Post Modern Spring 1997 Exam

YALE LAW SCHOOL

Spring Term 1997 Examination

Postmodern Legal Thought

May 13th, 1997

(Self-Scheduled– Twenty Four Hours)

Professor Balkin

Instructions

1. This examination consists of a single question. Your answer to this question should total no more than 6,000 words. Please read the question carefully and pay attention to what you are being asked to do.

2. You may either type your exam (which I prefer) or use blue books. If the latter, indicate on each blue book in what order it is to be read. Write on only one side of the page. Skip every other line. The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning.

3. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You get penalized for an answer which is disorganized and confusing.

4. This exam is open book.

5. Good luck.

Question

Please construct an essay that discusses and answers all of the following questions, although you do not have to discuss them in any particular order. Please try wherever possible to use concrete examples to illustrate your points, including (for example) current political controversies, or your own experiences in legal education.

(1) One important concern of postmodern thought has been the relationship between understanding, knowledge, and truth, on the one hand, and power exercised over subjects on the other. This power can be physical, social, or ideological.

Consider the various authors studied in this course. What theories do they offer about the relationship between legal understanding or legal knowledge and power over the self? What are the difficulties with these theories?

(2) Another way of describing the postmodern project is to view knowledge and the quest for knowledge as rhetorical.

Once again, consider the various authors studied in this course. To what extent do they imagine legal knowledge or the quest for knowledge to be a species of rhetoric (whether or not they use this precise term)? Do they understand this rhetoric to be harmful, valuable, or neither?

What are the advantages and disadvantages of thinking and talking in this way?

(3) A third set of postmodern questions involve the difficulties in explaining human agency given the antihumanist assumptions of postmodern thought– the idea that human beings are constructed by culture and institutions. If human beings lack agency– for example, because they are enmeshed in particular institutions, or because their minds are shaped by harmful cultural influences– it may be difficult to imagine how they can produce a better world.

How do the authors studied in this course deal with this problem? Do you find their discussion (or their avoidance) of these issues satisfactory?

(4) A fourth set of postmodern themes concern the relationship between different institutions (like law and society, or legal education and legal practice), between different disciplines, or between different cultures and communities. One tendency in postmodern thought is to view different institutions and cultures as separated and even incommensurable; the opposite tendency is to see them as interpenetrating and inseparable, because the boundaries between them are and must be deconstructible. Often both moves are made simultaneously.

In what ways do the authors in this course rely on these two tropes of incommensurability and interpenetrability? Are their arguments opportunistic or inconsistent?

(5) Finally, what do you think the relationship is between these four postmodern themes– (i) power and knowledge, (ii) rhetoric, (iii) antihumanism and agency, and (iv) incommensurability and interpenetrability? How do the authors studied in the course connect these themes? How successful are their efforts?

END OF EXAMINATION