Patzke+Writing+Theory


 * Writing towards theory**

of course, this is in progress....

Located in Washington DC, the Supreme Court of the United States is the highest court in the US, composed of nine appointed justices, and is in session twice a year. While the court is in session, oral arguments for the cases they chose to hear are held on Mondays and Tuesdays, while the court ‘deliberates’ Wednesday, Thursday and Friday. The issues that the court takes up are often related to ‘constitutional’ rights or, presented another way, conflicts that may (or may not) have violated a personal right or freedom that may or may not be covered in US governing documents (the Constitution being the main document). However, the Court does take up ‘technical’ cases that address intellectual property, taxes, and regulatory/regulated funding issues. (//Prometheus v. Mayo,// //United// //States v. Windsor// and //Citizens United v. Federal Election Commission// are recent cases addressing these issues.) The Supreme Court is a place with many rules for interaction. Justices have to be addressed in specific ways, and there is a strict adherence to the time limits for those invited to speak to the court. However, within this structure, a type of learning and codification of knowledge takes place. Judges are presented with briefs from both parties and other interested agents in the case. These are reviewed and at the oral arguments, the only part of the process open to the public, judges ask those 2 or 3 people presenting the argument questions about the case and it’s relation to precedential rulings of the court. In this space, the justices are asked to make sense of often remote or esoteric situations. Furthermore, they evaluate cases not just on the intent of governing regulatory things, but on ephemeral ideas of ‘what’ the US is and what is should be. Complicating this structure are the roles of clerks, the assistants to the justices who often do the reading, writing, deliberating and negotiating of the cases.
 * MEMO: Describing Places, to Make an Analytic Point**
 * The Supreme Court: It’s a knowledge producer!


 * MEMO: Describing Practice, to Make an Analytic Point**
 * Law: It produces order! (but with/in a very specific and narrow context/content)

In writing about social order, Sheila Jasanoff states: [T]he recognition of new phenomena often entails confrontation between competing epistemologies…If constitutive analysis focuses in the main on the emergence of new facts, things and systems of thought, then the interactional strain concerns itself more with knowledge conflicts within worlds that have already been demarcated, for practical purposes, into the natural and the social (2004, 19).

The practice of the law is the negotiation and collaboration of existing epistemologies. However, to get at the second quote above, these practices take place in a realm of ‘reason’ or ‘logic’ that has already been predetermined. Conflicts that may ‘rock the boat’ are (forcefully?) situated into dichotomies, the most obvious for Jasanoff being ‘natural’ and ‘social.’ But this system is autopoietic, or self-referential because the considerations of law are only ever part of the law (Luhman, Taubner). The practice of law, while it might seem ubiquitous to those looking in, it is only every (in)formed by itself.

Teubner, Gunther. //Law As an Autopoietic System//. The European University Institute Press Series. Luhmann, Niklas. //Law as a social system//. Oxford University Press 2004. Jasanoff, Sheila, ed. //States of knowledge: the co-production of science and the social order.// Routledge, 2004.


 * MEMO: Describing Events, To Make an Analytic Point**
 * Oral Arguments: It’s a performance!


 * MEMO: Describing People, to Make an Analytic Point**