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.

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,”

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?

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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