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What is a Creative Legal Idea?

-- By JulieParet - 25 Feb 2013

The Road Less Traveled By

Legal thinking has a long tradition of focusing solely on one side of an issue or idea, to the consequent exclusion of the other. A creative legal idea, in a sense, is the ability to look past a long tradition of one-sided thinking, to turn over the stone, to wipe away the moss, and to expose what lies on the other side. Indeed, the reverse side of an issue can lay dormant for so long, that when finally discovered, it erupts like a volcano in our psyche and can induce a wide variety of responses—denial, skepticism, and fear. Whether the consequence of selective attention, confirmation bias, or conscious ignorance, our affinity for the known over the unknown can cause this “dark side” of a legal issue to generate an inexplicable feeling of repugnance. Our negative response most likely stems from a deep-seated fear of change. To think creatively, therefore, is the ability to set this fear aside and to engage with an unfamiliar strand of thought, to follow it, and to see where it leads.

Revolution

Garret Hardin’s idea of the tragedy of the commons is so pervasive that it is hard to pinpoint the exact moment we may have each come across it for the first time. It is an idea that we have seen and heard time and time again: when too many people share a single resource, that resource is subject to overuse and depletion. However, as Michael Heller has discovered, our attention has long been focused on only one side of the problem. Heller pioneered the revolutionary idea, which he coined as “the tragedy of the anticommons,” that too much private ownership can actually be a bad thing, creating gridlock and coordination breakdown that can act as a roadblock to innovation in biomedicine, music, film, and much more.

For example, too many patent owners can prevent a new drug from reaching the market; too many landowners can prevent a new airport from being built; and too many copyrights can prevent a valuable historical story from being told. Meanwhile, that new drug could save lives; that new airport could eliminate most routine air travel delays; and that film could share with the world the lessons of Martin Luther King’s legacy.

Each of these hypotheticals is unfortunately all too real. The cost of defeating patent thickets has stalled the release of a new Alzheimer’s drug; the cost of overcoming claims against each individual landowners has meant that only one new airport has been built in the U.S. since 1975; and the cost of clearing the rights to each element of a film nearly stifled the release of the King documentary Eyes on the Prize.

In turning over the stone of Hardin’s tragedy of the commons, a creative legal idea has been born—one that has revolutionized the way of thinking about ownership, and may serve to offer solutions to complex holdup problems that our society faces today.

Roadblock

My hometown of Cheshire, where I return every Thanksgiving and Christmas, is exactly what I imagine people to picture when they hear the phrase, “a sleepy town in Connecticut,” where everyone knows everyone, and nothing out of the ordinary ever happens. That’s all it ever was, until one summer night in July before my senior year of high school, when it became the site of a home invasion of unimaginable horror that would forever transform my once ordinary town.

It was surreal. Hayley and Michaela went to my middle school. I rode the bus with them every day. We got on at the same stop, where my mom used to chat with Mrs. Petit before the bus arrived. And then, the news broke. I listened in horror as the details were slowly revealed: how two men had followed Mrs. Petit home from the store, how they beat her husband and tied him in the basement, how they escorted Mrs. Petit to the bank to withdraw $15,000 from her account; how the teller called 911 and the police had set up a perimeter, but that it was too late; how they tied Mrs. Petit and her daughters, 17-year-old Hayley and 11-year-old Michaela, to their beds and molested them, right before strangling Mrs. Petit and dousing them all in gasoline, and setting the house on fire, killing all but Dr. Petit, who lost his wife and two daughters, and his entire world.

There was not a soul in the state who did not want both of the men responsible to pay for what they did. Not only for Dr. Petit’s sake, and for Hayley, Michaela, and their mother, but for everyone with a family who felt personally victimized by the sheer evil of their crimes. I remember the unsettling feeling in my stomach when I was challenged to question this conviction, and to consider, for a moment, a different family—the family of criminals who end up in the penal system. Why should a criminal’s family be punished for crimes they did not commit, be forced to ride an eight-hour bus in exchange for an hour of staring through a transparent barrier, or grow up visiting daddy in prison?

Reconciliation

As I struggled to grapple with this idea, I realized that my own experience had extinguished my ability to empathize with the families of Steven J. Hayes and Joshua A. Komisarjevsky. Because no matter what it will mean for their families, taking away their punishment would take away the only shred of justice that Dr. Petit could ever hope to be receive, and the only shred of peace that my small town could ever hope to know.

Call it the death of a creative legal idea. Call it closed-mindedness. Whatever you call it, my mind simply can’t follow that path into the yellow wood, not today anyway. Sometimes the mossy side of the stone stays unturned for fear of what lies underneath. Sometimes we just don’t like what it looks like on the other side.

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