Look for new combinations of old things

Lists of instructions for boosting creativity often suggest combining things you have not thought might be related. Obviously, this advice has application in art. It also, just as obviously, has application in law. As Shaun Tan, an accomplished Australian author and illustrator puts it:

Paul Klee once described an artist as being like a tree, drawing the minerals of experience from its roots – things known, observed, read, intuited and felt – and slowly processing them into new leaves. Similarly, the science writer Stephen Jay Gould notes that the greatest discoveries are to be found not in a freshly hewn cliff of shale, but in old museum collections, by rethinking the relationships between the objects that have already know about.

Four weeks into my Contracts class with a group of new law students, they still goggle when I point out that the “rules” they learned the first week can be used to explain the results the fourth week. The students think the fourth week’s materials have to be explained by the fourth week’s “rules.” They can be, but in law any good explanation for a given result is an acceptable one. The more good explanations you have, the more likely you are to the court you should win.

In Neil Duxbury‘s “Truth and Rhetoric,”(pdf) Ratio Juris. Vol. 12 No. 1 March 1999 (116–121), the author quotes from Dennis Patterson‘s book Law and Truth:

In choosing between different interpretations, we favor those that clash least with everything else we take to be true. In law, as in all matters, “[w]e convince someone of something by appealing to beliefs he already holds and by combining these to induce further beliefs in him, step by step, until the belief we wanted finally to inculcate in him is inculcated.” In law, we choose the proposition that best hangs together with everything else we take to be true. (Law and Truth, 172, citation omitted)

Of course, the ability to combine ideas in new ways requires having as large a storehouse of ideas as possible.