There are instances in which there are clear rules that are easy to apply. But if that were the whole of the law, we wouldn’t need lawyers, and law students certainly wouldn’t have to pay $45,000 a year for three years to earn a law degree.

Instead, convincing someone that your view of the law is the correct one requires not only finding and applying the correct rule but also in convincing whomever you are trying to convince that the rule and your interpretation of it make sense, are just, are convincing at a gut level. If you can’t do that, you’ll never become a good lawyer.

An inability to get over the stumbling block posed by the desire for a legal system consisting of clear rules that answer every conceivable question, of course, is not confined to some law students. As Jon Krakauer explains in Under the Banner of Heaven, “literalism” — the conviction that there are rules set forth in hallowed texts (which need not be religious, as strains of constitutional “originalism” demonstrate) that answer all the important questions one encounters makes people resistant to the idea that answering the tough questions requires a considerable amount of creativity, acknowledgement of ambiguity, and sensitivity to situational specifics:

For people . . . who view existence through the narrow lens of literalism, the language in certain select documents is assumed to possess extraordinary power. Such language is to be taken assiduously at face value, according to a single incontrovertible interpretation that makes no allowance for nuance, ambiguity, or situational contingencies. As Vincent Crapanzano observes in his book Serving the Word, [this] brand of literalism encourages a closed, usually (though not necessarily) politically conservative view of the world: one with a stop-time notion of history and a we-and-they approach to people, in which we are possessed of truth, virtue, and goodness and they of falsehood, depravity, and evil. It looks askance at figurative language, which, so long as its symbols and metaphors are vital, can open—promiscuously in the eyes of the strict literalist—the world and its imaginative possibilities.

Perhaps this is why literalism rarely carries long-term appeal in a functioning democracy. The majority cannot be convinced for very long without the use of force that there is good reason for elevating the particular hallowed text (much less the literalists particular reading of that text) above all other “reasons.”

I’m reminded of these things by the TED talk embedded below, in which Simon Sinek explains that success in realms as diverse as commerce, invention, and social change depend on making the why of what you do your principle focus.

Thus, in the commercial world, for example, people don’t buy what you do; they buy why you do it. Nevertheless, companies and people typically sell their product or services by explaining what they do and how they do it. They don’t typically even know why they do what they do, and they certainly don’t explain it well.

But the most successful people sell first and foremost why they do what they do. Apple, for example, explains they do what they do to challenge authority. They explain what they do as designing beautiful products that are easy to use. What do they do? They happen to sell computers. That message convinces buyers in ways the typical computer seller’s approach — (1) we sell computers, (2) we make them user friendly — does not.

Simek explains the phenomenon in market terms: the only way to get the majority of consumers to buy a new product or service is to first convince innovators and early adopters, and those people are only persuaded by the conviction they share the seller’s convictions.

But his message about the market is one applicable in all contexts in which one is trying to convince an audience:

People buy what they buy to confirm what they believe about the world.

As I’ve previously written, research “is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in ‘careful consideration, observation, or study’:

Research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can you know what matters without knowing what purpose you are putting it to? And how can you decide what purpose you are trying to accomplish if you don’t know what elements you’ll have to use?

My belief that there is a decreasing recognition of the complexity and creativity of research is only compounded by the following talk by Eli Pariser, who explains in graphic detail the ways online search engines are constraining our abilities to use them effectively by filtering the results pursuant to algorithms that seek to give us what the designers believe we are looking for. If they know — algorithmically — what we are looking for before we even see the results of our initial searches, what hope do we have beyond even redoubled persistence and imagination of finding anything new?

In fact, the first major “breakthrough” moment in any good legal education is that one when the student realizes law is not what she thought it is — the learning of rules that she then applies to facts — but is instead that legal reasoning involves the enormously creative and imaginative ability to relate legal rules, earlier applications of those rules, and the myriad of other considerations that go into our conceptions of justice. As importantly, legal practice is also a matter of being able to communicate that complex reasoning, and the ability to communicate it well is inextricably intertwined with the ability to imagine it in the first place. Creativity and imagination, of course, are required to find the law as well.

These are not controversial views. They are central, however, to my fascination with the interplay between law and art.

One enormous component of genuinely creative work is audacity, which, in an article entitled Audacity in Contemporary Art, Diogenes March 1969 vol. 17 no. 65 1-19, Eduardo Gonzalez Lanuza defines very aptly in this way:

Audacity is “an attitude which consists of ignoring what is expected of you and daring to do what no one else dares to do.”

And yet most everyone believes law is authority that determines what is expected of you and requires you do what everyone else does.

So it is with enormous pleasure that I note that Corporate Counsel magazine has awarded Google its “Best Legal Department” award because of, as the magazine’s editor explained, the group’s audacity:

Past years’ winners were often defined by sedate virtues like superior systems and organization, but this year I’d have to say the key quality was audacity.

I’ve long been a fan of Google (though not an unqualified one), and there’s no doubt that its daring has been no small part of my admiration. I can think of few things I would want more as a lawyer than to represent Google in connection with the Google Library Project. So here’s to Google, and if anyone there in the legal department is reading this, I’d love to become your colleague.

Addendum: Speaking of Google’s audacity, not more than a few minutes after posting the above, I came across this, via Plagiarism Today:

Google has signaled that the company is prepared to oppose the major film and music companies as well as Congress and the president of the United States on a controversial bill designed to thwart online piracy.

Google Chairman Eric Schmidt said today in London that the company is prepared to go on fighting the bill should it become law, according to published reports. U.K. publication the Guardian is reporting that in a discussion with reporters during a London business conference, Schmidt said: “If there is a law that requires DNS [domain name systems, the protocol that allows users to connect to Web sites], to do x, and it’s passed by both houses of Congress and signed by the president of the United States, and we disagree with it, then we would still fight it…If it’s a request, the answer is we wouldn’t do it; if it’s a discussion, we wouldn’t do it.”

In the article Krugman refers to, the authors set forth a chart dividing different tasks into “analytic and interactive tasks” and “manual tasks.” They also then divide each of those categories into those that are “routine” and “nonroutine.” I was relieved, but not surprised, to find that legal writing is an analytic and interactive task that is nonroutine: