Citation

Schraub, David H., Discursive Dismissal (May 1, 2018). Available at SSRN: https://ssrn.com/abstract=2710377 or http://dx.doi.org/10.2139/ssrn.2710377

David H. Schraub (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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