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Professor Robert Blomquist outlines 100 most creative moments in American law
Thursday, May 29, 2008
The 100 most creative moments in American law are ranked in a new paper by Valparaiso University School of Law professor Robert Blomquist that also addresses the meaning and importance of legal creativity.
Blomquist’s paper “Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law” recently was posted online through the Social Science Research Network and aims to get the legal community talking about creativity in the profession.
“We Americans like to rank things, and developing the list was an interesting thought experiment that I think will encourage people to talk about what makes for a creative legal moment, whether it is positive or negative,” said Blomquist, who surveyed hundreds of legal historians in his research for the paper.
Most people don’t think about lawyers as creative, he says.
“Lawyers often are seen as just relying on the precedents of the past, and that’s not true,” he said. “Good lawyers have to think creatively about applying the law.”
Not surprisingly, the development of the U.S. Constitution and the debate over its ratification claimed the top spot on Blomquist’s list. He said the need for delegates from different regions of the country to propose and debate new ideas for governance based on past experiences and to wrap those ideas into a single instrument, as well as the durability of the Constitution, is testament to its supreme creative nature.
Following the U.S. Constitution on the list are the Declaration of Independence at No. 2 and the Bill of Rights at No. 3. Other innovative moments on Blomquist’s list include Roe v. Wade (21), Civil Rights Act of 1964 (34), formation of the World Trade Organization (69) and New York Times v. Sullivan (95).
Some of the moments on the list – such as the 1962 publication of Rachel Carson’s book “Silent Spring” claiming the No. 43 spot – are less obvious turning points in American law.
“Carson’s book is part of the intellectual history of American law,” Blomquist said. “It helped start the environmental movement in the United States and led to the creation of legislation and passage of the nation’s landmark environmental laws.”
Blomquist said the subject of legal creativity has interested him for many years, and he began thinking about the issue more as he wrote a manuscript for a book on lawyerly virtues.
“Over my 20 years at Valparaiso’s law school I have taught a torts and civil wrongs class to first year students, and I wanted to give them extra advice on what it means to be a lawyer in America,” Blomquist said. “So I developed a list of what I consider the 10 most important virtues an American lawyer can have, and creativity was one of those virtues.”
In 2005, he sent letters to 426 legal historians throughout the country to get their opinions about which moments deserved to be considered as occasions when lawyers and lawmakers developed innovative approaches to problems. Based on those responses and his own thoughts on the subject, Blomquist developed his list of the top 100 creative moments in American law.
The paper explains his rationale for the ranking of each moment, and compares legal creativity with creativity in the corporate, artistic, military and rhetorical spheres.
Creativity is viewed as a virtue in most contexts, Blomquist says, but the law is different. Given the inherently conservative and slow-moving pace of legal evolution, innovation in the law is viewed by many observers as problematic.
“Law is an inherently conservative institution, but it is always changing,” Blomquist says. “If there’s a national crisis, such as the Great Depression, it can change quite quickly, as was seen with the passage of New Deal legislation after Franklin Delano Roosevelt took office.”
Blomquist hopes that lawyers today and in the future who peruse his list of the most innovative moments in American legal history will open their minds to the notion that creativity does exist in law and that it is essential, though there is also a need for prudence.
While most lawyers and law students may never be involved in a legal case or legislation that alters the course of American history in the way those moments on the top 100 list did, Blomquist says lawyers can benefit from thinking creatively in their daily work.
“I hope to inspire lawyers and law students to look at ways in which they can tap into their own creativity to solve a client’s problem, because that is something we should be doing,” Blomquist said.
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