Creativity and the Law

Creativity and the Law - Creativity and the Law

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Creativity and the Law http://www.law.indiana.edu/publications/particulars/2001winter/deansm. .. 1 of 8 4/29/2008 3:51 PM Bill of Particulars Cover Page Dean's Message Lawyer Satisfaction Baude on Public Interest Herman B Wells Indiana Law Journal at 75 More Journal Opportunities Edwin Greenebaum Retires Around the School Pratter/Nolan Chairs Created Faculty News Student Profile Law Alumni Fellows Named First ICLEO Graduate Alumnus in Albania Eschbach Retires Milliken Retires Class Notes Mark Walker Remembered Creativity and the law This article is adapted from Dean Aman's address to the entering Class of 2000. Creativity in the law usually involves change and transformation of the ways in which we understand old problems or react to new issues. It can also involve resistance to change, as creative arguments are developed to maintain the status quo, albeit often understanding it in a new way. Legal creativity begins in the mind of an individual lawyer, but what makes it creative for our purposes is that it is persuasive to others — judges, law makers, lawyers, and the public in general. In other words, the way I am using the word "creativity" involves the legal culture. It is a socio-legal, cultural way of seeing the law and making proposals that uses certain precedents, statutes, rules, and methodologies to make arguments. As I shall argue later, the creative lawyer must be extremely well-versed in the areas of the law she or he wishes to change or defend. Legal creativity requires working with materials with which everyone in the field is familiar and, in effect, putting them together in creative ways that are persuasive to others. There are many opportunities for lawyers to be creative and many ways they can do this. I wish to highlight three: doctrinal creativity, interpretive creativity, and structural creativity. Doctrinal creativity: Case law As the late Edward Levi argued in his classic book, An Introduction to Legal Reasoning , "The basic pattern of legal reasoning is by example. It is reasoning from case to case. It is a three-step process. The steps are these: Similarity is seen between cases; next, the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case." This approach to law — reasoning by example — means that the rules change from case to case and can, in fact, be remade with each case. As Levi notes: "This change in the rules is the indispensable, dynamic quality of law. It occurs because the scope of a rule of law and, therefore its meaning, depends upon a
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Creativity and the Law http://www.law.indiana.edu/publications/particulars/2001winter/deansm. .. 2 of 8 4/29/2008 3:51 PM determination of what facts will be considered similar to those present when the rule was first announced. The finding of similarity or difference is the key step in the legal process." But how do we know what is similar? How do we know what is different? Questions like these are particularly
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This note was uploaded on 01/16/2009 for the course HONR Hon taught by Professor Unknown during the Fall '09 term at Pacific.

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Creativity and the Law - Creativity and the Law

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