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| | | -- By JeremyChang - 26 Feb 2013 | |
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> | 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? | |
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< | 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. | | | | |
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< | 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 | | | | |
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< | 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.
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> | 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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