Novelty alone is not creativity, whether in the legal strategy for the war on terror or the invention of the Segway

One measure of creativity must be its effectiveness rather than its mere novelty. On that score, as Jane Mayer noted back in the July 3, 2006 issue of the New Yorker, the Bush Administration’s legal strategy for the war on terror might have been radical, even unprecedented, but can hardly be called creative:

[T]he Administration’s legal strategy for the war on terror[,] [k]nown as the New Paradigm, . . . rests on a reading of the Constitution that few legal scholars share—namely, that the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it. Under this framework, statutes prohibiting torture, secret detention, and warrantless surveillance have been set aside.

. . . The overarching intent of the New Paradigm, which was put in place after the attacks of September 11th, was to allow the Pentagon to bring terrorists to justice as swiftly as possible. Criminal courts and military courts, with their exacting standards of evidence and emphasis on protecting defendants’ rights, were deemed too cumbersome. (emphasis added)

Over two years since Mayer’s article, nearly seven years since September 11, 2001, what have we got? As the Christian Science Monitor puts it:

One conviction, of Salim Ahmed Hamdan, the personal driver of Al Qaeda leader Osama bin Laden. After a two-week-long trial and three days of deliberations, the military court in Guantanamo Bay, Cuba, convicted Mr. Hamdan of providing material support for terrorism by driving Mr. bin Laden around Afghanistan. In spite of the conviction, legal debate regarding the trial rages on.

I’m not merely ranting about a war in Iraq I’ve opposed since its inception, or of the fraudulent legal analysis that produced this Administration’s conclusions regarding what constitutes torture. I’m pointing out that results count, and what is more telling than an utter and complete failure to meet the very purpose of a radical departure from existing norms? It doesn’t take a cognitive psychologist to recognize the differences between mere novelty and genuine creativity, but it’s plain Arthur J. Cropley does:

The cognitive approach to creativity emphasizes the processes involved in producing effective novelty, as well as the control mechanisms that regulate novelty production, and the structures that result. Merely novel structures display surprisingness and incongruity, to be sure, but they must also be meaningful and practicable to be effective.

Do you remember the Segway? (That’s Dick Cheney, of all people, riding one up there in the upper right of this post.) As Jeff Foust wrote two years ago in The Space Review, in 2001 (before 9/11, of course),

the question being pondered by millions was simple: “what is IT?” “IT” was the codename for the invention that had reportedly been developed by famed inventor Dean Kamen. Details about IT (also known as “Ginger”, its internal codename) were scant . . . .

What was known was that IT was some kind of transportation technology. The Inside report . . . said that the device had wowed over luminaries like venture capitalist John Doerr, who invested in the project while claiming it was as revolutionary as the Internet; Steve Jobs, the Apple co-founder who reportedly claimed that “cities would be architected” around the device; and Amazon.com founder Jeff Bezos, whose trademark laugh could be heard echoing through the halls of Kamen’s New Hampshire headquarters as he tried out the device during a June 2000 visit. The potential upside of this device was seemingly limitless, providing a sharp and hopeful contrast to the dot.com world, which was crashing to Earth at the same time. The speculation spawned a web site, theITquestion.com, where visitors traded the latest rumors on just what IT might be.

Kamen officially unveiled the Segway on the ABC TV show “Good Morning America” in December 2001. The response was… underwhelming, in many quarters. “I’m tempted to say, ‘That’s it?’” co-host Diane Sawyer blurted out when the sheet covering the Segway was pulled away. “But that can’t be it.”

But that was it. From a technological standpoint Segway was a revolutionary invention: a computer-controlled, self-balancing “human transporter” that was highly maneuverable yet easy and safe to use. However, to the public, whose expectations had bloomed in hothouse of hype fueled by the media and the Internet over the last year, the Segway seemed more like an odd-looking scooter than the device that was as revolutionary as the Internet and would force people to rearchitect cities. . . .

It’s little surprise, then, that Segways failed to sell at anywhere near the levels its backers hoped. When the company issued a recall notice in September 2003 to correct a software problem, it said only 6,000 devices had been manufactured to date. Kemper, in his book Reinventing the Wheel (the softcover version of the book about the development of the Segway that was originally published under the title Code Name Ginger), reported that as of summer 2004—the last date sales figures had been released—less than 10,000 Segways had been sold. (Segway’s media relations office failed to respond to a request last week for updated sales figures.) That’s a far cry from the pre-release belief, voiced by Doerr, that Segway would make its first billion dollars faster than any other company in history. No one seems to be in a hurry these days to redesign cities around the Segway; after all, when was the last time you saw a Segway rolling down the sidewalk?

Effective Storytelling, McDonald’s Coffee, and the Law

That effective stories arise from a relatively limited set of recurring patterns is no secret. The existence of these archetypes may be one more blow to the Romantic myth that creativity grows out of individual genius, but, as regular readers of this page will learn, I don’t believe creativity arises, divinely inspired, from individual geniuses.

But creative lawyers know the patterns of effective stories, as I was reminded again the other day when I read Alexander Star’s review of Charles Tilly’s Credit and Blame. Star writes:

Reflecting on tort cases, Tilly suggests that we possess something like an “all-purpose justice detector.” When something good or bad happens, we measure the magnitude of the change, identify an agent who helped bring it about and assess how the agent’s skills, knowledge and intentions figure in the result. How much blame does the Ford Motor Company deserve when an Explorer rolls over on the highway? The answer, Tilly writes, depends on how badly the driver or passenger was injured, whether Ford should have known the crash was likely to happen and whether it intended to build the car the way it did. Lawyers argue this way in civil suits, but couples apply similar rules of thumb when they argue over who left the car windows down.

I think it is very astute of Tilly to identify this pattern of blame in tort cases: (1) how badly was the plaintiff injured, (2) should the defendant have known the injury was likely to happen, and (3) did the defendant intend to create the likelihood of the injury.

An excellent example of this pattern at work is the infamous McDonald’s Coffee Case, the inspiration for the Stella Awards, which “were inspired by Stella Liebeck, who in 1992, aged 79, spilled a cup of McDonald’s coffee onto her lap, burning herself. A New Mexico jury awarded her $2.9 million dollars in damages.”

Just last week at physical therapy for rapidly improving sciatica (thanks to my outstanding physical therapists), I was teased again with the way the McDonald’s Coffee Case exemplifies the supposed idiocy of the personal injury system. The physical therapists know I’m a law professor. How can I blame them? Tilly’s pattern explains their reactions perfectly: they must think the following: (1) How bad could the injury have been? We’ve all spilled coffee on ourselves. (2) Even if the injuries were bad, how could McDonald’s have known? Again, we’ve all spilled coffee on ourselves, and who among us have suffered burns meriting $2.9 million in damages? (3) McDonald’s sells coffee! How could it possibly have intended to burn Ms. Liebeck, when all it intended was to caffeinate her?

But a jury awarded Ms. Liebeck $200,000 in compensatory damages; this amount was reduced by 20 percent (to $160,000) because the jury found her 20 percent at fault. The jury also awarded her $2.7 million in punitive damages — but the judge later reduced that amount to $480,000, or three times the “actual” damages that were awarded. And that amount was compromised in a confidential settlement that resolved the appeal.

Were the jurors, judges, and lawyers who resolved this case simply insane? Are all the people who refer to the case when decrying the U.S. justice system just so much smarter than those people?

Ah, there’s another way of looking at the story, the way lawyers, juries, and judges look at cases they actually decide: through the evidence, and the evidence (as with the other facts from Ms. Lubieck’s case in this posti, from the True Stella Awards site) , viewed through Tilly’s paradigm, tell a very different story:

(1) How badly was Ms. Lubieck injured?

She ” was burned badly (some sources say six percent of her skin was burned, other sources say 16 percent was) and needed two years of treatment and rehabilitation, including skin grafts. McDonald’s refused an offer to settle with her for $20,000 in medical costs.”

(2) Did McDonald’s know the injury was likely to happen?

From 1982 to 1992, McDonald’s coffee burned more than 700 people, usually slightly but sometimes seriously, resulting in some number of other claims and lawsuits.

(3) Did McDonald’s intend to create the likelihood of injury?

McDonald’s quality control managers specified that its coffee should be served at 180-190 degrees Fahrenheit. Liquids at that temperature can cause third-degree burns in 2-7 seconds. Such burns require skin grafting, debridement and whirlpool treatments to heal, and the resulting scarring is typically permanent.

Witnesses for McDonald’s admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s required temperature, admitted that it did not warn customers of this risk, could offer no explanation as to why it did not, and testified that it did not intend to turn down the heat even though it admitted that its coffee is “not fit for consumption” when sold because it is too hot.

I’m not arguing that Ms. Liebeck’s case constituted the epitome of justice. As William Gaddis wrote, “Justice? – you get justice in the next world, in this world, you have the law.” What I am saying is that we are human, and we respond to the evidence we are told in the way we are told it. Effective lawyers know these truths. All truly creative people do.

The 100 Most Creative Moments in U.S. Law?

From the Law Librarian Blog:

Robert F. Blomquist’s (Professor of Law/Swygert Research Fellow, Valparaiso) Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law [download from SSRN or ABA Journal] is a very interesting article as long as you do not take Blomquist’s act of ranking creative moments in American law too seriously. If you did take the ranking seriously you would have to note his bias for environmental law. You would have to question why Rachel Carson’s Silent Spring (1962) and Charles Reich’s The Greening of America (1972) ranks higher than Richard Posner’s Economic Analysis of Law (1973) and why Berle and Means’ The Modern Corporation and Private Property (1932) fails to appear in the ranking while Al Gore’s Earth in the Balance (1992) and An Inconvenient Truth (2006) do appear in the Top 100.

. . . what makes Blomquist’s article interesting is the project itself, the attempt to articulate America’s most creative legal moments to “energize and clarify our synoptic thinking about the nature of legal creativity.” In it he identifies, court decisions, executive actions, specific statutes, legislative programs, landmark articles, books, and events in legal education. He offers brief justifications for his selections and their placement in his ranking but I think the use of a numerical ranking system as an organizing device is too artificial and constrains his commentary; a matrix or web of law with major and minor nodes for the layering of law’s creative moments might be better way to perform this sort of intellectual archeology.

Creativity and Civilization Require Constraints

Creativity, paradoxically, requires constraint. As the poet George Szirtes put it in a piece in the February 2006 issue of Poetry, “I would contend that the constraints of form are spurs to the imagination: that they are in fact the chief producers of imagination.”

Szirtes, whose family fled Hungary as refugees in 1956, clearly is not concerned only with aesthetics. He makes clear that negotiating the tension between form and anarchy not only underlies the poetic “triumph of meaning and structure over chaos and meaninglessness,” but also “the triumph of civilized values over barbarity.”

Legal reasoning, if it is in fact reasoning, also requires respect for constraints. Though there is of course considerable debate about the proper nature of the constraints to be applied, there is little debate that without any constraints legal interpretation is nothing but the assertion of raw power. Thus, as the Stanford Encyclopedia of Philosophy’s article on “Interpretation and Coherence in Legal Reasoning” puts it,”[m]uch jurisprudential writing on interpretation in legal reasoning is concerned with how to strike the right balance between the conserving and creative elements in interpretation, and with the constraints which are and/or should be operative upon judges as they undertake this balancing act.

Thus, on the one hand, Owen Fiss argues that “judges are constrained both by the need to be faithful to the original legal text which they are interpreting, and by supplementary norms of interpretation which are constitutive of the judicial role.” Stanley Fish, on the other hand, would argue that the texts Fiss identifies as constraints upon interpretation cannnot serve that purpose because those texts themselves “do not have meanings in advance of particular interpretations of them.” Nevertheless, as the Stanford Encyclopedia article makes clear, Fish is not arguing for a radical, unconstrained indeterminacy in legal interpretation:

This seemingly radical indeterminacy is deceptive, however, for although Fish removes the constraints on interpretation provided by legal texts or supplementary norms of the judicial profession, he replaces them with the conditioning and training processes of ‘interpretive communities’, which ensure that, ‘…readers are already and always thinking within the norms, standards, criteria of evidence, purposes and goals of a shared enterprise’, such that, ‘the meanings available to them have been preselected by their professional training.’ (Fish 1989, 133).

In short, there must be some intellectually sound justification for a legal interpretation; else it ceases to be an interpretation and is reduced to mere edict.

Lying about the law removes all constraint, and there is no milder way to characterize the 2002 Department of Justice memorandum (the “Torture Memo”)(pdf), drafted by John Yoo and signed by Jay Bybee. The Torture Memo limited the definition of “torture” to treatment causing pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” (Torture Memo at 1) Thus, treatment that did not cause that high intensity of pain and suffering was, according to Yoo and Bybee, perfectly legal.

In drafting the memo, Yoo genuinely was constrained by existing law that prohibited subjecting prisoners to “severe pain.” But how did he come to define “severe pain” as “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”?

He did two things: he tried to derive a definition of “severe pain” from a federal statute that had nothing to do with the subject matter or the purposes of his analysis, and he lied about what that federal statute actually stated.

The statute from which he sought guidance governed benefits under the “Medicare + Choice” plan. (Torture Memo at 5-6) In other words, in trying to determine the proper treatment of prisoners under U.S. law, he looked to law that sought to ration payouts from an insurance fund in order to maintain the solvency and effectiveness of that fund. One would expect Congress to define the benefits it grants and the circumstances under which it grants them narrowly; U.S. taxpayers would demand it.

But Yoo did not merely seek a definition of “severe pain” from an absurdly inappropriate place. He made his definition up out of whole cloth. The statute does not define the term “severe pain.” Rather, it defines the circumstances that constitute an “emergency medical condition” requiring coverage under the Medicare + Plan:

The term “emergency medical condition” means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in-

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part.

Somehow a justice department lawyer who is now a tenured professor at Boalt Hall Law School at U.C. Berkeley, along with his boss, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit, thought they could get away with this utterly fictional definition of “severe pain.” And they did. Plainly, though, Yoo does not believe in constraints. In December 2005 he stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody – including by crushing that child’s testicles.”

Unconstrained, and thus without any scintilla of creative imagination, law is merely barbarity. I hate to start writing about creativity in law from this dark abyss, but it is going to take creativity and imagination to overcome the barbarity the Yoos and Bybees (and the long line of banal technocrats from whom they intellectually descend) have loosed upon the world.

Ruling Imagination: Law and Creativity

Art/Creativity or Craft/Skill?

I noted yesterday that whether any creative achievement can properly be described as the product of an individual is a question that arises naturally to a lawyer; law is fundamentally collaborative, and it is therefore easy for a lawyer to understand most or even all creative efforts as collective endeavors.

There’s another dichotomy concerning creativity that lawyers are also sensitive to: the dichotomy between “art” and mere “skill.”

Within the legal world, law professors who teach the most theoretical materials consider themselves “scholars.” They consider professors who teach actual lawyering skills (such as legal writing) and lawyers themselves as their intellectual inferiors. I imagine the attitude to be something like the way architects must view engineers.

The dichotomy has legal significance in the area of copyright. In order to be entitled to copyright protection, a work has to have some “creative” element. “[O]riginality is a constitutionally mandated prerequisite for copyright protection.”

Thus, achievements requiring enormous degrees of skill can be left without copyright protection. In a recent case, a court dismissed a copyright infringement lawsuit brought by Meshwerks against Toyota. Meshwerks had created digital models of Toyota cars for use in Toyota’s advertising. The digital models had substantial advantages over mere photographs because with just a few clicks of a computer mouse the advertiser could change the car’s color, its surroundings, its dimensions, and its styling. In the past, advertisers had to conduct new photo shoots of a manufacturer’s entire fleet of cars each time it made even a small design change.

Nonetheless, Meshwerks’ computer models were not entitled to copyright protection because they were mere models of the cars themselves. As the court stated (pdf): “Put another way, Meshwerks’ models depict nothing more than unadorned Toyota vehicles – the car as car. . . . works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world.”

I am of course familiar with the dichotomy between art and craft. Or is it “obvious that the strict demarcation between art and craft . . . exists only in the philosopher’s imagination”?

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.