What is creativity in law?

In “Creativity and Law: Can they Live Together?” (pdf), Margaret A. Boden, a cognitive scientist in Great Britain, identifies three main ways in which creativity informs the law:

(1) Combinational Creativity: putting familiar ideas together in unfamiliar ways.

(2) Exploratory Creativity: exploring, navigating, and testing the potential and boundaries of some pre-existing way of thinking.

(3 Transformational Creativity: changing one or more dimensions of the current conceptual space so that things can now be thought which were impossible to think before.

In the coming days, I hope to explore each of these categories, both in terms of Boden’s discussion and of my own experience as a practitioner and professor.  For now, I have two points to make: plainly, in answer to the question posed by the title of Boden’s article, both she and I feel creativity and law not only can live together but are inextricably intertwined.  Anyone who thinks that applying law to real life is merely a matter of finding the right law to apply to the right situation has no appreciation for the infinite complexity of life, the ways that — while history repeats itself — history never repeats itself in precisely the same ways, and the ways that everyone brings their own perspective to events.  We never, as I have previously written here, have “God’s video tape” of events.  We only have the fragmentary pieces of individual testimony, documentary and physical evidence, and the intelligence we can bring to bear on putting those fragments together in a coherent and persuasive way.

Which brings me to the last point I have for today.  Boden describes creativity as the “ability to generate ideas that are new, surprising, and valuable.”  I have no particular reason to question that definition.  But she goes on to explain:that in law, “valuable” can mean a whole host of different things.  I’d like to suggest one simple definition of what is valuable in law: is the product persuasive?  If so, it will make its impact on the outcome of cases, the outcome of negotiations, the outcome of counseling, the outcome of judicial decisions.  If the legal product is not convincing, no matter how elegant, daring, or radical it might be, it has little legal value.