Defying the Legal Constriction of Creativity

-- By NathanielPettit - 28 Feb 2020 [edited 22 May 2020]

Introduction and Overview

Defining the Challenges of Expectations

Creativity inherently defies expectations. This observation poses a particular challenge in law school, where the ubiquity of well-defined expectations renders extricating oneself from this network especially difficult. In trying to solve this problem, it is useful to first define the expectations and creativity referenced in this paper. Expectations are those behaviors, perspectives, goals, and accomplishments that permeate the law school community, underlying each archetype to which students aspire - the corporate lawyer, the human rights advocate, the scholar, etc. However, the issue lies not in these roles, but in the repetitive actions that constitute them in many students’ minds - the “expectations” of them. In order to be an expectation, a certain course of action or accomplishment must have been so repeated (or so obvious) as to become an anticipated characteristic of the role, thus meeting expectations is an inherently replicative action. For many students, fulfilling these expectations appears a safe means of assuming their desired identities; however, it will never afford them the opportunity to be creative. Instead, in order to be creative in law school, one must consciously defy expectations.

What is Creativity?

Creativity has two components: actual construction and novelty. To be creative, one must build something. It need not be physical, nor vast, but it must be identifiable by others. To have new ideas is merely to be imaginative until they take form through words or actions. Still, much construction is not creative, but rather duplicates an already well-proven design. This is not to say that creativity must completely disavow previous knowledge; many revolutions in art, political theory, and philosophy have some foundation in earlier concepts. Creativity merely requires that the “something” one builds contribute some new notion to the creator and the audience. Thus, to be creative is to produce something that can be shared with an audience and be received as original. This core of creativity is precisely why defying expectations is so critical: in becoming anticipated, the expected is never truly original, whereas the unexpected almost always is, given its departure from the ordinary.

The Unique Challenge: Law School and Creativity

Law school poses particular challenges to the exercise of creativity. Legal and academic reliance upon precedent conveys to students that conformity is the most certain path to success. Moreover, law school’s religious text - The Bluebook - trains such a degree of creativity-defeating formalism that Judge Posner was driven to declare, “I abhor The Bluebook, that symbol of mindless nitpicking” (Posner, Richard A. “On Hearsay.” Fordham Law Review, vol. 84, no. 4, 2016, p. 1465). Compounding these academic challenges is the constant specter of hiring. Justice Breyer noted, “the link between secondary education and business has strengthened,” United States v. Lopez, 514 U.S. 549, 620 (1995), and this connection is even stronger in law school, where the recruiting process serves as many students’ final gate before beginning their desired careers. This process contains an entire set of expectations of students in order for them to be perceived as successful or effective contributors, with each organization envisioning its ideal applicant. The entrenchment of law firms within school - through EIP, eponymous classrooms, and group sponsorship - aids in the permeation of these expectations throughout the institutions. Fortunately, while omnipresent expectations constrict creativity, they also make the act of being creative more profound due to its contrast from the norms.

Responding to the Challenge

Defying Expectations Under Different Theories of Social Action

Diverse approaches to legal reasoning not only support defying expectations in order to exercise creativity, but also provide guidance on how to do so. From a consequentialist perspective, by reducing an expectation to its constituent parts, one can identify and extract its beneficial, functional components without adopting the full set of expected actions and outcomes. While breaking down a larger concept or persona can destroy some of the magic ("the value from nothing") created by the synergies of its parts, the student has the opportunity to reconstruct value through the wizardry of a novel idea or combination. Turning to a folklore-centric analysis of the issue, the stability of expectations within the law school community reveals their centrality to the mythology of the institution. As such, the creation of a successful new concept reveals disharmony between the ideals and needs of students, reinforcing the revolutionary creativity of the act. From a roles-based approach, law students assume their roles because the castings serve as attractive explanations driving toward their desired, projected outcomes - similar to the way a mark is taken in during a swindle or sale. These dramatic performances are the fulfillment of the expectations associated with the aspirational archetypes; students fall into their repetitive roles as a result of not actively challenging the expectations that underlie them.

The Combined Approach

Uniting the lessons from these perspectives and combining them with the earlier observations develops a multifaceted approach to defying expectations. At a base level, expectations must inform one’s actions in order to prevent accidental replication. Thus, deliberate cognizance and avoidance of expectations strikes the correct balance of presence and absence that enables a student to chart his or her own path. The story of Robinson in moot court illustrates precisely the value of this approach (Joseph, Lawence. Lawyerland. Farrar, Straus and Giroux, 2004, pp. 5-6). By defying the role of the prostrated student, reducing Justice White’s question to its components, and challenging the mythology of our shared legal framework, Robinson demonstrated his impressive legal ability not only through confidence, but also through creativity.

Conclusion

Not everyone needs to be Robinson in order to be creative. In fact, if a student were, they would be too late; Robinson already did it. Today, we live in a time of immense loss, and many of us cannot afford to focus on the occasionally-lofty goal of creativity. However, for those of us fortunate enough to be able to do more than survive, the complete disruption of modern society has shattered many of the carefully chiseled expectations that constricted creativity. Now is the time to leap into the gaping holes the pandemic has exposed. Once more unto the breach, dear friends.