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The Ethics of Law School and Creative Thinking

-- By MaryJeanWhitsell - 28 Feb 2020

I recently came upon an example of creative thinking in a passage from Leslie Bender’s An Overview of Feminist Torts Scholarship in my torts casebook. Bender argues that fundamental to the “No Duty to Rescue” rule is tort law’s view of human nature as self-interested, individualist, and autonomous. Bender then offers an alternative affirmative duty which relies on a conception of human nature where humans are social beings who have an ethics of care and responsibility. By recognizing that fundamental to tort law is a particular male ethic, Bender can suggest an alternative rule based on her different, and maybe preferably, conception of human nature.

To be creative, one must first understand ethics and how they are maintained in society and in the self. Once you know what composes of an ethics and how it manifests itself, it is possible to detach oneself from it. When you have this kind of distance, you can think intentionally rather than reflexively and develop creative thoughts. However, for your creativity to matter, you must continue to act within this ethics – couching your ideas in terms that people are willing to listen to and maybe accept. Both absence and presence are critical to thinking creatively and existing within law school’s ethics.

Step 1: Understand the Ethics

Law school transforms students into lawyers by habituating a new set of ethics into them, and the first step to being creative is understanding this process.

Law school begins with wiping your slate clean through repetitive, consuming, and individualistic work. None of your past accomplishments or individual values will help you get in "A" in a first-year course; in fact, professors will admonish you for relying on “outside information.” If you pause to question the “logic” and “policy,” you will inevitably fall behind in the curriculum.

Anxiety also plays a considerable role in law school habituation. Competition for grades and cold calling contributes to student’s stress, which is compounded by receiving little substantive feedback on their progress. The constant hum of self-doubt makes quiet self-reflection impossible.

The purpose of this immersive and aversive experience is to re-train people to be lawyers. This habituation is very effective in instilling a new ethic into law students, but students often lose the self they came into law school with.

A student who wishes to be creative must be aware of the modes effectuating their metamorphoses. While it is necessary to transform in order to learn law talk, the best law students understand how they are changing in order to retain their unique, individual value.

Step 2: Separate the Self from Law School Ethics

Once a law student understands the nature of the transformation occurring, they can see how it is affecting their choices and personality. Knowing how to separate yourself from law school allows you to think intentionally. When thoughts are no longer reflexive repetitions of thoughts written in textbooks or expressed by a professor, they can be creative, stimulated by personal experiences and beliefs.

Through thinking about the ethics of law school, I have identified ways law school is changing me. Before law school, my individual interests and strengths gave me a lot of confidence. I felt like a multifaceted person who always had something unique to offer. Because I have few ways to express my individual strengths in law school, I now feel like my grades determine my value. I believe that I have to prove my intelligence and mastery of Torts to my classmates and professor - all while doubting myself.

To overcome this, I must identify what force is compelling me to make the choices that I do. Is it because I believe it will interest me/make me happy? Or, is it because I feel like I need to do it to prove to the world that I am lawyerly? The two have been so intertwined that I struggle to express what I truly enjoy doing and what would make me happy.

The best way to do this is to practice the kinds of things that interest me, but that I stopped doing when I came to law school. I studied Art History in college and have always found inspiration in art, for example, but haven’t been to a museum since I began law school. I believe bringing this kind of stimuli back into my life will make me a more creative, and happier, law student.

Step 3: Presence and Absence

To be successful in law school, however, you can’t altogether remove yourself from the ethics. Transforming into a lawyer requires embracing a new ethics through habituation. After all, the reason we are here is to learn law talk and build the skills we need for a practice. Even if you are the most creative student, law school will only value you if you manifest it in particular ways. Students who want to be creative while becoming lawyers, therefore, need to understand their transformation and retain their individuality – they must be both present and absent in law school.

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