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.

I don't know why you offer this characterization of what we've read. Nor do I understand why you think it's true. If it's important, you need to make it clear.

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.

Supposing this is true, which it probably isn't, what does it mean?

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.

You might want to wait on that conclusion until you've written a few of them. "Almost endless possibilities" might be a synonym for "a small set of possibilities," of course, but otherwise I'm not sure why you think it's true or how you know.

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.

I don't understand what the comparison means. It isn't very helpful, because it's just an analogy rather than an argument.

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.

Maybe. But if so, it's transcendental nonsense. A moment's reflection will no doubt explain to you why the definition of "personhood" in a piece of state legislation is not going to change by a nanometer the legal meaning (whatever it is) given by the US Supreme Court to Section 1 of the Fourteenth Amendment. Whatever is happening here may or may not be a "fantastic example of ideological war" but it isn't being "fought within the strict framework of legal thinking." It's horseshit pretending to be law. Which, from a political point of view, appealing to the unconscious aspects of social life, may be more than enough. But, I take it, that would be a "radical" form of legal creativity, which you said you weren't talking about. (This is another sign that the original distinction is fallacious.)

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.

That's heart-warming and deserved praise for Kitty MacKinnon, but it isn't good legal history or good law. It doesn't capture what MacKinnon wrote about very well, because it seems to suggest that her primary point was that it should be against the law for an employer to rape an employee, which of course was never legal in the first place. We can, I think, identify the "hostile workplace environment" claim in Title VII litigation as a direct outgrowth of Professor MacKinnon's writing. In which US Supreme Court case were you under the impression that she argued? She signed the brief in Meritor Savings Bank v. Vinson, which was argued by Patricia Barry.

(You have no doubt kept in mind here, though the language makes it appear otherwise, that "hostile workplace environment" claims were already cognizable under Title VII before Vinson? The bank sought cert, of course, because it had lost below, the Court of Appeals having held that the District Court had erroneously failed to consider the claim because it found the sexual relationship between the supervisor and the respondent to have been "voluntary." The Supreme Court's decision narrowed the law unanimously, by rejecting the position of the Court of Appeals—which was, naturally, the position of respondent's counsel and the position MacKinnon had taken in her academic writing—that employers in the position of Meritor Savings were strictly liable for the sexual harassment of their employees by supervisors. It would be no less accurate to say they lost Vinson unanimously than to say they won it, given where the Court of Appeals had left it before Professor MacKinnon joined up. You might also want to check what happened after the remand.)

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).

This does not actually assert however, that the law has much of an effect on the sexual conduct of supervisors with respect to their workers. It does mean that businesses spend a great deal of time proclaiming what they would do if they knew, and trying as hard as they can not to know anything without appearing to turn a blind eye. It creates, as you say, a good deal of work and much overhead. What effect it has on sexuality and power on the job would be a very different story.

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.

These points seem to me less a conclusion to this draft and more a statement of something comparatively obvious. This draft has a central idea stated in its introduction (that there is a difference between thinking creatively as a lawyer "within the system" and as a "radical" somewhere outside it. This idea is not really well-developed and its difficulties are not confronted. Most of the draft's space is spent on discussions of abortion and sexual harassment law which are energetic but technically a little wobbly. Creativity "within the system" is not effectively defined or shown here either, partly because the legal details aren't quite right, but more importantly because it isn't clear what a single instance illustration means outside the narrow context in which it occurs.

I think the route to improvement here is to reconsider the importance of the thesis originally stated. If it's still the central idea, then it needs careful articulation and development. If, on the other hand, the central idea is one about sexual harassment law and its development, for example, that idea needs to be expressed clearly, and made the spine of a draft that considers the legal issues comprehensively in relation to whatever idea of your own about legal creativity is being expressed.