First Paper

-- 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.
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.

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.
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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