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The Case for Creativity: and how to teach it.
-- By OuraniaYancopoulos - 28 Feb 2020
Dear Dean Lester,
It is with the utmost respect that I write you this letter. I have found myself disappointed by the dissonance between my expectations for law school and the reality I encountered. I believe, however, that I have a clear understanding of what is lacking in the 1L curriculum and how it can be improved for the benefit of future students.
Law school has instilled in me strong feelings of cynicism, nihilism, and apathy. Rather than teaching me to revere and respect the law and lawmaking, my professors have unrelentingly critiqued the law for its discriminatory origins and its perpetuation of inequalities. Moreover, they have harped on the arbitrary and “made up” nature of the law at the hands of virtually unrestrained judges. Yet, these same professors simultaneously assign us thousands of pages, which we are told to reduce to two things: the rule and the holding.
The mode of evaluation also compels us to see our classmates not as future teammates in the fight for justice, but as adversaries. I think we need a curriculum and environment that cultivates two objectives: creativity and collaboration.
The Case for Creativity
Columbia needs to produce innovative legal minds who will push the profession forward, both to make the world a more just place, and also to help our future clients win.
To understand the need for creative lawyers, imagine a world in which creative lawyering ceases to exist. In this world, the law becomes static. Novel arguments about statutory interpretation (such as finding disparate impact) and discovering new fundamental rights (such as same-sex marriage) cease to exist. With the law frozen in place, the (non-creative) lawyer devolves into obsolescence. What need is there for lawyers when every case can be resolved by pointing to a handful of decisions with comparable facts and favorable holdings? AI can basically do this already.
To keep up with the changing world, the legal profession must be agile, flexible, and creative. To succeed, aspiring lawyers must embrace skill-sets that combine legal expertise with knowledge across multiple disciplines: history, technology, business...
Accordingly, new lawyers must be armed with creativity and trained to develop legal arguments that “push the envelope.” Law school is the training ground for these skills. Currently, CLS isn’t cutting it.
The Case for Collaboration
What I find most convincing about the power of diversity and teamwork can be illustrated in Anthony Salvo’s Yes and Louis Armstrong’s They Can’t Take that Away from Me. One instrument alone can be beautiful—yes—but it is the concert of distinct voices, playing off one another, building off one another, and working together, that moves these songs from pretty to powerful.
I have always been an athlete. What excited me about lawyering, was the idea that I would work to further justice as part of a team. But, rather than fostering camaraderie—or at the bare minimum, mutual respect; rather than showing us that the people sitting next to us day in and day out will one day be our teammates working with us to shape the world—law school immediately pitted us against each other. The curve made us instant adversaries, and our professors and large lectures closed the door on open exchange. I was pushed into a solitary existence: confined to the library, instead of taking my place in a legal community.
CLS requires a shift in focus from the useless recitation of facts and the regurgitation of frameworks, toward more in-depth analysis. In particular, we need to learn to “read between the lines” to understand the unstated drivers of decisions. Pierson v. Post is paradigmatic: the subtext recognizable to all at the time was the court’s preservation of the subordination of the nouveau riche by the East Hampton aristocracy. To be creative in law school, then, one must be able to identify the rationales that are omitted from—but underlie—every decision. Currently, there is virtually no opportunity to do this.
To be a good lawyer, then, is to understand how to construct legal arguments in today’s contexts. An effective curriculum would achieve this by teaching students:
- how to understand the subtexts that guide decision-making;
- effective problem-solving techniques;
- compelling legal writing skills; and,
- how collaboration fosters stronger legal arguments.
To facilitate these changes, law school should begin with legal theory and philosophy. This foundation would help the law student construct her own theory of jurisprudence, which she would critique and refine over the next three years.
Students need a more effective legal research and writing course. LPW is the only course that offers a chance to learn creative lawyering through practice. But as a two-hour, P/F course, it is ineffective. By offering specialized LPW classes based on professional goals/interests we may begin to see our fellow students as future comrades rather than as competitors.
Law school is three years. It is a disservice to students, to future employers, and to clients, that we do not spend more time with foundational topics. I suggest we redistribute the first-year courses over two years. For example, I am confused why Constitutional Law is not the first course we take when my Property course assumed a knowledge of fundamental rights, strict scrutiny, and the canons of construction. Similarly, taking Torts and Criminal Law concurrently has been difficult. It appears that criminal law builds on torts (i.e., Crim presumes an understanding of proximate cause). It would be helpful to fully understand torts prior to learning Criminal Law.
I am frustrated when lawyers assure me that I can look forward to learning lawyering after law school. We spend hundreds of thousands of dollars to come here. Most of us end up hundreds of thousands of dollars in debt. So, why aren’t we learning to be lawyers? And more importantly, why aren’t we learning to be lawyers together? |
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