Professor Bayefsky Discusses New Book: Dignity and Judicial Authority
On Wednesday, February 5, Professor Rachel Bayefsky was joined in Purcell Reading Room by a panel of peers to discuss her recently published book, Dignity and Judicial Authority. This was Bayefsky’s first book, marking an impressive milestone in her academic career.
Following a brief introduction by Dean Leslie Kendrick ’06, Bayefsky provided a comprehensive overview of the main themes and arguments of her book. Central to her book is an exploration of dignity, an undoubtedly valued yet elusive topic to apply in practice. This is particularly true in the field of law. Dignity is often invoked by courts, but these allusions have remained under-examined by scholars and practitioners. In response, Bayefsky offered her own theory of dignity that can be consistently applied across several contemporary legal settings and doctrines.
Bayefsky conceptualizes dignity as “relational,” emphasizing the actualization of human dignity through social relationships. Three elements constitute her theory of relational dignity: respect for people’s status, nondomination, and control over self-presentation. Through the notion of respect for people’s status, Bayefsky’s theory of dignity embodies principles of nondiscrimination. Nondomination broadly refers to autonomy from the arbitrary will of others—with slavery perhaps its most blunt form. Control over self-presentation can be as simple as an individual’s control over what pictures are posted of them on the internet and therefore embodies principles of privacy, among other related subjects.
Bayefsky argued that judges should combat the perception that they should refrain from invoking nebulous conceptions of dignity and instead embrace and operationalize such reasoning. With a foundation for relational dignity theorized, Bayefsky proceeded to outline several legal settings through which courts may employ this theory of dignity in practice.
Bayefsky first discussed incorporating dignity into constitutional standing doctrine. She argued that a robust conception of dignitary harms should satisfy Article III’s case or controversy requirement, one of the constitutional barriers to litigating in federal courts. Damage from infringement of an individual’s inherent dignity is not as easily measured as other forms of physical or economic harm, but, Bayefsky argued, this has not and should not prevent courts from recognizing dignitary harms as cognizable injuries sufficient for standing purposes. Similar considerations animate the next legal setting Bayefsky discussed: dignitary torts. Conceptions of dignity are not completely foreign to tort law, much like they are not foreign to the law of constitutional standing. For example, offense touch and battery or defamation are existing torts that are, to some degree, founded upon a principle of inherent dignity. By institutionalizing a more comprehensive theory of dignity, Bayefsky argued, courts will be better equipped to confront the challenges posed by claims of dignitary harms. Moreover, tort law provides a potent mechanism to promulgate a coherent theory of dignity throughout the legal system, as Bayefsky noted, because the “ideas about harms and causation [inherent to tort law] affect how we think about law more broadly.”
Bayefsky then discussed the role of courts in providing remedies to dignitary harms, focusing both on the law of remedies generally, and court-mandated apologies in particular, as legal mechanisms through which courts vindicate victims’ dignity. Bayefsky emphasized the potential for the law of remedies to constitute “legitimate judicial activity to restore the status of dignity.” She specifically cited court-mandated apologies or even dicta as possible remedies available to courts to restore victim’s dignity.
Following Bayefsky’s discussion of her book, a panel moderated by Professor Deborah Hellman, Director of the Center for Law & Philosophy, provided careful and insightful commentary on Bayefsky’s book. The panel was composed of James Pfander ’82, Professor at Northwestern University Pritzker School of Law; Rebecca Wexler, Professor of Law and Faculty Co-Director of the Berkeley Center for Law & Technology at the University of California, Berkeley School of Law; and Diego Zambrano, Professor of Law, Associate Dean for Global Programs, and Faculty Director of the Neukom Center for the Rule of Law at Stanford Law School. The panelists lauded Bayefsky’s thorough and insightful scholarship. A common theme among the panelists was praise for Bayefsky’s mastery of the diverse doctrines explored in her book—from constitutional law and the law of federal courts to tort law and the law of remedies. So, too, though, did each panelist offer a critique or provocation in response to Bayefsky’s work.
Pfander drew attention to pleading and evidentiary concerns implicated by expanded theories of dignitary harm. He expressed concern over the possible innovation of contrived theories of dignitary harms supported by intangible and increasingly untenable evidence. This presents a challenge for courts, which must discern between legitimate cognizable dignitary harms and nonjusticiable ideological injuries for Article III standing purposes, for instance. And, as Pfander noted, community standards—proposed by Bayefsky as a possible source to inform cognizable dignitary harms—have not always accorded with theories of inherent human dignity. For a poignant historical example of this dilemma, Pfander noted one need look no further than the Jim Crow South. For a contemporary example, he suggested current debates over gender-affirming care demonstrate the same phenomenon.
Wexler elaborated on a “fascinating flip” she noticed towards the end of Bayefsky’s book. Despite presenting an otherwise invariably “pro-dignity and pro-judicial authority” account through most of her book, Bayefsky nonetheless acknowledged the potential for some judicial remedies for dignitary harms to themselves impose new forms of dignitary harms as punishments. Wexler queried whether this was a positive or self-defeating feature of the otherwise dignity-enhancing legal regime Bayefsky conceives. She proposed to Bayefsky a “cynical sequel” to her recent publication, providing a platform to explore this underbelly of dignity-enhancing legal regimes.
Zambrano provocatively challenged the project of drawing dignity into the forefront of legal debates at the risk of politicizing the subject and undermining its normative value. As Zambrano noted, recognition of dignity is not necessarily an innovation in law—courts already invoke dignity in many contexts. Zambrano worried that “making dignity the explicit centerpiece” of legal discourse will weaken its conceptual force. He posed the question whether it is better that dignity go uncontested. Moreover, he challenged whether this is the “moment for judicializing more than we already do,” particularly in the current era of a partisan judiciary.
The nuance and sophistication of the panel’s remarks served as a testament to Bayefsky’s provocative inquiry, a sentiment captured by Hellman at the conclusion of the discussion. This article does not do full justice to either Bayefsky’s or her panelists’ remarks. Fortunately, the event was recorded on video and will eventually be posted online for viewing. Curious readers may also engage with Bayefsky’s scholarship directly by purchasing the book, available both online and in person at Courts and Commerce.
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