Clusterfucks and Creative Lawyers

-- By PatrickCronin - 19 April 2009

What does creative lawyering look like from the perspective of the bad man?

• This question does not actually receive any attention, so far as I can tell.

The Playing Field

A case that makes it into a casebook is a concrete and unique clusterfuck – a chaotic section of the world where multiple things have gone wrong. For example:

“May a person who enters the habitat of another at 3 o’clock in the morning for the announced purpose of killing him, and who commences to beat the startled sleeper’s bed with a stick and sets fires under him, be entitled to use deadly force in self defense after the intended victim shoots him in the back with an arrow?” People v. Gleghorn 193 Cal. App. 3d 199, 238 Cal. Rptr. 82 (1987) California Court of Appeals.

Even in cases that don’t make it into any casebook, or legal problems that never become cases, like Wylie’s underground world of deals, chaos is already there or threatening on the horizon. Facts create legal problems that are asymmetrical. Whereas a philosopher can concern himself with the elegance of his ideas – their economy and far-reaching power – a lawyer always has one foot in the world of real, dirty, messy facts. A lawyer has to hold real asymmetrical problems in her head. In a sense, she has to hold a piece of the real world in her head.

Of course a lawyer’s other foot is planted firmly in world of the rarefied conceptions of jurisprudence – freedom of contract, negligence, the right to exclude. So on one end there is dynamic complexity that cannot be predicted, and on the other end is the self-sufficient necessity of legal concepts. The space between these two poles is where lawyers live. So, if there is going to be creativity in the practice of law, it has to function here.

It’s common to think that creativity cannot survive the light of day; that as soon as it comes into contact with the “real world” it melts and disappears. Especially in the legal world, where the law is supposed to come from on high and problems are supposed to be resolved by superior and wise beings – babies split – we resist any notion that laws are created. Hence the myth that the common-law is found by judges and the anxiety law students feel when they realize the right answer to their first Legal Practice memo isn’t hiding in Westlaw, just waiting to be found. In fact, lawyers have always been creative, but because there’s such resistance to this fact, lawerly creativity is easily recruited to the endless task of recreating the status quo.

The Illusion of the Non-Creative Lawyer.

The general conviction that the status quo is necessary, natural, and eternal, is a projection that must be constantly recreated – and lawyers expend a lot of creative energy recreating it. Felix Cohen’s theory of transcendental nonsense explains one way that projection is sustained. A solvable problem: “Congress wants to regulate a steel company but the steel company doesn’t want to be regulated” is translated into the unsolvable and metaphysical legal problem: “Is the corporation in interstate commerce”. This puzzling legal question can only be answered by a rigorously trained and hierarchical priestly class of lawyers and judges. They search the bowels of history, until they find the answer. Justice Scalia explains:

“As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here – reading text and discerning our society’s traditional understanding of that text – the public pretty much left us alone. Texts and traditions are facts to study…” Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) Scalia, J. dissent.

This method creates legitimacy by assuring everyone that the answer to the legal question was always there – the layman just couldn’t see it because it was a legal question that had to be solved by lawyers. Nothing creative happened here, just something on a higher plane of thought.

The problem with transcendental nonsense is that it refuses to consider real ethical questions – a task that requires creative thought. And if the court refuses to acknowledge its ability to create, then parties with interests other than justice will be more than happy to pick up the slack.

What can be done with Chaos?

How can a lawyer take control of this creative capacity? First, he needs faith that the status quo doesn’t exhaust reality, and that creativity is not confined to artists. Willie Stark – modeled after the creative lawyer Huey P. Long – is successful in All the King’s Men because he is convinced that he can dig up some dirt on anyone: “Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud.” Facts are full of creative potential.

The real world is chaotic – full of individual, unique, asymmetrical problems. And chaotic situations are a source of creativity. We’re scared of this chaos, so we want to normalize it – to turn it into a universal. Think of Dudley and Stephens: “Shipwreck? Cannibalism? This is a clusterfuck. Just get rid of it somehow. There is no necessity defense to murder.” The desire to simplify is natural. Simple and elegant ideas have the most rhetorical power. The task for a creative lawyer, then, is to hold a real piece of the world in his head and at the same time be able to simplify the ethical question it poses without jumping immediately to a universal concept.

This is not to say that chaos or creativity is inherently good – certainly chaotic situations can turn out badly. The idea is simply that chaotic situations hold the potential for something new to arise, and practically speaking, someone is going to determine what that new thing is. A lawyer who wants to work for justice will need to be fight on that terrain – to be able work with chaotic and asymmetrical problems and to guard against the desire to cover them up with universal concepts.

• This was certainly an attempt to respond to my comment on your first draft by trying to wring more out of your material. But it did not result in a clear thesis clearly developed, which I think would be valuable here.