\"Carrie Menkel-Meadow\'s Creativity in Legal Problem Solving\" (a summary)

Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education? written by Carrie Menkel-Meadow summarized by Noor Aini Dyah Rahmawati

A. Problem-Solving, Negotiation and Creativity In the matter of solving a problem, either negotiators, fasilitators or planners are often focusing on the assumed objectives in order to seek individual gain rather than to focus on the actual objectives and creatively seek the satisfaction of both parties to meet their goals. Career in legal field demands more creative and productive lawyers or negotiators, who are not bound by precedent and does not have a cliche mindset. Moreover, legal actors are demanded to be able to frame legal problems effectively so they could meet an innovative and implementable solutions that are good, interesting, workable and creative. Therefore, legal negotiations need to be understood conceptually and undertaken behaviorally to meet better solutions of legal problems. Not only to produce solutions in legal problems, but to think creatively is as well as to be able to be taught. Problem solving requires interest, needs and objective identification, in which creative solution seeking have its structure and elements in order to be effectively taught.

B. The Legal Negotiator as Problem Solver As negotiators are demanded to create innovative, workable and creative solutions to legal problems they are also urged to seek the satisfaction between them and the parties involved as well as to meet mutual gain. In order to fulfill those purposes, negotiator shall firstly indentfies multiple classes of needs, objectives, interests, or goals of the client and the other parties involved. Lastly, the negotiator have to examines and matches the loci (lokus) of complementary as well as conflicting needs and interests of the parties sistematically, to create solutions that

maximize the mutual gain. Negotiator could explore the needs, objectives and interests of the parties involved by dividing them into several categories, as follows: 

Legal; the need for a ruling, judgement, legal status, or precedent

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Economic; including transaction costs and present and future values

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Social; including dealing with the parties, group or membership needs and objectives such as family, workplace, organizational, joint responsibility or community

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Psychological; including all individually important needs or objectives including risk preferences, reputational, emotional, mental and physical health concerns, needs to assert, fear of shame, guilt, publicity

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Political; such as rule change, justice, internal or public organizational concerns, precedent setting, relation to other problems, constituents, and

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Moral; ethical, religious, including concerns about traditions, and fairness.

C. Creativity, Multiple Intelligences and Problem Solving Creativity once became a matter of pros and cons debate between some scholars, whether it is suitable in the legal field or not. As a matter of fact, the changes in non-liablity rules and recognition of new rights might have the impact of creativity on those governed by law and rules. As the results, by the involvement of creativity, the law could produce stable and elastic constitution which has been reiterated throughout the world. It is compulsory for legal actors, as well as legal student to come to the realizations that creativity is occur within a culture that contains symbolic rules which is called as a domain, in which some domains have larger field compared to the others, for example, in cultural production, movies, novels, art, etc. which will be evaluated by specialized critics yet large public consumer. Whereas in the field of law, it represents a hybrid domain consists of fellow experts such as judges, lawyers, prosecutors, etc. and the durability of creativity in legal work is measured by broader field such as, clients, citizens and all those regulated by law. The study of creativity is undeniably interesting for legal negotiatiors and problem solvers, because either motivations or hurdles may tells the way they study as well as their thinking processes. Modern students of creativity see it as the results of both interpersonal

and social process, hence, it is necessary for legal actors as well as legal students to mastered their knowledge of the domain. Legal expertise must have some linguistic intelligence within Howard Gardner’s multiple intelligences theory, as intelligence is the main condition needed in crafting solutions to legal problems practices that might as well facilitate the ehancement of certain problem solving. Gardner originally posited seven related intelligences, as follows:  Linguistic; word and language related  Logical-mathematical; use of logic, mathematical operations and scientific investigation  Musical; performance, coposition and appreciation of musical patterns  Bodily-kinesthetic; use of body to solve problems (athletes, dancers, surgeons, carpenter, etc.)  Spatial; recognition and manipulation of patterns of wide or confined spaces  Interpersonal; capacity to understand the intentions, motivations and desires of other people, and ability to work well with other people  Intrapersonal; capacity to understand oneself

D. Legal Creativity and Problem Solving There are three different forms of legal creaticity that bear on legal problem solving, which are need to be considered, as follows:  Creative Ideas; that have law as discipline, in contributing to solve basic human problems  The way lawmaking come into being; in the form of contitution or order that influence behavior, such as in litigation problem solving and dispute contexts, etc.  The way legal concept created; how the legal concepts is created and used in transactional context, for example to develop legal entities, to manage arrangements in large institutions such as corporations, as well as to enter into sale and purchase agreement (contract) and to monitor daily human interactions. Legal practices, in this case for example is lawyers who work with words, in which a good structure of words or languages are produced by the help of creativity in arranging the structure of the words or sentences, constructing new language, interpreting languages that are already exist, as well as in creating new concepts.

The form of creativity is quite unique to legal reasoning, since it is the outcome from the process of characterization or argumentation where we use our words to re-categorize facts, claims, arguments and rules. Using creative terms and clauses can be beneficial in order for the parties understand and easier to meet their needs. According to Gardner, legal creativity has its own special structure. The adversary system itself may spark certain forms of creativity by requiring reversals and responses to arguments and characterizations of facts. To respond is to think and to deny as well as to explain. Thus, new explanations must be found, new defenses created, and new causes of action and new transactional forms to be discovered. Some adversarial creativity may be exercised in the spirit of law avoidance.

E. Implications for and Applications to Legal Education Carrie thought that legal analysis does teach close readings of texts 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 analysis that are taught in some graduate schools and in business schools. She suggest that explicitly teaching creativity with positive examples, models, experiences of empowerment and accomplishment may make better problem solvers out of our students than the current legal education culture permits. A few law schools, like Northwestern, already have experimented in involving the students with actual or simulated clients in their first year, have them participate in an initial interview as well as implemented their creativity in thinking of legal opinion and solutions for the problem faced by the client. This approach might increase the students motivation and focus in actual legal problem while they begin to develop some knowledge of substative law, as well as develop their skills and interpersonal-intrapersonal intelligences. By having problem solving in the curriculum, which designated to involve the students in experiencing a real case will urge them in finding suitable solutions to solve the problems, it might as well stimulate their brain to creatively thinking any possible way out and increase their creativity in structuring words or explaining their ideas as it is one of the methods to communicate with their client.