It is commonly said in creative writing that you must know the rules so that you can break them. Kurt Vonnegut—one of America’s greatest satirists—famously provided eight rules for writers, and then followed those rules with this: “The greatest American short story writer of my generation was Flannery O’Connor. She broke practically every one of my rules but the first. Great writers tend to do that.”1 This idea parallels the idea Archibald Cox presents in his article, “Creativity in Law and Government”. From the very creation of America’s judicial system, Cox argues, creativity was an integral feature.2 The drafting of Article III and the Judiciary Act of 1789 required creativity. The ruling handed down by Chief Justice Marshall in Marbury v. Madison required creativity. The opinion given by Justice Cardozo in MacPherson v. Buick Motor Co. required creativity. It is not that lawyers are especially creative, Cox notes. Nor that they share the same creativity as artists. Rather, lawyers understand the nuts and bolts of the law. And it is this intimate understanding of the law that, “is essential to the creation of meaningful new social, economic, or political institutions.”3 Put simply, lawyers uniquely understand the law, and in turn flex it creatively.
Though some may still cling to the concept of the “brooding omnipresence of the law”—the idea the the law always has been, and always will be—history offers a wealth of examples to the contrary. Time and time again, justices have illustrated this concept of judicial creativity. One of the first examples of creative judging was the Marshall Court’s ruling in Marbury v. Madison.
Justice of the Peace William Marbury needed an appointment to work. Then Secretary of State James Madison refused to give it to him. So, Marbury determined he needed a writ of mandamus ordering Madison to, “Do your freaking job.”4 To have said writ issued, Marbury found his only course was to appeal directly to the Supreme Court. Enter Chief Justice John Marshall.
Marshall seemingly had two bad options. He could rule in favor of Marbury and issue the writ, which Madison could then ignore, embarrassing the court. Or, the court could not issue the writ, granting the Jefferson administration a de facto victory, and similarly showing the court’s relative weakness to the executive branch. Marshall, however, took a third path.
The very structure of Marshall’s opinion required creativity. He started not by deciding whether or not the case could even be taken by the court, but by discussing the substance of the case. He concluded that Marbury was due his appointment, and that a writ of mandamus was the proper remedy. However, he also concluded that the Supreme Court was not constitutionally granted original jurisdiction in this matter, and therefor could not issue the writ.
Thus, Marshall executed three birds with one stone. He happily slapped Jefferson and Madison on the wrist for not doing their jobs. He avoided fighting them directly by dismissing the case. And in dismissing the case the court declared Section XIII of the Judiciary Act unconstitutional, ensuring Marshall would never have to face this problem again.5 Marshall’s creative maneuvering of Marbury v. Madison cemented judicial review, and also bolstered the court’s impartial reputation amongst the populace.
Fast forward a century from the Marbury decision and you will find another example of judicial creativity in Macpherson v. Buick Motor Company. Donald MacPherson, the plaintiff, was injured after the wheel of his newly purchased Buick collapsed. Following this, MacPherson sued Buick. The problem was, MacPherson purchased the car from a dealer, not from Buick directly. Thus, Buick not being a direct party to any contract with MacPherson, precedent would suggest that MacPherson could not sue them due to privity of contract.
This, however, was not what Justice Cardozo concluded. It was conceded that if a proper inspection would have occurred, the defect in the wheel would have been discovered.6 This seems to clearly show negligence. Following this, Cardozo wrote, “If he is negligent, where danger is to be foreseen, a liability will follow.”7 This decision destroyed the privity of contract rule.
This case in particular illustrates the need for judicial creativity in order to adapt the law to modern times. Historically, the vast majority of transactions followed the handshake model. They were more intimate affairs between two parties. Thus, there simply was no need for a third party to be held liable. Modern transactions changed that, and Justice Cardozo’s creativity helped adapt the law to a new era.
These two examples illustrate the use of creativity in law discussed in Archibald Cox’s lecture. They are similar to the approach Cox had to take with the Nixon case, where there was a “an almost-clean slate”.8 Here, perhaps even more so than in issues where there exists precedent, creativity is necessary to ground a decision believably.
Finally, there is a thought at the close of Archibald Cox’s article which I believe resonates profoundly today. Though I personally did not live through the Watergate scandal, I can imagine the turmoil the nation endured. To experience the long, drawn-out impeachment of a president is taxing both on the populace and the presidency (as an institution). Cox, however, reframed the issue: “Watergate can be made a turning point and therefore a blessing. It has shocked out of lethargy the conscience of the Nation.”9 Cox’s point being that tremendous struggles can shake people out of indifference and spur them into action.
Americans have endured a great many struggles. We’ve fought a revolution against the world’s mightiest empire. We’ve elected a president amidst a brutal and bloody civil war. We’ve helped bring an end to two World Wars, looking evil directly in the eyes. And somehow, through every conflagration, we have endured, survived, and emerged stronger on the other side. That is the history of America. Not the absence of war, cruelty, and injustice, but the awakening of ourselves in the face of those incredible challenges. To deny America’s capacity to overcome tremendous hardships would be to deny more than two centuries of precedent. Though deviating somewhat from Cox’s focus on judicial creativity, his final message is one of hope. And I believe that hope for a better future, not without hardship, but in fact because of hardship, is what we all must hold on to today.
End Notes
- Kurt Vonnegut, Bagombo Snuff Box (New York City: G. P. Putnam’s Sons, 1999), Preface.
- Archibald Cox, “Creativity in Law and Government,” Amherst Magazine, 26:3 (1974): 5.
- Et al. 11.
- Class Notes. September 11th, 2017.
- Et al.
- Class Notes. November 8th, 2017.
- MacPherson v Buick Motor Co., 217 NY 382 (1916).
- Archibald Cox, “Creativity in Law and Government,” Amherst Magazine, 26:3 (1974): 5.
- Et al. 14.
Gray Winsler 