Risky Pandemic Speech: Germaneness and Relevance on Academic Listservs Commentary
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Risky Pandemic Speech: Germaneness and Relevance on Academic Listservs

After postings on several listservs many of the pieces written here on JURIST and other seemingly relevant information for legal education, one of us was contacted by the listserv administrators of several listservs about the germaneness of the postings to dispute resolution, contracts, or other academic topic areas. Those administrator contacts usually came after someone made a private message to the administrator. The usual proposal was to try to maintain germaneness to the listservs academic topic or to start any message with a brief statement as to why the posting was relevant to the listserv.

And so in the next posting on a dispute resolution listserv, one of us made a disclaimer to highlight the relevance of the topic to the listserv. And that prompted the other one to say they had been triggered to write because of the fact that the other’s messages “now contain a disclaimer assuring that they are “about dispute resolution…and that really saddens me.”

So we decided to write this commentary about listserv relevance and germaneness in difficult times.

Professor Rosadilla is originally from Brazil, where he practiced law for many years before coming to learn about Dispute Resolution in the US and starting to live here. So he was born and grew up during the Brazilian military dictatorship. He remembers very well, by the time he got to be a young adult, the feeling one had of not being able to express their ideas and thoughts freely. He remembers “critical thinkers” being ostracized for criticizing the government, or anything related. He remembers many of Brazil’s most brilliant academics, journalists, politicians, and artists being killed, tortured, or sent to exile to Europe or even other countries in Latin America. But most of all, he remembers the feeling such an environment brought upon any conscientious citizen.

Does anyone in the United States have that feeling now?

Professor Rosadilla did not know if it was because of that, regardless of that, or because of the fact that the region of Brazil where he was from had always been very politicized. But he was always very aware and vocal about anything involving poor or corrupt leadership and governance. So, one of the direct consequences possibly was that he was always interested in knowing how such a huge mass of people could ever become so apathetic and easily manipulated, despite their intelligence and capacity for critical thinking.

So Professor Rosadilla started reading about how the incredibly “developed” Germany of the beginning of the 20th century fell for such atrocious Nazi ideology…And one of the things he read over and over throughout the years, and which struck him the most, was the silencing of the vocal academic intelligentsia, or even more so, the voluntary silence of the omissive rest. Ever since then, he has despised people that do not allow for opinions to be expressed by invoking stupefying reasons, such as “this is not the right venue.”

That someone might vapidly discourage vigorous academic engagement during such serious and alarming times, actually is considered a shame by both of us as academics. For one of the problems with germaneness is that it is always in the eye of the beholder. The question is whether that academic will accept some vision of germaneness they have absorbed from contacts with the invisible college of their academic field. And, either early in the career to advance or later in the career to not be seen as being out of step, will trim their sails to adhere to what might be assumed was a consensus vision of what is germane.

Now the definers of what is germane are the vocal persons in the listserv as well as the ones who contact the administrator of the listserv. They can forge a consensus of the glib to narrow the space of discourse to what they consider is the proper consensus range.

But, there are the silent ones. The ones who do not engage regularly. Seeing the treatment of the “deviant” posters, the new academics may self-censor to protect their tenure path and the older ones may self-censor to protect their reputation among their distinguished peers.

And so while there may not be complete silence, topics will not be even raised, let alone discussed. And the pall of a kind of fog of silence creeps over everything.

In the kind of extraordinary times, we live in here in America, staying to the narrow track of consensus topics that are considered germane is certainly a way to get a reassuring – albeit false – sense of normalcy.

Yet, might we suggest that not being part of the “silent omissive rest,” and bringing up issues and awareness that contribute to the evolution of our species and a field is at the heart of what academic exchange must be.

If one bends to the fear, one is not free. And, so those who feel the urge to write something should understand that if it is not bleached to be an almost unrecognizable shell of what was the original idea, they may find themselves being seen as “running” afoul of the administrators.

And, in fact, an unmoderated space that was the ASILForum of the American Society of International Law developed and pushed forward a resolution in 2006 on the Laws of War and Detainee Treatment that forced that organization to adopt that resolution but also struck fear into the hearts of the gatekeepers that they were losing control of the space. So ASIL’s approach was to shut down that listserv.

We have not seen that kind of drastic action on the listservs we are on now. We have seen persons send messages to everyone saying they wish to unsubscribe. But, only extremely rarely (once) in the past 20 years has either of us seen someone banned from a listserv. And while they might have been abrasive, it is still a shame that that happened.

Rather than staying in compartments of academia, might it be permissible across all those listserv spaces to address common issues of legal education such as dealing with the pandemic, dealing with the bar takers. These topics may not fit neatly into someone’s vision of dispute resolution, contracts, or national security, or some other academic topic area but they may fit neatly into someone else’s vision of those arenas.

And administrators who get private messages that berate them for not “doing their job” might ask is it their job to channel the direction of the discussion or to allow those who speak civilly of topics they think are germane to just speak their truth without a disclaimer.

The risk is that the debate will now evolve around whether the disclaimer is appropriate or not, while the underlying concern within the post will get lost in the procedural formalism debate on germaneness.

When one feels like one is living when Rome is burning, it can be hard to comprehend the sensibilities of others who wish to speak in terms of “business as usual” discourse and not take on the broader topics. Maybe we need to remember that the proper venue for discussion of appropriate topics about ways humanity can progress and confront oppression is when two or three gathers. Like on a listserv.

 

Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law.

Marcelo Rosadilla is an Associate Director, Diversity Officer for the Diversity Council, and an Adjunct Professor of Negotiation, Mediation and Cross-Cultural Conflict Resolution at the Straus Institute for Dispute Resolution at the Pepperdine University Caruso School of Law; LL.B.from Universidade do Vale do Rio dos Sinos (Unisinos; São Leopoldo, RS, Brazil); LL.M. from Pepperdine University (Malibu CA, USA).

 

Suggested citation: Benjamin G. Davis and Marcelo Rosadilla, Risky Pandemic Speech: Germaneness and Relevance on Academic Listservs, JURIST – Academic Commentary, August 25, 2020, https://www.jurist.org/commentary/2020/08/benjamin-davis-marcelo-rosadilla-academic-listservs/.


This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.


Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.