Review: Critical Procedure
On my commute to and from work this summer I've been burying my nose in Professor Roy Brooks's Critical Procedure. As the title indicates, it's a deconstructive/reconstructive approach to various rules of civil procedure, such as those governing sanctions, joinder, jurisdiction, and judgments. Brooks puts forth an excellent preface and first chapter, which present an overview of criticalism and identify four crit epistemologies (the rational/empirical position, standpoint epistemology, postmodernism, and positionality) which compete and combine in various mixtures in crit argumentation. The overview of criticalism, however, is necessarily simplistic, glossing over some essential differences which separate the movements from one another. For example, Brooks draws his four epistemologies from Katherine Bartlett's Feminist Legal Methods (103 Harv. L. Rev. 829), and when quoting from Bartlett he simply inserts bracketed race language to parallel the gender language in the original. For his project, that of a unified descriptive critical approach to procedure, this lack of hand-wringing over the differences is arguably necessary–otherwise the text would become an overwrought sociology of the legal academy–but I feel that the project gets ahead of itself by attempting such a broad synthesis.
None of this is to say that Brooks's attempt to create a framework for addressing subordination fails on its face, just that it loses something by mashing together Critical Race Theory, Critical Feminist Theory, Critical Queer Theory, and Critical Legal Studies without sufficiently discussing the divergent goals of the movements.
Postmodernism, according to Brooks, is a theory of interpretation in which meaning is viewed as "a cultural construction mediated by arrangements of language or symbolic form," and in which "these arrangements are unstable and contradictory" (quoting Deborah L. Rhode, Feminist Critical Theories, 42 Stan. L. Rev. 617, 620 n.8 (1990)). The problem with postmodernism, however, is that we all know through introspection that–or at least behave as though–there is semi-stable meaning in words, in cultural acts, and in our system of laws. But one way to take certainty about meaning to the other extreme is to adopt the essentialism of Richard Delgado or Mari Matsuda, that by virtue of one's racial or gendered identity, one has access to subjectivities that members of other groups cannot share. This claim strikes me as unnecessarily absolute; surely women of color experience the world differently than I do, but their shared experience is not theoretically inaccessible to me. Insofar as a white man enacts the habits and gains the acceptance of a minority community, he has experienced that community's subjectivities. For legion practical reasons (biological gender, skin color, etc.), the enaction of the community's behaviors by the individual and the acceptance of the individual by the community will almost always be imperfect, but given the requisite individual motivation and community openness, it is possible for an outsider to experience those subjectivities that Matsuda and Delgado would deny him.
There is a middle ground here, between the borderline nihilism of postmodernism and the too-strong essentialism of standpoint epistemology. Brooks, relying on Bartlett, terms this middle ground "positionality." Like standpoint epistemology, this viewpoint retains a concept of knowledge based on experience, and like postmodern epistemology, it rejects the perfectibility, externality, and objectivity of truth. For me, positionality is a promising approach to the question of knowing and being, but Brooks again oversimplifies, by equating this approach with a concept of "hypertruth," which one can reach through "a continuous process of self-reflection and questioning." I get some satisfaction from the similarity of Brooks's "hypertruth" to the semiotic concept of the "final interpretant," which is easiest to conceptualize as a sort of mathematical limit of meaning–that is to say, meaning is never realized in any one individual or at any one point in time, but only across the vast history of interactions between individuals that form a community of interpretation–but in the subsequent discussion, Brooks deploys positionality as a one-dimensional container for "hypertruth," and doesn't give treat the concept with the subtletly that it deserves.
The second and subsequent chapters sketch out Brooks's project with crit analyses of personal and subject matter jurisdiction, pleading, sanctions (Rule 11), the right to a jury trial, joinder of claims and parties, and judgments. Having read the personal jurisdiction chapter, I'm not certain the rest of the book is necessary for my understanding of his basic point, which is that different folks within the loosely-defined and fragmentary "crit" community will take different approaches to the subordination implicit in our rules of civil procedure. His explication of the practical meaning of the theoretical positions he laid out in the first chapter is quite thorough. The excruciatingly parallel structure of the book mirrors the inescapable formality of its subject matter, and provides a quick index into, say, the (i) postmodern critique of the (ii) asymmetrical acceptance reconstruction of the (iii) crit deconstruction of the (iv) implicit subordination built into the (v) law of joinder of claims.
The rule that Brooks deconstructs, reconstructs, and then critiques in the chapter on subject matter jurisdiction is illustrative. He takes up the domestic relations exception to federal diversity jurisdiction, by which all domestic disputes are kept out of federal court. By looking at the "phallocentric" effects of this rule through the lens of the two types of symmetrical critique and the four types of asymmetrical critique, Brooks proposes a continuum of reforms to the rule, and explains why groups would prefer one over another. As I noted above, it's a handy guide to argumentation within this particular context, and it encourages theoretical dexterity in anticipating the particular positions Brooks will impute to the various flavors of crit.
This book was written as a roadmap for critical proceduralists, among which I may one day count myself. It is illustrative, though admittedly far from comprehensive, and provides guidance and inspiration for others to fill in the vast uncharted expanses of this nascent field.
None of this is to say that Brooks's attempt to create a framework for addressing subordination fails on its face, just that it loses something by mashing together Critical Race Theory, Critical Feminist Theory, Critical Queer Theory, and Critical Legal Studies without sufficiently discussing the divergent goals of the movements.
Postmodernism, according to Brooks, is a theory of interpretation in which meaning is viewed as "a cultural construction mediated by arrangements of language or symbolic form," and in which "these arrangements are unstable and contradictory" (quoting Deborah L. Rhode, Feminist Critical Theories, 42 Stan. L. Rev. 617, 620 n.8 (1990)). The problem with postmodernism, however, is that we all know through introspection that–or at least behave as though–there is semi-stable meaning in words, in cultural acts, and in our system of laws. But one way to take certainty about meaning to the other extreme is to adopt the essentialism of Richard Delgado or Mari Matsuda, that by virtue of one's racial or gendered identity, one has access to subjectivities that members of other groups cannot share. This claim strikes me as unnecessarily absolute; surely women of color experience the world differently than I do, but their shared experience is not theoretically inaccessible to me. Insofar as a white man enacts the habits and gains the acceptance of a minority community, he has experienced that community's subjectivities. For legion practical reasons (biological gender, skin color, etc.), the enaction of the community's behaviors by the individual and the acceptance of the individual by the community will almost always be imperfect, but given the requisite individual motivation and community openness, it is possible for an outsider to experience those subjectivities that Matsuda and Delgado would deny him.
There is a middle ground here, between the borderline nihilism of postmodernism and the too-strong essentialism of standpoint epistemology. Brooks, relying on Bartlett, terms this middle ground "positionality." Like standpoint epistemology, this viewpoint retains a concept of knowledge based on experience, and like postmodern epistemology, it rejects the perfectibility, externality, and objectivity of truth. For me, positionality is a promising approach to the question of knowing and being, but Brooks again oversimplifies, by equating this approach with a concept of "hypertruth," which one can reach through "a continuous process of self-reflection and questioning." I get some satisfaction from the similarity of Brooks's "hypertruth" to the semiotic concept of the "final interpretant," which is easiest to conceptualize as a sort of mathematical limit of meaning–that is to say, meaning is never realized in any one individual or at any one point in time, but only across the vast history of interactions between individuals that form a community of interpretation–but in the subsequent discussion, Brooks deploys positionality as a one-dimensional container for "hypertruth," and doesn't give treat the concept with the subtletly that it deserves.
The second and subsequent chapters sketch out Brooks's project with crit analyses of personal and subject matter jurisdiction, pleading, sanctions (Rule 11), the right to a jury trial, joinder of claims and parties, and judgments. Having read the personal jurisdiction chapter, I'm not certain the rest of the book is necessary for my understanding of his basic point, which is that different folks within the loosely-defined and fragmentary "crit" community will take different approaches to the subordination implicit in our rules of civil procedure. His explication of the practical meaning of the theoretical positions he laid out in the first chapter is quite thorough. The excruciatingly parallel structure of the book mirrors the inescapable formality of its subject matter, and provides a quick index into, say, the (i) postmodern critique of the (ii) asymmetrical acceptance reconstruction of the (iii) crit deconstruction of the (iv) implicit subordination built into the (v) law of joinder of claims.
The rule that Brooks deconstructs, reconstructs, and then critiques in the chapter on subject matter jurisdiction is illustrative. He takes up the domestic relations exception to federal diversity jurisdiction, by which all domestic disputes are kept out of federal court. By looking at the "phallocentric" effects of this rule through the lens of the two types of symmetrical critique and the four types of asymmetrical critique, Brooks proposes a continuum of reforms to the rule, and explains why groups would prefer one over another. As I noted above, it's a handy guide to argumentation within this particular context, and it encourages theoretical dexterity in anticipating the particular positions Brooks will impute to the various flavors of crit.
This book was written as a roadmap for critical proceduralists, among which I may one day count myself. It is illustrative, though admittedly far from comprehensive, and provides guidance and inspiration for others to fill in the vast uncharted expanses of this nascent field.
posted by swanno at 2:43 PM
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