Ruling Imagination: Law and Creativity

Collaborative Writing and Creativity

Legal writing is collaborative and built on appropriations from earlier legal writing. Does that mean it is not original? Take for example a judicial opinion written by a high appellate court. The judicial opinion is not the original work of the wise and creative judge pronouncing from on high. Rather, the opinion itself is a piece cobbled together from a number of other sources that include the lawyers’ written and spoken legal arguments to the court, the opinions rendered by the lower courts (which themselves appropriated the legal arguments made by lawyers to them), secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community. Nevertheless, conventional legal thinking has since at least the 19th Century propounded the notion of the judge as quintessentially Romantic author-creator.

Increasingly it is being recognized that all writing is to some degree collaborative

In short, legal writing is quintessentially collaborative and full of unattributed appropriations of texts, ideas, and forms. My work in this blog will be in part, I think, two-fold: (1) to convince you that such writing is, despite its mongrel nature, fully original, and (2) to convince you that what you consider the most original writing is, in fact, far more collaborative and appropriative than you have previously considered.

In short, I hope to examine what creativity really is and to convince you it is not typically, if ever, the inspired product of an isolated genius.