| This thesis examines judicial decisions but uses the techniques of literary analysis.;Chapter One examines Murdoch v. Murdoch using Foucault's idea of discourse as an exercise in institutional power. Through rhetorics of neutrality and impartiality, judges present an impartial. appearance of relative powerlessness. They exercise power by controlling the discourses that law recognizes and by excluding other discourses.;Chapter Two examines Donoghue (or McAlister) v. Stevenson using James Boyd White's idea of democratic conversation to explain how law changes yet maintains its respect for precedent. Judges must balance their duty to obey precedent with their duty to decide cases independently of precedent when society's needs require creative decisions from them. Democratic conversation help explain how judges serve the seemingly inconsistent demands of both requirements.;Chapter Three examines Brown v. Board of Education and Plessy v. Ferguson through the critical techniques of deconstruction. Deconstruction shows that reasons can support inconsistent positions, suggesting the inadequacy of reason as a guide to action. Instead, the construction of the human subject, in Plessy, Brown, and in the criticism of Brown, provides a way to assess the success of a particular decision and an approach for future decisions. |
