Law in Contemporary Society

Why it's hard for me to be creative

-- By KhurramDara - 24 Apr 2012

One of the overarching themes of our course is creativity. In some contexts, being creative helps us solve problems; in others it helps us achieve specific objectives. But, for us, it's hard to be creative. Forget about making an impact on the world around us, it’s difficult for us to be creative enough to put a paper together. Most of us dread the thought of an assigned paper with no topic. Our reflection post in Constitutional Law asking us whether originalism is should or should not be used in judicial interpretation gives us no anxiety. That’s because the answers are in the book. There are arguments for it and against it. And we choose some of these arguments, rephrase them, put “Khurram Dara Reflection Post #2” at the top, and call it a day. The extent of our creativity is how we get it done--will it be in the 45 minutes before we go out on Thursday night? Or do we do the unthinkable and wake up early Friday morning to hastily spit it out before the 10:40 am deadline? We prefer to not have to be creative. Consider an exam, for example, with no question. An exam with instructions giving us three and half hours to write an essay on anything we’d like. As a 1L, there are few things that frighten me more.

I remember Eben talking about law journals, saying that we probably wouldn’t care much for the work, but that we want the “fruit salad.” I think the “fruit salad” might be part of the reason we can’t, or rather, have a hard time being creative. It's a fixation with credentials. Everyone seems to be obsessed with “fruit salad,” at least with respect to education. When you’re a child, for some, it’s about which primary or secondary school you attend. The prestige is important. Once you’re in school, regardless of whether you’re in a private or a public school, “fruit salad” is very important. You want to be involved in a certain number of “extracurricular” activities, for purposes of "building" your resume. You want to have an impressive internship. You want to take the most “Advanced Placement” courses, and make the honor roll. It’s all about getting into the best college. So you’ll take a class or get a tutor to help you score however high it is you need to score on the SAT. You’ll read about what colleges look for, but everyone knows it’s about the numbers and the “fruit salad.” How many National Merit Scholarship recipients can the college say they admitted? How many valedictorians and salutatorians are in the freshman class? How many of the newly admitted students scored in the top 90th percentile on the SAT? In our case, as students with aspirations of attending professional school, it was the same thing all over again. We needed to get a certain LSAT score and have a certain GPA, and maybe, if our “fruit salad” was made from the freshest of fruits, it could help us out. It’s so the Columbia Law class profile can indicate how high our median LSAT score is, and so Dean Schizer can talk about how many Fulbright Scholars were in the entering class at his next fundraiser. And then we apply for jobs at big law firms. Who want to boast the number of federal clerks they hired, or how many former Harvard Law Review editors they employ.

It’s not that this process is entirely without any utility. It’s just that it requires little, if any creativity. This structure does do one thing very well--it makes us all really good, I mean really good, at following directions. Which means for most of our professional lives, our work will only be as good as the directions that precede it. Of course, it is necessary to ask whether such a system will still exist. That is to say, what happens if simply acquiring the fruit salad doesn't guarantee you any sort of employment? Then if not for the sake of creativity, then perhaps for the sake of our own careers, we ought to move away from this fixation on credentials.

Also, it is not the case that our educational institutions have nothing to offer. Attending a top-rate institution is helpful, if for nothing else, because it allows us to meet and interact with motivated, intelligent, and bright peers. But the competitive, individual-oriented approach of academic institutions, like law school for example, eliminate many of the benefits that could be derived from working with our classmates. So, in many cases, students are not only left without the ability to be creative, but also unable to engage in basic collaborative learning. Our deficiencies in collaborative learning are even more apparent with the discomfort many of us have in, say, editing one another's writing. There's a sense that we lack the authority, a fear of overstepping boundaries, and an often defensive reaction to having someone else change your work.

With large scale overhaul of how our educational system works unlikely, for our purposes, the most useful short-term fix to this problem would be to make an effort to involve ourselves in experiential learning opportunities, likely outside formal educational settings.

So, now that you've been through the process so many times, and floated to the top each time, what have you got left to prove? In the military, fruit salad puts an officer's entire service history on her uniform. Within a totalizing organization, where promotion is the only form of career path possible, until it stops, that's the whole story told precisely and completely.

But—here's where the creativity thing begins—human society is not necessarily like the military. Your pathway isn't linear like that any more. Only those who cannot tolerate the complexity of making their own decisions must remain within the boundary of directions. All others have a choice. The form the choice takes is called "creativity." The most basic form creativity takes is the creation of one's own life. This happens by conscious transcendence of the patterns imposed by our insecurities, our shames, and the unintended consequences of our past successful efforts to mend our psychic wounds.

The ability to do creative lawyering—to make things happen in society, using words, that haven't happened before—includes, necessarily, the ability to perform that task for oneself, by making a career happen in society, using words, that is not other-directed. The crucial learning necessary is learning not to be afraid of creating your own practice. It is not an exam. It is your practice. You do write your own questions, by developing your various expertises, and by choosing your clients. Your mistakes are scored against you, and you try not to make any serious ones.

At the beginning, you need mentoring, which must come from the other asset of your practice besides the license, which is your network. Your network has to contain the necessary mentoring, delivered usefully, to enable you to grow your practice at the beginning. You should be expecting the law school, in return for the large amount of borrowed money you are paying it, to help you build the network and get the mentoring. (The best possible mentors would be powerful, experienced, effective and respected leaders of the profession, who might be expected to be the faculty. If not, at least the faculty should be actively introducing you to them. What they ought _ not_ to be doing is hiding in their offices, demanding a "specific question" at office hours, giving true/false final exams, writing recommendation letters that reveal an absence of personal knowledge of and contact with the student, etc.)

But you also need the inner freedom to create. That's made of several important parts. You need to have been taught to put away the fear of failure. You need to learn alertness to social phenomena that could lead to expertise for you that would attract clients. You must be able to communicate and collaborate effectively in 21st-century social conditions, using the new modes of social process that have grown up in the brief life so far of the Net. You must understand the fundamentals of independent professional life in the "Internet society." You need teachers who can help you learn these things.

The alternative you propose, that everyone will be part of hierarchical organizations issuing orders for other-directed careers, will not be available in your lifetime. That it has been available is no guarantee of its continuance. You should not educate yourself to play a role in that world, because you will find yourself unsuited to the one in which you are actually going to live.


I added an additional paragraph accounting for the possibility that the hierarchical organizations that we could function in, albeit in limited, order-taking, direction following form, may not exist in our future, to stress the importance of placing less of an emphasis on the fruit salad.


Webs Webs

r12 - 22 Jan 2013 - 20:10:01 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM