In September of 2005—relying upon the AALS Directory of Law Teachers-- I sent letters to approximately 426 American law professors listed as having taught the subject of legal history. I asked each professor, rather naïvely, but straightforwardly: “Given your background as a teacher and scholar of legal history .... What do you think are the most creative moments in Anglo-American law?” I also alerted each recipient of my epistle that I was contemplating writing an article (and eventually a book) on the topic and would, if I used their response, give academic credit for the thoughts.If this study proves anything, it is that legal historians as a group are very helpful people. Blomquist continues:
Much to my surprise, I received numerous assorted responses to my query of the most creative moments in Anglo-American legal history—some by letter, some by e-mail and some by handwritten note.The author goes on to detail these responses from various legal history luminaries, carefully citing to the letters and e-mails you wrote in.
Blomquist describes his project in this abstract:
In most cultural contexts creativity is viewed as an unalloyed virtue. 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. Yet American revolutionaries, constitutionalists, legislators, chief executives, judges, administrators, scholars and activists have creatively changed the law for over two centuries in mostly positive ways with some admittedly questionable innovations. This article makes a bold new proposal -- the articulation and ranking of America's most creative legal moments -- designed to energize and clarify our synoptic thinking about the nature of legal creativity.I won't spoil the surprise by posting Blomquist's ranking, but first on the list is the Constitution of the United States and the ratification debates. Marbury v. Madison weighs in at #6. Richard Posner, Economic Analysis of Law (1973), at 54, and Hart & Sacks, The Legal Process (1958), at 55, outrank the creation of the United Nations, which comes in at 59. Earth Day is on the list. You can find the rest here.
Starting with the opinions of numerous eminent legal historians on the most creative moments in Anglo-American law, we will explore the meaning of creative moments in law, and advance to analytically compare legal creativity with other kinds of creativity (corporate, artistic, military and rhetorical). Then we will heuristically entertain a ranking of the top hundred moments in American law and a justification for the ranking.