C Major

-- By KimberHargrove - 16 Feb 2012

What does creative legal thinking mean?

Thinking creatively in a legal context can obviously mean a lot of things, but here I am going to divide it up into two categories. There are ways of creative legal thinking that operate inside the framework that we are currently learning in law school; and there are other, more radical, methods that really push the boundaries of how we see law operating in the world. Many of the pieces that we have read for this class fall into the latter category. In this essay I would like to focus on the former.

Thinking like a lawyer

One of the main things that attracted me to law school was the creative aspect of the law. (That was in my personal statement). As long as you observe the proper format and use the proper font and make sure your commas are not italicized, your brief/memo/opinion can really say whatever the hell you want. You can include a picture of the defendant partying it up in Vegas or a picture of an ostrich with its head in the sand.

Merely by saying whatever you want in the proper format, you are creating extra-legal real-life consequences: as Eben recently pointed out, lots of people actually are dead as a direct result of what lawyers said. So, if you and I are creative enough to think of how we want to change the system (assuming we want changes) and good enough at the format to convince other people, working within even the confines of a brief or a memo presents almost endless possibilities.

Madeline L’Engle in A Wrinkle in Time said: “You're given the form, but you have to write the sonnet yourself. What you say is completely up to you." Or as Schoenberg (a big atonal composer) said to one of his classes at UCLA: “There is still plenty of good music to be written in C major.” So most of us of going to be writing in C major. (A few crunchy public-interest types might branch out into E-flat minor). But there is still plenty of good music in that boring-ass key.

Examples

Thirty minutes ago (good thing I did this essay late) the Oklahoma Senate passed the Personhood Act, which gives unborn fetuses rights that can be exercised against the mother from the moment of conception. This is a fantastic example of an ideological war being fought within the strict framework of legal thinking. The whole act turns on the word “person,” what that has come to mean in a legal context, and what rights the legal system has traditionally afforded individuals.

Another example is the creation of the sexual harassment claim. Even before the 1980s, disparate treatment of women in the workplace was illegal, thanks to the Civil Rights Act of 1964. But obviously women were (and still are) treated disparately all the time, just not in the correct legal ways. Employers weren’t always telling female employees that they weren’t getting promotions because lady-brains couldn’t handle the workload; they were just raping them in the bathrooms. It took a creative and radical legal thinker (in this case, Catharine MacKinnon? ) to come up with a legal theory that sexual harassment is discrimination, shop that theory around, and eventually wind up arguing it to the Supreme Court, who agreed unanimously. But the point here is that she did all this within the framework that was already set up—in fact through the traditional framework of impact litigation.

Many of the authors we have read are skeptical of the law’s ability to effect its decisions, but having worked at a relatively young corporation, I saw that there was a huge deference, respect, and fear of sexual harassment law. (Which in my opinion, is as it should be).

Conclusion

As I understand this class, its purpose is to teach us to think creatively, and to question the premise that law school is going to give us what we want. This class is trying to prevent us from getting sucked into the black hole of legal puns and teach us about the macro-universe: that vast, expanding world that is outside the law. But in this essay I wanted to focus on the micro-universe—looking inward is as vast as looking outward, and even in Astro 101 I learned that you better know your atomic structure if you want to begin to study the universe.

This class I hope will keep us thinking critically about the legal system, because although we’re all sinking into it anyway, it is important to see the flaws and to understand what can and should be changed. At risk of being as vulgar as Robinson: as long as we don’t crawl up too far into our own asses, some introspection and some exploration of what creative thinking can do even within the strict boundaries the law sets us is worth remembering.

---

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, KimberHargrove
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.