Law in Contemporary Society
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A Short Guide to Creativity

-- By JonathanBrice - 20 May 2012

“Creativity is the phenomenon whereby a person creates something new (a product, solution, artwork, literary work, joke, etc.) that has some kind of value.” Wikipedia


The Roman philosopher Lucius Seneca once wrote, “Luck is what happens when preparation meets opportunity.” In reality, nearly every goal is something that happens when preparation meets opportunity. Whether it’s obtaining a law degree, getting a particular job, or doing well in a particular class, you have to prepare at least to some extent, and you have to be given the opportunity to achieve that particular goal. In that same vein, creativity also requires preparation and opportunity, but mixed in with a little bit of bravery. This required bit of bravery is what often makes creativity hard to achieve.


Just like no one is ever born knowing a particular subject, no one is ever born creative; creativity takes work. Work involves preparation. In a sense, creative is being able to go to your mental toolshed, and use the creativity tools at your disposal to solve an old problem in a new way, or to solve a new problem. Therefore, someone who is extremely creative in one specific area of a particular field, could be ordinary in another distinct area of that same field. For example, if you take the most creative RICO attorney, present them with a Felony-Murder issue that requires a creative solution, and provide them with a Felony-Murder rule refresher course, it is very unlikely that they will be able to solve the Felony-Murder issue with the same creative genius that they employ in solving a RICO issue. Quite simply, it is very likely that their RICO tools probably won’t work as well on Felony-Murder issue. That being the case, in order to be as creative as you can possible be, you need to add as many tools as you can to your toolshed.

So how can we add tools to our toolshed? There are at least two ways, (1) Diversify and (2) Read.

(1) Diversify

You have to diversify yourself by exposing yourself to diverse groups of individuals who practice in that particular field. By opening up yourself to a diverse group of individuals, who have life experiences different from your own, you’ll be able to add to your creativity toolshed by learning different ways to approach an issue. Nearly everyone thinks differently, and the more different people are in terms of background, the more divergent their approaches to particular issues will be. By interacting with people that think in a different way than you, and approach problems in a different way than you, you will be able to see and learn different ways to think...ways that you could have never thought of independently. In all, the more tools (views) you accumulate, the more perspectives you’ll learn, and the better your creativity arsenal will be. Thus, in the future, when you get an issue form that particular field, or even another, you can go back to your toolshed and use, tweak or combine the tools that you’ve accumulated from other people, enhancing your ability to create something be creative.

(2) Read

A second way to improve your toolshed is by reading everything, even thing that have since been abandoned or even disproved. Most importantly, in reading, read for understanding and not particularly knowledge. If something is already known, regurgitating it is as a solution is not being creative, its just having a good memory.

The value in reading and understanding abandoned and disproved views is that it will enhance your overall understanding of the particular area. Most things that have been disproved or abandoned are rarely completely useless, there is usually a part that can still be used in the future. Regardless, understanding why something failed will still help you in creating something new, at least serving as a benchmark of what not to do.

Just like the most creative athletes often have the most varied arsenal of moves, even the ones that have fallen out of favor, the most creative thinkers must also have the most varied knowledge base to draw from. Akin to interacting with a diverse group of individuals, this will help you find more ways to skin a cat.


No matter how well you know a particular subject area, if you are never given a chance to be creative, you will never be able to be creative. Nevertheless, when the opportunity does arise, you have to be able to recognize it. While situations vary far too much for one to conclusively say how to recognize an opportunity, one can at least say that in order to recognize an opportunity, one has to be looking for one. Therefore, look for opportunities to be creative. While some opportunities to be creative (law school exams) will smack you in the face, most won't.


Apart from preparation and opportunity, one also has to be brave enough to take the opportunity when it comes. Given that most people are risk averse, this is byfar the hardest part for most. Often times, an opportunity to be creative involves great risk, and most are not willing to take the risk. One example of bravery is Mark Zuckerburg and facebook. Facebook wasn’t thought of spontaneously by Mark. First, Mark prepared by knowing the material cold, and then, when the opportunity came in the form of the Winkle twins, he was brave enough to seize it and run with it. In that situation, he could have easily just done his job, gotten paid, and not taken the risk that the very well connected Winkle twins would destroy him...but he didn't, he seized the opportunity to be creative, and he created facebook.


As I think back over 1L year, I realize that every foundational class was attempting (whether on purpose or accidentally) to teach us to be creative in a particular area of the law (Eben’s class was simply adding to our creativity toolsheds more generally). First, they tried to prepare us by placing us in a room with a diverse group of individuals, giving us a plethora of material to read and discuss. They even attempted to use the socratic method to force us to voice our difference views. Secondly, they provided us with an opportunity in the form of an exam. Thus, we simply had to be brave in order to be creative, fighting the incessant desire to just rehash the rules from book….we had to be brave enough to gun for the A+…to make them know that X wrote an exam.

Eben, I would like to continue working with you on both this and the first paper.

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r5 - 22 Jan 2013 - 20:09:58 - IanSullivan
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