Legal Commentary

Thanks to Dan and the other Prawfs for having me back for March.  I?m just getting started, so my apologies for being late to the game.

One of the things holding me up was attending the American Psychology/Law Society Conference at the beginning of this month.  This is the premier conference for psychology-and-law research, and was, as usual, a great gig (the fact that I could go to Miami for several days from Syracuse didn?t hurt either).  I hope to mention a few of the highlights in my short time here on Prawfs.

One thing I?ll raise to start with involves a panel we had on Psychology and Property law.  We?ve done it a few times at APLS conferences; we had a special issue of the Tulane Law Review on the topic; and I?ve organized two annual Workshops on Property & Psychology at Syracuse.  This year?s panel involved a foray into intellectual property, with Greg Mandel presenting a version of a paper he has forthcoming in the Notre Dame Law Review.  The paper in part reviews psychological work on creativity and the creative process?e.g., what fosters or inhibits creativity?and whether the IP regime itself might inhibit the creativity it is supposed to encourage.  For instance (and simplifying enormously), internal rewards and incentives foster creativity; many external motivators inhibit it.

In chatting about the paper I raised a couple questions I?d like to toss out here.  The first acknowledged that there are many motivators for the creative process; getting a patent or other IP reward is but one.  And in the legal academy regime, external rewards such as tenure, promotion, a lateral move, etc. are rampant?yet these are the sort of external rewards that ?should? dampen creativity.  Yet to get tenure junior scholars are expected to be creative; on the other hand, tenure allegedly frees one to be creative.  So Question 1: where do we really see the more creative legal academic work?before or after tenure?  This in fact could be an empirical question?look either across authors and measure creativity of those pre- or post-tenure, or look at an author before and after she gets tenure.  Lots of other interesting variables you could throw in, too.

But that raises Question 2: what criteria would yo use to measure the creativity of a law review article?