Essays in Refusal: Pre-Theoretical Commitments in Postmodern Anthropology and Critical Race Theory

Yale Law Journal

Volumn 107, Issue 2, 1997, Pages 499-527

  Jinks, Derek P ^a  

^a NONE

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[No Author keywords available]

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EID: 0002259346     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797263     Document Type: Article

References (247)

1. Michel Foucault, Questions of Method, in THE FOUCAULT EFFECT 73, 84 (Graham Burchell et al. eds., 1991).
2. This characterization of Foucault's position is controversial. Compare JOHN S. RANSOM, FOUCAULT'S DISCIPLINE: THE POLITICS OF SUBJECTIVITY 2 (1997) (arguing that "Foucault separates critical thought from positive visions of social worlds that will replace today's reality"), and id. at 3 (contending that, for Foucault, "[c]riticism needs to stop being thought of as purely a means and instead should take its place in the world as an end, as a purpose all its own"), with STEVEN BEST & DOUGLAS KELLNER, POSTMODERN THEORY: CRITICAL INTERROGATIONS 58-59 (1991) (stating that Foucault's approach is "intended to facilitate the development of new forms of subjectivity and values"), and id. at 59 ("While Foucault never provided any conception of human agency, he did . . . gesture towards a positive reconstruction of subjectivity in a posthumanist problematic."). Foucault's seemingly contradictory statements encourage alternate interpretations. See, e.g., Noam Chomsky & Michel Foucault, Human Nature: Justice Versus Power, in REFLEXIVE WATER: THE BASIC CONCERNS OF MANKIND 133, 171 (Fons Elders ed., 1974) (comments of Michel Foucault) ("[T]he real political task . . . is to criticize the workings of institutions . . . to criticize and attack them in such a manner that the political violence which has always exercised itself obscurely through them will be unmasked, so that one can fight against them."). This Note does not attempt to defend either interpretation of Foucault's work. Rather, its analysis of postmodernism utilizes one interpretation of Foucault - that criticism should not be tied to any political program - as a placeholder for a prominent understanding of critical practice. That is, Foucault is often associated with this understanding of critique; and, as such, his work serves a useful heuristic function. Clearly, Foucault's work provides important conceptual resources for the scholar-activist. See infra Section IV.B (utilizing Foucauldian conceptions of power and discourse).
3. This characterization of Foucault's position is controversial. Compare JOHN S. RANSOM, FOUCAULT'S DISCIPLINE: THE POLITICS OF SUBJECTIVITY 2 (1997) (arguing that "Foucault separates critical thought from positive visions of social worlds that will replace today's reality"), and id. at 3 (contending that, for Foucault, "[c]riticism needs to stop being thought of as purely a means and instead should take its place in the world as an end, as a purpose all its own"), with STEVEN BEST & DOUGLAS KELLNER, POSTMODERN THEORY: CRITICAL INTERROGATIONS 58-59 (1991) (stating that Foucault's approach is "intended to facilitate the development of new forms of subjectivity and values"), and id. at 59 ("While Foucault never provided any conception of human agency, he did . . . gesture towards a positive reconstruction of subjectivity in a posthumanist problematic."). Foucault's seemingly contradictory statements encourage alternate interpretations. See, e.g., Noam Chomsky & Michel Foucault, Human Nature: Justice Versus Power, in REFLEXIVE WATER: THE BASIC CONCERNS OF MANKIND 133, 171 (Fons Elders ed., 1974) (comments of Michel Foucault) ("[T]he real political task . . . is to criticize the workings of institutions . . . to criticize and attack them in such a manner that the political violence which has always exercised itself obscurely through them will be unmasked, so that one can fight against them."). This Note does not attempt to defend either interpretation of Foucault's work. Rather, its analysis of postmodernism utilizes one interpretation of Foucault - that criticism should not be tied to any political program - as a placeholder for a prominent understanding of critical practice. That is, Foucault is often associated with this understanding of critique; and, as such, his work serves a useful heuristic function. Clearly, Foucault's work provides important conceptual resources for the scholar-activist. See infra Section IV.B (utilizing Foucauldian conceptions of power and discourse).
4. This characterization of Foucault's position is controversial. Compare JOHN S. RANSOM, FOUCAULT'S DISCIPLINE: THE POLITICS OF SUBJECTIVITY 2 (1997) (arguing that "Foucault separates critical thought from positive visions of social worlds that will replace today's reality"), and id. at 3 (contending that, for Foucault, "[c]riticism needs to stop being thought of as purely a means and instead should take its place in the world as an end, as a purpose all its own"), with STEVEN BEST & DOUGLAS KELLNER, POSTMODERN THEORY: CRITICAL INTERROGATIONS 58-59 (1991) (stating that Foucault's approach is "intended to facilitate the development of new forms of subjectivity and values"), and id. at 59 ("While Foucault never provided any conception of human agency, he did . . . gesture towards a positive reconstruction of subjectivity in a posthumanist problematic."). Foucault's seemingly contradictory statements encourage alternate interpretations. See, e.g., Noam Chomsky & Michel Foucault, Human Nature: Justice Versus Power, in REFLEXIVE WATER: THE BASIC CONCERNS OF MANKIND 133, 171 (Fons Elders ed., 1974) (comments of Michel Foucault) ("[T]he real political task . . . is to criticize the workings of institutions . . . to criticize and attack them in such a manner that the political violence which has always exercised itself obscurely through them will be unmasked, so that one can fight against them."). This Note does not attempt to defend either interpretation of Foucault's work. Rather, its analysis of postmodernism utilizes one interpretation of Foucault - that criticism should not be tied to any political program - as a placeholder for a prominent understanding of critical practice. That is, Foucault is often associated with this understanding of critique; and, as such, his work serves a useful heuristic function. Clearly, Foucault's work provides important conceptual resources for the scholar-activist. See infra Section IV.B (utilizing Foucauldian conceptions of power and discourse).
5. See RANSOM, supra note 2, at 3 (arguing that Foucault stresses the values of criticism "independent of dubious projects for fundamental social change").
6. Many commentators have rejected this line of Foucault's thought. See, e.g., JÜRGEN HABERMAS, THE PHILOSOPHICAL DISCOURSE OF MODERNITY 238-93 (Frederick G. Lawrence trans., MIT Press 1987) (1985) (describing Foucault's views as necessarily involving "performative contradiction"); NICOS POULANTZAS, STATE, POWER, SOCIALISM 146-53 (Patrick Camiller trans., New Left Books 1978) (1978) (rejecting Foucault's view of power); Charles Taylor, Foucault on Freedom and Truth, in FOUCAULT: A CRITICAL READER 69 (David Couzens Hoy ed., 1986). Many progressive legal scholars also denounce this understanding of critical practice. See, e.g., Guyora Binder, What's Left?, 69 TEX. L. REV. 1985, 1985-86 (1991) ("Radical theory's recent preoccupation with critical technique represents a strategic retreat from political engagement. . . . Straddling the widening gap between 'radical' and 'chic,' critical theorists are increasingly tempted to turn the cutting edge of critique against radicalism itself."); Bernard Yack, Toward a Free Marketplace of Social Institutions: Roberto Unger's "Super-Liberal" Theory of Emancipation, 101 HARV. L. REV. 1961, 1961-62 (1988) (book review) ("[W]e now find radical theorists taking the lead in attacking totalistic theories of human emancipation. . . . But why we must do so and for what alternative are questions that . . . they seem reluctant to discuss. . . . [Instead their] current obsession . . . [is] deconstructing all positive theoretical claims." (footnotes omitted)).
7. Many commentators have rejected this line of Foucault's thought. See, e.g., JÜRGEN HABERMAS, THE PHILOSOPHICAL DISCOURSE OF MODERNITY 238-93 (Frederick G. Lawrence trans., MIT Press 1987) (1985) (describing Foucault's views as necessarily involving "performative contradiction"); NICOS POULANTZAS, STATE, POWER, SOCIALISM 146-53 (Patrick Camiller trans., New Left Books 1978) (1978) (rejecting Foucault's view of power); Charles Taylor, Foucault on Freedom and Truth, in FOUCAULT: A CRITICAL READER 69 (David Couzens Hoy ed., 1986). Many progressive legal scholars also denounce this understanding of critical practice. See, e.g., Guyora Binder, What's Left?, 69 TEX. L. REV. 1985, 1985-86 (1991) ("Radical theory's recent preoccupation with critical technique represents a strategic retreat from political engagement. . . . Straddling the widening gap between 'radical' and 'chic,' critical theorists are increasingly tempted to turn the cutting edge of critique against radicalism itself."); Bernard Yack, Toward a Free Marketplace of Social Institutions: Roberto Unger's "Super-Liberal" Theory of Emancipation, 101 HARV. L. REV. 1961, 1961-62 (1988) (book review) ("[W]e now find radical theorists taking the lead in attacking totalistic theories of human emancipation. . . . But why we must do so and for what alternative are questions that . . . they seem reluctant to discuss. . . . [Instead their] current obsession . . . [is] deconstructing all positive theoretical claims." (footnotes omitted)).
8. Many commentators have rejected this line of Foucault's thought. See, e.g., JÜRGEN HABERMAS, THE PHILOSOPHICAL DISCOURSE OF MODERNITY 238-93 (Frederick G. Lawrence trans., MIT Press 1987) (1985) (describing Foucault's views as necessarily involving "performative contradiction"); NICOS POULANTZAS, STATE, POWER, SOCIALISM 146-53 (Patrick Camiller trans., New Left Books 1978) (1978) (rejecting Foucault's view of power); Charles Taylor, Foucault on Freedom and Truth, in FOUCAULT: A CRITICAL READER 69 (David Couzens Hoy ed., 1986). Many progressive legal scholars also denounce this understanding of critical practice. See, e.g., Guyora Binder, What's Left?, 69 TEX. L. REV. 1985, 1985-86 (1991) ("Radical theory's recent preoccupation with critical technique represents a strategic retreat from political engagement. . . . Straddling the widening gap between 'radical' and 'chic,' critical theorists are increasingly tempted to turn the cutting edge of critique against radicalism itself."); Bernard Yack, Toward a Free Marketplace of Social Institutions: Roberto Unger's "Super-Liberal" Theory of Emancipation, 101 HARV. L. REV. 1961, 1961-62 (1988) (book review) ("[W]e now find radical theorists taking the lead in attacking totalistic theories of human emancipation. . . . But why we must do so and for what alternative are questions that . . . they seem reluctant to discuss. . . . [Instead their] current obsession . . . [is] deconstructing all positive theoretical claims." (footnotes omitted)).
9. Many commentators have rejected this line of Foucault's thought. See, e.g., JÜRGEN HABERMAS, THE PHILOSOPHICAL DISCOURSE OF MODERNITY 238-93 (Frederick G. Lawrence trans., MIT Press 1987) (1985) (describing Foucault's views as necessarily involving "performative contradiction"); NICOS POULANTZAS, STATE, POWER, SOCIALISM 146-53 (Patrick Camiller trans., New Left Books 1978) (1978) (rejecting Foucault's view of power); Charles Taylor, Foucault on Freedom and Truth, in FOUCAULT: A CRITICAL READER 69 (David Couzens Hoy ed., 1986). Many progressive legal scholars also denounce this understanding of critical practice. See, e.g., Guyora Binder, What's Left?, 69 TEX. L. REV. 1985, 1985-86 (1991) ("Radical theory's recent preoccupation with critical technique represents a strategic retreat from political engagement. . . . Straddling the widening gap between 'radical' and 'chic,' critical theorists are increasingly tempted to turn the cutting edge of critique against radicalism itself."); Bernard Yack, Toward a Free Marketplace of Social Institutions: Roberto Unger's "Super-Liberal" Theory of Emancipation, 101 HARV. L. REV. 1961, 1961-62 (1988) (book review) ("[W]e now find radical theorists taking the lead in attacking totalistic theories of human emancipation. . . . But why we must do so and for what alternative are questions that . . . they seem reluctant to discuss. . . . [Instead their] current obsession . . . [is] deconstructing all positive theoretical claims." (footnotes omitted)).
10. Many commentators have rejected this line of Foucault's thought. See, e.g., JÜRGEN HABERMAS, THE PHILOSOPHICAL DISCOURSE OF MODERNITY 238-93 (Frederick G. Lawrence trans., MIT Press 1987) (1985) (describing Foucault's views as necessarily involving "performative contradiction"); NICOS POULANTZAS, STATE, POWER, SOCIALISM 146-53 (Patrick Camiller trans., New Left Books 1978) (1978) (rejecting Foucault's view of power); Charles Taylor, Foucault on Freedom and Truth, in FOUCAULT: A CRITICAL READER 69 (David Couzens Hoy ed., 1986). Many progressive legal scholars also denounce this understanding of critical practice. See, e.g., Guyora Binder, What's Left?, 69 TEX. L. REV. 1985, 1985-86 (1991) ("Radical theory's recent preoccupation with critical technique represents a strategic retreat from political engagement. . . . Straddling the widening gap between 'radical' and 'chic,' critical theorists are increasingly tempted to turn the cutting edge of critique against radicalism itself."); Bernard Yack, Toward a Free Marketplace of Social Institutions: Roberto Unger's "Super-Liberal" Theory of Emancipation, 101 HARV. L. REV. 1961, 1961-62 (1988) (book review) ("[W]e now find radical theorists taking the lead in attacking totalistic theories of human emancipation. . . . But why we must do so and for what alternative are questions that . . . they seem reluctant to discuss. . . . [Instead their] current obsession . . . [is] deconstructing all positive theoretical claims." (footnotes omitted)).
11. NANCY FRASER, UNRULY PRACTICES: POWER, DISCOURSE, AND GENDER IN CONTEMPORARY SOCIAL THEORY 36 (1989); see also id. at 35-50, 52 (describing multiple ways in which Foucault is characterized as "rejectionist" and concluding that Foucault should be understood as a "strategic rejectionist").
12. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
13. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
14. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
15. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
16. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
17. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
18. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
19. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
20. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
21. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
22. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
23. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
24. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
25. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern"
26. Characterizing postmodernism as a "new" development in the legal academy might at first blush seem inappropriate. "Postmodern" legal theorizing arguably dates to the early writings of the Critical Legal Studies movement. See, e.g., ROBERTO MANGABEIRA UNGER, LAW AND MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) [hereinafter Kennedy, Form and Substance]; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979) [hereinafter Kennedy, Blackstone]. I describe postmodernism as a "new" development to emphasize that the full implications of postmodern legal theorizing are not yet discernible. Postmodern legal theory has not settled into an identifiable niche in the legal academy. Professor Jack Balkin provides the most compelling sustained account of postmodern legal theory. See J.M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987); J.M. Balkin, Transcendental Deconstruction, Transcendent Justice, 92 MICH. L. REV. 1131 (1994) [hereinafter Balkin, Transcendental Deconstruction]. "Postmodernism" is a slippery and deeply contested term. See FREDERIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM at xxii (1991) (stating that "the concept [of postmodernism] is not merely contested, it is also internally conflicted and contradictory"). Indeed, any attempt to define postmodernism "must disavow postmodernism: a definition would reduce postmodernism to some fundamental core or essence, which would be too foundationalist, too essentialist, too modernist. " Stephen M. Feldman, Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice (with an Emphasis on the Teague Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046, 1047 (1994). For an excellent survey of the term's use in legal literature, see J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 MICH. L. REV. 1966 (1992). Given the nature of this Note's argument, an analylically rigorous definition of postmodernism is not necessary. I use the concept "postmodernism" to refer to theoretical projects that celebrate subjectivity and radical skepticism. For the purposes of this Note, postmodernism denotes many related - even it distinct - critical discourses that share this commitment to radical skepticism. Canonical definitions of postmodernism provide ample conceptual clarity. See, e.g., JEAN-FRANCOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE at xxiv (Geoff Bennington & Brian Massumi trans., University of Minn Press 1984) (1979) (defining postmodernism as "incredulity toward metanarratives"). One defining characteristic of postmodernism is antifoundationalism. See CRAIG CALHOUN, CRITICAL SOCIAL THEORY 100 (1995) (listing antifoundationalism as one of four fundamental strands of postmodernism); Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 527 n.9 (1996) (describing one central feature of postmodern legal theory as antifoundationalism, defined as "the idea that there are no self-justifying rationalist or empiricist foundations for our beliefs"); Feldman, supra, at 1047 ("Postmodernism rejects the very possibility of essences, cores, or foundations that undergirds modernis[m]."). For sound and accessible introductions to postmodern thought, see BEST & KELLNER, supra note 2; STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OE THE CONTEMPORARY (1989); and DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989).
27. Foucault, supra note 1, at 84.
28. Shelden S. Wolin, On the Theory and Practice of Power, in AFTER FOUCAULT: HUMANISTIC KNOWLEDGE, POSTMODERN CHALLENGES 179, 179 (Jonathan Arac ed., 1991).
29. For a similar line of argument, see ALEX CALLINICOS, AGAINST POSTMODERNISM: A MARXIST CRITIQUE 9-12 (1989).
30. The growing influence of postmodernism in the legal academy is documented in GARY MINDA, POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT CENTURY'S END (1995).
31. See, e.g., GILLIAN ROSE, DIALECTIC OF NIHILISM: POST-STRUCTURALISM AND LAW (1984); Daniel C.K. Chow, Trashing Nihilism, 65 TUL. L. REV. 221 (1990); John Stick, Can Nihilism Be Pragmatic?, 100 HARV. L. REV. 332 (1986).
32. See, e.g., GILLIAN ROSE, DIALECTIC OF NIHILISM: POST-STRUCTURALISM AND LAW (1984); Daniel C.K. Chow, Trashing Nihilism, 65 TUL. L. REV. 221 (1990); John Stick, Can Nihilism Be Pragmatic?, 100 HARV. L. REV. 332 (1986).
33. See, e.g., GILLIAN ROSE, DIALECTIC OF NIHILISM: POST-STRUCTURALISM AND LAW (1984); Daniel C.K. Chow, Trashing Nihilism, 65 TUL. L. REV. 221 (1990); John Stick, Can Nihilism Be Pragmatic?, 100 HARV. L. REV. 332 (1986).
34. Many scholars embrace radical skepticism, making deconstructive claims a central or a major part of their work. See, e.g., PAUL F. CAMPOS ET AL., AGAINST THE LAW (1996); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Mark G. Kelman, Trashing, 36 STAN. L. REV. 293 (1984); Kennedy, Form and Substance, supra note 6; Kennedy, Blackstone, supra note 6; Pierre Schlag, Normative and Nowhere To Go, 43 STAN. L. REV. 167 (1990); Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801 (1991); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
35. Many scholars embrace radical skepticism, making deconstructive claims a central or a major part of their work. See, e.g., PAUL F. CAMPOS ET AL., AGAINST THE LAW (1996); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Mark G. Kelman, Trashing, 36 STAN. L. REV. 293 (1984); Kennedy, Form and Substance, supra note 6; Kennedy, Blackstone, supra note 6; Pierre Schlag, Normative and Nowhere To Go, 43 STAN. L. REV. 167 (1990); Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801 (1991); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
36. Many scholars embrace radical skepticism, making deconstructive claims a central or a major part of their work. See, e.g., PAUL F. CAMPOS ET AL., AGAINST THE LAW (1996); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Mark G. Kelman, Trashing, 36 STAN. L. REV. 293 (1984); Kennedy, Form and Substance, supra note 6; Kennedy, Blackstone, supra note 6; Pierre Schlag, Normative and Nowhere To Go, 43 STAN. L. REV. 167 (1990); Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801 (1991); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
37. Many scholars embrace radical skepticism, making deconstructive claims a central or a major part of their work. See, e.g., PAUL F. CAMPOS ET AL., AGAINST THE LAW (1996); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Mark G. Kelman, Trashing, 36 STAN. L. REV. 293 (1984); Kennedy, Form and Substance, supra note 6; Kennedy, Blackstone, supra note 6; Pierre Schlag, Normative and Nowhere To Go, 43 STAN. L. REV. 167 (1990); Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801 (1991); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
38. Many scholars embrace radical skepticism, making deconstructive claims a central or a major part of their work. See, e.g., PAUL F. CAMPOS ET AL., AGAINST THE LAW (1996); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Mark G. Kelman, Trashing, 36 STAN. L. REV. 293 (1984); Kennedy, Form and Substance, supra note 6; Kennedy, Blackstone, supra note 6; Pierre Schlag, Normative and Nowhere To Go, 43 STAN. L. REV. 167 (1990); Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801 (1991); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
39. Many scholars embrace radical skepticism, making deconstructive claims a central or a major part of their work. See, e.g., PAUL F. CAMPOS ET AL., AGAINST THE LAW (1996); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Mark G. Kelman, Trashing, 36 STAN. L. REV. 293 (1984); Kennedy, Form and Substance, supra note 6; Kennedy, Blackstone, supra note 6; Pierre Schlag, Normative and Nowhere To Go, 43 STAN. L. REV. 167 (1990); Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801 (1991); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
40. Many scholars embrace radical skepticism, making deconstructive claims a central or a major part of their work. See, e.g., PAUL F. CAMPOS ET AL., AGAINST THE LAW (1996); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Mark G. Kelman, Trashing, 36 STAN. L. REV. 293 (1984); Kennedy, Form and Substance, supra note 6; Kennedy, Blackstone, supra note 6; Pierre Schlag, Normative and Nowhere To Go, 43 STAN. L. REV. 167 (1990); Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801 (1991); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
41. Many scholars embrace radical skepticism, making deconstructive claims a central or a major part of their work. See, e.g., PAUL F. CAMPOS ET AL., AGAINST THE LAW (1996); Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997 (1985); Mark G. Kelman, Trashing, 36 STAN. L. REV. 293 (1984); Kennedy, Form and Substance, supra note 6; Kennedy, Blackstone, supra note 6; Pierre Schlag, Normative and Nowhere To Go, 43 STAN. L. REV. 167 (1990); Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801 (1991); Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
42. The CRT literature is vast and varied. Two introductory readers provide ample evidence of the scope of CRT scholarship. See CRITICAL RACE THEORY: THE CUTTING EDGE (Richard Delgado ed., 1995); CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (Kimberlé Williams Crenshaw et al. eds., 1995). For an annotated bibliography of important works, see Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461 (1993). For an informative history of the movement, see Richard Delgado, Legal Scholarship: Insiders, Outsiders, Editors, 63 U. COLO. L. REV. 717, 721 n.34 (1992). A prominent feature of the intellectual, institutional, and political development of CRT relevant to this Note is that the movement began in many respects as a reaction against the deconstructive excesses of Critical Legal Studies.
43. The CRT literature is vast and varied. Two introductory readers provide ample evidence of the scope of CRT scholarship. See CRITICAL RACE THEORY: THE CUTTING EDGE (Richard Delgado ed., 1995); CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (Kimberlé Williams Crenshaw et al. eds., 1995). For an annotated bibliography of important works, see Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461 (1993). For an informative history of the movement, see Richard Delgado, Legal Scholarship: Insiders, Outsiders, Editors, 63 U. COLO. L. REV. 717, 721 n.34 (1992). A prominent feature of the intellectual, institutional, and political development of CRT relevant to this Note is that the movement began in many respects as a reaction against the deconstructive excesses of Critical Legal Studies.
44. The CRT literature is vast and varied. Two introductory readers provide ample evidence of the scope of CRT scholarship. See CRITICAL RACE THEORY: THE CUTTING EDGE (Richard Delgado ed., 1995); CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (Kimberlé Williams Crenshaw et al. eds., 1995). For an annotated bibliography of important works, see Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461 (1993). For an informative history of the movement, see Richard Delgado, Legal Scholarship: Insiders, Outsiders, Editors, 63 U. COLO. L. REV. 717, 721 n.34 (1992). A prominent feature of the intellectual, institutional, and political development of CRT relevant to this Note is that the movement began in many respects as a reaction against the deconstructive excesses of Critical Legal Studies.
45. The CRT literature is vast and varied. Two introductory readers provide ample evidence of the scope of CRT scholarship. See CRITICAL RACE THEORY: THE CUTTING EDGE (Richard Delgado ed., 1995); CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT (Kimberlé Williams Crenshaw et al. eds., 1995). For an annotated bibliography of important works, see Richard Delgado & Jean Stefancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461 (1993). For an informative history of the movement, see Richard Delgado, Legal Scholarship: Insiders, Outsiders, Editors, 63 U. COLO. L. REV. 717, 721 n.34 (1992). A prominent feature of the intellectual, institutional, and political development of CRT relevant to this Note is that the movement began in many respects as a reaction against the deconstructive excesses of Critical Legal Studies.
46. See Symposium, Minority Critique of the Critical Legal Studies Movement, 22 HARV. C.R.-C.L. L. REV. 297 (1987).
47. See, e.g., MINDA, supra note 10, at 167-85 (categorizing CRT as a "postmodern legal movement"); see also Chow, supra note 11, at 223 n.1 (defining "nihilist" jurisprudence as embodying the "current positions of some legal academics that law and illegitimate power are inseparable, that all law is power, and that our current legal system allows those empowered to dominate and oppress other groups"); Douglas E. Litowitz, Some Critical Thoughts on Critical Race Theory, 72 NOTRE DAME L. REV. 503, 516 (1997) (attacking CRT for failing to "find a replacement approach [to liberalism] and understand how this new approach will preserve individual rights"); Thomas Morawetz, Understanding Disagreement, the Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. PA. L. REV. 371, 434-36, 438 (1992) (describing the "conceptual relativity" and "antifoundational" underpinnings of CRT); Jeffrey Rosen, The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, NEW REPUBLIC, Dec. 9, 1996, at 27, 29 (describing CRT as a "post-structuralist" retreat from problems that minorities face). Some proponents of CRT contribute to this (mis)understanding of the movement. See, e.g., Feldman, supra note 6, at 1102-03 ("Postmodernism, in short, generates different voice scholarship by encouraging outgroup members to uncover previously suppressed truths and meanings. Different voice scholars, from this perspective, exemplify postmodernism; they are prototypical postmodernists."); Gary Peller, The Discourse of Constitutional Degradation, 81 GEO. L.J. 313, 330-36 (1992) (attributing to CRT a commitment to strong social constructionism as the "main epistemological point[]" of the movement).
48. See, e.g., MINDA, supra note 10, at 167-85 (categorizing CRT as a "postmodern legal movement"); see also Chow, supra note 11, at 223 n.1 (defining "nihilist" jurisprudence as embodying the "current positions of some legal academics that law and illegitimate power are inseparable, that all law is power, and that our current legal system allows those empowered to dominate and oppress other groups"); Douglas E. Litowitz, Some Critical Thoughts on Critical Race Theory, 72 NOTRE DAME L. REV. 503, 516 (1997) (attacking CRT for failing to "find a replacement approach [to liberalism] and understand how this new approach will preserve individual rights"); Thomas Morawetz, Understanding Disagreement, the Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. PA. L. REV. 371, 434-36, 438 (1992) (describing the "conceptual relativity" and "antifoundational" underpinnings of CRT); Jeffrey Rosen, The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, NEW REPUBLIC, Dec. 9, 1996, at 27, 29 (describing CRT as a "post-structuralist" retreat from problems that minorities face). Some proponents of CRT contribute to this (mis)understanding of the movement. See, e.g., Feldman, supra note 6, at 1102-03 ("Postmodernism, in short, generates different voice scholarship by encouraging outgroup members to uncover previously suppressed truths and meanings. Different voice scholars, from this perspective, exemplify postmodernism; they are prototypical postmodernists."); Gary Peller, The Discourse of Constitutional Degradation, 81 GEO. L.J. 313, 330-36 (1992) (attributing to CRT a commitment to strong social constructionism as the "main epistemological point[]" of the movement).
49. See, e.g., MINDA, supra note 10, at 167-85 (categorizing CRT as a "postmodern legal movement"); see also Chow, supra note 11, at 223 n.1 (defining "nihilist" jurisprudence as embodying the "current positions of some legal academics that law and illegitimate power are inseparable, that all law is power, and that our current legal system allows those empowered to dominate and oppress other groups"); Douglas E. Litowitz, Some Critical Thoughts on Critical Race Theory, 72 NOTRE DAME L. REV. 503, 516 (1997) (attacking CRT for failing to "find a replacement approach [to liberalism] and understand how this new approach will preserve individual rights"); Thomas Morawetz, Understanding Disagreement, the Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. PA. L. REV. 371, 434-36, 438 (1992) (describing the "conceptual relativity" and "antifoundational" underpinnings of CRT); Jeffrey Rosen, The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, NEW REPUBLIC, Dec. 9, 1996, at 27, 29 (describing CRT as a "post-structuralist" retreat from problems that minorities face). Some proponents of CRT contribute to this (mis)understanding of the movement. See, e.g., Feldman, supra note 6, at 1102-03 ("Postmodernism, in short, generates different voice scholarship by encouraging outgroup members to uncover previously suppressed truths and meanings. Different voice scholars, from this perspective, exemplify postmodernism; they are prototypical postmodernists."); Gary Peller, The Discourse of Constitutional Degradation, 81 GEO. L.J. 313, 330-36 (1992) (attributing to CRT a commitment to strong social constructionism as the "main epistemological point[]" of the movement).
50. See, e.g., MINDA, supra note 10, at 167-85 (categorizing CRT as a "postmodern legal movement"); see also Chow, supra note 11, at 223 n.1 (defining "nihilist" jurisprudence as embodying the "current positions of some legal academics that law and illegitimate power are inseparable, that all law is power, and that our current legal system allows those empowered to dominate and oppress other groups"); Douglas E. Litowitz, Some Critical Thoughts on Critical Race Theory, 72 NOTRE DAME L. REV. 503, 516 (1997) (attacking CRT for failing to "find a replacement approach [to liberalism] and understand how this new approach will preserve individual rights"); Thomas Morawetz, Understanding Disagreement, the Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. PA. L. REV. 371, 434-36, 438 (1992) (describing the "conceptual relativity" and "antifoundational" underpinnings of CRT); Jeffrey Rosen, The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, NEW REPUBLIC, Dec. 9, 1996, at 27, 29 (describing CRT as a "post-structuralist" retreat from problems that minorities face). Some proponents of CRT contribute to this (mis)understanding of the movement. See, e.g., Feldman, supra note 6, at 1102-03 ("Postmodernism, in short, generates different voice scholarship by encouraging outgroup members to uncover previously suppressed truths and meanings. Different voice scholars, from this perspective, exemplify postmodernism; they are prototypical postmodernists."); Gary Peller, The Discourse of Constitutional Degradation, 81 GEO. L.J. 313, 330-36 (1992) (attributing to CRT a commitment to strong social constructionism as the "main epistemological point[]" of the movement).
51. See, e.g., MINDA, supra note 10, at 167-85 (categorizing CRT as a "postmodern legal movement"); see also Chow, supra note 11, at 223 n.1 (defining "nihilist" jurisprudence as embodying the "current positions of some legal academics that law and illegitimate power are inseparable, that all law is power, and that our current legal system allows those empowered to dominate and oppress other groups"); Douglas E. Litowitz, Some Critical Thoughts on Critical Race Theory, 72 NOTRE DAME L. REV. 503, 516 (1997) (attacking CRT for failing to "find a replacement approach [to liberalism] and understand how this new approach will preserve individual rights"); Thomas Morawetz, Understanding Disagreement, the Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. PA. L. REV. 371, 434-36, 438 (1992) (describing the "conceptual relativity" and "antifoundational" underpinnings of CRT); Jeffrey Rosen, The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, NEW REPUBLIC, Dec. 9, 1996, at 27, 29 (describing CRT as a "post-structuralist" retreat from problems that minorities face). Some proponents of CRT contribute to this (mis)understanding of the movement. See, e.g., Feldman, supra note 6, at 1102-03 ("Postmodernism, in short, generates different voice scholarship by encouraging outgroup members to uncover previously suppressed truths and meanings. Different voice scholars, from this perspective, exemplify postmodernism; they are prototypical postmodernists."); Gary Peller, The Discourse of Constitutional Degradation, 81 GEO. L.J. 313, 330-36 (1992) (attributing to CRT a commitment to strong social constructionism as the "main epistemological point[]" of the movement).
52. See, e.g., MINDA, supra note 10, at 167-85 (categorizing CRT as a "postmodern legal movement"); see also Chow, supra note 11, at 223 n.1 (defining "nihilist" jurisprudence as embodying the "current positions of some legal academics that law and illegitimate power are inseparable, that all law is power, and that our current legal system allows those empowered to dominate and oppress other groups"); Douglas E. Litowitz, Some Critical Thoughts on Critical Race Theory, 72 NOTRE DAME L. REV. 503, 516 (1997) (attacking CRT for failing to "find a replacement approach [to liberalism] and understand how this new approach will preserve individual rights"); Thomas Morawetz, Understanding Disagreement, the Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. PA. L. REV. 371, 434-36, 438 (1992) (describing the "conceptual relativity" and "antifoundational" underpinnings of CRT); Jeffrey Rosen, The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, NEW REPUBLIC, Dec. 9, 1996, at 27, 29 (describing CRT as a "post-structuralist" retreat from problems that minorities face). Some proponents of CRT contribute to this (mis)understanding of the movement. See, e.g., Feldman, supra note 6, at 1102-03 ("Postmodernism, in short, generates different voice scholarship by encouraging outgroup members to uncover previously suppressed truths and meanings. Different voice scholars, from this perspective, exemplify postmodernism; they are prototypical postmodernists."); Gary Peller, The Discourse of Constitutional Degradation, 81 GEO. L.J. 313, 330-36 (1992) (attributing to CRT a commitment to strong social constructionism as the "main epistemological point[]" of the movement).
53. See, e.g., MINDA, supra note 10, at 167-85 (categorizing CRT as a "postmodern legal movement"); see also Chow, supra note 11, at 223 n.1 (defining "nihilist" jurisprudence as embodying the "current positions of some legal academics that law and illegitimate power are inseparable, that all law is power, and that our current legal system allows those empowered to dominate and oppress other groups"); Douglas E. Litowitz, Some Critical Thoughts on Critical Race Theory, 72 NOTRE DAME L. REV. 503, 516 (1997) (attacking CRT for failing to "find a replacement approach [to liberalism] and understand how this new approach will preserve individual rights"); Thomas Morawetz, Understanding Disagreement, the Root Issue of Jurisprudence: Applying Wittgenstein to Positivism, Critical Theory, and Judging, 141 U. PA. L. REV. 371, 434-36, 438 (1992) (describing the "conceptual relativity" and "antifoundational" underpinnings of CRT); Jeffrey Rosen, The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, NEW REPUBLIC, Dec. 9, 1996, at 27, 29 (describing CRT as a "post-structuralist" retreat from problems that minorities face). Some proponents of CRT contribute to this (mis)understanding of the movement. See, e.g., Feldman, supra note 6, at 1102-03 ("Postmodernism, in short, generates different voice scholarship by encouraging outgroup members to uncover previously suppressed truths and meanings. Different voice scholars, from this perspective, exemplify postmodernism; they are prototypical postmodernists."); Gary Peller, The Discourse of Constitutional Degradation, 81 GEO. L.J. 313, 330-36 (1992) (attributing to CRT a commitment to strong social constructionism as the "main epistemological point[]" of the movement).
54. See Veronica Gentilli, Comment, A Double Challenge for Critical Race Scholars: The Moral Context, 65 S. CAL. L. REV. 2361, 2362 (1992) (describing the "double challenge" confronting critical race scholars, namely that "[o]n the one hand, they must dispel the myth of objectivity that underlies our current understanding of the law and its moral foundation, while on the other, they must prove that it is possible to obtain a true and objective conception of justice").
55. See, e.g., Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CAL. L. REV. 1243, 1286 (1993) (arguing that the post-structuralist critique reveals that "political action is all that will be left");
56. Anthony E. Cook, Reflections on Postmodernism, 26 NEW ENG. L. REV. 751, 754 (1992) ("Postmodern critique might be thought of as a strategy for bringing to the surface suppressed narratives and voices drowned out by the univocal projections of master narratives.");
57. Charles R. Lawrence, III, The Word and the River: Pedagogy as Scholarship as Struggle, 65 S. CAL. L. REV. 2231, 2252 (1992) (arguing that those working to end racism should make a strong commitment to a subjective perspective);
58. cf. Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1402 (1985) (claiming that it is "tremendously liberating" to recognize "that nothing is necessary, that everything is contingent, [and] that I need not resign myself to how things are"). The phrase "outsider jurisprudence" was coined by Mari Matsuda.
59. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2323 n.15 (1989).
60. See Litowitz, supra note 14, at 516-20 (describing the "danger[s] of narcissism").
61. See, e.g., Deborah L. Rhode, Feminist Critical Theories, 42 STAN. L. REV. 617, 619-20 (1990) (arguing that postmodernism creates political and theoretical difficulties for outsider jurisprudence); Robin L. West, Adjudication Is Not Interpretation: Some Reservations About the Law-as-Literature Movement, 54 TENN. L. REV. 203, 246-53 (1987) (branding subjective interpretivists as "conservative"); Jennifer Wicke, Postmodern Identity and the Legal Subject, 62 U. COLO. L. REV. 455, 455 (1991) (arguing that "the costs of a shotgun marriage between [postmodernism and the law] are too high").
62. See, e.g., Deborah L. Rhode, Feminist Critical Theories, 42 STAN. L. REV. 617, 619-20 (1990) (arguing that postmodernism creates political and theoretical difficulties for outsider jurisprudence); Robin L. West, Adjudication Is Not Interpretation: Some Reservations About the Law-as-Literature Movement, 54 TENN. L. REV. 203, 246-53 (1987) (branding subjective interpretivists as "conservative"); Jennifer Wicke, Postmodern Identity and the Legal Subject, 62 U. COLO. L. REV. 455, 455 (1991) (arguing that "the costs of a shotgun marriage between [postmodernism and the law] are too high").
63. See, e.g., Deborah L. Rhode, Feminist Critical Theories, 42 STAN. L. REV. 617, 619-20 (1990) (arguing that postmodernism creates political and theoretical difficulties for outsider jurisprudence); Robin L. West, Adjudication Is Not Interpretation: Some Reservations About the Law-as-Literature Movement, 54 TENN. L. REV. 203, 246-53 (1987) (branding subjective interpretivists as "conservative"); Jennifer Wicke, Postmodern Identity and the Legal Subject, 62 U. COLO. L. REV. 455, 455 (1991) (arguing that "the costs of a shotgun marriage between [postmodernism and the law] are too high").
64. These criteria are "pre-theoretical" in the sense that their viability is not itself subjected to theoretical reflection. Compare this description with Steven Best and Doug Kellner's account of critical theory's "metatheoretical assumptions": representation, social coherence, and agency. BEST & KELLNER, supra note 2, at 257. Best and Kellner do not analyze the issue in the way I propose here. As a consequence, the status of these "metatheoretical assumptions" as discursive foundations for critical theory is unclear. As I discuss at length below, the pre-theoretical character of certain concepts provides unshakable foundations. See infra Parts II, III.
65. My argument is thus both descriptive and prescriptive. On a descriptive level, I claim that CRT is a socially organized critical project wedded to certain identifiable, pragmatic foundations. CRT is not, therefore, an antifoundational, postmodern legal movement. In addition, on a prescriptive level, I suggest ways in which postmodernism might be productively appropriated to further the CRT project.
66. Zygmunt Bauman provides a useful capsule summary of the sociological approach: [W]hat sets sociology apart and gives it its distinctive character is the habit of viewing human actions as elements of wider figurations: that is, of a non-random assembly of actors locked together in a web of mutual depedency (dependency being a state in which the probability that the action will be undertaken and the chance of its success change in relation to what actors are, or do, or may do). Sociologists would ask what consequences this being locked together would have for the possible and the actual behaviour of human actors. ZYGMUNT BAUMAN, THINKING SOCIOLOGICALLY 7-8 (1990).
67. See generally Angela P. Harris, Foreword: The Jurispridence of Reconstruction, 82 CAL. L. REV. 741, 745 (1994) ("Intellectual movements are practices: games whose rules are always evolving, played by communities with fuzzy boundaries." (footnote omitted));
68. Edward L. Rubin, The Practice and Discourse of Legal Scholarship, 86 MICH. L. REV. 1835, 1841 (1988) ("[A]n academic discipline is not a body of objective information, or a set of techniques for discovering such information, but a practice; a system of socially constituted modes of argument shared by a community of scholars.").
69. I suggest neither that CRT is narrow in scope nor that it is static; instead, I suggest that what the legal academy - and critical race theorists themselves - have come to understand as CRT is an identifiable domain of inquiry within which certain organizing principles hold. On the dynamic nature of CRT scholarship generally, see John O. Calmore, Critical Race Theory, Archie Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World, 65 S. CAL. L. REV. 2129, 2161 (1992); and Richard Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1, 6-7 (1991). Cf. Patricia Williams, The Obliging Shell: An Informal Essay on Formal Equal Opportunity, 87 MICH. L. REV. 2128, 2151 (1989) ("It is this perspective, the ambi-valent, multivalent way of seeing that is, I think, at the heart of what is called critical theory, feminist theory, and the so-called minority critique. It has to do with a fluid positioning that sees back and forth across boundar[ies] . . . .").
70. I suggest neither that CRT is narrow in scope nor that it is static; instead, I suggest that what the legal academy - and critical race theorists themselves - have come to understand as CRT is an identifiable domain of inquiry within which certain organizing principles hold. On the dynamic nature of CRT scholarship generally, see John O. Calmore, Critical Race Theory, Archie Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World, 65 S. CAL. L. REV. 2129, 2161 (1992); and Richard Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1, 6-7 (1991). Cf. Patricia Williams, The Obliging Shell: An Informal Essay on Formal Equal Opportunity, 87 MICH. L. REV. 2128, 2151 (1989) ("It is this perspective, the ambi-valent, multivalent way of seeing that is, I think, at the heart of what is called critical theory, feminist theory, and the so-called minority critique. It has to do with a fluid positioning that sees back and forth across boundar[ies] . . . .").
71. I suggest neither that CRT is narrow in scope nor that it is static; instead, I suggest that what the legal academy - and critical race theorists themselves - have come to understand as CRT is an identifiable domain of inquiry within which certain organizing principles hold. On the dynamic nature of CRT scholarship generally, see John O. Calmore, Critical Race Theory, Archie Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World, 65 S. CAL. L. REV. 2129, 2161 (1992); and Richard Delgado, Brewer's Plea: Critical Thoughts on Common Cause, 44 VAND. L. REV. 1, 6-7 (1991). Cf. Patricia Williams, The Obliging Shell: An Informal Essay on Formal Equal Opportunity, 87 MICH. L. REV. 2128, 2151 (1989) ("It is this perspective, the ambi-valent, multivalent way of seeing that is, I think, at the heart of what is called critical theory, feminist theory, and the so-called minority critique. It has to do with a fluid positioning that sees back and forth across boundar[ies] . . . .").
72. By pre-theoretical commitments, I mean a practice's conceptual commitments that structure background understandings of the theoretical project. The selection of relevant facts, appropriate methods, and usable principles of verification - all theoretical concerns - necessarily takes place against the backdrop of certain pre-theoretical understandings. See PETER L. BERGER & THOMAS LUCKMANN, THE SOCIAL CONSTRUCTION OF REALITY 12 (1966) (suggesting that the reach of sociological vision does not extend to approaches that would challenge the pre-theoretical commitments of sociology and that "[t]o include epistemological questions concerning the validity of sociological knowledge in the sociology of knowledge is somewhat like trying to push a bus in which one is riding"). Similar concepts are more fully developed in the philosophy of science. See, e.g., LUDWIK FLECK, GENESIS AND DEVELOPMENT OF A SCIENTIFIC FACT 23-27 (Fred Bradley & Thaddeus J. Trenn trans., University of Chicago Press 1979) (1935) (describing the analogous concept of a "proto-idea").
73. By pre-theoretical commitments, I mean a practice's conceptual commitments that structure background understandings of the theoretical project. The selection of relevant facts, appropriate methods, and usable principles of verification - all theoretical concerns - necessarily takes place against the backdrop of certain pre-theoretical understandings. See PETER L. BERGER & THOMAS LUCKMANN, THE SOCIAL CONSTRUCTION OF REALITY 12 (1966) (suggesting that the reach of sociological vision does not extend to approaches that would challenge the pre-theoretical commitments of sociology and that "[t]o include epistemological questions concerning the validity of sociological knowledge in the sociology of knowledge is somewhat like trying to push a bus in which one is riding"). Similar concepts are more fully developed in the philosophy of science. See, e.g., LUDWIK FLECK, GENESIS AND DEVELOPMENT OF A SCIENTIFIC FACT 23-27 (Fred Bradley & Thaddeus J. Trenn trans., University of Chicago Press 1979) (1935) (describing the analogous concept of a "proto-idea").
74. Critics of this formulation might claim that no extra-theoretical perspective exists. This potential criticism helps clarify my point. Indeed, the concept of pre-theoretical commitments is itself a theoretical construction. Specific pre-theoretical commitments define the scope of particular modes of inquiry. That is, pre-theoretical commitments are not necessarily shared across disciplines. As a consequence, one mode of inquiry - sociology, for example - is capable of specifying the extra-theoretical features or preconditions of another - history, for example. Sociological theory could describe phenomena that are decidedly extra-theoretical for historiography. Understood in this way, the notion of pre-theoretical commitments gives theoretical expression to extra-theoretical phenomena.
75. To clarify, my use of the term "foundations" does not refer to philosophical (or theoretical) foundations. Rather, I elaborate the notion of pre-theoretical commitments to highlight the sociological dimension in any critical practice. That is, the foundations described are social.
76. In this sense, my project draws upon and supplements Jack Balkin's work on "transcendental deconstruction." See J.M. Balkin, Being Just with Deconstruction, 3 SOC. & LEGAL STUD. 393 (1994) [hereinafter Balkin, Being Just]; Balkin, Transcendental Deconstruction, supra note 6. Balkin notes that deconstructive techniques "appear to preclude the possibility of any stable conception of the just or the good that could provide the basis for political belief or the authority for political action. " Balkin, Being Just, supra, at 393. Balkin, however, qualifies this view by distinguishing the rhetorical practice of deconstruction from deconstruction itself. See id. at 402. The theory of deconstruction - a technique or tool, like all theories - may not allow for the possibility of justice, but the use of deconstruction as a political strategy nevertheless demonstrates a commitment to justice. Elaborating this distinction, Balkin provides a nuanced account of the relationship between deconslruclion and justice by claiming that "deconstructive arguments made by human beings are necessarily partial in their perspective and limited in their scope. As a result, deconstructive argument does not necessarily further the interests of justice but is rather a rhetorical practice that can be used for good or for ill." Id. at 394. The theoretical commitment to particular argumentative techniques - deconstruction, for example - can be distinguished from the sources of this commitment. For Balkin, the commitment to justice is extra-theoretical; justice is a "yearning." Balkin, Transcendental Deconstruction, supra note 6, at 1140. In this Note, I attempt to give theoretical expression to Balkin's approach by elaborating a "sociology of critique." See infra note 30 and accompanying text. That is, I analyze the relationship between this "yearning" and the conceptual commitments of critical discourses. In addition, this point also highlights that my claims, although grounded in a discussion of anthropology and CRT, are equally applicable to any theoretical discourse.
77. In this sense, my project draws upon and supplements Jack Balkin's work on "transcendental deconstruction." See J.M. Balkin, Being Just with Deconstruction, 3 SOC. & LEGAL STUD. 393 (1994) [hereinafter Balkin, Being Just]; Balkin, Transcendental Deconstruction, supra note 6. Balkin notes that deconstructive techniques "appear to preclude the possibility of any stable conception of the just or the good that could provide the basis for political belief or the authority for political action. " Balkin, Being Just, supra, at 393. Balkin, however, qualifies this view by distinguishing the rhetorical practice of deconstruction from deconstruction itself. See id. at 402. The theory of deconstruction - a technique or tool, like all theories - may not allow for the possibility of justice, but the use of deconstruction as a political strategy nevertheless demonstrates a commitment to justice. Elaborating this distinction, Balkin provides a nuanced account of the relationship between deconslruclion and justice by claiming that "deconstructive arguments made by human beings are necessarily partial in their perspective and limited in their scope. As a result, deconstructive argument does not necessarily further the interests of justice but is rather a rhetorical practice that can be used for good or for ill." Id. at 394. The theoretical commitment to particular argumentative techniques - deconstruction, for example - can be distinguished from the sources of this commitment. For Balkin, the commitment to justice is extra-theoretical; justice is a "yearning." Balkin, Transcendental Deconstruction, supra note 6, at 1140. In this Note, I attempt to give theoretical expression to Balkin's approach by elaborating a "sociology of critique." See infra note 30 and accompanying text. That is, I analyze the relationship between this "yearning" and the conceptual commitments of critical discourses. In addition, this point also highlights that my claims, although grounded in a discussion of anthropology and CRT, are equally applicable to any theoretical discourse.
78. In this sense, my project draws upon and supplements Jack Balkin's work on "transcendental deconstruction." See J.M. Balkin, Being Just with Deconstruction, 3 SOC. & LEGAL STUD. 393 (1994) [hereinafter Balkin, Being Just]; Balkin, Transcendental Deconstruction, supra note 6. Balkin notes that deconstructive techniques "appear to preclude the possibility of any stable conception of the just or the good that could provide the basis for political belief or the authority for political action. " Balkin, Being Just, supra, at 393. Balkin, however, qualifies this view by distinguishing the rhetorical practice of deconstruction from deconstruction itself. See id. at 402. The theory of deconstruction - a technique or tool, like all theories - may not allow for the possibility of justice, but the use of deconstruction as a political strategy nevertheless demonstrates a commitment to justice. Elaborating this distinction, Balkin provides a nuanced account of the relationship between deconslruclion and justice by claiming that "deconstructive arguments made by human beings are necessarily partial in their perspective and limited in their scope. As a result, deconstructive argument does not necessarily further the interests of justice but is rather a rhetorical practice that can be used for good or for ill." Id. at 394. The theoretical commitment to particular argumentative techniques - deconstruction, for example - can be distinguished from the sources of this commitment. For Balkin, the commitment to justice is extra-theoretical; justice is a "yearning." Balkin, Transcendental Deconstruction, supra note 6, at 1140. In this Note, I attempt to give theoretical expression to Balkin's approach by elaborating a "sociology of critique." See infra note 30 and accompanying text. That is, I analyze the relationship between this "yearning" and the conceptual commitments of critical discourses. In addition, this point also highlights that my claims, although grounded in a discussion of anthropology and CRT, are equally applicable to any theoretical discourse.
79. Mark Tushnet, Critical Legal Studies: A Political History, 100 YALE L.J. 1515, 1515 (1991).
80. See supra text accompanying note 1. Foucault arguably considered the role of the critic as fundamentally oppositional. That is, critics should not truncate or blunt the force of critical analyses to accommodate the "necessity of reform." Cabinet ministers must worry over the proper policy goals and mechanisms given the realpolitik. For Foucault, critique involves the renunciation of this institutional, bureaucratic disposition. See Michel Foucault, Politics and the Study of Discourse, in THE FOUCAULT EFFECT, supra note 1, at 53, 69-72.
81. See supra text accompanying note 1. Foucault arguably considered the role of the critic as fundamentally oppositional. That is, critics should not truncate or blunt the force of critical analyses to accommodate the "necessity of reform." Cabinet ministers must worry over the proper policy goals and mechanisms given the realpolitik. For Foucault, critique involves the renunciation of this institutional, bureaucratic disposition. See Michel Foucault, Politics and the Study of Discourse, in THE FOUCAULT EFFECT, supra note 1, at 53, 69-72.
82. The "sociology of critique" involves specifying the social, political, and economic processes that both enable and limit critical practices. That is, the sociologist interested in criticism as a social practice would analyze closely the socio-political conditions of possible criticism. Thus, the sociology of critique seeks to broaden the understanding of critical discourse by providing a lens through which critical scholars themselves might be analyzed. Cf. ALAN WATTS, THE WISDOM OF INSECURITY 114 (1951) ("Philosophers . . . often fail to recognize that their remarks about the universe apply also to themselves and their remarks."). My line of analysis clearly draws on work done in the "sociology of intellectuals." See, e.g., ANTHONY GIDDENS, SOCIAL THEORY AND MODERN SOCIOLOGY 253-74 (1987); ALVIN W. GOULDNER, THE COMING CRISIS OF WESTERN SOCIOLOGY 481-512 (1970); JOHN O'NEILL, SOCIOLOGY AS A SKIN TRADE: ESSAYS TOWARDS A REFLEXIVE SOCIOLOGY (1972).
83. The "sociology of critique" involves specifying the social, political, and economic processes that both enable and limit critical practices. That is, the sociologist interested in criticism as a social practice would analyze closely the socio-political conditions of possible criticism. Thus, the sociology of critique seeks to broaden the understanding of critical discourse by providing a lens through which critical scholars themselves might be analyzed. Cf. ALAN WATTS, THE WISDOM OF INSECURITY 114 (1951) ("Philosophers . . . often fail to recognize that their remarks about the universe apply also to themselves and their remarks."). My line of analysis clearly draws on work done in the "sociology of intellectuals." See, e.g., ANTHONY GIDDENS, SOCIAL THEORY AND MODERN SOCIOLOGY 253-74 (1987); ALVIN W. GOULDNER, THE COMING CRISIS OF WESTERN SOCIOLOGY 481-512 (1970); JOHN O'NEILL, SOCIOLOGY AS A SKIN TRADE: ESSAYS TOWARDS A REFLEXIVE SOCIOLOGY (1972).
84. The "sociology of critique" involves specifying the social, political, and economic processes that both enable and limit critical practices. That is, the sociologist interested in criticism as a social practice would analyze closely the socio-political conditions of possible criticism. Thus, the sociology of critique seeks to broaden the understanding of critical discourse by providing a lens through which critical scholars themselves might be analyzed. Cf. ALAN WATTS, THE WISDOM OF INSECURITY 114 (1951) ("Philosophers . . . often fail to recognize that their remarks about the universe apply also to themselves and their remarks."). My line of analysis clearly draws on work done in the "sociology of intellectuals." See, e.g., ANTHONY GIDDENS, SOCIAL THEORY AND MODERN SOCIOLOGY 253-74 (1987); ALVIN W. GOULDNER, THE COMING CRISIS OF WESTERN SOCIOLOGY 481-512 (1970); JOHN O'NEILL, SOCIOLOGY AS A SKIN TRADE: ESSAYS TOWARDS A REFLEXIVE SOCIOLOGY (1972).
85. The "sociology of critique" involves specifying the social, political, and economic processes that both enable and limit critical practices. That is, the sociologist interested in criticism as a social practice would analyze closely the socio-political conditions of possible criticism. Thus, the sociology of critique seeks to broaden the understanding of critical discourse by providing a lens through which critical scholars themselves might be analyzed. Cf. ALAN WATTS, THE WISDOM OF INSECURITY 114 (1951) ("Philosophers . . . often fail to recognize that their remarks about the universe apply also to themselves and their remarks."). My line of analysis clearly draws on work done in the "sociology of intellectuals." See, e.g., ANTHONY GIDDENS, SOCIAL THEORY AND MODERN SOCIOLOGY 253-74 (1987); ALVIN W. GOULDNER, THE COMING CRISIS OF WESTERN SOCIOLOGY 481-512 (1970); JOHN O'NEILL, SOCIOLOGY AS A SKIN TRADE: ESSAYS TOWARDS A REFLEXIVE SOCIOLOGY (1972).
86. For a discussion of the ethnographic method, see infra Section III.A.
87. The understanding of reflexivity deployed in this Note is informed by Pierre Bourdieu's "reflexive sociology." See PIERRE BOURDIEU, THE LOGIC OF PRACTICE (Richard Nice trans., Stanford Univ. Press 1990) (1980); PIERRE BOURDIEU, OUTLINE OF A THEORY OF PRACTICE (Richard Nice trans., Cambridge Univ. Press 1977) (1972); Loic Wacqurant, Towards a Reflexive Sociology: A Workshop with Pierre Bourdieu, 7 SOC. THEORY 26 (1989). Bourdieu would carry the claim much farther than I would, however. For Bourdieu, reflexive theorizing is not only the outer limit of critical practice, it is the only viable critical practice. See PIERRE BOURDIEU, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGEMENT OF TASTE 12 (Richard Nice trans., Harvard Univ. Press 1984) (1979) ("There is no way out of the game of culture; and one's only chance of objectifying the true nature of the game is to objectify as fully as possible the very operations which one is obliged to use in order to achieve that objectification.").
88. The understanding of reflexivity deployed in this Note is informed by Pierre Bourdieu's "reflexive sociology." See PIERRE BOURDIEU, THE LOGIC OF PRACTICE (Richard Nice trans., Stanford Univ. Press 1990) (1980); PIERRE BOURDIEU, OUTLINE OF A THEORY OF PRACTICE (Richard Nice trans., Cambridge Univ. Press 1977) (1972); Loic Wacqurant, Towards a Reflexive Sociology: A Workshop with Pierre Bourdieu, 7 SOC. THEORY 26 (1989). Bourdieu would carry the claim much farther than I would, however. For Bourdieu, reflexive theorizing is not only the outer limit of critical practice, it is the only viable critical practice. See PIERRE BOURDIEU, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGEMENT OF TASTE 12 (Richard Nice trans., Harvard Univ. Press 1984) (1979) ("There is no way out of the game of culture; and one's only chance of objectifying the true nature of the game is to objectify as fully as possible the very operations which one is obliged to use in order to achieve that objectification.").
89. The understanding of reflexivity deployed in this Note is informed by Pierre Bourdieu's "reflexive sociology." See PIERRE BOURDIEU, THE LOGIC OF PRACTICE (Richard Nice trans., Stanford Univ. Press 1990) (1980); PIERRE BOURDIEU, OUTLINE OF A THEORY OF PRACTICE (Richard Nice trans., Cambridge Univ. Press 1977) (1972); Loic Wacqurant, Towards a Reflexive Sociology: A Workshop with Pierre Bourdieu, 7 SOC. THEORY 26 (1989). Bourdieu would carry the claim much farther than I would, however. For Bourdieu, reflexive theorizing is not only the outer limit of critical practice, it is the only viable critical practice. See PIERRE BOURDIEU, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGEMENT OF TASTE 12 (Richard Nice trans., Harvard Univ. Press 1984) (1979) ("There is no way out of the game of culture; and one's only chance of objectifying the true nature of the game is to objectify as fully as possible the very operations which one is obliged to use in order to achieve that objectification.").
90. The understanding of reflexivity deployed in this Note is informed by Pierre Bourdieu's "reflexive sociology." See PIERRE BOURDIEU, THE LOGIC OF PRACTICE (Richard Nice trans., Stanford Univ. Press 1990) (1980); PIERRE BOURDIEU, OUTLINE OF A THEORY OF PRACTICE (Richard Nice trans., Cambridge Univ. Press 1977) (1972); Loic Wacqurant, Towards a Reflexive Sociology: A Workshop with Pierre Bourdieu, 7 SOC. THEORY 26 (1989). Bourdieu would carry the claim much farther than I would, however. For Bourdieu, reflexive theorizing is not only the outer limit of critical practice, it is the only viable critical practice. See PIERRE BOURDIEU, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGEMENT OF TASTE 12 (Richard Nice trans., Harvard Univ. Press 1984) (1979) ("There is no way out of the game of culture; and one's only chance of objectifying the true nature of the game is to objectify as fully as possible the very operations which one is obliged to use in order to achieve that objectification.").
91. Professor Connolly defines "theoretical self-consciousness" as: [F]irst, an effort to clarify for self and others the basic presumptions and conceptual organization of the perspective brought to inquiry; second, an assessment of the extent to which the available evidence supports or contravenes the perspective; third, a full statement of the normative import of the theory; and, finally, an assessment of the extent to which available evidence and other explicit considerations justify acting in support of those normative conclusions. William E. Connolly, Theoretical Self-Consciousness, in SOCIAL STRUCTURE AND POLITICAL THEORY 55, 57-58 (William E. Connolly & Glen Gordon eds., 1974).
92. E.g., MINDA, supra note 10, at 182.
93. E.g., Feldman, supra note 6, at 1102-04; Morawetz, supra note 14, at 434-38.
94. E.g., Feldman, supra note 6, at 1102-04; Morawetz, supra note 14, at 434-38.
95. E.g., Rosen, supra note 14, at 29.
96. See supra notes 6-18 and accompanying text. Given the controversy, this unabashed nominalism has important political effects. In this Note, I attempt to provide an analytical framework that cuts through such nominalism.
97. For example, critics of CRT narratives or "storytelling" often emphasize the adverse political consequences of such perspectivalism. See, e.g., Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991); Daniel A. Farber & Suzanna J. Sherry, Telling Stories our of School, 45 STAN. L. REV. 807 (1993).
98. For example, critics of CRT narratives or "storytelling" often emphasize the adverse political consequences of such perspectivalism. See, e.g., Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991); Daniel A. Farber & Suzanna J. Sherry, Telling Stories our of School, 45 STAN. L. REV. 807 (1993).
99. CRT clearly has a complex relationship to CLS. CLS emphasizes the ways in which law constructs and is constructed by privileged knowledge claims. CRT, embracing this framework in part, emphasizes the ways in which these constructions are racialized. In this way, CRT seeks to build theoretically informed race consciousness in legal thought. See Harlon Dalton, The Clouded Prism: Minority Critique of the Critical Legal Studies Movement, 22 HARV. C.R.-C.L. L. REV. 435 (1987); Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987).
100. CRT clearly has a complex relationship to CLS. CLS emphasizes the ways in which law constructs and is constructed by privileged knowledge claims. CRT, embracing this framework in part, emphasizes the ways in which these constructions are racialized. In this way, CRT seeks to build theoretically informed race consciousness in legal thought. See Harlon Dalton, The Clouded Prism: Minority Critique of the Critical Legal Studies Movement, 22 HARV. C.R.-C.L. L. REV. 435 (1987); Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987).
101. See, e.g., Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988).
102. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980); Delgado, supra note 23, at 6-8; Richard Delgado & Jean Stefancic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Problem, 42 STAN. L. REV. 207 (1989); Richard Delgado, Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved?, 97 YALE L.J. 923 (1988) (book review).
103. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980); Delgado, supra note 23, at 6-8; Richard Delgado & Jean Stefancic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Problem, 42 STAN. L. REV. 207 (1989); Richard Delgado, Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved?, 97 YALE L.J. 923 (1988) (book review).
104. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980); Delgado, supra note 23, at 6-8; Richard Delgado & Jean Stefancic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Problem, 42 STAN. L. REV. 207 (1989); Richard Delgado, Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved?, 97 YALE L.J. 923 (1988) (book review).
105. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980); Delgado, supra note 23, at 6-8; Richard Delgado & Jean Stefancic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Problem, 42 STAN. L. REV. 207 (1989); Richard Delgado, Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved?, 97 YALE L.J. 923 (1988) (book review).
106. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980); Delgado, supra note 23, at 6-8; Richard Delgado & Jean Stefancic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Problem, 42 STAN. L. REV. 207 (1989); Richard Delgado, Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved?, 97 YALE L.J. 923 (1988) (book review).
107. Professor Crenshaw makes this point forcefully: Critics also disregard the transformative potential that liberalism offers. Although liberal legal ideology may indeed function to mystify, it remains receptive to some aspirations that are central to Black demands, and may also perform an important function in combating the experience of being excluded and oppressed. This receptivity to Black aspirations is crucial given the hostile social world that racism creates. The most troubling aspect of the Critical program, therefore, is that "trashing" rights consciousness may have the unintended consequence of disempowering the racially oppressed while leaving white supremacy basically untouched. Crenshaw, supra note 40, at 1357-58.
108. Harris, supra note 22.
109. CRT scholars can be divided into two camps on the postmodernism issue. See supra notes 16-18 and accompanying text. One camp endorses postmodernism as an emancipatory practice that holds the promise of transforming stale liberal legal discourse into a meaningful conversation about freedom and equality. See supra note 16 and accompanying text. The other camp of CRT scholars is skeptical of postmodernism's emancipatory potential. See supra notes 17-18 and accompanying text.
110. The point worth underscoring here is that the challenges facing CRT within the academy are political as well as intellectual. See, e.g., Kimberlé Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 NAT'L BLACK L.J. 1 (1989); Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561 (1984); Richard Delgado, The Imperial Scholar Revisited: How To Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992).
111. The point worth underscoring here is that the challenges facing CRT within the academy are political as well as intellectual. See, e.g., Kimberlé Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 NAT'L BLACK L.J. 1 (1989); Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561 (1984); Richard Delgado, The Imperial Scholar Revisited: How To Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992).
112. The point worth underscoring here is that the challenges facing CRT within the academy are political as well as intellectual. See, e.g., Kimberlé Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 NAT'L BLACK L.J. 1 (1989); Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561 (1984); Richard Delgado, The Imperial Scholar Revisited: How To Marginalize Outsider Writing, Ten Years Later, 140 U. PA. L. REV. 1349 (1992).
113. Other scholars have attempted to insulate CRT from the deconstructive excesses of postmodernism. See, e.g., Anthony E. Cook, The Spiritual Movement Towards Justice, 1992 U. ILL. L. REV. 1007 (urging a spiritual, Christian perspective, grounded in the philosophy of Martin Luther King, Jr., as a way for CRT to avoid postmodernism's threat of "nihilism").
114. Harris acknowledges this metatheoretical component of her project even as she disavows it: "A beginning word of caution: essays like this one inevitably indulge in the anthropomorphic fallacy, creating a unified thinking and speaking subject where none exists. . . . Like all reductions, then, this one will be misleading; and . . . I invite the critique and subversion of my own generalizations." Harris, supra note 22, at 744-45 (emphasis added).
115. Id. at 744.
116. Id. at 744.
117. For an argument that modernism and postmodernism are incommensurable "cognitive modes," see Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195 (1989). Many scholars emphasize the discontinuities between modernism and postmodernism. See, e.g., MICHEL FOUCAULT, LANGUAGE, COUNTER-MEMORY, PRACTICE 120 (Donald Bouchard & Sherry Simon trans., Cornell Univ. Press 1977) (1977); ANDREAS HUYSSEN, AFTER THE GREAT DIVIDE 1-64 (1992).
118. For an argument that modernism and postmodernism are incommensurable "cognitive modes," see Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195 (1989). Many scholars emphasize the discontinuities between modernism and postmodernism. See, e.g., MICHEL FOUCAULT, LANGUAGE, COUNTER-MEMORY, PRACTICE 120 (Donald Bouchard & Sherry Simon trans., Cornell Univ. Press 1977) (1977); ANDREAS HUYSSEN, AFTER THE GREAT DIVIDE 1-64 (1992).
119. For an argument that modernism and postmodernism are incommensurable "cognitive modes," see Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195 (1989). Many scholars emphasize the discontinuities between modernism and postmodernism. See, e.g., MICHEL FOUCAULT, LANGUAGE, COUNTER-MEMORY, PRACTICE 120 (Donald Bouchard & Sherry Simon trans., Cornell Univ. Press 1977) (1977); ANDREAS HUYSSEN, AFTER THE GREAT DIVIDE 1-64 (1992).
120. Harris, supra note 22, at 758 (emphasis added).
121. Modernist critical practice emphasizes the ways in which Enlightenment ideals are worthwhile, even if unrealized. See Jürgen Habermas, Modernity - An Incomplete Project, in THE ANTI-AESTHETIC: ESSAYS ON POSTMODERN CULTURK 1 (Hal Foster ed., 1983).
122. Harris, supra note 22, at 743.
123. Id. at 751.
124. Id. at 760.
125. Id. at 767.
126. Id. at 741.
127. See infra Section IV.C.
128. My very theoretical preoccupation with evaluation could be criticized as an impulse grounded in modernist faith. See CHRISTOPHER NORRIS, THE TRUTH ABOUT POSTMODERNISM 299-304 (1993).
129. The phrase was coined by French philosopher Jacques Derrida. For an extended discussion of the genesis and elaboration of the concept, see DIANA FUSS, ESSENTIALLY SPEAKING 15-21 (1989).
130. This claim has been a central insight of the CRT movement. See, e.g., sources cited supra note 41.
131. Harris, supra note 22, at 767.
132. Id.
133. "Liberation" is placed in quotation marks to acknowledge another side of the postmodern inquiry centering on redefining what might constitute liberation. Harris highlights the liberation (modernist)/empowerment (postmodernist) dichotomy. See id. at 732-53. This formulation, however, must confront the question I pose here. That is, how might we determine whether a reconceptualization of "liberation" is productive? The standards used should always take as their point of departure the modernist faith that one can move from "understanding to action." Id. at 753.
134. See id. at 745-54; cf. Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 VAND. L. REV. 665, 676 (1993) (arguing that CRT should be allowed a degree of further experimentation before it is brought to judgment as a scholarly movement).
135. See id. at 745-54; cf. Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 VAND. L. REV. 665, 676 (1993) (arguing that CRT should be allowed a degree of further experimentation before it is brought to judgment as a scholarly movement).
136. Among these is "faith" in some idea of "justice." What is CRT qua "critical" "race" "theory" without some sense of justice continuously informing its theoretical operations?
137. For examples of what I consider to be "radical projects of auto-effacement," see JEAN BAUDRILLARD, COOL MEMORIES (1990); JEAN BAUDRILLARD, FORGET FOUCAULT (Semiotext(e) 1987) (1977); PAUL DE MAN, BLINDNESS AND INSIGHT (1971); and LYOTARD, supra note 6. These projects are "auto-effacing" in the sense that the authors self-consciously advance claims that undermine or invalidate the conceptual foundations upon which those very claims are built; that is, the arguments are purposefully self-defeating. My claim is not that such projects are not useful; rather, my claim concerns the ways in which I feel CRT qua CRT should (could) appropriately incorporate the work of such theoreticians.
138. For examples of what I consider to be "radical projects of auto-effacement," see JEAN BAUDRILLARD, COOL MEMORIES (1990); JEAN BAUDRILLARD, FORGET FOUCAULT (Semiotext(e) 1987) (1977); PAUL DE MAN, BLINDNESS AND INSIGHT (1971); and LYOTARD, supra note 6. These projects are "auto-effacing" in the sense that the authors self-consciously advance claims that undermine or invalidate the conceptual foundations upon which those very claims are built; that is, the arguments are purposefully self-defeating. My claim is not that such projects are not useful; rather, my claim concerns the ways in which I feel CRT qua CRT should (could) appropriately incorporate the work of such theoreticians.
139. For examples of what I consider to be "radical projects of auto-effacement," see JEAN BAUDRILLARD, COOL MEMORIES (1990); JEAN BAUDRILLARD, FORGET FOUCAULT (Semiotext(e) 1987) (1977); PAUL DE MAN, BLINDNESS AND INSIGHT (1971); and LYOTARD, supra note 6. These projects are "auto-effacing" in the sense that the authors self-consciously advance claims that undermine or invalidate the conceptual foundations upon which those very claims are built; that is, the arguments are purposefully self-defeating. My claim is not that such projects are not useful; rather, my claim concerns the ways in which I feel CRT qua CRT should (could) appropriately incorporate the work of such theoreticians.
140. For examples of what I consider to be "radical projects of auto-effacement," see JEAN BAUDRILLARD, COOL MEMORIES (1990); JEAN BAUDRILLARD, FORGET FOUCAULT (Semiotext(e) 1987) (1977); PAUL DE MAN, BLINDNESS AND INSIGHT (1971); and LYOTARD, supra note 6. These projects are "auto-effacing" in the sense that the authors self-consciously advance claims that undermine or invalidate the conceptual foundations upon which those very claims are built; that is, the arguments are purposefully self-defeating. My claim is not that such projects are not useful; rather, my claim concerns the ways in which I feel CRT qua CRT should (could) appropriately incorporate the work of such theoreticians.
141. That is, criticism of modernity might be properly understood as well-grounded complaints that modernity - in practice - has not sufficiently realized its noble, if abstract, aspirations. In the context of U.S. law, CRT might be best understood as a challenge to legal liberalism to live up to its own standards. See Frank I. Michelman, Foreword: "Racialism" and Reason, 95 MICH. L. REV. 723 (1997) (arguing that liberalism can be reconciled with CRT concepts if liberalism is characterized as a set of aspirations and not as a set of existing norms).
142. See, e.g., JEAN BAUDRILLARD, THE MIRROR OF PRODUCTION (Mark Poster trans., Telos Press 1981) (1977).
143. See, e.g., POST-STRUCTURALISM AND THE QUESTION OF HISTORY (Derek Attridge et al. eds., 1987).
144. See, e.g., JACQUES DERRIDA, WRITING AND DIFFERENCE (Alan Bass trans., University of Chicago Press 1978) (1967).
145. See, e.g., POSTMODERNISM AND POLITICS (Jonathan Arac ed., 1990); RICHARD RORTY, Postmodern Bourgeois Liberalism, in OBJECTIVITY, RELATIVISM, AND TRUTH 3 (1991).
146. See, e.g., POSTMODERNISM AND POLITICS (Jonathan Arac ed., 1990); RICHARD RORTY, Postmodern Bourgeois Liberalism, in OBJECTIVITY, RELATIVISM, AND TRUTH 3 (1991).
147. Although I will not defend this thesis explicitly, my analysis is generally applicable to any theoretical discourse.
148. My discussion of anthropology concerns only socio-cultural anthropology. See generally CAROL R. EMBER & MELVIN EMBER, ANTHROPOLOGY 8-11 (6th ed. 1990) (describing distinctions between the subfields of anthropology). The emergence of socio-cultural anthropology as a discipline is well-documented. See generally MARVIN HARRIS, THE RISE OF ANTHROPOLOGICAL THEORY (1968) (providing a materialist, evolutionary account of the history of social anthropology); GEORGE W. STOCKING, JR., VICTORIAN ANTHROPOLOGY (1987) (documenting the social and intellectual antecedents to contemporary social anthropology).
149. My discussion of anthropology concerns only socio-cultural anthropology. See generally CAROL R. EMBER & MELVIN EMBER, ANTHROPOLOGY 8-11 (6th ed. 1990) (describing distinctions between the subfields of anthropology). The emergence of socio-cultural anthropology as a discipline is well-documented. See generally MARVIN HARRIS, THE RISE OF ANTHROPOLOGICAL THEORY (1968) (providing a materialist, evolutionary account of the history of social anthropology); GEORGE W. STOCKING, JR., VICTORIAN ANTHROPOLOGY (1987) (documenting the social and intellectual antecedents to contemporary social anthropology).
150. My discussion of anthropology concerns only socio-cultural anthropology. See generally CAROL R. EMBER & MELVIN EMBER, ANTHROPOLOGY 8-11 (6th ed. 1990) (describing distinctions between the subfields of anthropology). The emergence of socio-cultural anthropology as a discipline is well-documented. See generally MARVIN HARRIS, THE RISE OF ANTHROPOLOGICAL THEORY (1968) (providing a materialist, evolutionary account of the history of social anthropology); GEORGE W. STOCKING, JR., VICTORIAN ANTHROPOLOGY (1987) (documenting the social and intellectual antecedents to contemporary social anthropology).
151. See supra note 32 and accompanying text; see also BARRY SANDYWELL, REFLEXIVITY AND THE CRISIS OF WESTERN REASON 376-98 (1996) (analyzing the relationship between what Sandywell calls "transactional reflexivity" - prominent in sociology - and philosophical reflexivity).
152. See supra note 32 and accompanying text; see also BARRY SANDYWELL, REFLEXIVITY AND THE CRISIS OF WESTERN REASON 376-98 (1996) (analyzing the relationship between what Sandywell calls "transactional reflexivity" - prominent in sociology - and philosophical reflexivity).
153. Anthropological theorists clearly understand "reflexivity" as a shield against the excesses of postmodernism. See Lorraine Nencel & Peter Pels, Critique and the Deconstruction of Anthropological Authority, Introduction to CONSTRUCTING KNOWLEDGE: AUTHORITY AND CRITIQUE IN SOCIAL SCIENCE 1, 2 (Lorraine Nencel & Peter Pels eds., 1991) [hereinafter CONSTRUCTING KNOWLEDGE] (arguing that "present so-called 'postmodern' attempts to reformulate the professional task of the anthropologist necessitate a restatement of the reflexive critique of anthropology").
154. By ethnography, I mean the written representation of a culture, or select features of a culture. Two clarifications of this definition are in order. First, ethnography is distinct from fieldwork (though fieldwork often provides the basis for ethnographic writing). See JOHN VAN MAANEN, TALES OF THE FIELD 4 (1988) ("Ethnography is the result of fieldwork, but it is the written report that must represent the culture, not the fieldwork itself. Ethnography, as a written product, then, has a degree of independence (how the culture is portrayed) from the fieldwork on which it is based (how culture is known)."). Second, ethnography reasons from the particular to the general. That is, anthropological knowledge is produced through the ethnographic representation of social life within particular groups. See DAN SPERBER, ON ANTHROPOLOGICAL KNOWLEDGE 95 n.3 (1982) ("'Ethnography' is generally used . . . in a restrictive sense: it refers exclusively to the study of socio-cultural phenomena within a specific human group."). For a sound and highly readable introduction to the ethnographic method, see VAN MAANEN, supra.
155. By ethnography, I mean the written representation of a culture, or select features of a culture. Two clarifications of this definition are in order. First, ethnography is distinct from fieldwork (though fieldwork often provides the basis for ethnographic writing). See JOHN VAN MAANEN, TALES OF THE FIELD 4 (1988) ("Ethnography is the result of fieldwork, but it is the written report that must represent the culture, not the fieldwork itself. Ethnography, as a written product, then, has a degree of independence (how the culture is portrayed) from the fieldwork on which it is based (how culture is known)."). Second, ethnography reasons from the particular to the general. That is, anthropological knowledge is produced through the ethnographic representation of social life within particular groups. See DAN SPERBER, ON ANTHROPOLOGICAL KNOWLEDGE 95 n.3 (1982) ("'Ethnography' is generally used . . . in a restrictive sense: it refers exclusively to the study of socio-cultural phenomena within a specific human group."). For a sound and highly readable introduction to the ethnographic method, see VAN MAANEN, supra.
156. VAN MAANEN, supra note 77, at ix.
157. See JAMES CLIFFORD, THE PREDICAMENT OF CULTURE 21-53 (1988) (documenting and lamenting unchallenged "ethnographic authority" in anthropological discourse); George W. Stocking, Jr., History of Anthropology: Whence/Whither, in OBSERVERS OBSERVED 1, 3-11 (George W. Stocking, Jr. ed., 1983) (providing a brief history of the unreflective acceptance of the ethnographic method in anthropology).
158. See JAMES CLIFFORD, THE PREDICAMENT OF CULTURE 21-53 (1988) (documenting and lamenting unchallenged "ethnographic authority" in anthropological discourse); George W. Stocking, Jr., History of Anthropology: Whence/Whither, in OBSERVERS OBSERVED 1, 3-11 (George W. Stocking, Jr. ed., 1983) (providing a brief history of the unreflective acceptance of the ethnographic method in anthropology).
159. As Clifford Geertz writes: The problem of relating [anthropology] to the grand march of the social sciences was made all the more severe by the fact that the philosophical disquietudes that had been gathering within those sciences during the previous two decades grew so powerful in the seventies and eighties as to disarrange their sense of what it was they were all about . . . . The moral and epistemological vertigo that struck the culture generally in the post-structuralist, post-modernist, post-humanist age, the age of turns and texts, of the evaporated subject and the constructed fact, struck the social sciences with particular force. CLIFFORD GEERTZ, AFTER THE FACT 128 (1995). Postmodernism is often theorized as the source of epistemological and methodological "crisis." See CRISIS IN ANTHROPOLOGY (E. Adamson Hoebel et al. eds., 1982); Vincent Crapanzano, The Postmodern Crisis: Discourse, Parody, Memory, in REREADING CULTURAL ANTHROPOLOGY 87 (George E. Marcus ed., 1992).
160. As Clifford Geertz writes: The problem of relating [anthropology] to the grand march of the social sciences was made all the more severe by the fact that the philosophical disquietudes that had been gathering within those sciences during the previous two decades grew so powerful in the seventies and eighties as to disarrange their sense of what it was they were all about . . . . The moral and epistemological vertigo that struck the culture generally in the post-structuralist, post-modernist, post-humanist age, the age of turns and texts, of the evaporated subject and the constructed fact, struck the social sciences with particular force. CLIFFORD GEERTZ, AFTER THE FACT 128 (1995). Postmodernism is often theorized as the source of epistemological and methodological "crisis." See CRISIS IN ANTHROPOLOGY (E. Adamson Hoebel et al. eds., 1982); Vincent Crapanzano, The Postmodern Crisis: Discourse, Parody, Memory, in REREADING CULTURAL ANTHROPOLOGY 87 (George E. Marcus ed., 1992).
161. As Clifford Geertz writes: The problem of relating [anthropology] to the grand march of the social sciences was made all the more severe by the fact that the philosophical disquietudes that had been gathering within those sciences during the previous two decades grew so powerful in the seventies and eighties as to disarrange their sense of what it was they were all about . . . . The moral and epistemological vertigo that struck the culture generally in the post-structuralist, post-modernist, post-humanist age, the age of turns and texts, of the evaporated subject and the constructed fact, struck the social sciences with particular force. CLIFFORD GEERTZ, AFTER THE FACT 128 (1995). Postmodernism is often theorized as the source of epistemological and methodological "crisis." See CRISIS IN ANTHROPOLOGY (E. Adamson Hoebel et al. eds., 1982); Vincent Crapanzano, The Postmodern Crisis: Discourse, Parody, Memory, in REREADING CULTURAL ANTHROPOLOGY 87 (George E. Marcus ed., 1992).
162. See PAUL RABINOW, REFLECTIONS ON FIELDWORK IN MOROCCO (1977) (providing an insightful commentary on conducting anthropological fieldwork in the face of the representational crisis in the social sciences). Rabinow's own reflections were deeply influenced by postmodernity. Rabinow was well known as a disciple of Michel Foucault. See HERBERT L. DREYFUS & PAUL RABINOW, MICHEL FOUCAULT: BEYOND STRUCTURALISM AND HERMENEUTICS (2d ed. 1983).
163. See PAUL RABINOW, REFLECTIONS ON FIELDWORK IN MOROCCO (1977) (providing an insightful commentary on conducting anthropological fieldwork in the face of the representational crisis in the social sciences). Rabinow's own reflections were deeply influenced by postmodernity. Rabinow was well known as a disciple of Michel Foucault. See HERBERT L. DREYFUS & PAUL RABINOW, MICHEL FOUCAULT: BEYOND STRUCTURALISM AND HERMENEUTICS (2d ed. 1983).
164. See GEORGE E. MARCUS & MICHAEL M.J. FISCHER, ANTHROPOLOGY AS CULTURAL CRITIQUE: AN EXPERIMENTAL MOMENT IN THE HUMAN SCIENCES 7-16 (1986).
165. See KIRSTEN HASTRUP, A PASSAGE TO ANTHROPOLOGY 165 (1995) ("In so far as anthropology is concerned with human knowledge, this knowledge is positioned."). This problem is a central concern in the philosophy of the social sciences. See generally PETER WINCH, THE IDEA OF A SOCIAL SCIENCE 88 (1958) (arguing that sociological knowledge is possessed in only implicit and partial form).
166. See KIRSTEN HASTRUP, A PASSAGE TO ANTHROPOLOGY 165 (1995) ("In so far as anthropology is concerned with human knowledge, this knowledge is positioned."). This problem is a central concern in the philosophy of the social sciences. See generally PETER WINCH, THE IDEA OF A SOCIAL SCIENCE 88 (1958) (arguing that sociological knowledge is possessed in only implicit and partial form).
167. See CHRIS BONGIE, EXOTIC MEMORIES 1-32 (1991) (describing "exoticist discourse" in fin de siècle ethnography and literature); Deborah Gordon, The Politics of Ethnographic Authority: Race and Writing in the Ethnography of Margaret Mead and Zora Neale Hurston, in MODERNIST ANTHROPOLOGY 146 (Marc Manganaro ed., 1990). The concept of "social facts" was developed by the early sociologist Emile Durkheim. See EMILE DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD 10 (1938). As Durkheim writes: A social fact is to be recognized by the coercive power of external coercion which it exercises or is capable of exercising over individuals, and the presence of this power may be recognized in its turn either by the existence of some specific sanction or by the resistance offered against every individual effort that tends to violate it. Id.
168. See CHRIS BONGIE, EXOTIC MEMORIES 1-32 (1991) (describing "exoticist discourse" in fin de siècle ethnography and literature); Deborah Gordon, The Politics of Ethnographic Authority: Race and Writing in the Ethnography of Margaret Mead and Zora Neale Hurston, in MODERNIST ANTHROPOLOGY 146 (Marc Manganaro ed., 1990). The concept of "social facts" was developed by the early sociologist Emile Durkheim. See EMILE DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD 10 (1938). As Durkheim writes: A social fact is to be recognized by the coercive power of external coercion which it exercises or is capable of exercising over individuals, and the presence of this power may be recognized in its turn either by the existence of some specific sanction or by the resistance offered against every individual effort that tends to violate it. Id.
169. See CHRIS BONGIE, EXOTIC MEMORIES 1-32 (1991) (describing "exoticist discourse" in fin de siècle ethnography and literature); Deborah Gordon, The Politics of Ethnographic Authority: Race and Writing in the Ethnography of Margaret Mead and Zora Neale Hurston, in MODERNIST ANTHROPOLOGY 146 (Marc Manganaro ed., 1990). The concept of "social facts" was developed by the early sociologist Emile Durkheim. See EMILE DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD 10 (1938). As Durkheim writes: A social fact is to be recognized by the coercive power of external coercion which it exercises or is capable of exercising over individuals, and the presence of this power may be recognized in its turn either by the existence of some specific sanction or by the resistance offered against every individual effort that tends to violate it. Id.
170. See, e.g., CLIFFORD, supra note 79; WRITING CULTURE (James Clifford & George E. Marcus eds., 1986); George E. Marcus & Dick Cushman, Ethnographies as Texts, 11 ANN. REV. ANTHROPOLOGY 25 (1982); Paul Rabinow, Discourse and Power: On the Limits of Ethnographic Texts, 9/10 DIALECTICAL ANTHROPOLOGY 1 (1985-1986).
171. See, e.g., CLIFFORD, supra note 79; WRITING CULTURE (James Clifford & George E. Marcus eds., 1986); George E. Marcus & Dick Cushman, Ethnographies as Texts, 11 ANN. REV. ANTHROPOLOGY 25 (1982); Paul Rabinow, Discourse and Power: On the Limits of Ethnographic Texts, 9/10 DIALECTICAL ANTHROPOLOGY 1 (1985-1986).
172. See, e.g., CLIFFORD, supra note 79; WRITING CULTURE (James Clifford & George E. Marcus eds., 1986); George E. Marcus & Dick Cushman, Ethnographies as Texts, 11 ANN. REV. ANTHROPOLOGY 25 (1982); Paul Rabinow, Discourse and Power: On the Limits of Ethnographic Texts, 9/10 DIALECTICAL ANTHROPOLOGY 1 (1985-1986).
173. See, e.g., CLIFFORD, supra note 79; WRITING CULTURE (James Clifford & George E. Marcus eds., 1986); George E. Marcus & Dick Cushman, Ethnographies as Texts, 11 ANN. REV. ANTHROPOLOGY 25 (1982); Paul Rabinow, Discourse and Power: On the Limits of Ethnographic Texts, 9/10 DIALECTICAL ANTHROPOLOGY 1 (1985-1986).
174. Richard G. Fox, Working in the Present, Introduction to RECAPTURING ANTHROPOLOGY 1, 4 (Richard G. Fox ed., 1991) (describing the status quo in anthropology as an era of "[r]eflexivity, relativity, and the rejection of a privileged position for science or scholarship").
175. JOHANNES FABIAN, TIME AND THE OTHER: HOW ANTHROPOLOGY MAKES ITS OBJECT (1983).
176. Id. at 152.
177. The notion of reflexivity within anthropological discourse draws heavily on the pioneering work of Bob Scholte. See REINVENTING ANTHROPOLOGY (Dell Hymes ed., 1972) (collecting essays reflecting on the path-breaking work of Scholte).
178. See Johannes Fabian, Dilemmas of Critical Anthropology, in CONSTRUCTING KNOWLEDGE, supra note 76, at 180 (describing the dual commitment to both deconstruction and reconstruction); see also MARTYN HAMMERSLEY, WHAT'S WRONG WITH ETHNOGRAPHY? 43-56 (1992) (describing ambivalence toward realism as the proper orientation for reinvigorating anthropology). See generally A CRACK IN THE MIRROR: REFLEXIVE PERSPECTIVES IN ANTHROPOLOGY (Jay Ruby ed., 1982) (describing reflexivity as a deconstructive and reconstructive perspective).
179. See Johannes Fabian, Dilemmas of Critical Anthropology, in CONSTRUCTING KNOWLEDGE, supra note 76, at 180 (describing the dual commitment to both deconstruction and reconstruction); see also MARTYN HAMMERSLEY, WHAT'S WRONG WITH ETHNOGRAPHY? 43-56 (1992) (describing ambivalence toward realism as the proper orientation for reinvigorating anthropology). See generally A CRACK IN THE MIRROR: REFLEXIVE PERSPECTIVES IN ANTHROPOLOGY (Jay Ruby ed., 1982) (describing reflexivity as a deconstructive and reconstructive perspective).
180. See Johannes Fabian, Dilemmas of Critical Anthropology, in CONSTRUCTING KNOWLEDGE, supra note 76, at 180 (describing the dual commitment to both deconstruction and reconstruction); see also MARTYN HAMMERSLEY, WHAT'S WRONG WITH ETHNOGRAPHY? 43-56 (1992) (describing ambivalence toward realism as the proper orientation for reinvigorating anthropology). See generally A CRACK IN THE MIRROR: REFLEXIVE PERSPECTIVES IN ANTHROPOLOGY (Jay Ruby ed., 1982) (describing reflexivity as a deconstructive and reconstructive perspective).
181. See, e.g., WRITING CULTURE, supra note 85; Marilyn Strathern, Out of Context: The Persuasive Fictions of Anthropology, in MODERNIST ANTHROPOLOGY, supra note 84, at 80.
182. See, e.g., WRITING CULTURE, supra note 85; Marilyn Strathern, Out of Context: The Persuasive Fictions of Anthropology, in MODERNIST ANTHROPOLOGY, supra note 84, at 80.
183. See Rabinow, supra note 85, at 3-9.
184. Issues of power are increasingly prominent in the social sciences. See 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY 93-95 (Robert Hurley trans., Vintage Books 1990) (1978) (providing a compelling and influential discourse-centered account of power). See generally BARRY HINDESS, DISCOURSES OF POWER: FROM HOBBES TO FOUCAULT (1996) (providing a useful summary of theories of power in social thought).
185. Issues of power are increasingly prominent in the social sciences. See 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY 93-95 (Robert Hurley trans., Vintage Books 1990) (1978) (providing a compelling and influential discourse-centered account of power). See generally BARRY HINDESS, DISCOURSES OF POWER: FROM HOBBES TO FOUCAULT (1996) (providing a useful summary of theories of power in social thought).
186. See generally EDWARD W. SAID, ORIENTALISM (1979) (providing the classic exposition of construction of the "other" through "orientalist discourse").
187. See, e.g., FABIAN, supra note 87, at 143-65 (describing power relations that structure and enable the anthropological project).
188. See, e.g., MARCUS & FISCHER, supra note 82, at 17-44; James Clifford, Partial Truths, Introduction to WRITING CULTURE, supra note 85, at 1, 1-26; Sherry Ortner, Theory in Anthropology Since the Sixties, 26 COMP. STUD. SOC'Y & HIST. 126, 128-35 (1984).
189. See, e.g., MARCUS & FISCHER, supra note 82, at 17-44; James Clifford, Partial Truths, Introduction to WRITING CULTURE, supra note 85, at 1, 1-26; Sherry Ortner, Theory in Anthropology Since the Sixties, 26 COMP. STUD. SOC'Y & HIST. 126, 128-35 (1984).
190. See, e.g., MARCUS & FISCHER, supra note 82, at 17-44; James Clifford, Partial Truths, Introduction to WRITING CULTURE, supra note 85, at 1, 1-26; Sherry Ortner, Theory in Anthropology Since the Sixties, 26 COMP. STUD. SOC'Y & HIST. 126, 128-35 (1984).
191. See CLIFFORD, supra note 79, at 117-51.
192. See, e.g., Stanley Fish, Normal Circumstances, Literal Language, Direct Speech Acts, the Ordinary, the Everyday, the Obvious, What Goes Without Saying, and Other Special Cases, in INTERPRETIVE SOCIAL SCIENCE 243, 248-63 (Paul Rabinow & William M. Sullivan eds., 1979). Similar claims have been advanced with respect to the natural sciences. See generally BRUNO LATOUR & STEVE WOOLGAR, LABORATORY LIFE: THE SOCIAL CONSTRUCTION OF SCIENTIFIC FACTS (1979) (arguing that the culture of laboratory settings, analyzed ethnographically, determines what comes to count as "factual").
193. See, e.g., Stanley Fish, Normal Circumstances, Literal Language, Direct Speech Acts, the Ordinary, the Everyday, the Obvious, What Goes Without Saying, and Other Special Cases, in INTERPRETIVE SOCIAL SCIENCE 243, 248-63 (Paul Rabinow & William M. Sullivan eds., 1979). Similar claims have been advanced with respect to the natural sciences. See generally BRUNO LATOUR & STEVE WOOLGAR, LABORATORY LIFE: THE SOCIAL CONSTRUCTION OF SCIENTIFIC FACTS (1979) (arguing that the culture of laboratory settings, analyzed ethnographically, determines what comes to count as "factual").
194. See LATOUR & WOOLGAR, supra note 98, passim.
195. See Paul Rabinow, Representations Are Social Facts: Modernity and Post-Modernity in Anthropology, in WRITING CULTURE, supra note 85, at 234, 234-61.
196. Marcus and Fischer propose the conception of "anthropology as cultural critique" in response to the deficiencies of the conventional ethnography. Two styles of critique inform the formulation of a "cultural" critique: (1) an epistemological critique of analytic reason that involves the "demystification" of the relation between the content of beliefs, ideas, and the positioning of their carriers; and (2) an institutional analysis that involves the analytic comparison of various social institutions and cultural forms. Cultural critique, then, has two related tasks: (1) to detect the various interests within discourse formations (to expose ideology masked as "truth"); and (2) to forge a theoretical apparatus sufficient to critique the institutions of industrial society. See MARCUS & FISCHER, supra note 82, at 137-64.
197. On the problematic notion of "ethnographic holism," see Robert J. Thornton, The Rhetoric of Ethnographic Holism, in REREADING CULTURAL ANTHROPOLOGY 15, 15-33 (George Marcus ed., 1992).
198. Such a reflexive approach provides the anthropologist with room to maneuver between uncritical realism and antifoundationalism. As Professor Hastrup wntes: Reflexive anthropology places itself between the poles of correspondence theory and constitutive theory . . . . The first claims to mirror reality; ontology and epistemology are one. The second disclaims this kind of realism and admits to constituting reality. With a truly reflexive anthropology we shall not have to make a choice, but shall be able to live with the paradox of definitional realities. HASTRUP, supra note 83, at 50.
199. Stephen Tyler is the most prominent proponent of this view. See Stephen A. Tyler, Post-Modern Ethnography: From Document of the Occult to Occult Document, in WRITING CULTURE, supra note 85, at 122.
200. Critics of reflexivity warn of the solipsistic dangers inherent in auto-critique. These concerns are succinctly captured by the charge of "navel gazing," conjuring images of boundless, unproductive self-absorption. See, e.g., Bruno Latour, The Politics of Explanation: An Alternative, in KNOWLEDGE AND REFLEXIVITY: NEW FRONTIERS IN THE SOCIOLOGY OF KNOWLEDGE 155, 155 (Steve Woolgar ed., 1988). As Latour writes, Reflexiv[e] . . . sociologists are sawing the branch upon which they sit . . . . Their arguments in feeding back on themselves nullify their own claims. They are, in effect, sell-contradictory, or at least entangled in a soil of aporia similar to the famous 'all Cretans are liars,' an aporia from which they cannot escape except by indefinite navel-gazing . . . . Id.; see infra Section III.C.
201. See Tyler, supra note 104, at 122-23.
202. MARCUS & FISCHER, supra note 82, at 40-44. The subtitle of this classic work reads: "An Experimental Moment in the Human Sciences."
203. These difficulties are, however, beyond the scope of this Note.
204. MICHEL FOUCAULT, THE ORDER OF THINGS at xv-xxi (Pantheon Books 1970) (1966) (describing the difficulties and necessity of learning to "think otherly").
205. See id.
206. See Clifford, supra note 96, at 1-26.
207. See Nicole Polier & William Roseberry, Tristes Tropes: Post-Modern Anthropologists Encounter the Other and Discover Themselves, 18 ECON. & SOC'Y 245 (1989).
208. WRITING CULTURE, supra note 85.
209. MARCUS & FISCHER, supra note 82.
210. Polier & Roseberry, supra note 112, at 246.
211. Id. at 248-49.
212. See id. at 248.
213. Indeed, this hidden power relation, the "ideology of dialogic production," occurs within a context where "the ethnographer's privilege is precisely a discourse on the discourse." Id. at 252.
214. See MARCUS & FISCHER, supra note 82, at 67. In fact, the experimentation with form and presentation of ethnographic texts is explicitly described as a "modernist" project: "If realist texts continue the convention of allowing the ethnographer to remain in unchallenged control of his narrative, modernist texts are constructed to highlight the eliciting discourse between ethnographer and subjects or to involve the reader in the work of analysis." Id.; see also Renato Rosaldo, From the Door of His Tent: The Fieldworker and the Inquisitor, in WRITING CULTURE, supra note 85, at 77, 88.
215. See MARCUS & FISCHER, supra note 82, at 67. In fact, the experimentation with form and presentation of ethnographic texts is explicitly described as a "modernist" project: "If realist texts continue the convention of allowing the ethnographer to remain in unchallenged control of his narrative, modernist texts are constructed to highlight the eliciting discourse between ethnographer and subjects or to involve the reader in the work of analysis." Id.; see also Renato Rosaldo, From the Door of His Tent: The Fieldworker and the Inquisitor, in WRITING CULTURE, supra note 85, at 77, 88.
216. See MARCUS & FISCHER, supra note 82, at 42-43 ("We view the current experiments as adapting and bringing anthropology forcefully into line with its twentieth-century promises of authentically representing cultural differences and using this knowledge as a critical probe into our own ways of life and thought.").
217. See, e.g., STANLEY FISH, IS THERE A TEXT IN THIS CLASS? 1-17, 268-92 (1980) (describing the concept of an "interpretive community").
218. Polier & Roseberry, supra note 112, at 251.
219. See HASTRUP, supra note 83, at 50 ("In anthropology . . . reflexivity starts - not as a particular style of writing but as an inherent clement in any empirical ethnography.").
220. See generally CLIFFORD GEERTZ, WORKS AND LIVES: THE ANTHROPOLOGIST AS AUTHOR (1988) (analyzing anthropology's strategies of textualization).
221. See, e.g., Rabinow, supra note 85, at 1-5.
222. See Talal Asad, The Concept of Cultural Translation in British Social Anthropology, in WRITING CULTURE, supra note 85, at 141, 160-64 (explaining the difference between critiques of ethnographic representation and ethnographic translation).
223. Gyatri Chakravorty Spivak, Can the Subaltern Speak?, in MARXISM AND THE INTERPRETATION OF CULTURES 271, 295 (Cary Nelson & Lawrence Grossberg eds., 1990).
224. See Bob Scholte, Toward a Reflexive and Critical Anthropology, in REINVENTING ANTHROPOLOGY 430, 451 n.9 (Dell Hymes ed., 1969) ("We must also confront the practical problem of formulating a concrete anthropological praxis. The fact that I cannot do so here . . . should not blind us to the obvious danger of substituting a mere theory of praxis for its actual realization.").
225. In addilion, the nature of CRT's pre-theoretical commitments also helps illuminate the character of "pre-theoretical commitments." Consider an obvious surface distinction: Anthropology's pre-theoretical commitments are methodological, while CRT's commitments are political. In my account, however, the theoretical significance of CRT's political commitments is identical to anthropology's methodological commitments.
226. Patricia J. Williams, Spare Parts, Family Values, Old Children, Cheap, 28 NEW ENG. L. REV. 913 (1994).
227. Id. at 927.
228. Id. at 922.
229. Id.
230. Gayatri Chakravorty Spivak, Constitutions and Culture Studies, in LEGAL STUDIES AS CULTURAL STUDIES 155, 169 (Jerry Leonard ed., 1995).
231. Edward Said has made the same point with respect to anthropology. See Edward Said, Representing the Colonized: Anthropology's Interlocutors, 15 CRITICAL INQUIRY 205 (1989).
232. This problem confronts any scholar in the West interested in analyzing forms of oppression and domination. See id. at 207-12; see also GAYATRI CHAKRAVORTY SPIVAK, THE POST-COLONIAL CRITIC: INTERVIEWS, STRATEGIES, DIALOGUES 75-94 (Sarah Harasym ed., 1990) (describing the multiple ambivalences of an "exiled" positionality).
233. This problem confronts any scholar in the West interested in analyzing forms of oppression and domination. See id. at 207-12; see also GAYATRI CHAKRAVORTY SPIVAK, THE POST-COLONIAL CRITIC: INTERVIEWS, STRATEGIES, DIALOGUES 75-94 (Sarah Harasym ed., 1990) (describing the multiple ambivalences of an "exiled" positionality).
234. See supra note 105 and accompanying text.
235. This seeming paradox partly explains the identification between reflexivity and postmodernity. See, e.g., HILARY LAWSON, REFLEXIVITY: THE POST-MODERN PREDICAMENT 9 (1985) ("The post-modern predicament is indeed one of crisis, a crisis of our truths, our values, our most cherished beliefs. A crisis that owes to reflexivity its origin, its necessity, and its force.").
236. Wacqurant, supra note 32, at 35 (quoting Pierre Bourdieu).
237. This understanding of discourse analysis draws heavily on the work of Foucault. See, e.g., MICHEL FOUCAULT, THE ARCHAEOLOGY OF KNOWLEDGE (A.M. Sheridan Smith trans., Pantheon Books 1972) (1969); Foucault, supra note 29, at 54-72.
238. This understanding of discourse analysis draws heavily on the work of Foucault. See, e.g., MICHEL FOUCAULT, THE ARCHAEOLOGY OF KNOWLEDGE (A.M. Sheridan Smith trans., Pantheon Books 1972) (1969); Foucault, supra note 29, at 54-72.
239. This approach postulates an analytic distinction between concept analysis and discourse analysis. See BARRY HINDESS, PHILOSOPHY AND METHODOLOGY IN THE SOCIAL SCIENCES 223 (1977) (arguing that a "rigorous separation should be maintained [between] the logical character of the order of concepts of discourse [and] the process of production or generation of discourse" (emphasis added)).
240. Foucault's concept of the critical operation "genealogy" provides the backdrop for this claim. See FOUCAULT, supra note 140. This approach aims to grasp the formative power of discourses through analyzing the ways in which discourses constitute "objects" or "classes of objects" available for study, as well as the ways in which discourses constitute these objects as subjects of statements that can themselves be judged as "true" or "false." Genealogy tries to get at the power that makes possible and legitimate certain kinds of questions and statements to the exclusion of others.
241. See DIANE MACDONELL, THEORIES OF DISCOURSE 101-18 (1986).
242. See FOUCAULT, supra note 140, at 8-31; see also MACDONELL, supra note 143, at 89-94.
243. See DOROTHY E. SMITH, THE CONCEPTUAL PRACTICES OF POWER: A FEMINIST SOCIOLOGY OF KNOWLEDGE 4 (1990). Professor Smith, in defining "reflexive inquiry," provides a persuasive account of reflexivity's theoretical purchase: "[W]hat we make here an object of investigation is what we ourselves are immersed in. The ideological practices explicated here are our own. Explicating such practices enables us to become aware of how, in deploying them, we participate in the relations of ruling." Id.
244. See Harris, supra note 22, at 753.
245. See id. at 748.
246. See id. at 745; supra notes 49-51 and accompanying text.
247. Harris, supra note 22, at 744.