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JeremyChangFirstPaper 7 - 28 Jul 2013 - Main.EbenMoglen
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| | | Sometimes, a judge would use innovative reasoning and devise thoughtful tactics to adjudicate a complicated case involving thorny issues. For instance, Brown v. Board of Education which rendered unconstitutional segregation in public schools could be decided unanimously in part because of the astute approach taken by the deciding Justices. Chief Justice Warren asserted that reaching unanimity was essential to avoid resistance from some segregationist states. Justice Vinson’s death was somewhat of a lucky break in reaching that unanimity, but there were still more hurdles to clear as some members of the Court were concerned with judicial activism and were willing to write dissenting opinions. Warren knew how critical it was to reach unanimity. He understood the symbolic value a unanimous opinion would have, and how a mere majority opinion would not suffice. There was also the risk of providing a potential attacking point for segregationist states. His keen understanding of the dynamics surrounding a major judicial issue was what enabled Brown to be a landmark case in the road to the abolition of segregation. | |
>
> | Aside from the idea of
the death of the Chief Justice as "a lucky break," what have you
said here? You don't cite any actual history from which the reader
could get a clearer grasp of the detail, and your entire analysis of
the new Chief Justice's approach to the case seems to be summed up
in the need for unanimity, which any ass would take if he could get
it. But get it how? What is creative in Brown that comes from
the Court, rather than the advocates? What do you say Warren added
to the outcome? How do you know?
| | | Postponing the consideration of relief sought to a separate decision known as Brown II was also a creative move by the Court. While the “all deliberate speed” language in Brown II had been criticized by some as being too ambiguous to compel swift compliance with the order, there was the underlying rationale that the steps had to be taken carefully. Delegating to the individual district courts to administer the order enabled individualized approach to desegregation, and this was an ingenious approach to address a nation-wide problem in which there were dangers of potential resistance and clash of interests. | |
>
> |
What does this mean?
| | | Another case in which creative judgeship is displayed is Marbury v. Madison. At the time, Chief Justice Marshall was faced with the task of leading the burgeoning Federal court system, and he wanted to explicitly proclaim the power of judicial review. Marshall’s creativity was that he found the right case to do that without running into political conflict with the other branches. Instead of tackling the jurisdictional question first, he deliberately went through the questions of Marbury’s constitutional right to a writ of mandamus and whether the laws afforded him a remedy. By taking up the questions in this way, he was able to declare the supreme authority of the Court while also holding that the Judiciary Act of 1789 was unconstitutional and the petition had to be denied as the Court had no jurisdiction. | |
<
< | As can be seen from these cases, creative court decisions are those that move through innovative avenues in reaching a decision. It seems that shrewd understanding of the different interests and power dynamics which surround the case is key to a creative decision making. | >
> | This is not history;
it's not even garbled potted history. Aside from some esoteric
source, like my own recorded lectures on the subject, did you
consider looking at any actual history, such as the Holmes Devise
volumes by G. Edward White or Leonard Baker's biography of Marshall,
or indeed any of the rather extensive literature on the subject of
what was actually creative in Marbury?
As can be seen from these cases, creative court decisions are those that move through innovative avenues in reaching a decision.
This isn't a proof of
something, it's a tautology with illustrations. You assert that in
particular famous cases judges did something creative, which in one
case is being unanimous and in the other case is choosing carefully.
These are "innovative avenues," because you say they are, and
illustrate creativity because creativity is implicitly defined as
deciding great cases.
It seems that shrewd understanding of the different interests and power dynamics which surround the case is key to a creative decision making. | | | Creativity of an Advocate | |
<
< | The qualities that make a creative judge also apply to creative lawyering. Starting from the 1930’s, the battle against Jim Crow laws was led by Thurgood Marshall and NAACP's Legal Defense and Education Fund. They selected their battles strategically, aiming to attack racial discrimination where they were most vulnerable—education. For instance, in the earlier cases like Murray v. Maryland, Marshall did not seek to repeal the principle of “separate but equal,” but rather argued that the University of Maryland’s law school system violated that standard by not providing “black law schools” with the same academic caliber. Sweatt v. Painter and McLaurin v. Oklahoma were all cases which led to the eventual rejection of “separate but equal” in Brown. Marshall finally argued in Brown that segregated school systems were inherently unequal, thus violating the equal protection clause of the Fourteenth Amendment. Moreover, he brought to the Court various sociological test results to support his argument, saying that segregation in school systems tend to make black children feel inferior to white children. | >
> | The qualities that make a creative judge also apply to creative lawyering. Starting from the 1930’s, the battle against Jim Crow laws was led by Thurgood Marshall and NAACP's Legal Defense and Education Fund. They selected their battles strategically, aiming to attack racial discrimination where they were most vulnerable—education.
Most vulnerable? Why?
For instance, in the earlier cases like Murray v. Maryland, Marshall did not seek to repeal the principle of “separate but equal,” but rather argued that the University of Maryland’s law school system violated that standard by not providing “black law schools” with the same academic caliber. Sweatt v. Painter and McLaurin v. Oklahoma were all cases which led to the eventual rejection of “separate but equal” in Brown. Marshall finally argued in Brown that segregated school systems were inherently unequal, thus violating the equal protection clause of the Fourteenth Amendment. Moreover, he brought to the Court various sociological test results to support his argument, saying that segregation in school systems tend to make black children feel inferior to white children.
But how much of this
was designed by Marshall and how much by Charles Houston? How
much was written down in the famous Margold Report in 1929? Did
you consult any of Mark Tushnet's books on the subject before
describing the strategy of the NAACP LDF in these terms? (I think
not, because "NAACP's Legal Defense and Education Fund" is sort-of
precisely wrong from the historian's point of view,) Perhaps
Thurgood Marshall's legal creativity wasn't in the conception of
the strategy that was shaped by others long before he began
executing first part, then all, of it. Perhaps his legal
creativity lay in having invented a mode of practicing law that
could execute such a strategy, from a position of immense social
and economic disadvantage, under the actual conditions of racial
segregation enforced by legitimized violence in which he lived.
Maybe you're not only missing the primary nature of his creative
achievement, but therefore also the primary lesson it holds for
you in the shaping of your practice.
| | | Like Thurgood Marshall, a creative lawyer must be able to see the picture in a holistic way. In other words, it is to be able to take a step back and assess the situation from every party’s perspective. Whether or not he anticipated that the legal battle against racial segregation would take such a long time, he decided to take the fights one step at a time, waiting for the right moment to make the critical blow. A creative lawyer should pick his battles strategically. | | | Having a holistic viewpoint is important in becoming a creative lawyer, and moreover, the ability to understand human nature, psychology, and motives enables one to assess a given situation from a fresh perspective which in turn can lead to producing creative solutions. Legal issues do not exist in a vacuum. They have human consequences. Being a creative lawyer would entail having an acute awareness of the underlying reality, and at the same time having a firm grasp on the emotions and irrationality that surround us. | |
>
> | This draft does most of
the simple work in a fairly sloppy way, repeating things I said and
adding historical illustrations that are, if not poorly chosen, very
under-researched. It doesn't get around to doing the hard work, as
I suggest in the comments above, at all.
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: |
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JeremyChangFirstPaper 6 - 20 Jul 2013 - Main.JeremyChang
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| | | What is Legal Creativity? | |
<
< | What is legal creativity? It can be thought of as the ability to come up with new ways of solving a legal problem. Having legal creativity is being able to change the outcome of a case in an innovative manner, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately reaching a result which might not seem possible at first. Not only that, a creative lawyer must have a shrewd sense of the different interests involved in a case. Understanding precisely the underlying motives of parties involved and the power dynamics surrounding an issue is essential in creative lawyering. | >
> | What is legal creativity? It can be thought of as the ability to come up with new ways of solving a legal problem. Having legal creativity is being able to change the outcome of a case in an innovative manner, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately, to reach a result which might not seem possible at first. What does it take to have legal creativity? A creative lawyer must have a shrewd sense of the different interests involved in a case. Having a grasp of the underlying motives of parties involved and the power dynamics surrounding an issue is essential in creative lawyering. | | | | |
<
< | Creative Judge | >
> | Creativity of a Judge | | | | |
<
< | Sometimes, a judge would use innovative reasoning and devise thoughtful tactics to adjudicate a complicated case involving thorny issues. For instance, Brown v. Board of Education which rendered unconstitutional segregation in public schools could be decided unanimously in part because of the astute approach taken by the deciding Justices. Chief Justice Warren asserted that reaching unanimity was essential to avoid resistance from some segregationist states. Justice Vinson’s death was somewhat of a lucky break in reaching that unanimity, but there were still more hurdles to clear as some members of the Court were concerned with judicial activism and were willing to write dissenting opinions. Warren knew how critical it was to reach unanimity. He understood the symbolic value of a unanimous opinion, and how a mere majority opinion would not suffice. There was also the risk of providing a potential attacking point for segregationist states. His keen understanding of the dynamics surrounding a major judicial issue was what enabled Brown to be a landmark case. | >
> | Sometimes, a judge would use innovative reasoning and devise thoughtful tactics to adjudicate a complicated case involving thorny issues. For instance, Brown v. Board of Education which rendered unconstitutional segregation in public schools could be decided unanimously in part because of the astute approach taken by the deciding Justices. Chief Justice Warren asserted that reaching unanimity was essential to avoid resistance from some segregationist states. Justice Vinson’s death was somewhat of a lucky break in reaching that unanimity, but there were still more hurdles to clear as some members of the Court were concerned with judicial activism and were willing to write dissenting opinions. Warren knew how critical it was to reach unanimity. He understood the symbolic value a unanimous opinion would have, and how a mere majority opinion would not suffice. There was also the risk of providing a potential attacking point for segregationist states. His keen understanding of the dynamics surrounding a major judicial issue was what enabled Brown to be a landmark case in the road to the abolition of segregation. | | | | |
<
< | Postponing the consideration of relief sought to a separate decision known as Brown II was also a creative move by the Court. While the “all deliberate speed” language in Brown II had been criticized by some as being too ambiguous to require swift compliance with the order, there was the underlying rationale that the steps had to be taken carefully. Delegating to the individual district courts to administer the order enabled individualized approach to desegregation, and this was an ingenious approach to address a nation-wide problem in which there were many potential conflicts of interest and a danger of resistance. | >
> | Postponing the consideration of relief sought to a separate decision known as Brown II was also a creative move by the Court. While the “all deliberate speed” language in Brown II had been criticized by some as being too ambiguous to compel swift compliance with the order, there was the underlying rationale that the steps had to be taken carefully. Delegating to the individual district courts to administer the order enabled individualized approach to desegregation, and this was an ingenious approach to address a nation-wide problem in which there were dangers of potential resistance and clash of interests. | | | Another case in which creative judgeship is displayed is Marbury v. Madison. At the time, Chief Justice Marshall was faced with the task of leading the burgeoning Federal court system, and he wanted to explicitly proclaim the power of judicial review. Marshall’s creativity was that he found the right case to do that without running into political conflict with the other branches. Instead of tackling the jurisdictional question first, he deliberately went through the questions of Marbury’s constitutional right to a writ of mandamus and whether the laws afforded him a remedy. By taking up the questions in this way, he was able to declare the supreme authority of the Court while also holding that the Judiciary Act of 1789 was unconstitutional and the petition had to be denied as the Court had no jurisdiction. | |
<
< | As can be seen from these cases, creative court decisions are those that move through innovative avenues in reaching a decision. Moreover, it seems that shrewd understanding of the different interests and power dynamics of society which surround the case is key to a creative decision making. | >
> | As can be seen from these cases, creative court decisions are those that move through innovative avenues in reaching a decision. It seems that shrewd understanding of the different interests and power dynamics which surround the case is key to a creative decision making. | | | | |
<
< | Legal Creativity of an Advocate | >
> | Creativity of an Advocate | | | | |
<
< | I hope to discuss creative lawyering as legal advocates, since many of us are going to be one in the near future. The qualities that make a creative judge also apply to creative lawyering. | >
> | The qualities that make a creative judge also apply to creative lawyering. Starting from the 1930’s, the battle against Jim Crow laws was led by Thurgood Marshall and NAACP's Legal Defense and Education Fund. They selected their battles strategically, aiming to attack racial discrimination where they were most vulnerable—education. For instance, in the earlier cases like Murray v. Maryland, Marshall did not seek to repeal the principle of “separate but equal,” but rather argued that the University of Maryland’s law school system violated that standard by not providing “black law schools” with the same academic caliber. Sweatt v. Painter and McLaurin v. Oklahoma were all cases which led to the eventual rejection of “separate but equal” in Brown. Marshall finally argued in Brown that segregated school systems were inherently unequal, thus violating the equal protection clause of the Fourteenth Amendment. Moreover, he brought to the Court various sociological test results to support his argument, saying that segregation in school systems tend to make black children feel inferior to white children. | | | | |
<
< | Starting from the 1930’s, the battle against Jim Crow laws was led by Thurgood Marshall and NAACP's Legal Defense and Education Fund. They selected their battles strategically, aiming to attack racial discrimination where they were most vulnerable—education. For instance, in the earlier cases like Murray v. Maryland, Marshall did not seek to repeal the principle of “separate but equal,” but rather argued that the University of Maryland’s law school system violated that standard by not providing “black law schools” with the same academic caliber. Sweatt v. Painter and McLaurin v. Oklahoma were all cases which led to the eventual rejection of “separate but equal” in Brown. Marshall finally argued in Brown that segregated school systems were inherently unequal, thus violating the equal protection clause of the Fourteenth Amendment. Moreover, he brought to the Court various sociological test results to support his argument, saying that segregation in school systems tend to make black children feel inferior to white children. | >
> | Like Thurgood Marshall, a creative lawyer must be able to see the picture in a holistic way. In other words, it is to be able to take a step back and assess the situation from every party’s perspective. Whether or not he anticipated that the legal battle against racial segregation would take such a long time, he decided to take the fights one step at a time, waiting for the right moment to make the critical blow. A creative lawyer should pick his battles strategically. | | | | |
<
< | Like Thurgood Marshall, a creative lawyer must be able to see the picture in a holistic way. In other words, it is to be able to take a step back and assess the situation from every party’s perspective. Whether or not he anticipated that the legal battle against racial segregation would take such a long time, he decided to take the fights one step at a time, waiting for the right moment to make the critical blow. A creative lawyer should think strategically and pick his battles wisely. | >
> | One can also find value in the types of argument made in Intel v. Hamidi, where Intel argued, albeit unsuccessfully, that e-mail messages sent by a former Intel employee constitutes trespass to chattels. Although this cause of action had been considered as somewhat antiquated, it has been invoked in the modern context of electronic communication to be used against unsolicited email or server access. Hamidi was not the first case to raise the theory of trespass to chattels in the electronic context, but it is worth noting that a creative lawyer is not necessarily a successful one, but it is who can bring up innovative legal notions on the table. | | | | |
<
< | One can also find value in the types of argument made in Intel v. Hamidi, where Intel argued, albeit unsuccessfully, that e-mail messages sent by a former Intel employee constitutes trespass to chattels. Although this cause of action had been considered as somewhat antiquated, it has been invoked in the modern context of electronic communication to be used against unsolicited email or server access. Hamidi was not the first case to raise the theory of trespass to chattels in the electronic context, but it is worth noting that a creative lawyer is not necessarily a successful one, but it is who can bring up innovative ideas on the table. | >
> | Conclusion | | | | |
<
< | Having a holistic viewpoint is important in becoming a creative lawyer, and moreover, the ability to understand human nature, psychology, and motives is relevant in being able to assess a given situation to seek out creative solutions. Being a creative lawyer would entail having an acute awareness of the underlying reality, and at the same time having a firm grasp on the emotions and irrationality that surround us. | >
> | Having a holistic viewpoint is important in becoming a creative lawyer, and moreover, the ability to understand human nature, psychology, and motives enables one to assess a given situation from a fresh perspective which in turn can lead to producing creative solutions. Legal issues do not exist in a vacuum. They have human consequences. Being a creative lawyer would entail having an acute awareness of the underlying reality, and at the same time having a firm grasp on the emotions and irrationality that surround us. | | |
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JeremyChangFirstPaper 5 - 21 Jun 2013 - Main.JeremyChang
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| | | -- By JeremyChang - 26 Feb 2013 | |
<
< | To reflect Eben’s comments on the previous draft, I tried to narrow the scope of my writing, and become more critical about my choice of words. I have deleted big chunks of my initial draft, because many of them seemed irrelevant to the topic of legal creativity. | | | What is Legal Creativity? | |
<
< | What is legal creativity? I think it is the ability to come up with innovative ways of solving a legal problem. For both common law and civil law advocates, having legal creativity is being able to change the outcome of a case, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately getting a desirable result.
That makes "creative" a synonym for "successful." I don't think that can be right, do you?
On the other hand, there are manifestations of legal creativity other than merely a counsel’s clever and eloquent argument. For a judge resolving any given case, some degree of creativity is needed. Of course, a “creative solution” may be needed most in the more difficult cases, but a judge’s adjudication of a legal dispute is in itself a process which involves significant creativity.
So then all
adjudication is an example of "legal creativity"? The phrase hasn't
much specific meaning, has it?
We can find other manifestations of legal creativity in the Code of Hammurabi or the laws of Lycurgus, and more recently in history the bill of rights and the U.S. Constitution. Institutions like the International Criminal Court or the United Nations would also be examples of creativity in a legal context.
Why those
illustrations? Are the Twelve Tables, the Institutes of Justinian,
the Qing Penal Code not legal creativity, or did they just happen
not to be on the random list of old stuff?
| >
> | What is legal creativity? It can be thought of as the ability to come up with new ways of solving a legal problem. Having legal creativity is being able to change the outcome of a case in an innovative manner, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately reaching a result which might not seem possible at first. Not only that, a creative lawyer must have a shrewd sense of the different interests involved in a case. Understanding precisely the underlying motives of parties involved and the power dynamics surrounding an issue is essential in creative lawyering. | | | | |
<
< | Legal Creativity Compared with Other Types of Creativity | >
> | Creative Judge | | | | |
<
< | Professor Robert F. Blomquist at Valparaiso University School of Law talks about various aspects in which legal creativity compares with other kinds of creativity. In his article, “Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law,” | >
> | Sometimes, a judge would use innovative reasoning and devise thoughtful tactics to adjudicate a complicated case involving thorny issues. For instance, Brown v. Board of Education which rendered unconstitutional segregation in public schools could be decided unanimously in part because of the astute approach taken by the deciding Justices. Chief Justice Warren asserted that reaching unanimity was essential to avoid resistance from some segregationist states. Justice Vinson’s death was somewhat of a lucky break in reaching that unanimity, but there were still more hurdles to clear as some members of the Court were concerned with judicial activism and were willing to write dissenting opinions. Warren knew how critical it was to reach unanimity. He understood the symbolic value of a unanimous opinion, and how a mere majority opinion would not suffice. There was also the risk of providing a potential attacking point for segregationist states. His keen understanding of the dynamics surrounding a major judicial issue was what enabled Brown to be a landmark case. | | | | |
>
> | Postponing the consideration of relief sought to a separate decision known as Brown II was also a creative move by the Court. While the “all deliberate speed” language in Brown II had been criticized by some as being too ambiguous to require swift compliance with the order, there was the underlying rationale that the steps had to be taken carefully. Delegating to the individual district courts to administer the order enabled individualized approach to desegregation, and this was an ingenious approach to address a nation-wide problem in which there were many potential conflicts of interest and a danger of resistance. | | | | |
<
< |
Why isn't this a link? It's a very silly paper, but if you are going to rely on it for something, you should help your reader find it.
| >
> | Another case in which creative judgeship is displayed is Marbury v. Madison. At the time, Chief Justice Marshall was faced with the task of leading the burgeoning Federal court system, and he wanted to explicitly proclaim the power of judicial review. Marshall’s creativity was that he found the right case to do that without running into political conflict with the other branches. Instead of tackling the jurisdictional question first, he deliberately went through the questions of Marbury’s constitutional right to a writ of mandamus and whether the laws afforded him a remedy. By taking up the questions in this way, he was able to declare the supreme authority of the Court while also holding that the Judiciary Act of 1789 was unconstitutional and the petition had to be denied as the Court had no jurisdiction. | | | | |
<
< | he quotes suggestions by scholars that legal creativity is different from artistic creativity in certain manners. A “subjective view” of artistic creativity concerns what goes inside the creator’s mind—the works of a genius who does not know how to explain how he came by his idea. An advocate, a judge, or a lawmaker who possesses this kind of “genius” might come up with an innovative legal work product. Nevertheless, his subjective creative idea would not be helpful to the legal community if it is groundless or unpersuasive.
Now creativity is a
property of an idea: legal ideas are more or less creative, and they
are like or unlike creative musical ideas. What analytic process
caused this change? At the beginning of the essay creativity was
the property of a mental process in a person: the ability to come up
with new ways of solving problems.
But such exercise of comparing legal creativity with other types of creativity can be difficult since drawing a single concise picture of legal creativity is not an easy task. In other words, one’s understanding of legal creativity can differ according to the context in which the term is used. For example, legal creativity might mean one thing to a judge, and another when employed by a legislative body. Judges can be creative in making judgments, persuading other members of the court, giving out remedies, while also being conscious of prior authorities and the possibility of being reviewed by a higher court. Legislatures on the other hand might not have such restraints. So, they might be more creative in the sense that they can readily be more innovative in their work product without having to follow precedents. But at the same time, their actions are subject to restraint since individual members have to be conscious of their voters, the interest of the party, or the veto power of the president and judicial review by the court.
What did these sentences add to your argument?
One might disagree on whether Professor Blomquist is correct in characterizing legal creativity as something that can be compared with other types of creativity. But, what I think is more meaningful is that there can be many perspectives from which to think about legal creativity.
Was this an important
conclusion? It sounds like a truism. How did it fit into the
larger context of some argument you are
advancing? | >
> | As can be seen from these cases, creative court decisions are those that move through innovative avenues in reaching a decision. Moreover, it seems that shrewd understanding of the different interests and power dynamics of society which surround the case is key to a creative decision making. | | |
Legal Creativity of an Advocate | |
<
< | I would like to focus on creative lawyering as legal advocates, since many of us are going to be one in the near future.
A creative lawyer must first be able to see the picture in a holistic way. It is the capability to take a step back, and look at a situation from every party’s perspective. A variety of individual interests, desires and motives will be involved in a case. A creative lawyer has to be thinking about questions like: Who needs what? Who wants to go after whom? Who has the power to do what?
What would an uncreative lawyer be thinking instead?
On a same note, I think my initial idea about the importance of “people skills” should be framed differently. It is not the people skills—the kind that is synonymous with social skills—that is important. Rather, the ability to understand human nature, psychology, and motives is the key to answering the above questions.
What is the difference
between "social skills" and "the ability to understand human nature,
psychology, and motive"?
It could be being aware of what the person right in front of you is feeling at the moment, or predicting how a particular U.S. Supreme Court Justice will decide a case.
At the same time, a creative lawyer should be able to distinguish what is important and what is not. Justice Holmes’ statements shed light on how to do that. If it is the law that we want to analyze, we should look at it from a bad man’s perspective, and rid our minds of the language of morality.
But will this ridding
our minds of things we know be consistent with the holistic viewing
you were recommending a moment ago?
We should care only for the material consequences, and not focus on reasons for a conduct.
This is reductionism,
right? So the holism business was a bum steer? I think you owe us
an explanation, or perhaps a revision.
As Felix Cohen suggested, the law is about things happening in the world. Creative legal thinking refuses to believe that the language we use describes how the world actually functions.
Then hadn't we better use some other language?
Therefore, a creative lawyer must always have realistic skepticism, and not take other’s word for anything. It goes to knowing how the system REALLY works.
I'm reminded of a
statement of PF Strawson's, that when someone tells you something's
really real, it isn't real, really.
This would entail an acute awareness of the underlying reality, and at the same time require having a firm grasp on the emotions and irrationalities that surround us. We should be able to see through the labels and discern what reality is hidden underneath. Words should be under our command, and doing that would lead to command of ideas—which Holmes would say is the “most far reaching form of power”.
| >
> | I hope to discuss creative lawyering as legal advocates, since many of us are going to be one in the near future. The qualities that make a creative judge also apply to creative lawyering. | | | | |
<
< | I think it must be said that the effort to gain clarity was not
entirely successful. We wound up, as you see, concluding that the
process of finding new answers to questions is an acute awareness
of the underlying reality while having a firm grasp on the
emotions and irrationalities that surround us, while seeing
through labels to the reality hidden underneath. Which I don't
actually think is very clear. | >
> | Starting from the 1930’s, the battle against Jim Crow laws was led by Thurgood Marshall and NAACP's Legal Defense and Education Fund. They selected their battles strategically, aiming to attack racial discrimination where they were most vulnerable—education. For instance, in the earlier cases like Murray v. Maryland, Marshall did not seek to repeal the principle of “separate but equal,” but rather argued that the University of Maryland’s law school system violated that standard by not providing “black law schools” with the same academic caliber. Sweatt v. Painter and McLaurin v. Oklahoma were all cases which led to the eventual rejection of “separate but equal” in Brown. Marshall finally argued in Brown that segregated school systems were inherently unequal, thus violating the equal protection clause of the Fourteenth Amendment. Moreover, he brought to the Court various sociological test results to support his argument, saying that segregation in school systems tend to make black children feel inferior to white children. | | | | |
<
< | Perhaps, instead of Googling for legal creativity and finding
Blomquist, who thinks "creative moments" can be ranked from 1 to
100, you could find a new way to solve a problem. Or maybe
describe someone else coming up with a new solution to a problem.
In other words, you could begin thinking about legal creativity
not in the abstract, where it defeats you, but in the concrete,
where we can look at and appreciate it together. | >
> | Like Thurgood Marshall, a creative lawyer must be able to see the picture in a holistic way. In other words, it is to be able to take a step back and assess the situation from every party’s perspective. Whether or not he anticipated that the legal battle against racial segregation would take such a long time, he decided to take the fights one step at a time, waiting for the right moment to make the critical blow. A creative lawyer should think strategically and pick his battles wisely. | | | | |
<
< | | >
> | One can also find value in the types of argument made in Intel v. Hamidi, where Intel argued, albeit unsuccessfully, that e-mail messages sent by a former Intel employee constitutes trespass to chattels. Although this cause of action had been considered as somewhat antiquated, it has been invoked in the modern context of electronic communication to be used against unsolicited email or server access. Hamidi was not the first case to raise the theory of trespass to chattels in the electronic context, but it is worth noting that a creative lawyer is not necessarily a successful one, but it is who can bring up innovative ideas on the table. | | | | |
>
> | Having a holistic viewpoint is important in becoming a creative lawyer, and moreover, the ability to understand human nature, psychology, and motives is relevant in being able to assess a given situation to seek out creative solutions. Being a creative lawyer would entail having an acute awareness of the underlying reality, and at the same time having a firm grasp on the emotions and irrationality that surround us. | | |
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JeremyChangFirstPaper 4 - 15 Jun 2013 - Main.EbenMoglen
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| META TOPICPARENT | name="FirstPaper" |
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| | | What is Legal Creativity? | |
<
< | What is legal creativity? I think it is the ability to come up with innovative ways of solving a legal problem. For both common law and civil law advocates, having legal creativity is being able to change the outcome of a case, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately getting a desirable result.
On the other hand, there are manifestations of legal creativity other than merely a counsel’s clever and eloquent argument. For a judge resolving any given case, some degree of creativity is needed. Of course, a “creative solution” may be needed most in the more difficult cases, but a judge’s adjudication of a legal dispute is in itself a process which involves significant creativity. We can find other manifestations of legal creativity in the Code of Hammurabi or the laws of Lycurgus, and more recently in history the bill of rights and the U.S. Constitution. Institutions like the International Criminal Court or the United Nations would also be examples of creativity in a legal context. | >
> | What is legal creativity? I think it is the ability to come up with innovative ways of solving a legal problem. For both common law and civil law advocates, having legal creativity is being able to change the outcome of a case, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately getting a desirable result.
That makes "creative" a synonym for "successful." I don't think that can be right, do you?
On the other hand, there are manifestations of legal creativity other than merely a counsel’s clever and eloquent argument. For a judge resolving any given case, some degree of creativity is needed. Of course, a “creative solution” may be needed most in the more difficult cases, but a judge’s adjudication of a legal dispute is in itself a process which involves significant creativity.
So then all
adjudication is an example of "legal creativity"? The phrase hasn't
much specific meaning, has it?
We can find other manifestations of legal creativity in the Code of Hammurabi or the laws of Lycurgus, and more recently in history the bill of rights and the U.S. Constitution. Institutions like the International Criminal Court or the United Nations would also be examples of creativity in a legal context.
Why those
illustrations? Are the Twelve Tables, the Institutes of Justinian,
the Qing Penal Code not legal creativity, or did they just happen
not to be on the random list of old stuff?
| | | Legal Creativity Compared with Other Types of Creativity | |
<
< | Professor Robert F. Blomquist at Valparaiso University School of Law talks about various aspects in which legal creativity compares with other kinds of creativity. In his article, “Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law,” he quotes suggestions by scholars that legal creativity is different from artistic creativity in certain manners. A “subjective view” of artistic creativity concerns what goes inside the creator’s mind—the works of a genius who does not know how to explain how he came by his idea. An advocate, a judge, or a lawmaker who possesses this kind of “genius” might come up with an innovative legal work product. Nevertheless, his subjective creative idea would not be helpful to the legal community if it is groundless or unpersuasive.
But such exercise of comparing legal creativity with other types of creativity can be difficult since drawing a single concise picture of legal creativity is not an easy task. In other words, one’s understanding of legal creativity can differ according to the context in which the term is used. For example, legal creativity might mean one thing to a judge, and another when employed by a legislative body. Judges can be creative in making judgments, persuading other members of the court, giving out remedies, while also being conscious of prior authorities and the possibility of being reviewed by a higher court. Legislatures on the other hand might not have such restraints. So, they might be more creative in the sense that they can readily be more innovative in their work product without having to follow precedents. But at the same time, their actions are subject to restraint since individual members have to be conscious of their voters, the interest of the party, or the veto power of the president and judicial review by the court. | >
> | Professor Robert F. Blomquist at Valparaiso University School of Law talks about various aspects in which legal creativity compares with other kinds of creativity. In his article, “Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law,”
Why isn't this a link? It's a very silly paper, but if you are going to rely on it for something, you should help your reader find it.
he quotes suggestions by scholars that legal creativity is different from artistic creativity in certain manners. A “subjective view” of artistic creativity concerns what goes inside the creator’s mind—the works of a genius who does not know how to explain how he came by his idea. An advocate, a judge, or a lawmaker who possesses this kind of “genius” might come up with an innovative legal work product. Nevertheless, his subjective creative idea would not be helpful to the legal community if it is groundless or unpersuasive.
Now creativity is a
property of an idea: legal ideas are more or less creative, and they
are like or unlike creative musical ideas. What analytic process
caused this change? At the beginning of the essay creativity was
the property of a mental process in a person: the ability to come up
with new ways of solving problems.
But such exercise of comparing legal creativity with other types of creativity can be difficult since drawing a single concise picture of legal creativity is not an easy task. In other words, one’s understanding of legal creativity can differ according to the context in which the term is used. For example, legal creativity might mean one thing to a judge, and another when employed by a legislative body. Judges can be creative in making judgments, persuading other members of the court, giving out remedies, while also being conscious of prior authorities and the possibility of being reviewed by a higher court. Legislatures on the other hand might not have such restraints. So, they might be more creative in the sense that they can readily be more innovative in their work product without having to follow precedents. But at the same time, their actions are subject to restraint since individual members have to be conscious of their voters, the interest of the party, or the veto power of the president and judicial review by the court.
What did these sentences add to your argument?
| | | One might disagree on whether Professor Blomquist is correct in characterizing legal creativity as something that can be compared with other types of creativity. But, what I think is more meaningful is that there can be many perspectives from which to think about legal creativity. | |
>
> | Was this an important
conclusion? It sounds like a truism. How did it fit into the
larger context of some argument you are
advancing?
| | | Legal Creativity of an Advocate
I would like to focus on creative lawyering as legal advocates, since many of us are going to be one in the near future. | |
<
< | A creative lawyer must first be able to see the picture in a holistic way. It is the capability to take a step back, and look at a situation from every party’s perspective. A variety of individual interests, desires and motives will be involved in a case. A creative lawyer has to be thinking about questions like: Who needs what? Who wants to go after whom? Who has the power to do what?
On a same note, I think my initial idea about the importance of “people skills” should be framed differently. It is not the people skills—the kind that is synonymous with social skills—that is important. Rather, the ability to understand human nature, psychology, and motives is the key to answering the above questions. It could be being aware of what the person right in front of you is feeling at the moment, or predicting how a particular U.S. Supreme Court Justice will decide a case.
At the same time, a creative lawyer should be able to distinguish what is important and what is not. Justice Holmes’ statements shed light on how to do that. If it is the law that we want to analyze, we should look at it from a bad man’s perspective, and rid our minds of the language of morality. We should care only for the material consequences, and not focus on reasons for a conduct. As Felix Cohen suggested, the law is about things happening in the world. Creative legal thinking refuses to believe that the language we use describes how the world actually functions.
Therefore, a creative lawyer must always have realistic skepticism, and not take other’s word for anything. It goes to knowing how the system REALLY works. This would entail an acute awareness of the underlying reality, and at the same time require having a firm grasp on the emotions and irrationalities that surround us. We should be able to see through the labels and discern what reality is hidden underneath. Words should be under our command, and doing that would lead to command of ideas—which Holmes would say is the “most far reaching form of power”. | >
> | A creative lawyer must first be able to see the picture in a holistic way. It is the capability to take a step back, and look at a situation from every party’s perspective. A variety of individual interests, desires and motives will be involved in a case. A creative lawyer has to be thinking about questions like: Who needs what? Who wants to go after whom? Who has the power to do what?
What would an uncreative lawyer be thinking instead?
On a same note, I think my initial idea about the importance of “people skills” should be framed differently. It is not the people skills—the kind that is synonymous with social skills—that is important. Rather, the ability to understand human nature, psychology, and motives is the key to answering the above questions.
What is the difference
between "social skills" and "the ability to understand human nature,
psychology, and motive"?
It could be being aware of what the person right in front of you is feeling at the moment, or predicting how a particular U.S. Supreme Court Justice will decide a case.
At the same time, a creative lawyer should be able to distinguish what is important and what is not. Justice Holmes’ statements shed light on how to do that. If it is the law that we want to analyze, we should look at it from a bad man’s perspective, and rid our minds of the language of morality.
But will this ridding
our minds of things we know be consistent with the holistic viewing
you were recommending a moment ago?
We should care only for the material consequences, and not focus on reasons for a conduct.
This is reductionism,
right? So the holism business was a bum steer? I think you owe us
an explanation, or perhaps a revision.
As Felix Cohen suggested, the law is about things happening in the world. Creative legal thinking refuses to believe that the language we use describes how the world actually functions.
Then hadn't we better use some other language?
Therefore, a creative lawyer must always have realistic skepticism, and not take other’s word for anything. It goes to knowing how the system REALLY works.
I'm reminded of a
statement of PF Strawson's, that when someone tells you something's
really real, it isn't real, really.
This would entail an acute awareness of the underlying reality, and at the same time require having a firm grasp on the emotions and irrationalities that surround us. We should be able to see through the labels and discern what reality is hidden underneath. Words should be under our command, and doing that would lead to command of ideas—which Holmes would say is the “most far reaching form of power”.
I think it must be said that the effort to gain clarity was not
entirely successful. We wound up, as you see, concluding that the
process of finding new answers to questions is an acute awareness
of the underlying reality while having a firm grasp on the
emotions and irrationalities that surround us, while seeing
through labels to the reality hidden underneath. Which I don't
actually think is very clear.
Perhaps, instead of Googling for legal creativity and finding
Blomquist, who thinks "creative moments" can be ranked from 1 to
100, you could find a new way to solve a problem. Or maybe
describe someone else coming up with a new solution to a problem.
In other words, you could begin thinking about legal creativity
not in the abstract, where it defeats you, but in the concrete,
where we can look at and appreciate it together.
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JeremyChangFirstPaper 3 - 08 Apr 2013 - Main.JeremyChang
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| | | -- By JeremyChang - 26 Feb 2013 | |
>
> | To reflect Eben’s comments on the previous draft, I tried to narrow the scope of my writing, and become more critical about my choice of words. I have deleted big chunks of my initial draft, because many of them seemed irrelevant to the topic of legal creativity. | | | What is Legal Creativity? | |
<
< | What is creativity? Narrowly construed, I think it is the ability to come up with new ways of solving a problem. In this sense, legal creativity can be (loosely) defined as the intellectual ability which enables innovative solutions to complex problems. For both common law and civil law lawyers, having legal creativity is being able to change the outcome of a case, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately getting a desirable result. | >
> | What is legal creativity? I think it is the ability to come up with innovative ways of solving a legal problem. For both common law and civil law advocates, having legal creativity is being able to change the outcome of a case, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately getting a desirable result.
On the other hand, there are manifestations of legal creativity other than merely a counsel’s clever and eloquent argument. For a judge resolving any given case, some degree of creativity is needed. Of course, a “creative solution” may be needed most in the more difficult cases, but a judge’s adjudication of a legal dispute is in itself a process which involves significant creativity. We can find other manifestations of legal creativity in the Code of Hammurabi or the laws of Lycurgus, and more recently in history the bill of rights and the U.S. Constitution. Institutions like the International Criminal Court or the United Nations would also be examples of creativity in a legal context. | | | | |
<
< | But there is a slightly wider definition of legal creativity as well. Or I would say, there are other manifestations of legal creativity other than a counsel’s clever and eloquent argument. We learn many cases in law school. For a judge resolving any given case, some degree of creativity is needed. Of course, a “creative solution” may be needed most in the more difficult cases, but a judge’s adjudication of a legal dispute is in itself a process which involves significant creativity. We can find other manifestations of creativity in the Code of Hammurabi or the laws of Lycurgus, and more recently in history the bill of rights and the U.S. Constitution. Or institutions like the International Criminal Court or the United Nations would be other examples of creativity in a legal context. | >
> | Legal Creativity Compared with Other Types of Creativity | | | | |
<
< | The creativity in play in the legal universe is different from that in other fields such as science. One would not expect lawyers to be creative in the same manner Albert Einstein came up with the theory of Relativity.
Was Albert Einstein a family lawyer? Or perhaps you didn't proofread.
Nor do we expect lawyers to be creative in the way poets write poems or songwriters produce songs.
We don't? I thought we did.
Lawyers do not create new works of art or invent things in the material world.
Of course they do. All the time.
Legal creativity functions differently compared with scientific creativity in that it implies a social and ethical dimension.
That's not about creativity. That's the difference between what you call "law" and what you call "science." Putting another x, any x, after those words is tautologically the same difference. (And for different meaning s of the words "law" and "science," which you don't happen to be using, there would be no difference for any subsequent "x".)
Such ethical responsibility is not just being truthful to clients and avoiding malpractice. It is a broader concept encompassing the lawyer’s psychological posture and awareness in keeping step with society’s demand and its intellectual development.
What does this mean?
I think legal creativity should not be thought of as a weapon with which lawyers defeat their adversaries. It should not be a self-serving instrument.
When I defeat an adversary creatively, I shouldn't be permitted to be creative, because that would be serving my client, which is the same as self-serving? This proposition is surely false.
Rather, legal creativity should be understood as having the effective means for social change and justice. As Cohen suggested, the law is about things happening in the world.
So?
I do not suggest that legal creativity is possessed only by the most provocative thinkers of law. The legal universe needs both conservatives and revolutionists. For stability and consistence, a conservative is needed.
I don't know why creativity became revolution, and creativity thereby became forbidden to conservatives.
(Please don't mention this to Edmund Burke or Jonathan Swift. I don't know how they'll ever live it down. Even Nino Scalia will be heartbroken.)
For change, progress, and disconnection from the past, a revolutionist is needed. To a casual observer a conservative might seem like a lumbering dinosaur and a revolutionist a rowdy. But both sides are the same in that they are both employ legal creativity, and that they both contribute to the gradual progression of society. I do not see legal creativity as a revolution.
Thanks. But if you don't see it that way, is that conclusive?
Even those groundbreaking court opinions were preceded by precedents, slowly reflecting the direction in which society had been moving.
Is this a general
proposition of legal history? A covering law without exceptions?
What support do you have for it?
How should the legal education change?
What's this got to do with anything that preceded it?
Consilience
As Eben suggested, I believe consilience is a critical aspect of the 21st century law practice.
I suggested something else, using the word in a different context.
Combination of different knowledge, spreading of ideas, sharing thoughts and opinions, and communication among disciplines should all be encouraged.
But that's not what "consilience" means. It's defined in the OED thusly:
The fact of ‘jumping together’ or agreeing; coincidence, concurrence; said of the accordance of two or more inductions drawn from different groups of phenomena.
I used it in this fashion, to describe the type of reasoning about social action most beneficial to lawyers in trying to think creatively about the situation in which at any given moment they are placed.
Your error in usage here is parallel to the larger problem in the essay, which takes (as its supposedly broad view of legal creativity) so narrow a view of legal creativity as to lose the whole point of the exercise. An approach to the problem that employs a search for consilience will come to a very different view of legal creativity, much broader in scope, that will obviated the pitfalls into which this essay draft drops.
Focus on people
One of my fundamental beliefs in life is that everything we do and the system that we live in is made and operated by people.
This is a mere platitude, equivalent to saying that one of your fundamental beliefs is that Tuesday follows Monday, or that what goes up must come down.
When I hear the cliché “nothing is impossible,” I take it as “nothing is impossible if you know the right people.” In other words, pulling the right strings can put deals through which otherwise would go sour. “People skill” will be a critical difference between creative lawyers and non-creative lawyers.
This is evidently not
true. Some creative lawyers have no people skills whatever: they
are pure "inside men." A class of tax lawyers springs immediately
to mind. So, historically speaking, do a class of conveyancers.
Those who sported with the Statute of Uses were not men
distinguished for their people skills.
Nor are "non-creative lawyers" without people skills. The merest
hack criminal jury lawyer has people skills that would rival those
of the best door-to-door salesman.
Like many of the dogmatic pronouncements in this draft, I have the
feeling that this one wasn't subjected to the slightest critical
attention. It's as though it were dropped on the page without
regard to its accuracy, because it sounded good.
The legal profession is a profession of communication, and human skills such as reading body language, predicting human behavior and the ability to network will make a difference.
So?
Experience
Law schools do not teach students to have a practice of their own. We are taught to be canned while being fed continuously with the glamorous false image of big law. We eventually lose our ability to see the big picture. Having practical experience through mentorship can help alleviate this problem. As a business undergrad, I’ve learned various theories on how to run a business. But those theories did not help me a whole lot when I had to raise money for my IT start-up. It took me a few years before realizing that there are things you learn better by doing. Lawyering I think is one of those things.
How is this a conclusion to the paper that began a twisty journey long ago as about legal creativity?
Organizationally, this draft is a mess. You didn't listen to me about outlining, and now it's time to start. The next draft should be outlined down to the paragraph level.
Substantively, because the draft mixes at least three if not five different subjects, it's hard to know which one to advise developing. I think it's the essay on legal creativity, which seems to me the most promising. Here the problem is precisely your difficulty about consilience. (You should have looked it up. Every Columbia student has free access to the online OED and you should make a habit of using it.) Had you actually tried to seek consilience with respect to the understanding of legal creativity, the process might have sounded something like this:
- What can I read about creativity in other disciplines?
- What writing can I find by lawyers reflecting on creativity in law?
- When lawyers write about other lawyers that they are "creative," what do they appear to mean in each particular context?
- Can I identify legal phenomena that have been described in the past as "creative"?
- How if at all, is creativity different in "practical," as opposed to "theoretical" forms of social and intellectual activity? What examples do I have of differences? Of similarities?
From these quite different inquiries, we would draw inferences from
the materials the inquiry unearths. Inferences supported by more than
one of our inquiries would have the property of "consilience," of
"jumping together," which would strengthen our confidence in them.
My point was, originally, that lawyers can think creatively about social action by searching for consilience among all the various forms of social explanation (biological, intrapsychic, social psychological, economic, sociological, anthropological, historical, philosophical, etc.) that can be applied to the phenomena with which they deal. Inferring constantly from our real-world experiential data, filtered through all these different perspectives, keeping what achieves consilience, as Darwin did in shaping his "view of life," we become creative practical social scientists.
But that was my idea. With a little effort, first in undirected thinking, then in careful outlining, finally in precise writing, we can find out your idea in response.
| >
> | Professor Robert F. Blomquist at Valparaiso University School of Law talks about various aspects in which legal creativity compares with other kinds of creativity. In his article, “Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law,” he quotes suggestions by scholars that legal creativity is different from artistic creativity in certain manners. A “subjective view” of artistic creativity concerns what goes inside the creator’s mind—the works of a genius who does not know how to explain how he came by his idea. An advocate, a judge, or a lawmaker who possesses this kind of “genius” might come up with an innovative legal work product. Nevertheless, his subjective creative idea would not be helpful to the legal community if it is groundless or unpersuasive.
But such exercise of comparing legal creativity with other types of creativity can be difficult since drawing a single concise picture of legal creativity is not an easy task. In other words, one’s understanding of legal creativity can differ according to the context in which the term is used. For example, legal creativity might mean one thing to a judge, and another when employed by a legislative body. Judges can be creative in making judgments, persuading other members of the court, giving out remedies, while also being conscious of prior authorities and the possibility of being reviewed by a higher court. Legislatures on the other hand might not have such restraints. So, they might be more creative in the sense that they can readily be more innovative in their work product without having to follow precedents. But at the same time, their actions are subject to restraint since individual members have to be conscious of their voters, the interest of the party, or the veto power of the president and judicial review by the court.
One might disagree on whether Professor Blomquist is correct in characterizing legal creativity as something that can be compared with other types of creativity. But, what I think is more meaningful is that there can be many perspectives from which to think about legal creativity.
Legal Creativity of an Advocate
I would like to focus on creative lawyering as legal advocates, since many of us are going to be one in the near future.
A creative lawyer must first be able to see the picture in a holistic way. It is the capability to take a step back, and look at a situation from every party’s perspective. A variety of individual interests, desires and motives will be involved in a case. A creative lawyer has to be thinking about questions like: Who needs what? Who wants to go after whom? Who has the power to do what?
On a same note, I think my initial idea about the importance of “people skills” should be framed differently. It is not the people skills—the kind that is synonymous with social skills—that is important. Rather, the ability to understand human nature, psychology, and motives is the key to answering the above questions. It could be being aware of what the person right in front of you is feeling at the moment, or predicting how a particular U.S. Supreme Court Justice will decide a case.
At the same time, a creative lawyer should be able to distinguish what is important and what is not. Justice Holmes’ statements shed light on how to do that. If it is the law that we want to analyze, we should look at it from a bad man’s perspective, and rid our minds of the language of morality. We should care only for the material consequences, and not focus on reasons for a conduct. As Felix Cohen suggested, the law is about things happening in the world. Creative legal thinking refuses to believe that the language we use describes how the world actually functions.
Therefore, a creative lawyer must always have realistic skepticism, and not take other’s word for anything. It goes to knowing how the system REALLY works. This would entail an acute awareness of the underlying reality, and at the same time require having a firm grasp on the emotions and irrationalities that surround us. We should be able to see through the labels and discern what reality is hidden underneath. Words should be under our command, and doing that would lead to command of ideas—which Holmes would say is the “most far reaching form of power”. | | | |
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JeremyChangFirstPaper 2 - 26 Mar 2013 - Main.EbenMoglen
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| META TOPICPARENT | name="FirstPaper" |
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<
< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | First Paper | | | But there is a slightly wider definition of legal creativity as well. Or I would say, there are other manifestations of legal creativity other than a counsel’s clever and eloquent argument. We learn many cases in law school. For a judge resolving any given case, some degree of creativity is needed. Of course, a “creative solution” may be needed most in the more difficult cases, but a judge’s adjudication of a legal dispute is in itself a process which involves significant creativity. We can find other manifestations of creativity in the Code of Hammurabi or the laws of Lycurgus, and more recently in history the bill of rights and the U.S. Constitution. Or institutions like the International Criminal Court or the United Nations would be other examples of creativity in a legal context. | |
<
< | The creativity in play in the legal universe is different from that in other fields such as science. One would not expect lawyers to be creative in the same manner Albert Einstein came up with the theory of Relativity. Nor do we expect lawyers to be creative in the way poets write poems or songwriters produce songs. Lawyers do not create new works of art or invent things in the material world. Legal creativity functions differently compared with scientific creativity in that it implies a social and ethical dimension. Such ethical responsibility is not just being truthful to clients and avoiding malpractice. It is a broader concept encompassing the lawyer’s psychological posture and awareness in keeping step with society’s demand and its intellectual development. I think legal creativity should not be thought of as a weapon with which lawyers defeat their adversaries. It should not be a self-serving instrument. Rather, legal creativity should be understood as having the effective means for social change and justice. As Cohen suggested, the law is about things happening in the world. | >
> | The creativity in play in the legal universe is different from that in other fields such as science. One would not expect lawyers to be creative in the same manner Albert Einstein came up with the theory of Relativity.
Was Albert Einstein a family lawyer? Or perhaps you didn't proofread.
Nor do we expect lawyers to be creative in the way poets write poems or songwriters produce songs.
We don't? I thought we did.
Lawyers do not create new works of art or invent things in the material world.
Of course they do. All the time.
Legal creativity functions differently compared with scientific creativity in that it implies a social and ethical dimension.
That's not about creativity. That's the difference between what you call "law" and what you call "science." Putting another x, any x, after those words is tautologically the same difference. (And for different meaning s of the words "law" and "science," which you don't happen to be using, there would be no difference for any subsequent "x".)
Such ethical responsibility is not just being truthful to clients and avoiding malpractice. It is a broader concept encompassing the lawyer’s psychological posture and awareness in keeping step with society’s demand and its intellectual development.
What does this mean?
I think legal creativity should not be thought of as a weapon with which lawyers defeat their adversaries. It should not be a self-serving instrument.
When I defeat an adversary creatively, I shouldn't be permitted to be creative, because that would be serving my client, which is the same as self-serving? This proposition is surely false.
Rather, legal creativity should be understood as having the effective means for social change and justice. As Cohen suggested, the law is about things happening in the world.
So?
I do not suggest that legal creativity is possessed only by the most provocative thinkers of law. The legal universe needs both conservatives and revolutionists. For stability and consistence, a conservative is needed.
I don't know why creativity became revolution, and creativity thereby became forbidden to conservatives.
(Please don't mention this to Edmund Burke or Jonathan Swift. I don't know how they'll ever live it down. Even Nino Scalia will be heartbroken.)
For change, progress, and disconnection from the past, a revolutionist is needed. To a casual observer a conservative might seem like a lumbering dinosaur and a revolutionist a rowdy. But both sides are the same in that they are both employ legal creativity, and that they both contribute to the gradual progression of society. I do not see legal creativity as a revolution.
Thanks. But if you don't see it that way, is that conclusive?
Even those groundbreaking court opinions were preceded by precedents, slowly reflecting the direction in which society had been moving.
Is this a general
proposition of legal history? A covering law without exceptions?
What support do you have for it? | | | | |
<
< | I do not suggest that legal creativity is possessed only by the most provocative thinkers of law. The legal universe needs both conservatives and revolutionists. For stability and consistence, a conservative is needed. For change, progress, and disconnection from the past, a revolutionist is needed. To a casual observer a conservative might seem like a lumbering dinosaur and a revolutionist a rowdy. But both sides are the same in that they are both employ legal creativity, and that they both contribute to the gradual progression of society. I do not see legal creativity as a revolution. Even those groundbreaking court opinions were preceded by precedents, slowly reflecting the direction in which society had been moving. | | | How should the legal education change? | |
>
> |
What's this got to do with anything that preceded it?
| | | Consilience | |
<
< | As Eben suggested, I believe consilience is a critical aspect of the 21st century law practice. Combination of different knowledge, spreading of ideas, sharing thoughts and opinions, and communication among disciplines should all be encouraged. | >
> | As Eben suggested, I believe consilience is a critical aspect of the 21st century law practice.
I suggested something else, using the word in a different context.
Combination of different knowledge, spreading of ideas, sharing thoughts and opinions, and communication among disciplines should all be encouraged.
But that's not what "consilience" means. It's defined in the OED thusly:
The fact of ‘jumping together’ or agreeing; coincidence, concurrence; said of the accordance of two or more inductions drawn from different groups of phenomena.
I used it in this fashion, to describe the type of reasoning about social action most beneficial to lawyers in trying to think creatively about the situation in which at any given moment they are placed.
Your error in usage here is parallel to the larger problem in the essay, which takes (as its supposedly broad view of legal creativity) so narrow a view of legal creativity as to lose the whole point of the exercise. An approach to the problem that employs a search for consilience will come to a very different view of legal creativity, much broader in scope, that will obviated the pitfalls into which this essay draft drops.
| | | Focus on people | |
<
< | One of my fundamental beliefs in life is that everything we do and the system that we live in is made and operated by people. When I hear the cliché “nothing is impossible,” I take it as “nothing is impossible if you know the right people.” In other words, pulling the right strings can put deals through which otherwise would go sour. “People skill” will be a critical difference between creative lawyers and non-creative lawyers. The legal profession is a profession of communication, and human skills such as reading body language, predicting human behavior and the ability to network will make a difference. | >
> | One of my fundamental beliefs in life is that everything we do and the system that we live in is made and operated by people.
This is a mere platitude, equivalent to saying that one of your fundamental beliefs is that Tuesday follows Monday, or that what goes up must come down.
When I hear the cliché “nothing is impossible,” I take it as “nothing is impossible if you know the right people.” In other words, pulling the right strings can put deals through which otherwise would go sour. “People skill” will be a critical difference between creative lawyers and non-creative lawyers.
This is evidently not
true. Some creative lawyers have no people skills whatever: they
are pure "inside men." A class of tax lawyers springs immediately
to mind. So, historically speaking, do a class of conveyancers.
Those who sported with the Statute of Uses were not men
distinguished for their people skills.
Nor are "non-creative lawyers" without people skills. The merest
hack criminal jury lawyer has people skills that would rival those
of the best door-to-door salesman.
Like many of the dogmatic pronouncements in this draft, I have the
feeling that this one wasn't subjected to the slightest critical
attention. It's as though it were dropped on the page without
regard to its accuracy, because it sounded good.
The legal profession is a profession of communication, and human skills such as reading body language, predicting human behavior and the ability to network will make a difference.
So?
| | | Experience
Law schools do not teach students to have a practice of their own. We are taught to be canned while being fed continuously with the glamorous false image of big law. We eventually lose our ability to see the big picture. Having practical experience through mentorship can help alleviate this problem. As a business undergrad, I’ve learned various theories on how to run a business. But those theories did not help me a whole lot when I had to raise money for my IT start-up. It took me a few years before realizing that there are things you learn better by doing. Lawyering I think is one of those things. | |
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How is this a conclusion to the paper that began a twisty journey long ago as about legal creativity?
Organizationally, this draft is a mess. You didn't listen to me about outlining, and now it's time to start. The next draft should be outlined down to the paragraph level.
Substantively, because the draft mixes at least three if not five different subjects, it's hard to know which one to advise developing. I think it's the essay on legal creativity, which seems to me the most promising. Here the problem is precisely your difficulty about consilience. (You should have looked it up. Every Columbia student has free access to the online OED and you should make a habit of using it.) Had you actually tried to seek consilience with respect to the understanding of legal creativity, the process might have sounded something like this:
- What can I read about creativity in other disciplines?
- What writing can I find by lawyers reflecting on creativity in law?
- When lawyers write about other lawyers that they are "creative," what do they appear to mean in each particular context?
- Can I identify legal phenomena that have been described in the past as "creative"?
- How if at all, is creativity different in "practical," as opposed to "theoretical" forms of social and intellectual activity? What examples do I have of differences? Of similarities?
From these quite different inquiries, we would draw inferences from
the materials the inquiry unearths. Inferences supported by more than
one of our inquiries would have the property of "consilience," of
"jumping together," which would strengthen our confidence in them.
My point was, originally, that lawyers can think creatively about social action by searching for consilience among all the various forms of social explanation (biological, intrapsychic, social psychological, economic, sociological, anthropological, historical, philosophical, etc.) that can be applied to the phenomena with which they deal. Inferring constantly from our real-world experiential data, filtered through all these different perspectives, keeping what achieves consilience, as Darwin did in shaping his "view of life," we become creative practical social scientists.
But that was my idea. With a little effort, first in undirected thinking, then in careful outlining, finally in precise writing, we can find out your idea in response.
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JeremyChangFirstPaper 1 - 26 Feb 2013 - Main.JeremyChang
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
First Paper
-- By JeremyChang - 26 Feb 2013
What is Legal Creativity?
What is creativity? Narrowly construed, I think it is the ability to come up with new ways of solving a problem. In this sense, legal creativity can be (loosely) defined as the intellectual ability which enables innovative solutions to complex problems. For both common law and civil law lawyers, having legal creativity is being able to change the outcome of a case, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately getting a desirable result.
But there is a slightly wider definition of legal creativity as well. Or I would say, there are other manifestations of legal creativity other than a counsel’s clever and eloquent argument. We learn many cases in law school. For a judge resolving any given case, some degree of creativity is needed. Of course, a “creative solution” may be needed most in the more difficult cases, but a judge’s adjudication of a legal dispute is in itself a process which involves significant creativity. We can find other manifestations of creativity in the Code of Hammurabi or the laws of Lycurgus, and more recently in history the bill of rights and the U.S. Constitution. Or institutions like the International Criminal Court or the United Nations would be other examples of creativity in a legal context.
The creativity in play in the legal universe is different from that in other fields such as science. One would not expect lawyers to be creative in the same manner Albert Einstein came up with the theory of Relativity. Nor do we expect lawyers to be creative in the way poets write poems or songwriters produce songs. Lawyers do not create new works of art or invent things in the material world. Legal creativity functions differently compared with scientific creativity in that it implies a social and ethical dimension. Such ethical responsibility is not just being truthful to clients and avoiding malpractice. It is a broader concept encompassing the lawyer’s psychological posture and awareness in keeping step with society’s demand and its intellectual development. I think legal creativity should not be thought of as a weapon with which lawyers defeat their adversaries. It should not be a self-serving instrument. Rather, legal creativity should be understood as having the effective means for social change and justice. As Cohen suggested, the law is about things happening in the world.
I do not suggest that legal creativity is possessed only by the most provocative thinkers of law. The legal universe needs both conservatives and revolutionists. For stability and consistence, a conservative is needed. For change, progress, and disconnection from the past, a revolutionist is needed. To a casual observer a conservative might seem like a lumbering dinosaur and a revolutionist a rowdy. But both sides are the same in that they are both employ legal creativity, and that they both contribute to the gradual progression of society. I do not see legal creativity as a revolution. Even those groundbreaking court opinions were preceded by precedents, slowly reflecting the direction in which society had been moving.
How should the legal education change?
Consilience
As Eben suggested, I believe consilience is a critical aspect of the 21st century law practice. Combination of different knowledge, spreading of ideas, sharing thoughts and opinions, and communication among disciplines should all be encouraged.
Focus on people
One of my fundamental beliefs in life is that everything we do and the system that we live in is made and operated by people. When I hear the cliché “nothing is impossible,” I take it as “nothing is impossible if you know the right people.” In other words, pulling the right strings can put deals through which otherwise would go sour. “People skill” will be a critical difference between creative lawyers and non-creative lawyers. The legal profession is a profession of communication, and human skills such as reading body language, predicting human behavior and the ability to network will make a difference.
Experience
Law schools do not teach students to have a practice of their own. We are taught to be canned while being fed continuously with the glamorous false image of big law. We eventually lose our ability to see the big picture. Having practical experience through mentorship can help alleviate this problem. As a business undergrad, I’ve learned various theories on how to run a business. But those theories did not help me a whole lot when I had to raise money for my IT start-up. It took me a few years before realizing that there are things you learn better by doing. Lawyering I think is one of those things.
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
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