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- Title
DELIBERATION AND DISMISSAL.
- Authors
Schraub, David
- Abstract
One of the earliest steps in civil litigation is the "motion to dismiss." 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 a form of discursive 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. Yet despite being a ubiquitous part of everyday conversation, this broader understanding of dismissal has not been independently identified or assessed. Focusing on the discursive form of dismissal yields important insights into how we analyze (or fail to analyze) difficult claims--something that occurs across all deliberative forums. In this way, dismissal is not the sole or even primary province of the 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.
- Subjects
MOTIONS to dismiss; COURTS; JUDGES; LEGAL motions; DISMISSAL &; nonsuit
- Publication
University of Pennsylvania Journal of Constitutional Law, 2020, Vol 22, Issue 5, p1319
- ISSN
1521-2823
- Publication type
Article