Creative legal studies

Law is a fascinating field to study because it’s all about the day to day problems people face, and how those problems are resolved within the legal system. Legal systems are essentially about dispute resolution, and studying the weird and wacky range of disputes that come before the courts is always intriguing. What are these people fighting about? Why? What’s at stake? What outcome do they hope to achieve? What would a good solution to this problem look like? How much is all this going to cost, and who’s going to pay?

In the adversarial common law system there are winners and losers, but there is no ‘right’ or ‘wrong’. After all, the ‘wrong’ side often ends up winning the case, for any number of reasons. This means that often, lawyers don’t really care whether their client is ‘right’ or ‘innocent’ or whatnot; the more relevant question is whether they are likely to secure the outcome they seek, i.e. whether they are likely to see the dispute resolved in the way that they would prefer and whether, when all the costs are accounted for (not just money but also time, effort, and emotion), the case will have been worth fighting.

Legal knowledge was long the sole requisite for a legal career; now it is a baseline. “Thinking like a lawyer” today means focusing on client objectives, thinking holistically-not simply "like a lawyer," understanding business, melding legal knowledge with process/project management skills, and having a working knowledge of how technology and data impact the delivery of legal services. 

Legal performance is shifting from input--hours and origination-- to output-- outcomes and results that drive client value. Lawyers must be attuned to the complexity and speed of business. They must render counsel that considers not only legal risk but also other factors such as brand reputation, regulatory, financial, etc. They must provide multi-dimensional, holistic, timely, and actionable advice. This is what the marketplace construes as “thinking like a lawyer.”

M.A. Cohen, What are law schools training students for?

Here’s where the idea of creativity comes in. A creative solution is one which seeks and finds new and imaginative ways to solve a problem, so that the client ends up with the outcome they wish to achieve, or, even better, an outcome that exceeds their expectations as they may not have thought it to be within the realm of the possible. Failing that, then the creative solution would reflect the best outcome that they could realistically achieve in the circumstances (hopefully without going bankrupt in the process). 
 
This type of creative problem-solving is not as easy to capture in the classroom context as you might think. After all, real world problems do not present themselves in exactly the same way as they appear in the textbooks or previously reported cases – in reality the solution to each dispute will always have to be ‘new’ in the sense that it will have to be ‘created’ on demand when the situation arises. The solution must be tailored to the specific context, including all the idiosyncratic preferences of the client. The question then is, can such ‘creativity’ in resolving disputes be taught effectively to undergraduate students in the law school curriculum?
 
Most good universities now prioritize ‘active learning’ as a way of encouraging creativity and innovation in the learning process. In their study of ‘creativity as a desirable graduate attribute’ Rampersad and Patel write about the challenges of embedding ‘creativity’ and ‘innovation’ within the curriculum. What approaches would be effective in teaching or encouraging creative thinking and innovative problem solving, to help graduates to resolve real problems in the world of work? How can creativity be taught by academically-minded scholars who alas often have their heads in the clouds? How can creativity be learned by consumer-oriented students within the stylized university setting, when their main goal is to realize an ROI that reflects that hefty student loan that will have to be repaid?
 
One preferred method in many universities is ‘experiential learning’ which means incorporating work experience into the learning process through partnerships between universities and employers. Students are encouraged to undertake work placements and reflect on what they are learning at work. Just like they did in high school, except this time within the professional context in which they hope shortly to find work. This focus on reflection and self-monitoring is in turn seen as a key component of ‘employability’.

​An ‘employable’ graduate is one who expects constantly to learn new things at work, who does not panic when he faces a problem to which nobody has ‘taught’ him the ‘right’ answer, who is able to evaluate his own learning and growth independently while identifying areas in need of improvement, and who is constantly figuring out how best to make progress in meeting his self-identified goals. This is surprisingly difficult to achieve in the classroom context, where learning a bunch of stuff for the exam tends to be regarded as the main goal.
 
The prevailing model of partnership or collaboration between universities and employers envisages a concept of creativity that is derived from a process of practical learning. The ethos is that creativity can be taught and learned by anyone through on-the-job experience, rather than being viewed as an innate quality that certain students naturally have because they were lucky enough to be born in a creative home or attend a creative school. 

Unlike traditional conceptualizations of creativity as an artistic trait that gifted individuals are born with, data confirmed the trend towards a process that could be taught and learned. 
 
G. Rampersad and F. Patel, ‘Creativity as a desirable graduate attribute: implications for curriculum design and employability’ p.6
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​For example, creative problem-solving is learned by tackling a series of problems and working out different and better solutions. Thus exposure to as many real-world problems as possible becomes critical. Yet tackling complex problems, with no clear sense of the 'right' answer, can feel very uncomfortable, and when students are paying a gazillion dollars to be taught the material they need to get the job qualification they came for, they're not really looking for an uncomfortable experience. So, the pressure is immense to smoothen the learning experience by presenting neat and tidy over-simplified soundbites that are easy to 'learn' and repeat in exam conditions, but will be laughably useless in the real world. The cosier and fuzzier the learning experience (aw, diddums), the happier the students are, but the less likely that what they learned will bear any resemblance to the harsh realities of real markets in the world of work.

Learning is supposed to be uncomfortable: We are, in the university, supposedly fixing our ignorance, strengthening our moral fiber, and exchanging falsehood for truth...

It’s like going to the gym: It’s uncomfortable and unpleasant, and you will be sore afterward. But you are tearing down in order to build up.

​Art Carden, Are Universities Ruining Students?
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This is precisely why many rich and famous ‘creatives’ either do not bother with university at all, or quit after a few weeks when they realize that life is finite so instead of whiling away their most formative years, sitting in a safe-space classroom engaging in plastic conversations that have nothing to do with reality, racking up the debt, they would be better off going out there and getting stuck into the job for real (with the added bonus of earning, not just spending, money).

"I couldn’t take the risk of not being employed after graduation. In my field [graphic design], the employers regard college as evidence that you are willing to waste lots of time and money doing not much of anything productive. I decided to gain the competitive advantage and jump into the workforce at the age of 20, get experience, and start climbing the ladder."

quoted in J.A. Tucker, Is there a viable alternative to college?

​Alas this option is not feasible for many of the regulated professions, such as law, where a university degree is necessary as part of the qualification process. There is no option to hire an unqualified person to give you legal advice or legal representation - not even if you just know that your mum or your mate down the pub has much better dispute-resolution skills than your expensive lawyer. Important professions like law and medicine (also hairdressing and childminding) are regulated 'to protect the public', to save you from the nefarious schemes of unlicensed hoodlums, charlatans and quacks.

Until the day when we lose our obsession with ‘regulating’ the performance of work, the focus must remain on finding effective ways to embed creativity within the curriculum – not only through dedicated courses such as moots or legal advice clinics explicitly designed to give law students hands-on experience, but also within the core modules designed to teach the basic principles of the legal system.