Law in Contemporary Society

First Paper

-- By JeremyChang - 26 Feb 2013

What is Legal Creativity?

What is legal creativity? It can be thought of as the ability to come up with new ways of solving a legal problem. Having legal creativity is being able to change the outcome of a case in an innovative manner, whether it be a settlement agreement or a full-scale litigation. It is the ability to effectively use the power of words to frame the argument to one’s advantage and ultimately, to reach a result which might not seem possible at first. What does it take to have legal creativity? A creative lawyer must have a shrewd sense of the different interests involved in a case. Having a grasp of the underlying motives of parties involved and the power dynamics surrounding an issue is essential in creative lawyering.

Creativity of a Judge

Sometimes, a judge would use innovative reasoning and devise thoughtful tactics to adjudicate a complicated case involving thorny issues. For instance, Brown v. Board of Education which rendered unconstitutional segregation in public schools could be decided unanimously in part because of the astute approach taken by the deciding Justices. Chief Justice Warren asserted that reaching unanimity was essential to avoid resistance from some segregationist states. Justice Vinson’s death was somewhat of a lucky break in reaching that unanimity, but there were still more hurdles to clear as some members of the Court were concerned with judicial activism and were willing to write dissenting opinions. Warren knew how critical it was to reach unanimity. He understood the symbolic value a unanimous opinion would have, and how a mere majority opinion would not suffice. There was also the risk of providing a potential attacking point for segregationist states. His keen understanding of the dynamics surrounding a major judicial issue was what enabled Brown to be a landmark case in the road to the abolition of segregation.

Aside from the idea of the death of the Chief Justice as "a lucky break," what have you said here? You don't cite any actual history from which the reader could get a clearer grasp of the detail, and your entire analysis of the new Chief Justice's approach to the case seems to be summed up in the need for unanimity, which any ass would take if he could get it. But get it how? What is creative in Brown that comes from the Court, rather than the advocates? What do you say Warren added to the outcome? How do you know?

Postponing the consideration of relief sought to a separate decision known as Brown II was also a creative move by the Court. While the “all deliberate speed” language in Brown II had been criticized by some as being too ambiguous to compel swift compliance with the order, there was the underlying rationale that the steps had to be taken carefully. Delegating to the individual district courts to administer the order enabled individualized approach to desegregation, and this was an ingenious approach to address a nation-wide problem in which there were dangers of potential resistance and clash of interests.

What does this mean?

Another case in which creative judgeship is displayed is Marbury v. Madison. At the time, Chief Justice Marshall was faced with the task of leading the burgeoning Federal court system, and he wanted to explicitly proclaim the power of judicial review. Marshall’s creativity was that he found the right case to do that without running into political conflict with the other branches. Instead of tackling the jurisdictional question first, he deliberately went through the questions of Marbury’s constitutional right to a writ of mandamus and whether the laws afforded him a remedy. By taking up the questions in this way, he was able to declare the supreme authority of the Court while also holding that the Judiciary Act of 1789 was unconstitutional and the petition had to be denied as the Court had no jurisdiction.

This is not history; it's not even garbled potted history. Aside from some esoteric source, like my own recorded lectures on the subject, did you consider looking at any actual history, such as the Holmes Devise volumes by G. Edward White or Leonard Baker's biography of Marshall, or indeed any of the rather extensive literature on the subject of what was actually creative in Marbury?

As can be seen from these cases, creative court decisions are those that move through innovative avenues in reaching a decision.

This isn't a proof of something, it's a tautology with illustrations. You assert that in particular famous cases judges did something creative, which in one case is being unanimous and in the other case is choosing carefully. These are "innovative avenues," because you say they are, and illustrate creativity because creativity is implicitly defined as deciding great cases.

It seems that shrewd understanding of the different interests and power dynamics which surround the case is key to a creative decision making.

Creativity of an Advocate

The qualities that make a creative judge also apply to creative lawyering. Starting from the 1930’s, the battle against Jim Crow laws was led by Thurgood Marshall and NAACP's Legal Defense and Education Fund. They selected their battles strategically, aiming to attack racial discrimination where they were most vulnerable—education.

Most vulnerable? Why?

For instance, in the earlier cases like Murray v. Maryland, Marshall did not seek to repeal the principle of “separate but equal,” but rather argued that the University of Maryland’s law school system violated that standard by not providing “black law schools” with the same academic caliber. Sweatt v. Painter and McLaurin v. Oklahoma were all cases which led to the eventual rejection of “separate but equal” in Brown. Marshall finally argued in Brown that segregated school systems were inherently unequal, thus violating the equal protection clause of the Fourteenth Amendment. Moreover, he brought to the Court various sociological test results to support his argument, saying that segregation in school systems tend to make black children feel inferior to white children.

But how much of this was designed by Marshall and how much by Charles Houston? How much was written down in the famous Margold Report in 1929? Did you consult any of Mark Tushnet's books on the subject before describing the strategy of the NAACP LDF in these terms? (I think not, because "NAACP's Legal Defense and Education Fund" is sort-of precisely wrong from the historian's point of view,) Perhaps Thurgood Marshall's legal creativity wasn't in the conception of the strategy that was shaped by others long before he began executing first part, then all, of it. Perhaps his legal creativity lay in having invented a mode of practicing law that could execute such a strategy, from a position of immense social and economic disadvantage, under the actual conditions of racial segregation enforced by legitimized violence in which he lived. Maybe you're not only missing the primary nature of his creative achievement, but therefore also the primary lesson it holds for you in the shaping of your practice.

Like Thurgood Marshall, a creative lawyer must be able to see the picture in a holistic way. In other words, it is to be able to take a step back and assess the situation from every party’s perspective. Whether or not he anticipated that the legal battle against racial segregation would take such a long time, he decided to take the fights one step at a time, waiting for the right moment to make the critical blow. A creative lawyer should pick his battles strategically.

One can also find value in the types of argument made in Intel v. Hamidi, where Intel argued, albeit unsuccessfully, that e-mail messages sent by a former Intel employee constitutes trespass to chattels. Although this cause of action had been considered as somewhat antiquated, it has been invoked in the modern context of electronic communication to be used against unsolicited email or server access. Hamidi was not the first case to raise the theory of trespass to chattels in the electronic context, but it is worth noting that a creative lawyer is not necessarily a successful one, but it is who can bring up innovative legal notions on the table.


Having a holistic viewpoint is important in becoming a creative lawyer, and moreover, the ability to understand human nature, psychology, and motives enables one to assess a given situation from a fresh perspective which in turn can lead to producing creative solutions. Legal issues do not exist in a vacuum. They have human consequences. Being a creative lawyer would entail having an acute awareness of the underlying reality, and at the same time having a firm grasp on the emotions and irrationality that surround us.

This draft does most of the simple work in a fairly sloppy way, repeating things I said and adding historical illustrations that are, if not poorly chosen, very under-researched. It doesn't get around to doing the hard work, as I suggest in the comments above, at all.

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r8 - 14 Jan 2015 - 22:15:33 - IanSullivan
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