Georgetown University Law Center

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2001

Aha? Is Creativity Possible in Legal Problem

Solving and Teachable in Legal Education?
Carrie Menkel-Meadow
Georgetown University Law Center, [email protected]

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6 Harv. Negot. L. Rev. 97-144 (2001)

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 GEORGETOWN LAW
Faculty Publications

January 2010

Aha? Is Creativity Possible in Legal Problem

Solving and Teachable in Legal Education?

6 Harv. Negot. L. Rev. 97-144 (2001)

Carrie Menkel-Meadow
Professor of Law
Georgetown University Law Center
[email protected]

This paper can be downloaded without charge from:

Scholarly Commons: http://scholarship.law.georgetown.edu/facpub/177/

Posted with permission of the author

 Aha? Is Creativity Possible in Legal
Problem Solving and Teachable
in Legal Education?
Carrie Menkel-Meadowt

Editor's Note: On April 7 & 8, 2000, the Harvard Negotiation

Law Review and the Program on Negotiation at Harvard Law
School hosted "The Lawyer as Problem Solver: Dispute Resolu-
tion and Deal Making." A series of panels addressed aspects of
problem solving as an approach to lawyering and in particular
the relationship between problem solving and negotiation. Prof.
Menkel-Meadow was the principal presenter at the "Problem
Solving and Legal Education" panel, where she presented an
earlier version of this paper. The Harvard Negotiation Law Re-
view wishes to thank Prof. Menkel-Meadow for her important
contribution to the success of the symposium, and for agreeing to
let us publish this thought-provoking article.

1. INTRODUCTION

A Problem-Solving, Negotiation and Creativity

In the recent re-introduction of his book Local Knowledge,l Clif-
ford Geertz remarked, "it is hard to decide which is the more difficult
task: starting a line of thought, or sustaining one."2 In many re-
spects, I, too, have felt this difficulty acutely. I began talking about
legal problem solving in the 1970s, while attempting to reframe the

t © 2000 Carrie Menkel-Meadow. Professor of Law, Georgetown University

Law Center; Chair, CPR Institute for Dispute Resolution-Georgetown Commission on
Ethics and Standards in ADR; VISiting Professor, Harvard Law School, 2001. Thanks
to my colleagues at Georgetown for indulging my questions and conversations about
legal creativity and problem solving and special thanks to Robert Meadow and Rich-
ard Diamond-two of the most creative problem solvers I know. Thanks also to Mere-
dith Weinberg, research assistant and editor extraordinaire. The ideas in this paper
have been presented to a variety of scholars and practitioners at Harvard, Stanford,
Georgetown, Osgoode Hall, CLE programs and in negotiation training programs in
several different countries. I appreciate the good will and reactions of those audi-
ences who demonstrated a wide range of creative reactions.
1. CLIFFORD GEERTL, LoCAL KNOWLEDGE: FuRTHER Ess.ws 1N INTERPRETIVE AN.
THROPOLOGY (3d ed. 2000).
2. Id. at ix.

97

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98 Harvard Negotiation Law Review [Vol. 6:97

way lawyers approached legal negotiations, suggesting that a differ-

ent mind-set, orientation or framework, which I called problem-solv-
ing, would produce both better outcomes and processes than the more
conventional, adversarial approach to legal negotiations. 3 I offered
the following definition:
[The] problem solving model seeks to demonstrate how negotia-
tors, on behalf of litigators or planners, can more effectively ac-
complish their goals by focusing on the parties' actual objectives
and creatively attempting to satisfY the needs of both parties,
rather than by focusing exclusively on the assumed objectives of
maximizing individual gain (emphasis added).4
This definition and the article in which it appeared suggested that
legal negotiation, as a form of social problem solving, could be taught
and learned. In addition to suggesting a structured way of analyzing
clients' and parties' needs, interests and objectives, the problem solv-
ing approach to negotiation argued that lawyers could be more crea-
tive (and less bound by precedent and traditional boilerplate) in the
solutions they sought for legal problems and transactions. In the last
twenty years we have come a long way in the teaching and practice of
negotiation in law schools, law offices and other legal institutions. At
the same time, we still have a long way to go in the conceptualization
and operationalizing of teaching all the elements of good legal prob-
lem solving and judgment, including the "creation" of solutions to le-
gal problems. Where do good, interesting, creative and workable
solutions to legal problems come from? Can law students, lawyers,
clients and other legal actors be taught to frame legal problems effec-
tively and to seek innovative and implementable solutions? Are solu-
tions to legal problems to be found exclusively within the currently
existing domain oflegal resolutions (cases and settlements) or boiler-
plate clauses?
This article continues and expands on my earlier project of seek-
ing to describe how legal negotiation should be understood concep-
tually and undertaken behaviorally to produce better solutions to
legal problems. As structured problem solving requires interests,
needs and objectives identification, so too must creative solution
seeking have its structure and elements in order to be effectively

3. See Carrie Menkel-Meadow, Legal Negotiation: A Study of Strategies in

Search ofa Theory, 1983 AM. B. FOUND. RES. J. 905; Carrie Menkel-Meadow, Toward
Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L.
REV. 754 (1984).
4. Menkel-Meadow, Toward Another View of Legal Negotiation, supra note 3, at
758.

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 99

taught. Because research and teaching about creativity and how we

think has expanded greatly since modern legal negotiation theory
has been developed, it is now especially appropriate to examine how
we might harness this new learning to how we might examine and
teach legal creativity in the context of legal negotiation and problem
solving. This article explores both the cognitive and behavioral
dimensions of legal creativity and offers suggestions for how it can be
taught more effectively in legal education, both within the more nar-
row curricula of negotiation courses and more generally throughout
legal education.
This article explores some of the cognitive processes that can pro-
duce good, better or even wise solutions to legal problems. How ex-
actly do we think to solve problems?5 At some point the cognitive
processes in most legal problems become social processes as well,
since negotiated problem solving means working with at least one
other person, and usually more than one. Therefore, thinking and
communicating with others will be required as well. This article sug-
gests that there is not only one way to think like a lawyer. Good
problem solving requires many modes of thinking, in which legal, an-
alytic and analogical thjnking are a part, but not the whole, of what
we need. 6 This article also translates work from a variety of other
disciplines that have focused on thinking and problem solving, and
explicates how we can teach imaginative thinking in the conteA-t of

5. Some recent analysts of lawyer problem solving have focused on indhidual

levels of problem solving or decision making. See, e.g., Gary Blasi, What Lawyers
Know: Lawyering Expertise, Cognitiue Science and the Functions o/Theory, 45 J. LEG.
ED. 313 (1995); Graham Strong, The Lawyer's Left Hand: Nonanalytical Thought in
the Practice of Law, 69 U. COLO. L. REv. 759 (1998). Others are beginning to eJl.lllore
the complexities of multi-party problem solving and decision making and how those
more social processes might differ from individual problem solving. See, e.g., Paul
Brest & Linda Krieger, Lawyers as Problem Soluers, 72 TEMP. L. R£\'. 811 (1999J;
Gary Goodpaster, Coalitions and Representatiue Bargaining, 9 OIllO ST. J. DlSP. REs.
243 (1994); Russell Korobkin & Chris Guthrie, Psychology, E<onomics and Settlement:
A New Look at the Role of the Lawyer, 76 TE.x. L. REv. 77 (1997). For an application of
how unilateral versus bilateral problem solving (defined as risk and cost rnjnjrnjUl-
tion) should be mapped onto substantive legal doctrines, see Howard Latin, Problem
Soluing Behauior and Theories of Tort Liability, 73 CAL. L. REv. 677 (19851.
6. The Carnegie Foundation for the Advancement of Teaching is currently un-
dertaking a study of professional education, including law, in which it e.'illlllines the
multiple epistemologies of thjnking like a lawyer, taught in law schools, which in-
cludes a problem solving approach to legal education. See Announcement of Carnegie
Preparation for the Professions Program, 1999, at http://www.carnegiefoundation.orgl
whatsnew Gast visited Feb. 9, 2001).

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100 Harvard Negotiation Law Review [Vol. 6:97

creatively solving and negotiating legal problems, transactions, mat-

ters or events. 7
This article begins with a review of problem solving in the negoti-
ation context and what forms of cognition, decision making, knowl-
edge and capacities we might need to solve legal problems (Part II).
Next, the article explores the role of research and study of creativity
and its relationship to problem solving or legal cultural production
(Part III). Then, the article briefly reviews the work of several psy-
chologists who have focused on creativity,S decision making,9 multi-
ple intelligences,lo and cognition 11 as theoretical and empirical
objects of study. 12 This section also reviews practical "how-to" litera-
ture,13 which draws on more intellectually rigorous work, and at-
tempts to teach creativity by broadening the way people define
problems and extends the universe from which they seek solutions.
This article then turns to the challenge of applying this work to legal
problem solving (Part IV). What does it mean to speak of legal crea-
tivity? What is legal creativity? How does it solve problems? Can it

7. I want to emphasize the point that many people do not have legal problems,
instead they are engaged in completing a transaction, seeking legal advice about pos-
sible courses of action, or may be engaged in a legal event which mayor may not even
be deemed problematic (home purchase, adoption of child). See CARRIE MENKEL-
MEADOW, THE 59TH STREET LEGAL CLINIC: EVALUATION OF THE EXPERIMENT 40 (1979).
8. See, e.g., TERESA M. AMABILE, CREATIVITY IN CONTEXT (1996); MIHALY CSIK.
SZENTMIHALYl, CREATIVITY: FLOW AND THE PSYCHOLOGY OF DISCOVERY AND INVENTION
(1996); DIMENSIONS OF CREATIVITY (Margaret Boden ed., 1996); HANDBOOK OF CREA.
TIVITY (Robert J. Sternberg ed., 1999).
9. See, e.g., GARY KLEIN, SOURCES OF POWER: How PEOPLE MAKE DECISIONS
(1998); JAMES REASON, HUMAN ERROR (1990).
10. See HOWARD GARDNER, FRAMES OF MIND: THE THEORY OF MULTIPLE INTELLI.
GENCES (1983).
11. See DANIEL KAHNEMAN, PAUL SLOVIC & AMOS TVERSKY, JUDGMENT UNDER
UNCERTAINTY: HEURISTICS AND BIASES (1982); RICHARD NISBETT & LEE Ross, HUMAN
INFERENCE: STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT (1980).
12. This paper will not discuss the problem solving literature in engineering, ar-
chitecture, psychiatry and social work, to mention a few other domains in which these
issues have been explored.
13. See, e.g., JAMES ADAMS, CONCEPTUAL BLOCKBUSTING: A GUIDE TO BETTER
IDEAS (1986); JAMES ADAMS, THE CARE AND FEEDING OF IDEAS: A GUIDE TO ENCOURAG.
ING CREATIVITY (1986); EDWARD DE BONO, LATERAL THINKING: CREATIVITY STEP BY
STEP (1990); MARTIN GARDNER, AHA! INSIGHT (1978); MARTIN GARDNER, AHA! GOTCHA:
PARADOXES TO PuZZLE AND DELIGHT (1982); FLOYD HURT, ROUSING CREATIVITY: TtnNK
NEW Now! (1999); GERARD 1. NIERENBERG, THE .ART OF CREATIVE THINKING (1982);
DONALD J. NOONE, CREATIVE PROBLEM SOLVING (1998); ROBERT W. OLSON, THE.ART OF
CREATIVE THINKING: A PRACTICAL GUIDE (1978); VINCENT RYAN RUGGIERO, 'fiIE.ART 010'
THINKING: A GUIDE TO CRITICAL AND CREATIVE THOUGHT (5th ed.1998); see also Rich-
ard S. Blackburn, Managing Creativity in Academics, in MANAGING IN ACADEMICS: A
HEALTH CENTER MODEL (Jill Ridky & George F. Sheldon eds., 1993); JENNIFER JAMES,
THINKING IN THE FuTURE TENSE: A WORKOUT FOR THE MIND (1997).

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 101

be taught? Finally, the article explores the methods of teaching

about creativity in legal education (Part V). Can it be done? How?

B. A Brief Review of Legal Problem Solving Negotiation Theory

Problem solving negotiation theory has suggested several depar-

tures from conventional negotiation theory and practice: (1) that par-
ties might have actual needs, goals or objectives that are different
than those assumed to be true by their lawyer-representatives in the
negotiation; (2) that a focus on all14 parties' needs, goals and objec-
tives (rather than an assumed goal of individual maximization)
might produce better outcomes (producing some form of joint gain)
and (3) that negotiators should seek creatively to meet the needs l5 of
the parties, and thus explore new, as well as precedented, solutions
to party issues.
Fisher & Ury's Getting to Yes (1981), Howard Raiffa's The Art
and Science of Negotiation (1982) and David Lax and James
Sebenius' The Manager as Negotiator: Bargaining for Cooperation
and C~mpetitive Gain (1986), demonstrate the intellectual conver-
gence of the time, revealing a shift that was occurring in the underly-
ing culture. The negotiation field was transforming to include more
disciplinary domains, including law, business, anthropology, political
science, international relations and diplomacy, psychology, sociology
and economics. Some trans disciplinary fields also illuminated
problems to be solved in understanding negotiation behavior, for in-
stance, game theory,16 decision theory,17 rational choice theory,IS

14. For my argument that many, if not most, legal problems today involve more
than two parties and so require a multi-party inventory of needs, goals and objectives,
see Carrie Menkel-Meadow, The Trouble with the Adt'ersary System in a Post-Mod-
em, Multi-Cultural World, 38 WM. & :MARY L. REv. 5 (1996). Lon Fuller recognized
this aspect of some legal problems in Mediation: Its Form and Its Fllnctions, 44 S.
CAL. L. REv. 305 (1971).
15. For a discussion of why I used the term "needs," in addition to the "interests"
or "objectives" used by other negotiatjon theorists, see infra note 52 and accompany-
ing text.
16. See, e.g., RoBERT AxELROD, THE COMPLE.XlTY OF COOPERATION: AGENT BASED
MODELS OF CO!llPETmON AND COLLABORATION (1997); RoBERT AXELROD, TUE EVOLU.
TION OF COOPERATION (1984); DOUGLAS BAIRD ET. AL., GA!lIE THEORY J\ND TIlE L,\w
(1994); ADAM: M. BRANDENBURGER & BARRY NALEBUFF, CO-OPETITION U996); AVlNASU
DIXIT & BARRY NALEBUFF, TmNKING STRATEGICALLY: THE Cor.IPETITIVE EDGE IN BUSI.
NESS, POLmcs AND EVERYDAY LIFE (1991); WILLIA!Il POUNDSTONE, PRISONER'S DI.
LEMMA (1992).
17. See, e.g., MAX BAZERMAN, JUDGMENT IN MANAGERIAL DECISION l\1AKJ.NG (4th
ed. 1998); JOHN HAMIIiOND, RALPH KEENEY & HOWARD RAIFFA, Sr.lARl' CUOICES: A
PRACTICAL GUIDE TO 11AKING BETTER DECISIONS (999); GARY KLEIN, SOURCES OF

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102 Harvard Negotiation Law Review [Vol. 6:97

democratic discourse theory,19 organizational development,20 and

systems theory and conflict theory.2l The negotiation field now in-
cludes basic ideas that are taught in a variety of different contexts,
including law schools, business schools, policy and planning schools,
international relations programs, economics and psychology depart-
ments and even some free standing conflict resolution programs. 22
Despite the existence of some key concepts that cross disciplines,
there are other dimensions of the negotiation field that are particu-
larly dependent on the specific domain in which negotiation problems
occur. The core concepts that cross disciplinary boundaries include
differences between creating and claiming value (or integrative and
distributive bargaining); the importance of separating inventing from
evaluating (creativity and synthesis before critique and analysis); the
recognition of complementary,23 rather than conflicting, needs and
interests for trades; the significance of distinguishing underlying
needs and interests from positions to get at root causes; the acknowl-
edgment of concern for others, as well as self; and finally, the com-
plexities of strategic and dynamic, rather than static, behavioral and

POWER: How PEOPLE MAKE DECISIONS (1998); J. EDWARD Russo & PAUL J. H. SHOE.
MAKER, DECISION TRAPs: TEN BARRIERS TO BRILLIANT DECISION-MAKING AND How TO
OVERCOME THEM (1989).
18. See, e.g., KENNETH .ARRow, SOCIAL CHOICE AND INDIVIDUAL VALUES (1951);
RUSSELL HARDIN, COLLECTIVE ACTION (1982); MANcUR OLSON, THE LOGIC OF COLLEC·
TIVE ACTION: PuBLIC GOODS AND THE THEORY OF GROUPS (1965); cf. DONALD GREEN &
!AN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE THEORY: A CRITIQUE OF APPLICATIONS
IN POLITICAL SCIENCE (1994).
19. See, e.g., JAMES BOHMAN, PuBLIC DELIBERATION: PLURALISM, COMPLEXITY AND
DEMOCRACY (1996); DELIBERATIVE POLITICS: ESSAYS ON DEMOCRACY AND DISAGREE·
MENT (Stephen Macedo ed., 1999); AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY
AND DISAGREEMENT (1996); JURGEN HABERMAS, THE THEORY OF COMMUNICATIVE Ac·
TION (Vol. 1, 1984 & Vol. 2,1987); JANE J. MANSBRIDGE, BEYOND ADVERSARY DEMOC·
RACY (1980).
20. See, e.g., JAMES G. MARCH & HERBERT A. SIMON, ORGANIZATIONS (1958); Di-
ane Vaughan, Rational Choice, Situated Action and the Social Control of Organiza·
tions, 32 L. & SOC'Y REV. 23 (1998); see also DIANE VAUGHAN, THE CHALLENGER
LAUNCH DECISION: RISKY TECHNOLOGY, CULTURE AND DEVIANCE AT NASA (1996).
21. See, e.g., CONFLICT, COOPERATION AND JUSTICE: ESSAYS INSPIRED BY THE WORK
OF MORTON DEUTSCH (Barbara Benedict Bunker et al. eds., 1995); LEWIS A. COSER,
THE FUNCTIONS OF SOCIAL CONFLICT (1956); MORTON DEUTSCH, THE RESOLUTION O~'
CONFLICT: CONSTRUCTIVE AND DESTRUCTIVE PROCESSES (1973); DEAN G. PRUITT & JEI~.
FREY Z. RUBIN, SOCIAL CONFLICT: ESCALATION, STALEMATE, AND SETTLEMENT (1986);
MARc HOWARD Ross, THE MANAGEMENT OF CONFLICT: INTERPRETATIONS AND INTER.
ESTS IN COMPARATIVE PERSPECTIVE (1993); THOMAS C. SCHELLING, THE STRATEGY OF
CONFLICT (1960); GEORG SIMMEL, CONFLICT (1955).
22. See Program On Negotiation, Negotiation Pedagogy: A Research Survey of
Four Disciplines, at http://www.pon.harvard.eduleventslhewlettldayl/shtml (last vis-
ited Feb. 9, 2001).
23. See GEORGE HOMANS, SOCIAL BEHAVIOR: ITS ELEMENTARY FORMS (1974).

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 103

substantive situations.24 Legal negotiators, must, however, also be

concerned with the role of law in solving problems,25 the difficulties
of multi-party negotiations when one serves as an agent for an-
other,26 the need for precedent and publicly announced rules,27 the
differentiated incentives of different fee arrangements,28 and the spe-
cialized and rule-based ethical system in which lawyer negotiators
must operate.29 At a deeper level, some argue that lawyer negotia-
tors have an obligation to do justice,30 not just to accomplish legally
permissible, rule-based or Pareto-optimal results.
Thus, creatively solving problems in the legal domain implicates
the development of creative faculties, exercised within some con-
straints oflaw and legal principle. The creative legal problem solver,
then, must learn to navigate within the seas of optimistic creativity,
the swells of dynamic interaction with others (client and other coun-
sel and parties) and the oceans of realistic legal possibility. We begin
with an explication of the negotiation process as a structured problem
solving exercise, in which party needs are identified t~ suggest oppor-
tunities for both individual and joint gain.

24. See, e.g., LEE Ross & RICHARD E. NISBE'IT, THE PERSON AND THE SITt1ATIO~~:
PERSPECTIVES OF SOCIAL PSYCHOLOGY (1991).
25. See Robert l\inookin & Lewis Kornhauser, Bargaining in the Shadow of tlze
Law: The Case of Divorce, 88 YALE L.J. 950 (1979).
26. See ROBERT MNOOKIN, SCOTT R PEPPET, ANDREW S. TULUMELLO, BE,OND
WINNING: NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES l2000}; Robert
l\fuookin, Why Negotiations Fail: An Exploration of Barriers to the Resolution of Con-
flict, 8 OHIO ST. J. DISP. REsOL. 235 (1993).
27. See David Luban, Settlements and the Erosion of the Public Realm, 83 GEO.
L.J. 2619 (1995).
28. See, e.g., HERBERT M. KroTZER, LET'S l\L\KE A DEAL: UNDERSTANDING TIlE NE.
GOTIATION PROCESS IN ORDINARY LITIGATION (1991); Herbert M. Kritzer, Fee Arrange-
ments and Negotiations: A Research Note, 21 L. & Soc', REv. 341 (1987) (arguing that
Menkel-Meadow's "creative solutions" to legal negotiation probleIDS will be unlikely
where lawyers are paid on a contingent basis).
29. See, e.g., James J. White, Machiavelli and the Bar: Etlzical Limitations on
Lying in Negotiation, 1980 &.r. B. FOUND. REs. J. 926; cf. Eleanor Holmes Norton,
Bargaining and the Ethic of Process, 64 N.Y.U. L. REv. 493 (1989); Murray Schwartz,
The Professionalism and Accountability of Lawyers, 66 CAL. L. REv. 669 (19781; Ger-
ald Wetlaufer, The Ethics of Lying in Negotiations, 75 IOWA L. REv. 1219 (1990).
30. See, e.g., Robert Condlin, "Cases on Both Sides": Patterns ofArgument in Le-
gal Dispute-Negotiation, 44 MD. L. REv. 65 (1985); Owen M. Fiss, Against Settlement,
93 YALE L.J. 1073 (1984); cf. Carrie Menkel-Meadow. Whose Dispute Is It Anyway? A
Philosophical and Democratic Defense of Settlement an Some Cases), 83 GEO. L.J.
2663 (1995) (arguing that in order to do justice, sometimes legal negotiators must
resolve issues outside the law, with particularized solutions for the parties).

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104 Harvard Negotiation Law Review [Vol. 6:97

II. THE LEGAL NEGOTIATOR AS PROBLEM SOLVER

Most of the work comprising the new canon in negotiation theory

and practice is directed to the same ends-better solutions for the
parties which cause the least harm to the parties involved, and where
possible, those who might be affected by any negotiated solution.
Whether labeled a "wise, fair and efficient" solution,31 a Pareto-opti-
mal solution or a superior solution or even a "win-win" solution,32
modern negotiation theorists and practitioners view "problem solv-
ing" or "principled" or "interest-based" negotiation33 as a way to
achieve better outcomes. Such theorists and practitioners believe
that these solutions can be arrived at through different orienting
frames, rather than default assumptions of competition over scarce
resources or through adjudicated or arbitrated solutions in which one
party wins and the other loses. Even if binary solutions are appropri-
ate in some matters, the complexity of some problems, the existence
of multiple parties, on going relations, the need for flexibility and the
opportunity to control the terms of resolution suggest that party ne-
gotiations will often provide an opportunity for more tailored and re-
sponsive solutions in many legal matters.34
Where are those solutions to come from? Negotiation literature
has developed a set of prescriptions and descriptions for both enhanc-
ing and decreasing the likelihood of achieving desirable solutions.
Some of these prescriptions focus on behavioral suggestions, while
others emphasize analytic suggestions. Negotiators are urged to ex-
plore and invent "options for mutual gain,"35 taught to seek to expand

31. Roger Fisher, William Ury & Bruce Patton, GETIING TO YES: NEGOTIATION
AGREEMENT WITHOUT GIVING IN, 4 (1991).
32. See STEVEN J. BRAMS & ALAN D. TAYLOR, THE WIN-WIN SOLUTION: GUARAN.
TEEING FAIR SHARES TO EVERYBODY (1999). I prefer to stay away from the win-win
nomenclature in legal disputes. Often in legal matters someone will not be able to
win anything-a criminal defendant who engages in plea negotiations but who will
serve jail time; a manufacturer of a defective product who will have to take the prod-
uct off the market and perhaps pay millions of dollars in damages. These are not
winning solutions to the legal problem at hand, but the negotiated outcome may still
be better than what might have occurred without negotiation (more transaction costs,
more pay-outs, more embarrassment, adverse publicity or emotional pain).
33. Menkel-Meadow, Toward Another View of Negotiation, supra note 3.
34. In jurisprudential terms, we can see this as the development ofresponsive or
participatory law out of the earlier states of command, repression and individual max-
imization or autonomous law. See PHILLIPPE Nom;T & PHILIP SELZNICK, LAw AND SO.
CIETY IN TRANSITION: TOWARD RESPONSIVE LAw (1978).
35. See Fisher & Ury, supra note 31, at 56·80.

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 105

pies before dividing them, or "create value before claiming it,"36 en-
couraged to brainstorm and invent before evaluating, and pushed to
look behind stated preferences or positions to find underlying needs
and interests and search for principles or "objective criteria"37 to re-
solve that which cannot be resolved by mutually acceptable trades,
Negotiation teaching has moved to increasingly demanding planning
exercises that require students to analyze a wide variety of party
needs, preferences, desires, objectives, possible legal outeomes, cost
benefit analysis, decision tree analysis,3S best-caselworst-case scena-
rios, and contingency plans that are designed to force negotiators to
analyze the substance of their dispute before they even sit down to
talk. to the other side, Negotiation analysis, before any behavior \vith
the other side is even enacted, requires rigorous thinking, planning
for problem identification, fact-finding, legal research, option genera-
tion, brainstorming, strategies for communication, information shar-
ing, persuasion of other parties and consideration of agreement
implementation and execution,39
Once the needs, interests, objectives and goals of all interested
parties have been identified, facts have been investigated and agen-
das for information sharing have been developed, where do particular
solutions to legal matters or problems come from? Is there any sys-
tematic way to develop substantive solutions to negotiated legal
problems? How do lawyers generate options, find altelJlative courses

36. See Lax & Sebenius, The MaTUlger as Negotiator: Bargaining for Cooperation
and Competitive Gain, (1986); MNOOKIN ET AL, BEYOND WINNING, supra note 26,
37. See Fisher & Ury, supra note 31, at 81-94.
38. See, e.g., MaIjorie Corman Aaron, Decision Analysis, in l\1EDIATING LEGAL
DISPUTES: EFFECTIVE STRATEGIES FOR LAWYERS AND MEDIATORS IDwight Golann ed"
1996); Hammond, supra note 17. See also Bert Useem et aI" Resolution of Prison
Riots, NIJ REsEARCH IN BRIEF, 1995, at www.soci.niu.eduf-critcrimlescapesipris-
riot.txt Oast visited February 18, 2001) (suggesting difference between "proactive
planning and "reactive problem-solving" in prison riot negotiation).
39. For examples of these planning processes, see Carrie Menkel-Meadow, NEGO-
TIATION PLANS FOR DISPUTE REsOLUTION (LlTIGATION) PROBLEMS AND BusINESS Pl..-\t;.
NING OR TRANSACTIONAL PLANNING (1990); RoGER FISHER & DANNY ERTEL, GE:ITING
READy TO NEGOTIATE: THE GE'ITING TO YES WORKBOOK (995)' Such planning docu-
ments reflect an attention to the stages and phases of most negotiations and thus
represent an operationalization of the theorized structure of negotiations as described
by both negotiation theorists and empiricists. See, e.g., P. H. GULLIVER, DISPUTES MID
NEGOTIATIONS: A CROSS CULTURAL PERSPECTIVE (1979); Carrie Menkel-Meadow,
Stages and Phases of Negotiation, in DAVID BINDER & CARRIE l\fEr..'KEL-MEADOW,
AMERICAN BAR AssOCIATION LAWYERING SKILLS INSTITUTE 119821; LEIGH Tum.tPSo!'-l,
THE MIND AND HEART OF THE NEGOTIATOR (1998); GERALD WILLIAMS, LEGAL NEGOTIA.
TION AND SETTLEMENT (2000).

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106 Harvard Negotiation Law Review [Vol. 6:97

of action, consider potential or alternative clauses40 in documents

and deals, discover sources of financing, create rules of deal or orga-
nizational governance, risk allocation, profit allocation, admissions of
wrongdoing, compensation, policy changes and the literally dozens of
legal "tropes" or solutions that constitute legal problems?
Dispute negotiation too often looks for its solutions among the
legal precedents or outcomes thought likely in the "shadow of the
courthouse" (these days most often compromise of some monetary
values), and deal negotiations too often seek solutions in the boiler-
plate language of form contracts for transactions. 41 Ironically, these
litigated outcomes and boilerplate clauses were once the creative
ideas of some lawyers who developed a new reading of a statute, a
novel argument before a common law or Constitutional court, devel-
oped a new scheme of risk allocation, or found a new source of capital
or drafted a new clause for a deal document.
Solutions to legal problems, then, come from creative lawyers, as
well as legal or practice precedent. The challenge for negotiation the-
orists, practitioners and teachers is to find systematic ways to teach
solution devising, short of reading thousands of cases, transactional
documents, statutes or other legal documents that will show us not
only what already has been done, but also what might be done. Are
there ways of learning or thinking about solutions to legal problems
that are generic or are there only substantive (domain based) solu-
tions? Here the teachings of other disciplines may be useful. Some
researchers focus on the positive solution-seeking side of cognition
and creativity; others focus on the negative side of impediments to
good or, as they define it, rational decision making or problem
solving.
Social and cognitive psychologists have been mapping decision
processes in a variety of situations in which decision makers have to
act under uncertainty. Thanks to the pathbreaking work of such
scholars as Amos Tversky, Daniel Kahneman, Lee Ross, Robert Nis-
bett and others, we know a variety of ways in which negotiators use
distorted thinking processes or make human errors. Some of the er-
rors which have been identified are particularly salient for legal deci-
sion making. The common process of reactive devaluation, for

40. See Marcel Kahan & Michael Klausner, Standardization and Innovation in
Corporate Contracting (Or "The Economics of Boilerplate''), 83 VA. L. REV. 713 (1997).
41. See Menkel-Meadow, Toward Another View of Negotiation, supra note 3, at
789.

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 107

example, suggests that we do not accurately process offers or infor-

mation given to us from a party to which we feel adverse. 42 Most
relevant to legal negotiators, parties tend to have overconfidence in
their own positions,43 which can cause great distortions in conven-
tional monetary allocative negotiations. As humans, we are all sub-
ject to certain informational or heuristic biases, like primacy,
recency, dramatic and anchoring effects of heard numbers, events or
arguments. As a result, we commit statistical or probabilistic errors.
Some of our errors in reasoning are differentially distributed-some
of us are greater gamblers than others and fear losses or take risks
more or less often than others. Almost all of us value what we al-
ready have more than what we might receive in the future (a result
familiar to any negotiation teacher who uses bidding game exercises).
Sociologists and social psychologists have also demonstrated that
problem solving can sometimes be enhanced, and other times hin-
dered, by being conducted in group settings. While there is some
evaluation research that supports better quality, as well as quantity,
of solutions in brainstorming sessions,44 there is also the problem of
groupthink45 or organizational impediments to taking responsibility
that can distort problem solving with multiple actors.4G And, contro-
versial though it might be, there is some evidence of gender, racial,
ethnic and cultural differences in negotiated outcomes and behav-
iors.47 For example, attribution theory tells us that women are more

42. See Lee Ross, Reactive Devaluation in Negotiation and Conflict Resolution, in
BARRIERS TO CONFLICT REsOLUTION (Kenneth J. Arrow et al. eels., 1995). In addition
to the opposite side of a legal case, this can include one's parent, child, spouse, boss or
employee, or anyone who is not of our point of view.
43. See SHELLEY E. TAYLOR, POSITIVE ILLUSIONS (1989); Shelley Taylor & J.
Brown, Illusion and Well Being: A Social Psychological Perspective on Mental Health,
103 PSYCH. BULL. 193 (1988).
44. See Amabile, supra note 8, at 244-45; R.M. :Milgram & N.A. Milgram, Group
vs. Individual Administration in the Measurement of Creative Thinking in Gifted and
Non-gifted Children, 49 CHILD DEV. 385 (1978).
45. See RICHARD CIALDINI, INFLUENCE: THE PSYCHOLOGY OF PERSUASION (1984);
IRVING JANIS, GROUPTHINK: PSYCHOLOGICAL STUDIES OF POLICY DECISIONS M"D FlAS-
COS (1983).
46. See Wendy M. Williams & Lana T. Yang, Organizational Creativity, in HAND-
BOOK OF CREATIVITY (Robert J. Sternberg ed., 1999); Donald Langevoort, Behavioral
Theories of Judgment and Decision Making in Legal Scholarslzip: A Literature Re-
view, 51 VAND. L. REV. 1499 (1998); David Luban, Milgram Re·visited, 9 REsEARCHlNG
LAw: AN ABF UPDATE, SPRING 1998.
47. See JEFFREY RUBIN & BERT BROWN, THE SOCIAL PSYCHOLOGY OF BARGAINING
AND NEGOTIATION (1975); Ian Ayres, Fair Driving: Gender and Race Discrimination in
Retail Car Negotiations, 104lIARv. L. REV. 817 (1991); Ian Ayres, Further Evidence of
Discrimination in New Car Negotiations and Estimates of Its Cause. 94 MICH. L. REv
109 (1995); Jeswald Salacuse, Ten Ways That Culture Affects Negotiating Style: Some

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108 Harvard Negotiation Law Review [Vol. 6:97

likely to internalize blame and men to externalize it, while at the

same time women are more likely to go to doctors and to bring legal
claims.48
While much of this very useful research on the distortions or er-
rors of common human cognition is making its way into the negotia-
tion literature49 and is one of the ways we can focus on problem
solving and decision making in legal matters, it may have the effect
of increasing negative rules and findings and may often overload and
paralyze the potential negotiator or problem solver with negative pre-
scriptions of what not to do. 50

Survey Results, 14 NEG. J. 221 (1998); Stephen E. Weiss, Negotiating With Romans,
Part 1, 35 SLOAN MGMT. REV. 51 (1994); Stephen E. Weiss, Negotiating With Romans,
Part 2, 35 SLOAN MGMT. REV. 85 (1994).
48. See SANDRA LIPSITZ BEM, THE LENSES OF GENDER: TRANSFORMING THE DEBA'rE
ON SEXUAL INEQUALITY (1993); HAzEL GENN, HARD BARGAINING: OUT OF COURT SET.
TLEMENT IN PERSONAL INJURY ACTIONS (1987); HAzEL GENN, PATl-IS TO JUSTICE: WHAT
PEOPLE Do AND THINK ABOUT GOING TO LAw (1999); CAROL TAVRIS, THE MISMEASURE
OF Wm.fAN 36-43, 170-207 (1992); Herbert Kritzer et. al., The Aftermath of Injury:
Cultural Factors in Compensation Seeking in Canada and the United States, 25 LAw
& SOC'Y REV. 499 (1991); Herbert Kritzer, Propensity to Sue in England and the
United States of America: Blaming and Claiming in Torts Cases, 18 J. LAw & SOC'Y
400 (1991); Carrie Menkel-Meadow, Teaching About Gender and Negotiation: Sex,
Truths and Videotape, 16 NEG. J. 357 (2000).
49. See Arrow et al., Barriers to Conflict Resolution, supra note 42; Russell
Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experi-
mental Approach, 93 MICH. L. REV. 107 (1994); Mnookin, Why Negotiations Fail,
supra note 26.
50. The study of cognitive biases is a negative one. Researchers derme errors as
departures from rational thinking, see for example, JON ELSTER, ALCHEMIES OF THE
MIND; RATIONALITY AND Tl-IE EMOTIONS, (1999). With a different baseline we could
study decision making descriptively in naturalistic settings (as Gary Klein and others
have done) and perhaps discover that truly rational decision making is the deviance
from the norm that should be explained, not the other way around. Kahneman &
Tversky's work, while path-breaking, has been criticized on this ground and others.
See L. Jonathan Cohen, Can Human Irrationality be Experimentally Demonstrated? 4
BEH. & BRAIN SCIENCES 317 (1981); L. Jonathan Cohen, Can Irrationality be Dis-
cussed Accurately, 7 BEH. & BRAIN SCIENCES 736 (1984) (discussing difficulties of defi-
nitions of "irrationality" or departures from rationality, measurement problems,
cueing problems in such research and philosophical objections to operationalization of
irrationality heuristics); L. Jonathan Cohen, The Controversy About Irrationality, 6
BEH. & BRAIN SCIENCES 510 (1983). Teresa Amabile has commented that most of her
studies of creativity have uncovered the impediments to or suppressors of creativity,
rather than finding empirically valid enhancers. See Amabile, supra note 8, at 243.
For an argument that lawyers may have a particular need to hold on to assumptions
of rationality, both in their own behavior and in the larger rationality of the legal
system, see Langevoort, supra note 46, at 1526 (suggesting that the myth of the ra-
tionality of law allows us to maintain (perhaps incorrectly) the illusion of control over
our world). Langevoort does note that a remarkable amount of productive work is

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 109

Thus, this article explores the more positive models of problem

solving-using descriptions of successful legal problem solving, crea-
tivity and multiple intelligences51 as a heuristic for teasing out the
common elements of how we creatively (in our own domain) solve le-
gal problems.
One can structure a problem solving approach to negotiation by
focusing on a three step process in which first, the lawyer identifies
multiple classes of needs,52 objectives, interests or goals from one's
own client. Then, s/he proceeds to do the same for other parties in-
volved, using information available from public knowledge, research,
client knowledge and from the negotiation session. Finally, the nego-
tiator examines and matches loci of complementary and then conflict-
ing needs and interests of the parties, in a systematic way, in order to
craft solutions that maximize joint gain or Paret-O-optimal solutions.
We can explore needs, interests and objectives in categories: (1) legal,
the need for a ruling, judgment, legal status, or precedent; (2) eco-
nomic, including transaction costs and present and future values; (3)
social, including dealing with the parties' group or membership needs
and objectives such as family, workplace, organizational, joint re-
sponsibility or community; (4) psychological, including all individu-
ally important needs or objectives including risk preferences,

accomplished by our legal institutions and questions whether the work on biased cog-
nitive processes will prove to be as empirically robust at the organizationaIrmstitu-
tionallevel as it is at the individual level.
51. In reviewing the now vast literature on both the psychology and sociology of
cognition, one cannot help being struck. by the different professional dispositions of
researchers in the field. Some seem almost gleeful in rigorously documenting human
error and intellectual frailty (as well as bell-curve variations) while others have at-
tached themselves to the study of achievement (the rareness of true creativity) and
the acknowledgment of greater human variations. Is this "glass half full or half
empty" phenomenon parallel to the dispositions of traditional and problem solving
negotiation theorists and practitioners?
52. My use of needs rather than interests alone has been quite deliberate and
reflects several important jurisprudential challenges to conventional conceptions of
negotiation in the legal system. First, lawyers should have an obligation to explore
client's needs that may be beneath the articulated surface, both for individuals who
may not be able to express those needs readily and for organizational or entity clients
who may need to be reminded of long-term needs of the organization, rather than
short-term goals of the person representing the entity. Second, my theory of problem
solving negotiation is heavily influenced by work in feminist theory that suggests that
clients have needs that may not be fully recognized by the formal legal system, see for
example, RoBIN WEST, CARING FOR JUSTICE U997); Robin West, The Difference in Wo-
men's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 3 WIS.
WOMEN'S. L. REv. 81 (1987), but which may be appealed to in negotiation settings.
Third, expression of needs may compel an attention to justice in negotiation settings
that is less instrumental than satisfaction of interests and more m·:pnnsive than ap-
peals to legal rights in the formal justice system.

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110 Harvard Negotiation Law Review [Vol. 6:97

reputational, emotional, mental and physical health concerns, needs

to assert, fear of shame, guilt, publicity; (5) political, such as rule
change, justice, internal or public organizational concerns, precedent
setting, relation to other problems, constituents, and finally, (6)
moral, ethical or religious, including concerns about traditions, and
fairness. Canvassing needs, objectives and goals in these and other
categories, for both present and future desired states,53 is usually ef-
fective in bringing to the fore issues that may be of concern to a party
in a negotiation context.
Like the pieces of puzzles and brainteasers (discussed infra), the
creative problem solver lines up the needs and interests of the differ-
ent parties and examines what solutions may be possible in recon-
ciling and meeting all parties' needs and objectives. These solutions
will eventually have to be tested against what is really possible
within our domain-law. 54
Often a solution to a negotiated problem may be illuminated by
exploring the characteristics of the "problem" mapped over the par-
ties' particular needs and interests. WHAT is the problem about?
(What is the res? What is at stake? Can the thing itself be altered in
any way?) WHO is involved? Are there stakeholders other than the
parties formally at the table? Does adding parties facilitate a solu-
tion, or, as in the case of bringing in an insurer, does one increase
those who can contribute to a solution, or, as in the case of the IRS,
which is always a party to a legal negotiation, do tax concerns change
the dynamics and suggest other solutions? WHERE is the transaction!
dispute/res located? Does jurisdiction matter for the problem? What
about the location is alterable? (e.g. employment disputes with mul-
tiple offices or government agencies can offer transfer opportunities).
WHEN does the dispute or transaction have to be resolved? This fac-
tor has led to the important and structural solutions of annuity pay-
ments in tort cases, installment payment contracts, contingency

53. See Menkel-Meadow, Toward Another View of Legal Negotiation, supra note
3, at 803. Lawyers need to learn through interviewing and counseling how clients
rate their preferences-not all will conform to Maslovian hierarchies of human need.
54. The question of whether law and legal remedies should set the parameters for
a just or fair solution in legal negotiation is a much debated subject. While law cer-
tainly may set the outer limits of preventing unlawful outcomes, it may be that par·
ties in private negotiations will choose solutions that are not unlawful, but which are
also different than what the law provides for in a particular situation. See Robert
Condlin, Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bar·
gaining Role, 51 MD. L. REV. 1 (1992); Carrie Menkel-Meadow, Whose Dispute is it
Anyway? A Philosophical and Democratic Defense of Settlement an Some Cases).
supra note 30; Jacqueline Nolan-Haley, Court Mediation and the Search for Justice
Through Law, 74 WASH. U. L.Q. 47 (1996).

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 111

pricing and risk allocations, as well as continuing options, acceler-

ated or graduated payments and duties and a whole host of substan-
tive time-based solutions for trials, contingencies and terminable-
upon-conditions arrangements. How may the matter be negotiated?
Must solutions be conventional payments of money? Are other more
creative solutions possible? In-kind trades? Apologies? Percentage of
gross or net, instead offixed sums? Contingent agreements? Secured
obligations? Guarantors? Third party reviews? Can dispute resolu-
tion procedures themselves be altered? These framing questions for
legal solutions to negotiated problems are a way of increasing the re-
sources available for solving problems and probing for non-obvious
solutions.55 This structure often helps to provide legal or non-legal
principles for allocating resources or goods or to justify particular di-
visions when claiming occurs. Using these very general questions
often allows other expert systems56 or even lay common senseG7 solu-
tions to enter an otherwise legally dominated domain of possible solu-
tions. More recent work on systematizing allocation schemes for the
distributive part of negotiation problems can draw on these
frameworks for assessing values and weights and priorities in
numeric, as well as qualitative, allocative systems. 6S
As robust or helpful as these frameworks are, negotiators still
need deep and rich informational resources from which to draw to
answer these questions. Thus, good problem solvers must always ex-
pand their knowledge bases, as well as the sources of insight and new
combinations that spark innovative solutions. By systematically and
self-consciously exploring the processes and dimensions of creative
and richly contextual thinking processes, legal problem solvers can
expand their substantive, as well as processual, repert~ire.

55. See Menkel-Meadow, Toward Another View of Negotiation. supra note 3, at

810.
56. Fisher & Dry suggest approaching negotiation problems through the frames
of other realms of expertise. See Fisher & Dry, supra note 31 at 64. See also DONALD
SCHON, THE: REFLECTIVE PRACTITIONER: How PROFESSIONAlS THINK IN ACTION (1983J;
DONALD SCHON & MARTIN REIN, FRAME REFLECTION: TOWARD THE REsOLUTION OF IN.
TRACTABLE POLICY CONTROVERSIES (1994).
57. See Gerald Lopez, Lay Lawyering, 32 UCLA L. REv. 1 (1984). Indeed, clients
should always be asked, "so how would you like to see this turn out?-"' Clients. of all
kinds, will often be a rich source of possible, and even innovative. solutions.
58. See STEVEN J. BRAMS, FAIR DIVISION: FROM CAKE-CUTl'ING TO DISPUTE REs0-
LUTION (1996) (providing theoretical and empirical research support for several allo-
cative regimes to achieve fairness in negotiated situations); Bn.u.ts & TA....LOR. supra
note 32.

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112 Harvard Negotiation Law Review [Vol. 6:97

III. CREATIVITY, MULTIPLE INTELLIGENCES AND PROBLEM SOLVING

This section describes how work in creativity, cognition and mul-

tiple intelligences might illuminate some of the processes that both
individual problem solvers and legal negotiators use to craft solutions
to legally defined problems. Rather than focusing on what might go
wrong in our reasoning processes, let's examine what could go right.
How do we creatively link a problem (some state desired to be
improved UpOn59) to a solution in the specific domain of the law?
How are legal problems solved both analytically (substantively) and
behaviorally (as in negotiation with others)? Ideally, we could create
a phenomenology of legal problem solving-studying and describing
those successful efforts at using the law or legal concepts to solve
problems, make transactions or change certain end states.
Although much of the theory and social psychology of creativity
has focused on grand creativity-those who are really inventive or
who have radically altered our thinking in some artistic or scientific
domain, much of what has been learned about creativity may be ap-
plicable to those smaller domains of everyday legal problems rather
than more grand "Constitutional moments."60 Specifically, to the ex-
tent that some forms of creative activity are social, and not merely
individual,61 and that certain conditions may be more or less likely to
foster, encourage or exploit creativity, there may be things we can do

59. A common definition of a problem to be solved now appearing in the legal

literature with some frequency can be found in ALLEN NEWELL & HERBERT SIMON,
HUMAN PROBLEM SOLVING 72 (1972): "A person is confronted with a problem when he
wants something and does not know immediately what series of actions he can per-
form to get it." As I have indicated in supra note 7, even the nomenclature of problem
is itself problematic in the legal domain because some legal issues are matters, trans-
actions, or events that are not necessarily experienced as problematic to the individu-
als engaged in them. The law may be somewhat juridogenic in that it creates legal
problems for those who would form entities, buy and sell property, products or ser-
vices, create or terminate relationships or do any number of things without realizing
that the law or the state is an inevitable party to their private negotiations.
60. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); BRUCE ACKERMAN.,
WE THE PEOPLE: TRANSFORMATIONS, 4-5 (1998). Indeed, deep phenomenological, as
well as historical, study of such group events as Constitution making and amending,
demonstrate the creativity and complexity of legal negotiations at their fullest and
highest levels. For an application of some negotiation theory to Constitution making,
see Jon Elster, Strategic Uses ofArgument, in BARRIERS TO CONFLICT RESOLUTION 236
(Kenneth J. Arrow et al. eds., 1995); see also Jack Rakove, The Great Compromise:
Ideas, Interests and the Politics of Constitution Making, 44 WM & MARy L. REV 424
(1987).
61. An interesting body of work has confirmed that certain personal characteris-
tics are associated with high levels of individual creativity-independence or non-con-
formance and selfishness, birth order, persistence and hard work, focus on particular
problems and depth in domain, intrinsic motivational pulls, an ability to live with

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 113

in our thinking processes, working environments, social behavior and

educational processes to facilitate more creative legal problem solv-
ing. Thus, I suggest below that expanding modes of what counts as
legal thjnlcing might actually improve the number and quality of so-
lutions to legal problems.
Psychologists have defined creativity as "a process by which a
symbolic domain in the culture is changed,"62 "any act, idea or prod-
uct that changes an existing domain or that transforms an existing
domain into a new one,"63 "how the new comes into being,"£l.1 "the
quality of products or responses judged to be creative by appropriate
observers and ... also be regarded as the process by which something
so judged is produced,"65 and "that process which results in a novel
work that is accepted as tenable or useful or satisfying by a group at
some point in time."66 What distinguishes more modern conceptual-
izations of creativity from older Popperian notions67 is the recogni-
tion that creativity, as a process, can be studied and that it is root~d
to a contextually based social and historical process of implementa-
tion, acceptance and evaluation by relevant others. In the words of
Howard Gardner:
People are creative when they can solve problems, create prod-
ucts or raise issues in a domain in way that is initially novel but
is eventually accepted in one or more cultural settings. Simi-
larly, a work is creative if it stands out at first in terms of its
novelty but ultimately comes to be accepted within a domain.
The acid test of creativity is simple: In the wake of a putatively
creative work, has the domain subsequently been changed? ...

ambiguity and tension, playfulness, outsider family, high el-:pectations and deep com-
mitment. See, e.g., AMABILE, supra note 8, at 203-42; BODEN, supra note 8, at 8;
CSIKZENTI.flHALYI, supra note 8, at 61-76. Such personal characteristics may also be
found among leading legal creative figures-see biographies of Louis Brandeis, Oliver
Wendell Holmes, Thurgood Marshall, and Benjamin Cardozo, to name some of the
prominent judicial examples. See also Mit. JUSTICE (Allison Dunham & Philip B. Kur-
land eds., 1956) (collected essays about several prominent judges throughout history).
62. CSIKSZENThflHALYI, supra note 8, at 8.
63. Id. at 28.
64. JOHN B. WATSON, BEHAVIORISM (19251.
65. AMABILE, supra note 8, at 33.
66. Morris Stein, Creativity and Culture. in EXPLORATIONS IN CREATIVI1Y /Ross L.
Mooney & Taber .A. Razik, eds., 1967).
67. Some creativity scientists suggest that the field was born in reaction to Karl
Popper's assertions that all truly creative activity is irrational or intuitive and there-
fore not amenable to study, despite (perhaps in reaction tol his o...m dissertation on
the psychology of thinking See KARL POPPER, THE LOGIC OF SClEr-.'TIFIC DISCOVERY
(1959), quoted in GERD GIGERENZER, Where do New ideas Come From? in DI?tENSIO~~S
OF CREATIVITY (Margaret .A. Boden ed., 1996).

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114 Harvard Negotiation Law Review [Vol. 6:97

Creativity includes the additional category of asking new ques-

tions [or creating new fields or domainsl. 68
Creativity, as defined by at least one scholar,69 includes several
components: (1) relevant domain skills required for any performance
of creativity in a particular domain, including factual knowledge,
technical skills and special talents required by the domain;70 (2) crea-
tivity relevant skills, including cognitive skills, working styles or
heuristics for exploration of new pathways within a domain and (3)
task motivation that determine how an individual approaches a par-
ticular task (with intrinsic, self-directed motivation being more effec-
tive than extrinsically oriented motivations).71
Scholars of creativity distinguish between big "C" breakthrough
creativity, such as Einstein's relativity theory, and more incremental
creativity such as the patterns of social research and the develop-
ment of legal doctrine. Some argue there is no big "C" creativity in
the law, precisely because Anglo-American law, at least, is based on
adherence to precedent and incrementalism. 72 On the other hand,
overruling major doctrines, such as changes in liability rules (non-
privity) and recognition of new rights (privacy) may have the effects
of big "C"creativity on those governed by law and rules. It is also pos-
sible to see law as having benefitted from the communal big "C" crea-
tivity that produced the Constitution-a template for stability and
elasticity73 that has been replicated in different forms throughout the
world.
It is important for students of creativity to recognize that creativ-
ity occurs within a domain (a culture that contains symbolic rules)
and, though created by an individual who produces the novel idea or
product, is eventually judged by a field of experts who can under-
stand, judge, test and implement the creative product. Some do-
mains have larger fields than others-for example, in cultural

68. HOWARD GARDNER, INTELLIGENCE REFRAMED: MULTIPLE INTELLIGENCES I<'OR

THE 21ST CENTURY 116-19 (1999).
69. AMABILE, supra note 8, at 83-127.
70. Interestingly, almost all psychologists studying creativity conclude that it
takes at least ten years to become domain proficient (sufficient domain substantive
knowledge) to be creative. See, e.g., CSIKZENTIMIHALYI, supra note 8; GARDNER, INTEL-
LIGENCE REFRAMED, supra note 68; AMABILE, supra note 8.
71. Some studies which attempt to measure quality of creative contributions to a
field suggest that commissioned works are never as good as internally driven ones.
So, why do we legal scholars appear at commissioned symposia?
72. Edward H. Levi, AN INTRODUCTION TO LEGAL REASONING (1949); Karl N.
Llwellyn, BRAMBLE BUSH (1930).
73. See ROBERT PAUL WEINER, CREATIVITY & BEYOND: CULTURE, VALUES AND
CHANGE 128 (2000).

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 115

production, movies, novels and art will be evaluated not only by spe-
cialized critics but by purchasers and the consuming public at large.
And, in some domains, the judgments about creative worth may be
subject to more volatile change than others, for example, the debates
about canons in literature, art and the "classics."74 The law repre-
sents a hybrid domain in which the field is that of fellow eA-perts
Gudges, legal scholars, lawyers) but in fact the lasting creativity of
legal work will be measured by a much broader field-that of clients,
citizens oflegal regimes and all those regulated by law.75 There are
also more creative times than others, when "critical masses" of crea-
tive people are presented with problems to solve or resource-rich com-
munities in which to explore their interests-the Athenian "Golden
Age," the Renaissance, late 19th century Paris (Impressionism), Fin
de Siecle Vienna, Motown, and the"M & A" decade. 76
Students of creativity and cultural evolution speak of memes as
units of analysis. Memes77 are the cultural equivalent of genes-
units of information that are passed on to future generations and
that can be changed. Like successful mutations, if a changed meme
is accepted by enough people in the culture, the culture will change.
While we currently think of Brown v. Board of Education78 as a suc-
cessful meme of the legal culture (in the now accepted idea it ex-
pressed about racial equality; it has been less successful as a meme of
implementation of educational equality), other legal memes are still
trying to gain acceptance (Roe v. Wade 79 ), and still others are trying
to seek recognition and acceptance by the legal field (e.g., same sex
marriage80). While I will more fully explore legal creativity and legal
memes in Part IV below, consider that joint custody for children after
divorce is a legal meme that was produced by the negotiation process,

74. See, e.g., ALLAN BLOOM, The Closing of the American Mind, in DEBATING PC:
THE CONTROVERSY OVER POLITICAL CORRECTNESS ON C,.\MPUSES (Paul Berman ed.,
1992); ROBERT HUGHES, CULTURE OF COlllPLAINT: THE FRAYING OF AMERICA 11993';
MARTHA NUSSBAUM, CULTIVATING HUMANITY (1997).
75. For an illustration of how average citizens creatively mobilize their complex
and sometimes conflicting understandings of law see PATRICIA EWICK & SUSAN
SILBEY, THE COMMON PLACE OF LAw: STORIES FROM EVERYDAY LIFE (1998).
76. See LINCOLN CAPLAN, SKADDEN: THE RISE OF A LEGAL EMPIRE (19931.
77. SUSAN BLACKMORE, THE MEllIE MACHINE (1999); CSIKSZENT?UHALYI, supra
note 8, at 7.
78. 347 U.S. 483 (1954).
79. 410 U.S. 113 (1973).
80. See Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. Dec. 13, 1996J; see also
2000 VT. ACTS & RESOLVES 91 and VT. STAT. ANN. tit. 15, § 3 (2000) (allowing same
sex couples the right to have "civil unions" in Vermont).

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116 Harvard Negotiation Law Review [Vol. 6:97

when creative lawyers (or perhaps clients) decided to change the pat-
tern of separate physical custody of one parent after divorce and in-
stead use a common negotiation trope of sharing to produce a new
legal result, now codified (and some would say, calcified81 ) in formal
legal presumptions,82 at least in some states.
What makes the study of creativity interesting for legal negotia-
tors and problem solvers is the extent to which debates about
whether creativity depends on internal or external rewards,83 moti-
vations or constraints may inform how we study and teach our own
thinking processes. Modern students of creativity see it as both an
interpersonal and social process, so that mastery ofthe knowledge of
the domain is necessary (but not sufficient) by the individual, but
some degree of acceptability by the relevant group of experts will ulti-
mately be necessary. Some fields may be more social than others, af-
fecting how domain knowledge is transferred as well as evaluated.
Consider the transparency oflaw in which legal arguments are made
publicly and evaluated in writing by lawyers and judges or how
transactional clauses are accepted or rejected by lawyers and clients.
Unlike scientists working in secret labs84 until they are ready to
share their findings for peer review, lawyers and legal scholars must
share their ideas rather quickly, if not in print, then in negotiated
proposals, offers, paper presentations, motions, briefs and
arguments.
Domains may have both specific knowledge bases and domain-
specific processes. Consider the formal art training that Picasso and
many of the Impressionists had before they broke with conventional
forms. In law, we teach the specialized learning process of thinking
like a lawyerB5 by which we mean teaching particular cognitive
processes, including the ability to choose what is relevant, the ability

81. See, e.g., Katharine Bartlett & Carol Stack, Joint Custody, Feminism and the
Dependency Dilemma, 2 BERKELEY WOMEN's L.J. 9 (1986); Carol Bruch & Janet
Bowermaster, The Relocation of Children and Custodial Parents: Public Policy, Past
and Present, 30 FAM. L.Q. 245 (1996).
82. CAL. FAM CODE § 3002 (West 2000).
83. Teresa Amabile's research, for example, suggests that creativity is enhanced
by internal motivations and often destroyed by many, if not all forms of externals
rewards, expectations and constraints. See AMABILE, supra note 8, at 243.
84. For more on the "secret" lab competition in DNA research, see ANNE SAYRE,
ROSALIND FRANKLIN AND DNA (1978); JAMES D. WATSON, THE DOUBLE HELL": A PER-
SONAL ACCOUNT OF THE DISCOVERY OF THE STRUCTURE OF DNA (1969).
85. For several ofthe classic efforts to define what this means, or at least consists
of, see EDWARD H. LEVI,.AN INTRODUCTION TO LEGAL REASONING (1949); KARL LLEWEL-
LYN, THE BRAMBLE BUSH: ON OUR LAw AND ITS STUDY (1930). For a contrary view
that we should be learning other cognitive skills, such as more fact-based analysis,
see JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE (1949).

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 117

to think deductively as well as inductively, and the ability to reason

analogically. Creativity is most often exercised within a specific do-
main of substantive knowledge (e.g., "the law" or "common legal prac-
tices") and is expected to be developed within the method (e.g.,
common law reasoning, the scientific method) that is appropriate for
the domain. Some domain-changing creativity challenges domain-
specific methods, as well as knowledge of the field. Thus, teaching
law students to create and synthesize (a deal, a document, a legal
strategy) is different than focusing the whole of legal education on
analysis and logical deduction.56
Distinct from efforts to account for and e:l\.lllain the conditions of
individual creativity, Howard Gardner's multiple intelligences the-
oryB7 suggests there are multiple intelligences or potential competen-
cies at the individual level, not only at the field or domain level.
Thus, rather than one general intelligence (as measured by logical
numerical and verbal tests and values88) each human being has sev-
eral different faculties and potential competencies. Different
problems are best addressed by different intelligences.59 Gardner
makes two essential claims about intelligence: (1) that a full descrip-
tion of human intelligence must take account of multiple (now 8 Iil )
intelligences that go beyond Socrates' rational man or Freud's irra-
tional animal, each of which may be mobilized both by individual in-
clinations and cultural preferences or societal needs, and (2) that
each individual has unique measures or expressions of these intelli-
gences that may be educated for and mobilized in different ways.
Creative products in particular cultural domains may be produced by
marshaling the intelligences associated with a particular domain, al-
though Gardner cautions us not to conflate complete correspondences
between domains and particular intelligences, or by combining some
variants of the multiple intelligences.
For lawyers, who clearly must have some linguistic intelligence
within Gardner's frames of reference, it is interesting to imagine how
increased attention to other intelligences, both in the educational

86. There are an increasing number of arguments that thinking like a lawyer will
no longer be logically linear when we incorporate the logic of computer use and com-
pletely different forms ofless linear thinking, see, for example, Barbara BintlilT, From
Creativity to Computerese: Thinking Like A Lawyer in the Computer Age, 88 LAW.
LmR. J. 338 (1996); Diana R Donahoe, at www.teachinglaw.freewebsites.com Hast
visited February 18, 2001).
87. See GARDNER, FRAMES OF MIND, supra note 10.
88. See Robert J. Sternberg, The Holey Grail of General Intelligence, 289 SCIENCE
399 (2000).
89. GARDNER, INTELLIGENCE REFRAMED, supra note 68, at 33.

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118 Harvard Negotiation Law Review [Vol. 6:97

process (see Part V infra) and in the practice of legal problem solving
might facilitate the enhancement of certain problem solving capaci-
ties, if not creativity, in the legal domain. Combining this work on
creativity and multiple intelligences for lawyers presents some inter-
esting possibilities for encouraging more positive ways of thinking
about legal reasoning and problem solving, if learning from different
intelligences can be made relevant within one domain (legal
problems).
Gardner originally posited seven intelligences, as follows:
1) linguistic-word and language related;
2) logical-mathematical-use of logic, mathematical operations
and scientific investigation;
3) musical-performance, composition and appreciation of mu-
sical patterns;
4) bodily-kinesthetic-use of body to solve problems (athletes,
dancers, surgeons, craftspeople);
5) spatial-recognition and manipulation of patterns of wide or
confined spaces;
6) interpersonal-capacity to understand the intentions, moti-
vations and desires of other people, and ability to work well with
other people;
7) intrapersonal-capacity to understand oneself;
More recently, Gardner has added several new intelligences: 9o
8) naturalist-expertise in the recognition and classification of
numerous species of the environment;
9) spiritual-relation to supernatural world or larger cosmos;
ability to achieve other states of consciousness;
10) existential-concern with ultimate issues and a capacity to
locate oneself with respect to the furthest reaches of the cosmos
and existence-ability to imagine and contemplate the infinite:
the cognitive side of spiritual intelligence. 91
While some have urged the addition of a moral intelligence,
Gardner declines to recognize that as a separate intelligence and in-
stead suggests that each intelligence can be expressed with positive

90. Id. at 35-41. Gardner specifies the bio-neurological and psychological factors
that set the parameters for recognition of an "intelligence" with both biological and
empirical components. Not all intelligences are clearly mapped in the brain.
91. Id. at 47-66. Because the last two, spiritual and existential intelligences have
not been as fully established by Gardner's own standards, he now speaks of "8 I!J"
intelligences. Howard Gardner, Kenote Address at the Hewlett Center Conference
2000: Focus on Negotation Pedagogy (Mar. 10, 2000). At least one dispute resolution
scholar has been exploring the relationship of spiritual intelligence (in the form of
meditation) to lawyering. See Len Riskin, Project on Meditation and Lawyers, Yale
Meditation Project.

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and negative values. He maintains that our choices about how to ex-
ercise our intelligence is a question of values and judgment, not intel-
ligence.92 Those psychologists and others who study altruistic
behavior might disagree; some empirical and socially defined charac-
teristics of rescuers, for example, illustrate some patterns of intelli-
gence, such as capacity for empathy and pro-active moral actions.93
Gardner himself has speculated on the intelligences that might
be marshaled for effective negotiation and legal problem solving: lin-
guistic, logical, interpersonal, intrapersonal, and even spatial, are ob-
vious candidates. 94 Consider how we narrow the domain of legal
problem solving by focusing so much of our education and knowledge
base on only one or two of these intelligences.
Much of the popular literature on learning how to be creative95
uses the approach of making people aware of more ways to think
about particular problems-in essence to access their multiple intelli-
gences, to avoid narrow domain-limited and path-dependent96 ways
of both framing and solving problems and to "think out of the box."
Brainteasers and other brain exercises are used to question assump-
tions, unpack stereotypic thinking, juxtapose elements of a problem,
make "the familiar strange,"97 change levels oftbjnking (aggregation
and disaggregation of problem elements), develop new frames, analo-
gies or metaphors, and to avoid pre-judging or prematurely settling
on particular solutions. Some brainteasers and problems designed to

92. GARDNER, INTELUGENCE REFRAMED, supra note 68, at 67-77.

93. See Carrie Menkel-Meadow, Is Altruism Possible in Lawyering?, 8 GEORGIA
ST. L. REv. 385 (1992); see also SAMUEL P. OLINER & PEARL M. OLINER, TUE ALTRUIS-
TIC PERSONALITY: RESCUERS OF JEWS IN NAZI EUROPE (1988); MATI' RIDLEY, TUE Oru.
GINS OF VIRTUE (1997); ELUOTI' SOBER & DAVID SLOAN WILSON, UNTO OmEns: THE
EvOLUTION AND PSYCHOLOGY OF UNSELFISH BEHAVIOR (1998).
94. GARDNER, INTELLIGENCE REFRAMED, supra note 68, at 47-66; Howard Gard-
ner, Using Multiple Intelligences to Improve Negotiation Theory and Practice, 16 NEG.
J. 321 (2000).
95. I will simply assume here that we are talking about small "c" creativity-
enhancements to producing novel or useful products within a domain (like law)-new
or effective legal ideas, concepts, doctrines, clauses, structures or arrangements.
While domain knowledge and training are necessary for big "C" creativity, like others,
I believe it is unlikely we can teach someone to be creative in that big, brea1.-tbrough
way, although problem presentation in an educational environment may spark moti-
vation or inspiration.
96. Oona A. Hathaway, TIze Path Dependence of the Law: The Course and Pattern
of Legal Change in a Common Law System, at http://www.bu.edullaw/faculty/papersf
Gast visited February 18, 2001).
97. A creative process, making use of analogical thinking, called "synectics," see
Wn.LlAM J.J. GoRDON, SYNECTICS: THE DEVELOPMENT OF CR&\TIVE CAPACI'n' (1961J.

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120 Harvard Negotiation Law Review [Vol. 6:97

enhance creativity also teach about the process of thinking, which in-
cludes listening, exploring multiple meanings of language and focus-
ing on less familiar modes of thoughts. A few of these exercises follow
below. As you attempt to solve these problems, pay attention to your
own thinking processes-how are you trying to solve the problem?
What problem or domain space98 are you searching? What do you
call on, from what you already know, to try to solve these problems?
1. In what has become the canonical problem for literally, and
figuratively, demonstrating this point, consider the following: Con-
nect the three rows of dots below with four straight lines without
moving your pen off the page:

• • •
• • •
• • •
Now, try connecting the dots with three lines.
Now, try one. 99
The solution to the first problem involves "thinking out of the
box" and by realizing that most people imagine a closed box or frame
within which they think. the lines must be drawn. Those with both
spatial and some forms of linguistic intelligence may solve this prob-
lem more quickly than others by not feeling so constrained by what
they hear as the instructions. The next two problems involve some
manipulation of the media or problem materials. The dots must be
made a bit larger to use three lines and we must stretch our sense of
"line" to imagine one large line to cover all the dots. Or, we must
change the paper on which the lines are drawn in order to line them
up one by one. lOO Law students, and even some law professors, resist

98. Scholars of decision making and problem solving describe the process ofprob-
lem solving by mapping out a problem space that creates the terrain for cognitive
searching, see, for example, NEWELL & SIMON, supra note 59, at 59. This can also be
considered framing the problem and this first step is quite crucial to how we go about
solving the problem. Recent work on problem solving from several different domains
suggests that many people do not use the rational search for alternatives posited by
rational choice theory, but especially among skilled experts, the "search space" is gen-
erated from past experiences and quick single decisions are made with a trial and
error evaluation process, called "recognition-primed decision making," see KLEIN,
supra note 10, at 7 (describing firefighters' decisions about how to attack fires, with-
out information about cause or specific locations).
99. For solutions, see JAMES A. ADAMS, CONCEPTUAL BLOCKBUSTING 24-32 (3rd
ed.1986).
100. [d. at 26-31.

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 121

the manipulation of words or material that is required by this prob-

lem. Is this teaching people to manipulate rules, instructions and to
transgress the "box" of laws that comprise our legal system?
2. Now, take a piece of paper and put your body through the
page. 101 The solution to this problem requires some alteration of the
media in which you are working. Word manipulation? Creative use
of spatial intelligence?
3. You have four cows in a field. How can you arrange those
cows so they are equidistant from each other? (Hint, this too calls on
spatial intelligence and manipulation of media).
4. A taxi-driver becomes annoyed with a particularly loqua-
cious passenger. He realizes he has not said a word during the whole
trip so he signals to his ears to indicate he is deaf. The passenger
quiets down. Later, after the passenger has left the cab, she realizes
a trick has been played on her. How does she knoW?102
5. A surgeon is asked to rush to the operating room after a car
accident. The surgeon is told a father and his son have been brought
in, but the father has died and the son needs emergency surgery.
Upon entering the Operating Room the surgeon gasps, "Oh my God,
that's my son!" How can this be?103
6. You are in a hotel going to a cocktail party during a confer-
ence and have no pockets or handbag. Where can you put your key so
both your hands are free to hold drinks and hors d'oeuvres? (There
are many solutions to this problem.)
These examples illustrate just a few points about creative prob-
lem solving in negotiation. Framing, creating and implementing so-
lutions can be done in many ways, so focus on precedents, standard
clauses, conventional solutions and a limited defined problem space
can actually hinder what we think is possible in solving legal

101. I will not put the solution in print, but will tell you the answer if you contact
me, [email protected], because I do not want my future students to be
able to research the answer.
102. GARDNER, AHA! INSIGHT, supra note 13. You will find this brain teaser, along
with many others used in negotiation classes to teach students to listen carefully and
pay attention to detail, in Martin Gardner's two books of brainteasers and puzzles
which are designed to teach, through problem solving, a number of intelligences, in-
cluding mathematical, quantitative, logical, linguistic, social (breaking of stereotypes)
and spatial. See also, GARDNER, AHA! GoTCHA: PARADOXES TO PUZZLE AND DEUGIlT,
supra note 13.
103. Martin Gardner has a series of brainteasers like this one, see GARD~R, AlIA!
INSIGHT, supra note 13, at 95, that are designed to e.'>."plore the stereotypes we employ
when we visualize a scene from the spoken word and make unnecessary and limiting
assumptions about what the scene is about.

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problems. By using puzzles and brainteasers of various kinds, stu-

dents and negotiators are forced to confront their own processes of
cognition or problem solving and expand the realms of possible infor-
mation and solutions they seek. After being stuck in an impasse in a
negotiation, students who stop and do a few brainteasers will often
re-approach a problem with new ideas, insights, and often, different
ways of looking at the problem.
In teaching legal problem solving, some choose to highlight the
rational choice, decision making model (evaluation of already gener-
ated alternatives),104 while others seek to systematize the teaching of
creativity. Popular writers like Edward de Bono 105 and Gerard Nie-
renberg106 seek to develop models, with specific techniques and exer-
cises in order to broaden the search frames that most people use in
both everyday problems and more complex expert based problems. 107
For instance, Edward de Bono asks us to consider what is good, bad
or interesting about something, suggesting that we counter and delay
judgments with curiosity and possibility or "pO"108 ( the provocative
rearrangement of information) as we restructure or reposition the
possibilities. In this literature, the following techniques are sug-
gested as formal ways of enhancing creativity, solving problems and
suggesting new ideas, some as separate individual cognitive
processes, and others as structured processes to be used in multi-
party settings:
1. Use of analogy (direct, fanciful) and use of metaphor;
2. Aggregation/disaggregation/re-combination of elements of a
problem;
3. Transfer (cross-disciplinary use of concepts, ideas, informa-
tion, solutions from other fields);
4. Reversal (either extreme polarization or gradual modifica-
tion of ideas)-which is done both in cognitive and in per-
sonal forms (as in role-reversal efforts to understand the
point of view of others in the situation);

104. See, e.g., Paul Brest & Linda Krieger, Lawyers as Problem Solvers, 72 TEMP
L. REV. 811 (1999).
105. DE BONO, supra note 13.
106. NIERENBERG, supra note 13.
107. See also HURT, surpa note 13; DONALD J. NOONE, supra note 13; ROBERT W.
OLSON, supra note 13; VINCENT RYAN RUGGIERO, supra note 13. For applications of
creativity and problem solving to organizational change and management see, for ex·
ample, Richard S. Blackburn, Managing Creativity in Academics, in MANAGING IN
ACADEMICS (Jill Ridky & George Sheldon eds., 1993); JENNIFER JAMES, THINKING IN
THE FuTURE TENSE: A WORKOUT FOR THE MIND (1997).
108. DE BONO, supra note 13, at 228·30.

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 123

5. Extension-extending a line of reasoning, principle or solu-

tion beyond its original purpose;
6. Challenging assumptions-re-exarnining givens or problem
statements and unpacking cliched, conventional solutions
or stereotypes;
7. Narrative-fully describing facts and problems to elaborate
on complexity, and producing alternative endings;
8. Backward/forward tbinlcing-focusing on how we came to a
particular situation (reasons why, causes) in order to figure
out how we get to desired end-stateCs);
9. Design-plan for desired future end-state, structures,
means;
10. Random stimulationlbrainstormingl09-separation of idea
generation, randomly generated, from judgment and evalu-
ation. As the field of group facilitation has developed, there
are newer, more structured variations on these themes,
such as Nominal Group Technique llO (a process of generat-
ing and then voting on solutions);
11. Visualization-use of different competencies and modes of
tbinking and processing information; this includes efforts at
altered states (e.g., retreats and meditations);
12. Entry points-explicit reframing of problems and solutions
from different perspectives, or in Gardner's terms, different
intelligences.
Some of these techniques or descriptions of tbinlcing are implicit
in much legal reasoning and problem solving (analogy, backward
tbinlcing, forward tbinlcing and design), but some of them are quite

109. The process of non-judgmental brainstorming in group settings was origi-

nally described by ALEX OSBORN, APPLIED IMAGINATION: PRINCIPLES AND PROCEDURES
OF CREATIVE PROBLEM-SOLVING (1963). It has continued to be validated as effective in
practice-the generation of a large quantity of ideas tends to improve their quality,
see AMABILE, supra note 8, at 244-45.
110. See Hurt, supra note 13, at 56; ROGER M. SCm'lARZ, THE SKILLED
FACILITATOR: PRACTICAL WISDOM FOR DEVELOPING EFFECTIVE GROUPS (1994). IDEO, a
California-based company that creates products and services, utilizes a team method
that includes voting on ideas generated from group brainstorming sessions. This pro-
cess has been used successfully in the invention of such products as Crest's "Neat
Squeeze" toothpaste dispenser and 3 Com's Palm Pilot V design. See http://
www.ideo.com/ideo.htmOastvisitedFebruary18.2001).This model has been
adopted and adapted by other companies, is studied a"tensively in business school
classes that teach team building, and written about by journalists and others. See Ed
Brown, A Day at Innovation U: Can You Teach Creativity, at http:www.fortune.coml
fortunefcareers/1999/04l121sta.html Oast visited February 18. 2001). See also TO:.1
KELLEY & JONATHAN LITTMAN, THE ART OF INNOVATION: LESSONS IN CREATIVITY FROM
IDEO, AMERICA'S LEADING DESIGN FIRM (2001).

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outside the usual scope of legal problem solving. So, how can all of
this creativity and multiple intelligences work be harnessed to legal
problem solving?

IV. LEGAL CREATIVITY AND PROBLEM SOLVING

Is it possible to speak oflegal creativity or is the phrase itself an

oxymoron? Law is based on precedent, rule oflaw and gradual evolu-
tion of legal principles. Even this conservative discipline, however,
has had its revolutionary moments. Consider three different forms of
legal creativity that bear on legal problem solving. First, at the high-
est level of abstraction, we might consider what creative ideas that
law as a discipline, or legal institutions, have contributed to the solv-
ing of basic human problems at the societal or system level. Second,
how do legal memes or tropes oflawmaking come into being (e.g. com-
mon law and Constitutional doctrinal development) so they influence
legal behavior, such as in problem solving in litigation and dispute
contexts, as well as everyday compliance, mobilization or resistance
to the law?111 Third, how are legal concepts created and used in the
transactional context to develop legal entities, to manage arrange-
ments in large institutions like corporations, as well as one shot buy-
sell agreements and to enable and monitor daily human interactions?
If we can understand the basic structure and sources of whatever le-
gal creativity we have, we can better transmit a more systematic ap-
proach to developing solutions to legal problems to enhance the legal
creativity of our students.
This section illustrates examples of legal creativity, drawing on
the three categories of legal creativity (uniquely innovative legal
ideas and concepts, processes of acceptance of legally creative ideas
and the use, development and refinement of legal institutions, enti-
ties, transactions and clauses) by demonstrating how such legally
creative ideas came to be. The examples here, though by no means

111. For a law and society scholar this represents a view oflaw from the outside:
how do particular legal ideas, or ideologies, come into being and how are they used,
mobilized or resisted by those affected by legal doctrines and rules? See Alan Hunt,
The Ideology of Law: Advances and Problems in Recent Applications of the Concept of
Ideology to the Analysis of Law, 19 LAw & SOC'Y REV. 11 (1985). Thus, a broader and
more social view oflegal creativity includes not just those who formally make the law
(judges, lawyers, government officials) but those who implement it, are regulated by it
and who translate it into everyday understandings. See e.g., EWICK & SILBEY, supra
note 75; SALLY MERRY, GE'ITING JUSTICE AND GE'ITING EVEN: LEGAL CONSCIOUSNESS
AMONG WORKING CLASS AMERICANS (1990); Regina Austin, Employer Abuse, Worker
Resistance and the Tort of Intentional Infliction of Emotional Distress, 41 STAN. L.
REV. 1 (1988).

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exhaustive, demonstrate that many of the creative processes de-

scribed by creativity scholars and practitioners in other disciplines
have, in fact, been used in law to create new concepts or ideas by
interpreting or characterizing words, the constituent element of all
law (by creatively reading and "misreading" prior concepts or tropes),
expanding, aggregating, disaggregating, rearranging and altering ex-
isting ideas and concepts, borrowing or translating ideas from one
area oflaw to another or from other disciplines, and finally, by use of
re-design or architecture of words and concepts to build both new le-
gal theories at the abstract level and new institutions at the practical
level. In the paragraphs that follow we examine illustrations of these
creative processes in legal problem solving. Some are the product of
internal and individual negotiation (ideas developed by particularly
creative individuals like Joseph Sax, Charles Reich and Catherine
Mackinnon). Most legal ideas and solutions to problems, however,
are the result of multi-party negotiations, such as our founding Con-
stitutional Convention,112 or incremental cognitive negotiations with
concepts and ideas that are changed by intelligent, and some ,....ould
say "value creating"113 lawyers, in both disputing and transactional
contexts.
Law as a discipline has contributed to the solution of human
problems with the creation of institutions designed to preserve order
and reduce or eliminate violence through the development of both
governing principles and processes. Whether particular regimes or
institutions are legitimate within a particular society, law and the
institution!" it creates are the glue which holds the society together by
resolving disputes at both system-wide and individual levels. Law
can be used illegitimately, as the Nazi and other fascist regimes
demonstrated, but more commonly, law appeals to legal principles or
processes are legitimately used to get things done. 114 To the eA-tent
that we continue to view our own Constitution as the ultimate crea-
tive act,115 in its creation of a structure of government with checks
and balances, separation of powers and federalism that places great

112. See John Elster, Strategic Uses ofArgument, in BARRJERS TO CONFUCT REso-
LUTION (Kenneth J. Arrow et al. eds., 1995); Jack Rakove, ORlGlNAL MEANINGS (1996,;
Dana Lansky, Proceeding to a Constitution: A Multi-Party Negotiation Analysis of the
Constitutional Convention of 1787, 5 HARv. NEGOT. L. REv.279 (2000).
113. MNOOKIN ET AL., BEYOND WINNING, supra note 26.
114. Robert Cover, Violence and the Word, 95 Yale L.J. 1601 U9861.
115. Regarded by many as deeply flawed from its inception because of its recogni-
tion of many inequalities (including slavery). This raises the question of the tempo-
rality of measures and assessments of creativity.

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emphasis on the process of governance, it is not surprising that nego-

tiation theorists want to claim for lawyers the moniker of process ar-
chitects.1 16 Our Constitution and much American law has also
created substantive legal concepts and ideas, which in turn influence
the legal behavior of those regulated or acted upon. Where do the
ideas for these substantive legal concepts come from and how do new
ones arise and become recognized? Virtually all of our legal ideas
have been negotiated, whether in the august chambers of constitu-
tional conventions or the more common locations of law offices and
conference rooms.
Except for those rare revolutionary moments, when legal ideas
are plentiful and debated by many, we tend to think of the develop-
ment oflegal concepts and principles as gradual, incremental and not
necessarily creative. A limited number of cognitive processes are
thought to govern the development of new legal ideas,117 such as rea-
soning by analogy, or its converse, differentiation,118 and the use of
inductive logic, as well as deductive logic. Some would argue that as
one of the most creative breaks in legal intellectual history, law and
economics has added some further cognitive processes to the mix. We

116. Ronald Gilson & Robert Mnookin, Foreword: Business Lawyers and Value
Creation for Clients, 74 OR. L. REV. 1,8-9 (1995); MNOOKIN ET AL., BEYOND WINNING,
supra note 26. And in an interesting reversal, social theorists and historians have
recently been applying negotiation theory to constitution fonnation. See Elster, supra
note 60 and Rakove, supra note 60, for examples of the exploration of the differences
in bargaining procedures utilized in different constitutional settings.
117. Despite the recent increase in attention paid to legislation, as Eskridge &
Frickey have done, and regulation, most classic studies oflegal processes still focus on
judicial common law development. See BENJAMIN CARDOZO, THE NATURE OF THE JUDI.
CIAL PROCESS (1921); OLIVER WENDELL HOLMES, THE PATH OF THE LAw (1897); LLEW.
ELLYN, supra note 85; cf. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL
PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Es-
kridge, Jr. & Philip Frickey eds., 1994). For more nuanced and recent case studies on
how laws are made, see CASE STUDIES IN CONSENSUS BUILDING HANDBOOK (Larry
Susskind et al. eds., 1999); WENDY ESPELUND, THE SmUGGLE FOR WATER: POLITICS,
RATIONALITY AND IDENTITY IN THE AMERICAN SOUTHWEST (1998); Jody Freeman, Col·
laborative Governance in the Administrative State, 45 UCLA L. REV. 1 (1997).
118. Law students are taught analogical reasoning and the "distinguishing" of
cases, to be able to argue for both inclusion or exclusion of particular facts from argua-
bly applicable rules. Interestingly, in recent empirical work on effective modes of
teaching negotiation, Leigh Thompson and her colleagues, of the Northwestern Kel-
logg School of Business, have demonstrated that explicit comparison of cases, drawing
analogies in the characteristics of cases may increase the likelihood of pattern recog-
nition and produce "better" outcomes (in that case, conceptualized as more flexible,
contingent clauses). See Jeffrey Loewenstein et al., Analogical Encoding Facilitates
Knowledge Transfer in Negotiation, 6 PSYCHONOMIC BULL. & REV. 586 (1999); Leigh
Thompson, et al., Avoiding Missed Opportunities in Managerial Life (2000) (manu-
script). Perhaps legal educators are doing something right, after all.

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 127

utilize rational choice theory, wealth maximization and efficiency

concerns to affect that more ambiguous form of legal reasoning-pol-
icy analysis-in making choices among possible rules or creation of
new ones. More recently, some use of statistical and empirical ideas
(such as logical-mathematical intelligences) have found their way
into legal reasoning (e.g. antitrust, employment discrimination) and
even the economists have begun to take note of the psychological
forces affecting rational man. us I have argued elsewhere120 that it is
interesting to note the differential take-up rates of different modes of
thought or disciplines (intelligences?) in legal reasoning. As we begin
to explore the broadening of disciplines, domains or intelligences that
might contribute to legal reasoning, there will be difficult questions
of transferability, evaluation and verification,121 but an opening out
is necessary to spark legal creativity and to encourage a broader
range of both solution generation and methods of solution evaluation.
Lawyers work with words, so most of our creative acts involve
the construction of new language and interpretation of existing lan-
guage, creating new concepts from whole cloth or from the interstices
of statutory, regulatory or contractual gaps. Our words have the
force oflaw behind them, however, so that powerfully creative words
in law have been known to create whole new institutions. Examples
of new legal and real entities that have been created are corporations,

119. For a summary of the new use of behavioral, social and cognitive psychology
in law and economics and legal scholarship more generally see Langevoort. supra note
46; see also Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science:
Remouing the Rationality Assumption from Law and Economics, 88 CAL. L. REv. 1051
(2000).
120. For comparisons oflaw and the social sciences other than economics, see Car-
rie Menkel-Meadow, Durkheimian Epiphanies: The Importance of Engaged Social
Science in Legal Studies, 18 FLA. ST. U. L. REV. 91 (1990). For a comparison oflegnl
feminism with law and economics, see Carrie Menkel-Meadow, Mainstreaming Femi·
nist Legal Theory, 23 PAC. L.J. 1493 (1992). Others have focused on the use ofliterary
criticism and humanistic studies, see, for example, MARTHA C. NUSSBAUM, POETIC
JUSTICE: THE LITERARY IMAGINATION AND PUBLIC LIFE (1995); ROBIN WEST, NARRA.
TIVE, AUTHORITY AND LAw (1993); James Boyd White, What Can A Lawyer Learn from
Literature?, 102 HARv. L. REV. 2014 (1989); cf. RICHARD POSNER, LAW AND LITERA.
TURE: A MIsUNDERSTOOD RELATION (rev. ed. 1998).
121. It is sometimes suggested that law and science and law and social science
operate with such different standards of proof that they are hard to reconcile, espe-
cially in courts of law. See, e.g., STEVEN GoLDBERG, CULTURE CL.'\SH: LAw AND SCI.
ENCE IN AMERICA (1994); SHEILA JASANOFF, SCIENCE AT THE B,\R: LAw, SCIENCE AND
TECHNOLOGY IN AMERICA (1995). In some cases, law is more demanding than science
(epidemiological proof in mass torts), requiring degrees of certainty not yet known to
science. In other cases, courts have tolerated what others cnl1 junk science if there is
at least one CAllert to testify to some scientific truth. See Daubert. v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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128 Harvard Negotiation Law Review [Vol. 6:97

trusts, regulatory agencies, condominiums, unions and tax shelters.

In addition, our words have created new legal rights and constructs
like leases, sexual harassment, probation-and also have recognized
(sometimes from conflicting ideologies) new claims like civil rights,
privacy, free speech and emotional distress.
Words have also been creatively interpreted or "misread" by law-
yers or judges, seeking to alter, expand, contract or even radically
change a legal concept or doctrine. David Cole, for example, has sug-
gested that "creative misreadings" by several notable justices of First
Amendment doctrine creatively fashioned our First Amendment ju-
risprudence. 122 Cole applies the literary analysis of Harold Bloom's
The Anxiety of Influence (1973), to suggest that judges, like poets, are
caught between emulation of tradition and creative breaks with the
past.123 Dissents, in particular, offer an opportunity for oppositional
ideas to be expressed and gradually to become less shocking and
more acceptable. 124 Cole traces the development of First Amendment
law through Justice Holmes, Brandeis, Black and Brennan's "crea-
tive misreadings" of precedent to develop such legal memes as "clear
and present danger," "free trade in ideas" which became the "market-
place of ideas," and the resultant change in legal doctrine from one
restricting speech to one increasingly tolerant of even subversive
speech.125 As Cole artfully argues, Justice Holmes, by dissenting
from himself, used the common forms oflegal reasoning by employing
background philosophical principles derived from Blackstone, Smith
and Mill, expressed in pithy metaphors which are themselves altered
by context and by interpretations of subsequent readers (other
judges).126 Constitutional adjudication has been particularly subject
to this form of creative literary process as words and metaphors are
used to break from the past and legal memes are needed to build le-
gitimacy and acceptance for breaks from the past. As Brown v. Board
of Education 127 ushered in an era of "separate is not equal," the re-
quirement to integrate "with all deliberate speed" was an effort to use
the lawyer's tools of words to effectuate a more gradual compliance
with a revolutionary and creative newly announced principle. Note
that the choices oflanguage or metaphors can be problematic as well.

122. David Cole, Agon at Agora: Creative Misreadings in the First Amendment
Tradition, 95 YALE L.J. 857 (1986).
123. See Id. at 858.
124. See Id. at 860,869-71.
125. Cole, supra note 122, at 875-96.
126. Id. at 879-87.
127. 347 U.S. 483 (1954).

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 129

As Justice Blackmun chose "viability" of the fetus as a way of finess-

ing religion by using science in Roe v. Wade,l28 a new justifying prin-
ciple is needed as science moves viability ever forward. Thus, a
judge's and lawyer's creativity may be measured by the "viability" of
the legal meme or trope that he creates.
At the opposite end of "creative misreadings" is the cognitive pro-
cess of extension. One of the major legally creative acts in modern
times is Charles Reich's "new property,"129 an application or e1\.i:en-
sion of traditional property principles to the new forms of property-
employment expectations, welfare and other entitlements provided
by the government. Current efforts to expand the Nuremberg War
Tribunals and the current War Crimes Tribunal to build an Interna-
tional Criminal Court demonstrate the expansion of an entire legal
institution by changing levels of regulation and eh1l0sing the difficul-
ties and opportunities of creating legal institutions and laws across
jurisdictional domains. 130
Related to expansion oflegal concepts is the common legal crea-
tive act oftransfer131 from one legal domain to another. Another im-
portant creative act is the variety of contributions made t~ legal

128. 410 U.S. 113 (1973).

129. Charles Reich, The New Property, 73 YALE L.J. 733 (1964).
130. In this sense virtually all of international law. both public and private. dem-
onstrates elements of legal creativity in the need to eA-pand. combine and create new
legal standards and procedures. Some creativity in this arena will be additive and
may get cycled back to domestic legal systems for innovations. In other aspects. inter-
national law introduces highly competitive negotiations about rules. procedures and
substantive allocations, often based on the relative resources of constituent nations.
See, e.g., negotiations that produced the Law of the Sea and the GATT lLax &
Sebenius, supra note 36); United Nations Convention on the Law of the Sea, U.N.
Doc. AlConf. 621122 (1982); General Agreement on Tariffs and Trade. Oct. 30, 1947,
61 Stat.5, 55 U.N.T. 187; David Kennedy, Wlum Renewal Repeals: Thinking Against
the Box, 32 NYU J. lNT'L L. & POL. 335 (2000). Note also the United States' resistance
to the recent move of the United Nations to establish the International Criminal
Court, a move led by Senator Jesse Helms. See Barbara Crosette, U.S. Resists War
Crimes Court, N.Y. TIMES, July 22. 2000 at A-4.
131. Gary Blasi labels this disciplinary or domain "border crossing": "Real innova-
tion in law and lawyering techniques is most often the product of [the same) cross-
boundary phenomenon. In some cases, it is the problem that migrates to confront a
different kind of lawyer, so that a corporate or personal injury lawyer is asked to
consider remedies for the problems that attend slum housing. In other cases, an idea
migrates from one region oflegal doctrine to another, so that the notion of an implied
warranty in the law of sales is imported into landlord and tenant law. In each case it
is the novel association of problem and technique, the unusual jm."t.aposition of com-
plexity and analytic method, that often produces innovations in both law and lawyer-
ing." See Gary Blasi, Teaching/Lawyering as an Intellectual Project, 14 J. LEOAL
PROF. 65 (1996).

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130 Harvard Negotiation Law Review [Vol. 6:97

scholarship by Joseph Sax-the use of public trust doctrine in envi-

ronmentallaw,132 the treatment of "slumlordism" as a tort,133 both of
which were developed by exporting or importing one area of the law
to another. This juxtaposition of seemingly unrelated things, or com-
bining, explains much of innovative product development. 134 Cathe-
rine MacKinnon's treatment of pornography as a civil rights or torts
claim and the recognition of sexual harassment as employment dis-
crimination 135 illustrates this important principle-that given a body
of law designed to remedy particular harms or wrongs, either the
harms or wrongs covered by the law, 136 or the remedies available,
may be extended as we recognize appropriate new members of a cate-
gory. This type of transfer occurs when we creatively borrow from
other domains or systems. Many creative legal theories and institu-
tions actually have their roots in other legal systems (e.g. European
social insurance regimes,137 civil law models of comparative negli-
gence, and Asian and African systems of dispute resolution). As a
method of challenging assumptions, looking at how others of different
cultures and domains solve problems 138 demonstrates how our legal
constructs are chosen, not given, and how they may be altered. 139

132. Joseph Sax, The Public Trust Doctrine in Natural Resources Law: Effective
Judicial Intervention, 68 MICH. L. REV. 471 (1970). For a recent additional use of this
transfer principle, see Gerald Torres, Who Owns the Sky? Paper presented to Ge-
orgetown Environmental Law Seminar, Nov. 5,1999.
133. See Olin Browder, The Taming of A Duty: The Tort Liability of Landlords. 81
MICH. L. REV. 99 (1982); Joseph Sax, Slumlordism As a Tort, 65 MICH. L. REV. 869
(1967).
134. The military walkie-talkies ofWorId War II were invented by the founder of
Motorola who combined what he knew of car radios with \vireless communication
across battlefields, as he toured Europe on a family trip before the outbreak of the
war. See CSIKSZENTMIHALYI, supra note 8, at 96-97.
135. CATHERINE MAcKiNNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND
LAW (1987).
136. Robin West has suggested that tort and criminal law be extended to recognize
the now unrecognized claims of women's harms. See WEST, CARINO FOR JUSTICE.
supra note 52.
137. The limited hours of women and child labor legislation defended by the Bran-
deis-Goldmark brief in Muller v. Oregon, 208 U.S. 412 (1908), were derived from Eu-
ropean protective labor laws.
138. For a moving, but painful, illustration of how different cultures define
problems and solutions differently, see ANNE FADIMAN, THE SPIRIT CATCHES You AND
You FALL DOWN: A HMONG CHILD, HER AMERICAN DOCTORS, AND THE COLLISION OF
Two CULTURES (1997).
139. This is not unlike the advice given by Fisher & Ury and other negotiation
theorists that looking to other expert systems is another way to look for creative
ideas. How would another discipline characterize or frame a problem and then solve
it? For a phenomenological account of problem solving in several different disciplines,
see DONALD SCHON, THE REFLECTIVE PRACTITIONER: How PROFESSIONALS THINK IN
ACTION (1983).

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 131

A form of creativity somewhat unique to legal reasoning, though

similar to our related linguistic intelligences,140 is the process of
characterization141 or argumentation in which we use our words to
re-categorize facts, claims, arguments and rules, which disturb the
linguistic purity desired by those outside of our domain. 142 Consider
how patent lawyers successfully assimilated the architecture of
software to the vocabulary of a machine in order to obtain patent pro-
tection for what were thought to be unpatentable "mental processes,
abstract intellectual concepts" or ideas. 143 Or, in a form of creative
reversal, consider how conservatives reclaimed takings law to render
many land use regulations compensable events under the Fifth
Amendment. l44 In another example, defense counsel who initially
resisted plaintiffs' class actions in mass torts captured the device
when seeking global settlements with plaintiffs and insurers.145
Similarly, alterations (in the form of aggregations or disaggrega-
tions) of concepts is a common legal trope, particularly in transac-
tional legal work. Using basic property principles which combine
space and time (time bounded estates in land), creative lawyers cre-
ated co-ops, condominiums and time shares. The development of the
corporation, corporate law and corporate financing all demonstrate
the highest forms of legal creativity as creative entrepreneurs part-
ner with lawyers to raise capital and create new entities. The 'junk
bond," the "poison pill," the "golden parachute" and the "Skadden re-
tainer"146 are all legal creations intended to allow, in the view of

140. Howard Gardner has solved the mystery of why so many lawyers write mys-
teries (and thrillers and novels and memoirs). We are simply shifting within our lin-
guistic intelligence to another domain in which we can use words and language Inot to
mention logic for mystery writers!)
141. Or rhetoric as the Greeks would have it. For a not so flattering portrait of
how we exercise this form of creativity, see PLATO, GORGIAS (Penguin ed. 1971).
142. See, e.g., GEORGE LAKOFF, WOMEN, FIRE AND DANGEROUS THINGS: WHAT CNfE.
GORIES REVEAL ABoUT THE MIND (1990).
143. James Gleick, Patently Absurd, N.Y. TIMES !liAGAZrNE, March 12,2000, at 44,
47-48. "Judges and lawyers have devoted millions of words to the nuances lofrele-
vant categories for patent and copyright protections). Maybe the trajectories of cul-
ture, economics and technology have reached a point where a distinction between an
idea and machine can no longer be sustained." Id at 48.
144. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); RIcHJ\lU) A. EPSTEIN,
TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985).
145. In re N. Dist. of Cali. Dalkon Shield IUD Prods. Liab. Litig., 693 F.2d 847 (9th
Cir. 1982); Amchem Prods v. Windsor, 117 S. Ct. 2231 (1997).
146. A preemptive strike intended to prevent Skadden, Arps, Meagher & Flom
from being retained in an attempt to take over your company. See CAPLAN, supra note
76.

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132 Harvard Negotiation Law Review [Vol. 6:97

some, value creation through deals 147 with creative terms and
clauses adapted to meet parties' needs for accumulations of capital
and flexibility in governance. Corporate regulators, it must be said,
may be equally creative. Disclosure laws and securities regulations
were themselves creative responses to the stock market crash of
1929, while current arguments about the importance ofa wider group
of corporate stakeholders to whom the corporation might be responsi-
ble are efforts to create legal relations and liabilities where once
there were none. Negotiators in the transactional setting are often
particularly good at creating solutions with contingent agreements or
gradualist alterations of boilerplate terms. The percentage of gross
or net rent (in commercial leasing) or payment (in the performing
arts and sports) are alterations of standard rent or salary terms when
traditional formulations of fixed amount and distributive bargaining
problems gave way to contingent agreements to allocate risk and un-
certainty. Similar risk allocation in the litigation context changed
conventional monetary judgments to structured settlements and
annuities.
Beyond the case or transaction level, legal professionals demon-
strate creativity when they create whole new institutions like the
"problem solving courts" of drug courts,148 vice courts, and integrated
family courts that are seeking to work interdisciplinarily with both
individuals and families to combine treatment with punishment.
Similarly, creative clinical programs in law school have moved from
totally litigation-oriented strategies to transactional work, develop-
ing venture capital and investments in housing and economic devel-
opment projects, and multi-disciplinary problem solving, such as
legislative advocacy connected to public health professionals for nee-
dle exchange programs. 149
Legal creativity has its own special structure. The adversary
system itself may spark certain forms of creativity by requiring rever-
sals and responses to arguments and characterizations of facts. To

147. Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset
Pricing, 94 YALE L.J. 239 (1984).
148. Michael Dorf & Charles Sabel, Drug Treatment Courts and Emergent Experi·
mentalist Government, 53 VAND. L. REV. 831 (2000); Judith Kaye, Changing Courts in
Changing Times: The Need for a Fresh Look at How Courts are Run, 48 HAsTINGS L.J.
851 (1997).
149. Scott Burris, HN Education and the Law: A Critical Review, 20 L. MED. &
HEALTH CARE 377 (1992); Scott Burris et al, Syringe Exchange in Pennsylvania: A
Legal Analysis, 8 TEMP. POL. & Cry. RTS. L. REV. 41 (1998). See also Temple Law
School's "Legal Advocacy for Patients" Clinical Program.

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 133

respond is to think. and to deny as well as to explain. Thus, new ex-

planations must be found, new defenses creat.ed, and new causes of
action and new transactional forms to be discovered. Some adver-
sarial creativity may be exercised in the spirit of law avoidance. The
decision of Buckley v. Valeo l50 and its attempts to sustain limits on
campaign contributions produced the legally creative Political Action
Committee (PAC), a cure that some think. is worse than the original
problem. Recall that Howard Gardner warns that intelligences have
no morality and can be exercised for good or ill. ISI Law's creativity
may be somewhat limited by the bounds oflaw and legal ethics rules,
but there still remains a fair amount of problem space to be manipu-
lated within our adversarial culture. At the same time, the adver-
sarial culture may also constrain and cabin our thinlcing
unnecessarily by structuring it in polarized and oppositional terms.
Are transactional lawyers more creative by being less constrained?
Corporations and trusts, for example, were creat.ed legally to accom-
plish many different goals, some adversarial (tax delay, minimization
or avoidance), but also to permit different power and control arrange-
ments and to bundle and unbundle interests of wealth, time and as-
sets to permit great flexibility of action.
While this essay does not exhaustively examine all possible
forms of legal creativity, it is useful to map the kinds of legal ideas
that have been developed onto the kinds of creative tbinlcing
processes and multiple intelligences that might be applied to legal
problem solving. Our intellectual and cognitive frames can be
stretched, even by a mechanical application of different modes of
thinking or different points of entry.152 At least more e:-..-plicit atten-
tion to how we think. alone and reason together might demonstrate
more paths of legal cognition. Legal creativity is necessarily limited
by its need to work within the law, or at least within the foreseeable
boundaries of legal change, but for optimal problem solving it would
seem we should try to push the boundaries of little "c" creativity as
much as we can to produce at least a greater number of choices about
how best to accomplish legal results.
In searching for big "C" creativity in law, beyond perhaps the
group act of drafting the Constitution, we should consider the contri-
butions of legal scholars to the development of overarching theories
or legal frameworks that attempt to reorient the development of law.

150. 424 U.S. 1 (1976).

151. GARDNER, INTELLIGENCE REFRAMED, supra note 68, at 66-77.
152. For example, mathematical and quantitative assessments for division, sug-
gested by Brans & Taylor, supra note 32.

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134 Harvard Negotiation Law Review [Vol. 6:97

One cannot avoid the remarkable achievement of Richard Posner and

the law and economics movement in creating a legal meme that has
been quite powerful in its transmission into the legal culture and law
(with so many of its proponents now on the bench). Additionally, how
can we ignore the legal memes created by Christopher Columbus
Langdell as we generally labor in both the same physical and intellec-
tual architecture that he created over one hundred years ago? Legal
realism, critical legal studies, legal feminism and critical race theory
are all group acts of legal creativity, seeking to develop new frames
for thinking about legal problems, creating theories, new causes of
action and new remedial schemes. What Weber called charismatic
leadership demonstrates another form of creativity-intellectual or
motivational leadership to rethink existing paradigms,153 evident in
both intellectual and political realms. For examples of how particu-
larly creative lawyers develop their legal strategies and consider both
the formation and the utilization of their ideas, several recent biogra-
phies of important legal thinkers are instructive,154 along with de-
tailed case studies of strategies in particular litigation or other legal
events. 155 Those of us who are laboring on the concept of problem
solving or constructive lawyering156 hope that we have launched an-
other legal meme-that of the problem solving157 lawyer and the in-
tegrative, interest-based negotiator. Whether we succeed depends on

153. Gardner describes the particular kinds of intelligences that political and or-
ganizational leaders are likely to have. GARDNER, INTELLIGENCE REFRAMED, supra
note 68, at 116-34 (linguistic, intrapersonal and interpersonal intelligences). He de-
fines leaders as those "people who can change the thoughts, feelings and/or behaviors
of a significant number of other people." Id. at 126.
154. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND TIlE JUDGE (1994);
WILLIAM HARBAUGH, LAWYER'S LAWYER: THE LIFE OF JOHN W. DAVIS (1973); ARTHUR
KINOY: RIGHTS ON TRIAL: THE ODYSSEY OF A PEOPLE'S LAWYER (1983); JOHN NOONAN,
PERSONS AND MAsKS OF THE LAw: CARDOZO, HOLMES, JEFFERSON, AND WYTHE AS MAK.
ERS OF MAsKS (1976); MARK TuSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MAR·
SHALL AND THE SUPREME COURT (1994).
155. See, e.g., JONATHAN HARR, A CIVIL ACTION (1995); ANTHONY LEWIS, GIDEON'S
TRUMPET (1964); ANTHONY LEWIS, MAKE No LAw: THE STORY OF N.Y. TIMES VS. SULLI.
VAN (1991); GERALD STERN, THE BUFFALO CREEK DISASTER (1976) (all chronicling crea-
tive ideas for lawsuits, arguments, and legal strategies).
156. See Center for Public Resources-Institute for Dispute Resolution Problem
Solving and Legal Education Project Report, presented at Symposium on Dispute
Resolution and the Problem Solving Lawyer, Harvard Law School, April 7-8, 2000.
157. "Problem solving" is clearly the educational buzz word of the decade. Every
major university and liberal arts college is touting its goals to create a "problem solv-
ing curriculum," see, for example, Penn Arts & Sciences, University of Pennsylvania
Newsletter, Winter 2000, at http://www.collegeupenn.edulnewsletter/marOO/abc.htm
(Last Visited April 6, 2000). One class offered to undergraduates is GH 210, Seminar
in Faculty-Student Collaborative Learning: Developing an Interdisciplinary Problem-
Solving Curriculum Focused on West Philadelphia.

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 135

what creative ideas we can offer for legal education and it is to that
agenda that I now turn.

V. IMPLICATIONS FOR AND APPLICATIONS TO LEGAL EDUCATION

If the teachings of the fields of creativity and multiple intelli-

gences are to be effectively applied and transferred to legal education
we must re-examine how we do things. Although analysis and tradi-
tional legal reasoning are important158 and should not be removed
from the curriculum, it is important to understand the consequences
of such education. Legal analysis does teach close readings of te1\.-ts
and teaches judgment by putting students in the role of the detached
critical reader. But analysis, as taught in legal education, is often
more critical than the more constructive forms of reasoning and anal-
ysis that are taught in some graduate schools and in business
schools. Perhaps it is our adversarial frame,159 but we teach analysis
by critical correction, critique and oppositional culture. ISO I suggest
that explicitly teaching creativity \vith positive examples, models, ex-
periences of empowerment and accomplishment may make better
problem solvers out of our students than the current legal education
culture permits. While we need to know and understand the biased
and inaccurate heuristics we often employ, it is also important to de-
velop some positive heuristics in the context of legal problem solving.
This article concludes with some concrete suggestions below.
At the level of conventional case instruction, it is possible to
teach alternative ways of structuring and solving legal problems at
the same time that students are learning t~ brief a case, make argu-
ments and discover the relevant facts and holding. As described else-
where,161 a series of questions could be asked of students of each case

158. Every modem critique of the profession and legal education seems to begin
with the statement that we just need supplementation, not a totally new system. See
CPR Commission on Lawyering, Problem Solving and Legal Education, at http://
www.cpradr.org Gast visited February 18, 2001); ANTHONY T. KnONMAN, THE LoST
LAWYER: THE FAILING IDEALS OF THE LEGAL PROFESSION (1993); Brest and Krieger,
supra note 5.
159. Why wouldn't the adversarial and competitive economic frame similarly af-
fect business schools? Perhaps because the entrepreneurial culture also values crea-
tivity and the creation of new products?
160. See DEBORAH TANNEN, THE ARGUMENT CULTURE U99S); Carrie Menke!-
Meadow, The Trouble with the Adversary System in a Post-Modern, Multi·cultural
World, 38 WM. & IvlARY L: REv. 5 (1996).
161. Carrie Menkel-Meadow, Taking Problem Solving Pedagogy Seriously: A Re-
sponse to the Attorney General, 49 J. LEGAL Eouc. 14U999); Carrie Menkel-Meadow,
To Solve Problems, Not Make Them: Integrating ADR in the Law School Curriculum,
46 SMU L. REV. 1995 (1993).

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read to encourage creative thinking. This would push students to

look for multiple possibilities and directions that the case could have
taken, before it hardened into its appellate form. In addition to the
stated facts and legal issues, one should ask the following questions:
What are the "real" issues between the parties?
What were the parties trying to accomplish?
Who else is, or was, involved in the transaction, dispute or un-
derlying issue?
How else might the parties have dealt with or managed their
problem aside from the lawsuit at hand?
What other solutions, proposals or resolutions of their matter
would have been possible?
Answering these questions allows students to see how much
more might be at stake than what the court fIxes on; that other peo-
ple may be involved and that other resources might have been mobil-
ized to deal with the problem. Such readings of cases open up other
possible readings of a case, perhaps to "creative misreadings" and to
other possible solutions. 162 I often ask students to re-think a case or
problem for new possibilities after they have worked on some of the
brainteasers or other problems described above. This might be a good
empirical testing ground of the effectiveness of creativity teaching
and training-can students or lawyers see more possibilities in legal
problems after they have had the opportunity to use some other
intelligences?163
In all courses, experiences of successfully creating some legal
product, such as a contract, a complaint, a deed, a will, a motion or a
single jury instruction, will empower students to feel they have begun
to learn to create legal products. Borrowing from Howard Gardner's
"processfolio,"164 law students might actually keep on going fIles of

162. At an early stage of my negotiation course, I ask students to select 5 cases at

random from a reporter, a casebook or now, the computer, and to answer these ques-
tions. Together we explore the different kinds of processes and resolutions that might
have been used to solve problems that traveled up the litigation food chain to appel-
late treatment.
163. This issue of the "transferability" from one domain or one intelligence to an-
other is both an interesting theoretical problem and one that greatly affects educa-
tional theory and practice. See Brook Baker, Beyond Mac{:rate: The Role of Context,
Experience, Theory and Reflection in Ecological Learning, 36 ARIZ. L. REV. 287,291
(1994); See also Steven Friedland, How We Teach: A Survey of Teaching Techniques in
American Law Schools. 20 SEATI'LE U. L. REV. 1 (1996).
164. HOWARD GARDNER, MULTIPLE INTELLIGENCES: TilE THEORY IN PRACTICE 225-
26 (1993).

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 137

their written drafts and re-writes throughout law school to document

the process and progress in their own thinking. 16s
A few law schools, like Northwestern, have eAllerimented with
involving students with actual or simulated clients in the first year,
by having them participate in an initial interview, consider what the
client's problem(s) might be and then, to begin to consider solutions
and learn how to do legal research from the conteAi; of a real case.
This might increase student motivation and focus to begin some work
on an actual legal problem while beginning to develop some knowl-
edge of substantive law (of course, with proper supervision). Starting
some client contact early in legal education might be important not
only for focus and motivation, but as a way of encouraging the devel-
opment of skills and knowledge in at least two other intelligences
which are clearly important in legal problem solving-interpersonal
and intrapersonal. 166 Where actual client contact is not possible,
structured simulation courses, ranging from simple in-class exer-
cises167 to a simulated complex litigation problem, offer students the
possibility of trying to create solutions to problems and to live with
choices made in on-going rounds of a case or problem. Many law
schools have begun using business school-like complex case studies
and simulations to place problem-solving in richer and dynamically
changing fact contexts, while also teaching responsibility for decision
making by using rounds of choices and behaviors in which choices
made at one stage carry over to another. ISS

165. The processfolio that documents change is in contrast to the portfolio, where
only the best is chosen and fails to document the thinking process itself. For teachers
of negotiation that use journals (l do not), which require students to reflect on what
they have learned, this is an equivalent use of a processfolio idea.
166. Many negotiation courses now use various methods to focus on interpersonal
skills such as use of the Thomas-Kilman Conflict MODE e.xercise, Myers-Briggs and
the Harvard Interpersonal Skills Exercise. Legal interviewing and counseling
courses have also long used insights from Rogerian therapy to teach skills of active
listening. Decision theory has been incorporated in many schools' teaching of legal
counseling, Brest & Krieger, supra note 5. For my argument that the human side of
lawyering is essential to any full conception of legal education, see Carrie Menkel-
Meadow, Narrowing the Gap by Narrowing the Field; What's Missing From the Mac-
Crate Report-Of Skills, Legal Science and Being a Human Being, 69 WASU. L. REv.
593 (1994).
167. See LEONARD RIsKIN & JAMES E. WESTBROOK, DISPUTE REsOLUTION AND 1..,\\,:.
YERS TEACHER's MANUAL (2d ed. 1998).
168. Clinicians, of course, have used conte.xtually rich cases for problem sohing for
close to thirty years. Some problems use real clients or dynamically changing facts to
simulate as much as possible the conditions of the real world, see BINDER, supra note
42.

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In my ideal world of education, multiple intelligences would be

taught simultaneously. Substantive courses taught at the same time
as skills courses would hone cognitive, writing, interpersonal, in-
trapersonal and problem solving skills. Students might choose to
specialize in this modern world in which domain specific knowledge is
complex, but also ever-changing. An organized program of education
would build on sequences of knowledge acquisition and skills devel-
opment to be practiced in thought, writing, simulations and then in
the real world (in the "thinking in action"169 that characterizes good
clinical education). Once again, applying Howard Gardner's educa-
tional models for primary and secondary education,170 law students
might learn both more deeply and more broadly by being engaged in
multiple intelligence projects. Whether for the full three years or
some portion of the legal curriculum, students could be assigned to
research a particular issue, or a community, local, state, corporate or
national problem, work with or intern with individuals involved in
that problem and develop a legal plan or strategy for dealing with
it. l71 Imagine that instead of a third year research or writing project,
a law student would be required instead to demonstrate problem
solving skills with a project processfolio or some performance of
understanding.
Legal intelligences can be systematically taught and evalu-
ated. 172 Howard Gardner actually suggests that interpersonal skills
could be evaluated by watching a student attempt to resolve a dis-
pute with a store clerk or manage a difficult committee meeting, in
what he calls "assessment in context."173 Since problems that are

169. DONALD SCHOEN, EDUCATING THE REFLECTIVE PRACTITIONER (1987); DONALD

SCHOEN, THE REFLECTIVE PRACTITIONER (1983).
170. GARDNER, MULTIPLE INTELLIGENCES, supra note 164, at 65-158.
171. Many specialized seminars in law schools now do this-some focused on spe-
cific community or legal issues, like economic development, homelessness, public
health, public interest strategies, complex litigation.
172. The Macerate report is such an effort to develop a list of legal intelligences.
See LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT-AN EDUCATIONAL CONTIN.
UUM, REPORT OF THE TASK FORCE ON LAw SCHOOLS AND THE PROFESSION: NARROWING
THE GAP (1992). This is a start, but I have criticized the report as being too focused on
ends-means, litigation thinking. See Menkel-Meadow, Narrowing the Gap by Nar·
rowing the Field supra note 166.
173. GARDNER, MULTIPLE INTELLIGENCES, supra note 164, at 176. How many of us
legal educators would do well in such an evaluation? To the extent that dispute reso-
lution education is expanding to include not only dyadic negotiation skills, but multi-
party and multi-cultural and international negotiations, as well as consensus build-
ing like processes (reg-neg), there will be many more sites for "assessments in
context."

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 139

solved in the real world are not neatly packaged in course-titled cate-
gories, problem solving in context calls on students not only to solve
problems, but to name and frame them as well.
Framing the intellectual and educational problem to be solved is
very important in transforming legal education into a truly problem
solving enterprise. As an example, consider a problem from the
Goldberg, Sander & Rogers DISPUTE RESOLUTION teh-t.174 In Colonial
Confectioners, Inc.,175 an elderly man seeks to sell his candy-making
factory and hopes the business will be continued by the purchaser.
The potential purchaser wants to tear down the factory and build a
more profitable office building. In the problem as written, both sides
have damaging confidential facts that the teacher's manual tells us
will kill the deal if they are revealed. 176 The purpose of the exercise
is for students to confront their truth telling practices and the role of
deception in negotiation. However, when I have used this problem
after class creativity exercises, students carefully reveal the "damag-
ing" information and work around it to create very interesting solu-
tions to the problem. 177 Thus, the curriculum's frame around a set of
problems or courses can strongly influence how students choose to
use the material. Using the framing effects, changing the focus with
the same problems over time illustrates how problems can change or
that they have many different issues. 178
Gardner suggests using different "entry points" for the study of
particular problems, which demonstrate that there are, in fact, many
epistemologies to be used in unpacking legal problems. 179 These in-
clude the use of narrative (a deeply contextualized story of the facts);
a logically based deductive version of the situation; a foundational-
terminological approach (what is at issue here for the parties, for the
larger society?); aesthetic understandings-(organizational charts, a

174. STEPHEN GoLDBERG, FRANK SANDER & NANCY ROGERS, DISPUTE REsOLUTION:
NEGOTIATION, MEDIATION AND OTHER PROCESSES (3d ed. 1999).
175. Id. at 106.
176. Both the fact of the purchaser's true interest and a rumor of an eminent do-
main action on the property are unknown to the respective sides.
177. These have included ESOPs for the candy factory employees, a historically
preserved front of the building, with a candy shop/factory on the first floor of a multi-
use office building, and a host of other solutions that take account of both parties'
preferences.
178. Some business school case studies, for example, are "framed" by the course
title as marketing, finance, accounting, or human relations problems. More comple.x
problems require students to consider many issues simultaneously. Ethics problems,
for e.xample, are almost always embedded in the larger conte.xt and more complicated
facts of the problem.
179. GARDNER, INTELLIGENCE REFRAMED, supra note 68, at 169-72.

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map of a transaction or deal); and experiential or field knowledge. 180

The educational key to problem solving here is to make the problems
richer than they often appear in casebooks, and even the most con-
ventional cases can be approached with more variety in the questions
posed and the particular issues to be solved.
Even while contextualizing a problem, however, the law teacher
must remain vigilant about the limits of the law. We can ask how
can law help resolve a problem, but must also ask how the law con-
strains what the parties seek to do. When rules of disclosure or sub-
stantive values draw lines around party choices, students learn that
we do not inhabit a totally laissez-faire world. Though Howard Gard-
ner does not acknowledge morality as a separate intelligence, law
students can learn that each intelligence or each solution to a prob-
lem must be evaluated and must satisfy at least legal, if not moral,
standards. 181 Solutions, must be explained, justified, tested against
other solutions and explored for their legal limits, as well as for
Pareto-optimality. Not all legal problems will have creative
solutions.
Finally, we should confront the "points of entry" for education in
problem solving and creativity. I think there are at least three loca-
tions to worry about. First, it is not sufficient to treat legal problem
solving and creativity as bounded subjects, appropriate only in nego-
tiation or dispute resolution courses. Even more than ethics,182 prob-
lem solving and creativity should be taught pervasively throughout
the curriculum. We need new textbooks, many more case studies,
and different ways of dividing up the curriculum. These are big cur-
riculum reform projects and are unlikely to happen in many, if any,
law schools. Yet, some short forms of professional development semi-
nars for law teachers and the creation of new teaching materials and
problem sets could bring us a long way toward re-orienting the way
legal reasoning is taught in law schools, even in conventional class
rooms.

180. Even in my simulated negotiation problems, students are encouraged to

"check facts" in the real world, so they gather estimates from real roofers, mortgage
rates from banks, stock prices, "going rates" for plea bargains, and actual time to trial
in the jurisdiction.
181. Concrete problem solving is also a good place to observe the positive law-mo-
rality debate in jurisprudence. See H.L.A. Hart, THE CONCEPT OF LAw (1961); LON
fuLLER, THE MORALITY OF LAw (1964).
182. See DEBORAH RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY TIlE PERVA.
SIVE METHOD (1994); Carrie Menkel-Meadow & Richard Sander, The "Infusion"
Method at UCLA Teaching Ethics Pervasively, 58 LAw & CONTEMP. PROBS. 129 (1995).

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Spring 2001] Is Creativity Possible in Legal Problem Solving? 141

Second, we may need to rethink the relative emphasis of litiga-

tion to other forms of legal problem solving in our curricula. l83 In-
creased emphasis on transactions, deals, raising capital for a variety
of entrepreneurial and public interest activities, document drafting,
as well as organizational planning and design skills may be neces-
sary for our students who will be lawyers in this new century. If
cases come to trial in less than 5% of all cases (even if a large number
still begin in litigation) it is clear that our educational emphasis is
mis-matched to what our students will face in the workplace. While
we are responsible for creating a firm intellectual background which
is still regarded as "timeless" for lawyers who must adapt to many
substantive domains, shouldn't the cont.ent of that intellectual do-
main respond to the world in which our students will practice their
craft?
Third, and finally, we still consider legal problem solving mostly
an individual enterprise. Our students write papers and take tests
alone but we hope they work in study groups and share teams and
partnerships in clinics and occasionally in classroom exercises. Real
world problem solving, however, involves multi-party, multi-issue,
multi-jurisdictional and multi-cultural inputs, and lawyers are in-
creasingly working in more complex groups of individuals who may
come from a variety of different domains. Working collaboratively
(rather than exclusively competitively or cooperatively, in that false
dichotomy of the negotiation literature) is an important element of
legal problem solving. It is not just the interpersonal skill offacilitat-
ing and managing meetings, negotiation sessions and consensus
building processes, all of which are important and should be taught
in modern law schools. If creative solutions to legal problems are to
be arrived at, we must acknowledge the multiple approaches to
problems that different people bring and what we can learn from
working with many different people. We can improve the analysis, as
well as the design, of solutions to legal problems ifwe can learn more
things from more people.

183. At the conclusion of several focus groups with practicing lawyers at Ge-
orgetown, which is part of our curriculum review project, we have learned that recent
graduates feel that they are ill prepared for lawyering tasks and decision making that
do not involve conventional litigation choices or matters. Both younger lawyers and
more experienced lawyers want our graduates to be able to make decisions (often in
nano seconds), or draft documents in organizational tboth public interest and en-
trepreneurial) settings for which they are not prepared by our standard curriculum
and its steady diet of litigated cases.

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To summarize, at the institutional or curricular level, this article

suggests the following alternative program structure for teaching le-
gal creativity and effective problem solving:
First Year: Instead of a repetitive diet of common law courses to
focus on case-based analogical reasoning, the first year should intro-
duce students to a variety of forms of legal reasoning and intelli-
gences, including common law (perhaps contracts and torts as the
classic courses), statutory drafting and interpretation, Constitutional
law as formative of institutions and a place to consider both history
and deep legal and political theory and jurisprudence, some introduc-
tion to another discipline (quantitative analysis or narrative inter-
pretation) and some exposure to a real world legal problem (an
interview with an individual client, exposure to an entity or institu-
tional issue through some internship) and some exposure to the now
multiple intelligences of legal research (book and computer based
logic and searches), as well as some introductory work on the inter-
personal aspect oflegal counseling and advising. Ideally, there would
still be room in the first year curriculum for some subject totally re-
moved from obvious relations to law-an architecture, engineering or
social work course in problem solving, a literature or language course
or even a visual arts course (in which there would be some explicit
attention paid to how such a discipline might inform legal issues).
Second Year: In addition to continuing and deepening the study
of some area of substantive law (some depth of knowledge to experi-
ence a sense of subject matter competence, to pursue domain-based
expertise and understand the history of problem solving in a particu-
lar area), we should add a variety of skills building blocks (question
framing, useful in interviewing, litigation practice, meeting manage-
ment, fact gathering; negotiation and multi-party coordination and
collaboration, drafting and planning exercises) and some substantive
building blocks (accounting, economics, some sociology and psychol-
ogy related to law and legal institutions) and a simulation-based
course on problem solving in a particular area, with law, dynamic
facts and the need to find relevant information and decision makers
to assist in problem definition, solutions and implementation. In the
second year, every student would have to complete a major project of
some kind, in collaboration with other students. The project itself
could vary from a research paper, a drafted document, a transaction
planned or some other solution to a legal or social problem. 184 (This

184. This past year a group of Georgetown law students completed the legal and
political process to found a charter school in Washington DC that will focus on law
and legal issues for high school students. The school will open in the next academic

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would give each law student a legal "processfolio" as a representation

of a concrete work product completed while in law school).
Third Year: In the final year of law schooP85 students would
deepen one field of substantive expertise, take related courses in both
the law school and other graduate departments (business school, pub-
lic health, social work), enroll in one problem solving seminar that
would require the students to jointly plan some response to a legal or
social problem (that actually exists, as opposed to the second year
simulation experience), enroll in some clinical or field (internship or
observational) experience that attempts to relate legal theory to prac-
tice and to complete some kind of "graduation" project (either individ-
ually or alone). The third year also would be a place for at least one
course outside of the domain of law for students to eA-plore other
modes of problem solving. In an ideal educational environment, law
students would interact with other graduate students (business stu-
dents or medical students as clients in pJanning or litigation mat-
ters), both to share what is particular about legal problem solving
and law, and to learn to function with other domain trained profes-
sionals and possible clients. Also, one should require some form of
professional responsibility or ethics training, perhaps again as an ex-
ercise in comparative ethical reasoning.
This problem solving curriculum is designed to increase the
multi-disciplinary nature of law training and clearly some will think
it is too thin on the mastery of doctrine or legal theory. Yet, as the
modern world demonstrates a grO"\ving dependence on multi-discipli-
nary solutions to complex problems in the environment, in interna-
tional relations, in domestic social welfare, education and housing, it
seems that the best way to teach creativity and skill in problem solv-
ing is to broaden both the subject matter and the processes which we
use to teach legal problem solving. For law students to eA-perience
some mastery and sense of accomplishment as they learn their craft
and subject matter material, seems an improvement over the simple
steady diet of the same case method that has informed legal educa-
tion for so long.

year. The students began work on this project through their own commitment and a
clinical course and completed it with assistance from each other. some professors and
other relevant community advisors.
185. For the purpose of this exercise I have left law school in its current form of
three years but ideally. legal training would take four years; the third year would be a
Northeastern-Antioch like full year of legal internship in the world. with a final re-
turn year in school for students to pursue more academically and with professorial
supervision answers to both substantive and processual issues that arose during the
field work year.

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Whether creativity and problem solving can effectively be

taught, along with legal doctrine and rigorous policy analysis, and
whether such a curriculum also can teach decision making and judg-
ment, important qualities for the practicing lawyer remains to be
tested. Whether such an alternative curriculum realistically can be
negotiated in today's legal education environment requires some very
creative thinking and action.

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