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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 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?
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> | 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. | | | | |
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< | Legal Creativity Compared with Other Types of Creativity | >
> | Creative Judge | | | | |
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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,” | >
> | 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. | | | | |
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> | 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. | | | | |
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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.
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> | 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. | | | | |
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< | 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 | |
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< | 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”.
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> | 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. | | | | |
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< | 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. | | | | |
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< | 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. | | | | |
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> | 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. | | | | |
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> | 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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