California Western School of Law

Kerper, Janeen

English

Creative Problem Solving vs. The Case Method: A Marvelous Adventure in Which Winnie-the-Pooh Meets Mrs. Palsgraf

Lippman, Matthew

Pursuit of Nazi War Criminals in the United States and in Other Anglo-American Legal Systems

Wallace, J. Clifford

Resolving Judicial Corruption While Preserving Judicial Independence: Comparative Perspectives

Mushkat, Roda

International Law in HKSAR Courts

Hawker, Norman W.

Consistently Wrong: The Single Product Issue and the Tying Claims Against Microsoft

Barton, Thomas D.

California Western Law Review 
Volume 34 
Number 2 Conceiving the Lawyer as Creative 
Problem Solver 
Article 2 
1998 
Introduction 
Thomas D. Barton 
California Western School of Law, tdb@cwsl.edu 
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Recommended Citation 
Barton, Thomas D. (1998) "Introduction," California Western Law Review: Vol. 34 : No. 2 , Article 2. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol34/iss2/2 
This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for 
inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more 
information, please contact alm@cwsl.edu. 
CALIFORNIA WESTERN
LAW REVIEW
VOLUME 34 SPRING 1998 NUMBER 2
CONCEIVING THE LAWYER AS
CREATIVE PROBLEM SOLVER: INTRODUCTION
THOMAS D. BARTON
In this symposium issue, "Conceiving the Lawyer as Creative Problem
Solver," the California Western Law Review celebrates the central mission
of California Western School of Law to educate creative problem solvers.
Long part of the philosophy of the school, the concept has recently galva-
nized formation of the McGill Center for Creative Problem Solving. Gener-
ously funded by the Weingart Foundation, the McGill Center will undertake
empirical and qualitative efforts to understand and promote non-violent dis-
pute resolution skills among youngsters, and will seek ways to make law
more effective in the prevention of domestic violence. Additionally, the
Center will produce and circulate written materials and videos designed to
raise awareness in the legal community and among the public generally
about the opportunities for solving problems better.
With this issue, the California Western Law Review begins what will be
an ongoing effort to publish a rich diversity of scholarly discussion of crea-
tive problem solving. The Review hopes-now and in years to come-to be
a primary source for those who seek to examine how law and the legal proc-
ess may contribute to effective, respectful, inclusive ways to resolve per-
sonal and social problems. A portion of every volume will address this mis-
sion, and the Review invites all those who may be inspired by the goal to
submit their own contributions. As with the articles in this symposium,
authors may address particular problems, techniques of problem prevention
and resolution, theoretical aspects of assessing problems and their solutions,
or the teaching of problem solving theory and skills.
In the best tradition of scholarly investigation, no one political or theo-
Professor of Law, California Western School of Law. B.A., 1971, Tulane Univer-
sity; J.D., 1974, Cornell Law School; Ph.D., 1982, Cambridge University.
1
Barton: Introduction
Published by CWSL Scholarly Commons, 1997
CALIFORNIA WESTERN LAW REVIEW
retical orientation will be privileged in the Review's offerings. Some pub-
lished articles will be critical of legal assumptions or legal institutions; oth-
ers will detail historical successes of the law. Yet others will suggest par-
ticular legal reforms, or will attempt to couple the language of law with that
of psychology, sociology, politics, or ethics.
The works of the current symposium are representative of this diversity.
They urge, for example, the use of a universalist legal language to challenge
the prevailing rhetoric of power in international relations (Kritsiotis),' and to
empower indigenous peoples everywhere (Smith).2 They reveal the core of
legal thinking to be the abstraction and articulation of consistent principles,
and advocate the greater use of precedent in environmental decision making
(Pardy).' They address substantive problems, and the need to reform legal
rules or practice concerning those problems (Brownlie regarding securities
class action suits in state courts;' Kanazawa regarding manufacturer expo-
sure to product liability claims;5 Sorenson regarding sexual harassment ac-
tions"). They seek to enhance sensitivity to the emotional needs of clients
by calling on lawyers to join in identifying "psycholegal soft spots" in legal
representation (the paper of Patry, Wexler, Stolle, and Tomkins).7 They call
for lawyers to develop a variety of problem solving tools plus the imagina-
tion, personal courage, and human empathy to employ those particular tools
that best address a particular problem (the separate papers of Kerper, Coo-
per,9 and Barton°). They advance the pedagogy that will be essential to
educating lawyers in developing those skills (the separate works by Nathan-
son,"1 Morton," Johnson, 3 and Ireland'). Last but not least, they compile
1. See Dino Kritsiotis, The Power of International Law as Language, 34 CAL. W. L.
REV. 397 (1998).
2. See Rhona K.M. Smith, The International Impact of Creative Problem Solving: Re-
solving the Plight of Indigenous Peoples, 34 CAL. W. L. REV. 411 (1998).
3. See Bruce Pardy, Abstraction, Precedent, and Articulate Consistency: Making Envi-
romnental Decisions, 34 CAL. W. L. REV. 427 (1998).
4. See Robert W. Brownlie, Federal Preemption as a Possible Response to a New
Challenge: Securities Class Actions in State Court, 34 CAL. W. L. REv. 493 (1998).
5. See Sidney K. Kanazawa and Dan R. Gallipeau, Minimizing Product Liability Expo-
sure: Practical Solutions for Manufacturers, 34 CAL. W. L. REv. 509 (1998).
6. See Richard C. Sorenson et al., Solving the Chronic Problem of Sexual Harassment
in the Workplace: An Empirical Study of Factors Affecting Employee Perceptions and Con-
sequences of Sexual Harassment, 34 CAL. W. L. Rzv. 457 (1998).
7. See Marc W. Patry et al., Better Legal Counseling Through Empirical Research:
Identifying Psycholegal Soft Spots and Strategies, 34 CAL. W. L. Rzv. 439 (1998).
8. See Janeen Kerper, Creative Problem Solving vs. The Case Method: A Marvelous
Adventure in Which Winnie-the-Pooh Meets Mrs. Palsgraf, 34 CAL. W. L. REv. 351 (1998).
9. See James M. Cooper, Towards a New Architecture: Creative Problem Solving and
the Evolution of Law, 34 CAL. W. L. Rzv. 297 (1998).
10. See Thomas D. Barton, Creative Problem Solving: Purpose, Meaning, and Values,
34 CAL. W. L. Ray. 273 (1998).
11. See Stephen Nathanson, Designing Problems to Teach Legal Problem Solving, 34
CAL. W. L. Rsv. 325 (1998).
12. See Linda Morton, Teaching Creative Problem Solving: A Paradigmatic Approach,
268 [Vol. 34
2
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1998] CONCEIVING THE LAWYERAS CREATIVEPROBLEM SOLVER 269
published sources through which new ideas may be explored and developed
(the annotated bibliography of Phyllis Marion). 5
The scholarly and educational ambition of California Western is the
construction of, in Cooper's words, an "architecture" of problem solving. 6
But why, it may be asked, should a law school embark on such an enter-
prise? The question has two distinct dimensions: first, why is creative
problem solving important? And second, why a law school? Why not leave
problem solving to cognitive scientists, logicians, or economists?
I. THE IMPORTANCE OF CREATIVE PROBLEM SOLVING
Creative problem solving is important for at least three reasons, one of
which is obvious and the other two more subtle. The obvious reason is that
creative problem solving is dedicated to generating new mentalities and
skills to be applied to problems. In turn, problems are likely to be solved
better-more reliably, more durably, more respectfully and with fewer side-
effects-where a diversity of alternative procedures is available to approach
the problem. Each new procedure offers a slightly different perspective on a
problem from which some nuance or facet of the problem may be uniquely
visible. The more dimensions of a problem have been considered in ad-
vance of applying a solution, the more comprehensive and better the solu-
tion is likely to be.
The second reason that problem solving is important is that techniques
of problem solving must be humanly invented. Problem solving does not
exist in nature, or at least not at the cognitively complex levels that humans
understand the concept.'7 We have inherited from previous generations-
through their genius and sometimes considerable personal sacrifices-the
devices that we now take for granted in solving problems: democracy, the
rule of law, scientific rationality, even the seemingly simple notion of en-
forcing promises. 8 Untold numbers of persons literally gave their lives to
secure these advances in non-violent problem solving. Simply put, we owe
it to future generations to continue this evolution-we owe it not only be-
cause the world may thereby be more peaceful, secure or just; and not only
because to do otherwise is to subordinate imagination to complacency and
34 CAL. W. L. REV. 375 (1998).
13. See Andrea L. Johnson, Teaching Creative Problem Solving and Applied Reason-
ing Skills: A Modular Approach, 34 CAL. W. L. REv. 389 (1998).
14. See Marilyn J. Ireland, Magician to Sorcerer: A Book Review of Stephen Nathan-
son's "What Lawyers Do," 34 CAL. W. L. REV. 529 (1998).
15. See Phyllis C. Marion, Problem Solving: An Annotated Bibliography, 34 CAL. W.
L. REv. 537 (1998).
16. See Cooper, supra note 9.
17. See Lon L. Fuller, Irrigation and Tyranny, 17 STAN. L. REV. 1021 (1965).
18. See Friedrich Wilhelm Nietzsche, The Genealogy of Morals, in FRIEDRICH
NmTzscHE, THE BIRTH OF TRAGEDY AND THE GENEALOGY OF MORALS 190 (Francis Golffing
trans., 1956).
3
Barton: Introduction
Published by CWSL Scholarly Commons, 1997
CALIFORNIA WESTERN LAW REVIEW
institutional inertia.
We owe the future our efforts at creative problem solving for the fun-
damental reason that the means by which we seek to understand and address
our problems goes far toward constituting who we are, and what in the fu-
ture we will perceive as our problems.19 Means and ends are not discontinu-
ous.2" What would we be, had we never adopted democracy-how limited
our horizons? What level of social trust could exist without enforceable
promises?" Absent the rule of law who could dare to be different?
II. LAW AS A BASIS FOR EXPLORING PROBLEM SOLVING
The second question asks why a law school should emerge as the train-
ing ground for creative problem solving. For several reasons, law is an at-
tractive foundational discipline on which to design the architecture of prob-
lem solving. First, law is self-conscious of the values advanced by its
procedures. Second, its practitioners develop sensitivity and respect for
process regularity and legitimacy. Finally, by reason of its position as de-
fault problem solver, law has grappled with the most difficult issues faced
by individuals and society as a whole.
The central premise of law has always been that, quite apart from par-
ticular outcomes, how problems are solved matters greatly. As Pardy sug-
gests, legal process does indeed work by hoisting an abstract principle and
shepherding related disputes under its canopy.22 Doing so offers order and
protection through a process that, at least rhetorically, advances the rational-
ity and equality of an enlightened society. Law certainly is propelled by in-
strumentalist goals, but it has always been willing to balance the quest for
accuracy and efficiency by a concern for human dignity and a belief in the
possibility of human redemption. Other disciplines like operations research,
economics, and engineering employ procedures that trade off some measure
of accuracy for higher efficiency. But as the law of evidentiary privilegese
and various aspects of criminal investigation and prosecution demonstrate,
only law will sacrifice both efficiency and accuracy to preserve the ties of
human loyalty ' or to shield individual autonomy from the reaches of the
state.
Second, the legal concern for procedure has instilled instincts among
lawyers for regularity and legitimacy. Such instincts may provide an in-
19. See Laurence H. Tribe, Technology Assessment and the Fourth Discontinuity: The
Linits of InstrumentalRationality, 46 S. CAL. L. REv. 617 (1973).
20. See id. at 650-51.
21. See Carol M. Rose, Trust in the Mirror of Betrayal, 75 B.U. L. REv. 531 (1995).
22. See Pardy, supra note 3.
23. See Sanford Levinson, Testimonial Privileges and the Preferences of Friendship,
1984 DuKE L.J. 631 (1984).
24. See GEORGEP. FLETCHER, LOYALTY: ANEsSAY ONTHE MORALrry OF RELATIONSHIPS
77-82 (1993).
[Vol. 34
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1998] CONCEIVING THE LAWYER AS CREATIVE PROBLEM SOLVER 271
valuable ethical tether on the techniques that may be proposed under the i-
cense of "creativity." In my view, techniques which are manipulative, de-
ceptive, cruel, or malicious have no place in an expanded repertoire of legal
skills. Winning through intimidation or the promotion of fear does not
"solve" problems; it merely represses their symptoms and awaits their re-
emergence as covert retaliation.
Third, the law is experienced with the most contentious, most sensitive,
most important, and perhaps even the most complex problems. Over the
years the problems of scarcity, intolerance, and human cruelty have been
addressed in the law-although certainly not completely successfully.
Growing social problems of distribution, identity, and relational fragmenta-
tion will require the breadth of vision-some would say arrogance-that the
law presumes. The traditional legal tools of rules and rights may well be in-
adequate to meet the demands of those problems, but the common law spirit
of necessitated improvisation may fuel the creativity needed to fashion new
legal tools or forge partnerships with other disciplines.
Toward, then, the end of civil, respectful relationships, we invite your
participation in the means of achieving it: studying, criticizing, and building
creative ways of solving problems.
5
Barton: Introduction
Published by CWSL Scholarly Commons, 1997
6California Western Law Review, Vol. 34 [1997], No. 2, Art. 2
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Introduction

Cooper, James M.

Towards a New Architecture: Creative Problem Solving and the Evolution of Law

International Law Journal, California Western

CALIFORNIA WESTERN
INTERNATIONAL LAW JOURNAL
VOLUME 29 FALL 1998 NUMBER 1
TABLE OF CONTENTS
ARTICLES
The Pursuit of Nazi War Criminals in the
United States and in Other Anglo-American
Legal Systems
M atthew L ipp m an ....................................................................................... 1
The North American Agreement on Environmental
Protection and the Arctic Council Agreement: Will These
Multinational Agreements Adequately Protect the Environment?
R ichard J. A nsson, Jr ............................................................................. 10 1
The Perils of Working for a Foreign Government: Foreign
Sovereign Immunity and Employment
R ichard L. G arnett ................................................................................ 133
Can Tort Law Be Used to Save Blue Collar Jobs in the United States?
E dw in R . R ender .................................................................................... 175
The 1995 Private International Law of North Korea
C h in K im ................................................................................................ 2 05
COMMENT
Harmonization of Securities Market Regulations in the
European Union: Is the Price Tag Too High?
T odd A . Sulger ........................................................................................ 22 1
1
International Law Journal: Table of Contents
Published by CWSL Scholarly Commons, 1998
Kenneth A. Kopf, B.A., M.A., J.D., Lecturer in Law
George W. Kuney, B.A., J.D., M.B.A., Lecturer in Law
Daniel G. Lamborn, J.D., Lecturer in Law
Lawrence D. Lee, B.A., J.D., LL.M., Professor of Law
William C. Lynch, A.B., LL.B., LL.M., Professor of Law
F. Philip Manns, Jr., B.S., J.D., Professor of Law
Phyllis Castle Marion, B.A., M.A., J.D., Professor and Director of Law Library
Irwin D. Miller, B.B.A., J.D., Professor of Law, Director of Internship Program
John M. Morris, B.A., J.D., Lecturer in Law
Linda H. Morton, A.B., J.D., Professor of Law
John E. Noyes, B .A., J.D., Professor of Law, Director of Int'l Legal Studies Program
Laura M. Padilla, B.A., J.D., Associate Professor
Gregg F. Relyea, J.D., Lecturer in Law
Hon. Bernard E. Revak, B.A., J.D., Lecturer in Law
Matthew A. Ritter, B.A., M.Div., S.T.M., M.A., M.Phil., Ph.D., J.D., Legal Writing Professor
Stephen R. Robinson, B.A., J.D., Lecturer in Law
Katharine Rosenberry, B.S., M.Ed., J.D., Professor of Law
Dennis P. Saccuzzo, A.B., M.A., Ph.D., J.D., Lecturer in Law
Gloria L. Sandrino, B.A., J.D., Associate Professor
Marilyn S. Scheininger, B.A., M.A., M.B.A., J.D., Legal Writing Professor
Jeffrey A. Schneider, A.B., J.D., Lecturer in Law
Dennis L. Sharp, B.A., J.D., Lecturer in Law
Jane L. Siegal, J.D., Lecturer in Law
Jacquelyn H. Slotkin, B.A., M.A., Ph.D., J.D., Legal Writing Professor, M.C.LILLM. Director
Glenn C. Smith, B.A., J.D., LL.M., Professor of Law
Jan Stiglitz, B.A., J.D., LL.M., Professor of Law
Winkfield F. Twyman, Jr., B.A., J.D., Associate Professor
Lilia S. Velasquez, J.D., Lecturer in Law
Victor A. Vilaplana, B.A., J.D., M.A., Lecturer in Law
Pamela E. Wagner, Lecturer in Law
Sonia A. Waisman, B.A., J.D., Lecturer in Law
Theodore M. Weathers, B.A., J.D., Lecturer in Law
Lisa S. Weinreb, B.A., J.D., Lecturer in Law
Janet M. Weinstein, B.A., J.D., Professor of Law, Associate Director of Clinical Program
Mark I. Weinstein, B.A., J.D., Professor of Law
Daniel B. Yeager, B.A., J.D., LL.M., Professor of Law
Jolie L. Cartier, B.S., Director of Facilities Management
Lenore L. Fraga, B.B.A., C.P.A., Chief Financial Officer
Mary E. Garcia, B.A., M.L.S., Associate Director of Law Library
Louis W. Helmuth, B.A., J.D., Director, Career Services
Crystal L. Hengel, Executive Director of Bookmart
Karen Miller, B.S., ADA Administrator
Mary Lou Mitchell, B.A., Executive Director of Computer Services
Sandra E. Murray, Director of Faculty Support Services
Kyle C. Poston, Executive Director of Financial Aid
Carol L. Rogers, B.A., J.D., Director of Diversity Affairs
G. Diane Shragg, Registrar
Kerri Van Duyne, Director of Development & Alumni Relations
2
California Western International Law Journal, Vol. 29, No. 1 [1998], Art. 1
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Kim, Chin

The 1995 Private International Law of North Korea

Law Review, California Western

California Western Law Review 
Volume 35 Number 1 Article 1 
1998 
Table of Contents 
California Western Law Review 
Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr 
Recommended Citation 
Law Review, California Western (1998) "Table of Contents," California Western Law Review: Vol. 35 : No. 1 
, Article 1. 
Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol35/iss1/1 
This Prefatory Matter is brought to you for free and open access by CWSL Scholarly Commons. It has been 
accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For 
more information, please contact alm@cwsl.edu. 
CALIFORNIA WESTERN LAW REVIEW
VOLUME 35 FALL 1998 NUMBER 1
TABLE OF CONTENTS
ARTICLES
Consistently Wrong: The Single Product Issue and the
Tying Claims Against Microsoft
Norman W. Hawker .............................................................................. 1
Amalgamation of the Southern California Banking Industry:
San Diego a Microcosm
Cheryl R. Lee ........................................................................................ 41
California Pretrial Rent Deposit Pilot Project: A Legal
and Empirical Analysis of the System in Action in the Los
Angeles Municipal Court (Central Division)
B ruce Zucker .......................................................................................... 159
COMMENT
Viability of a Nationwide Fen-Phen/Redux Class Action Lawsuit
in Light of Amchem v. Windsor
Viivi Vanderslice .................................................................................... 199
1
Law Review: Table of Contents
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2California Western Law Review, Vol. 35 [1998], No. 1, Art. 1
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