Gardner on Why Law Isn't Jazz: A Response @UBSchoolofLaw @buffalolawrev

James A. Gardner, University at Buffalo Law School, has published Why Law Isn't Jazz: A Response, at 71 Buffalo Law Review The Docket D1. Here is the abstract.

In a recent article, Professor William Buzbee argues that “a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation.” I argue here, from the perspective of someone who is both a lawyer and a jazz pianist, that jazz improvisation and law are best thought of as distinct practices, and that the analogy obscures more than it reveals. Both law and jazz demand that their practitioners make choices within disciplinary constraints, but the disciplinary boundaries of jazz impose far fewer constraints on its practitioners than the boundaries of legal practice. As a result, lawyers who try to incorporate techniques of jazz improvisation into their legal practice will likely be making a disciplinary mistake, and risk practicing law badly to the extent they do so. On the other hand, the fact that jazz musicians operate under fewer professional constraints does not mean that their work is any more creative or original than the work of lawyers, or that jazz’s loftiest artistic aspirations entitle it to be held in higher regard. The deflating truth is that what jazz improvisation principally shares with the practice of law is not so much the inherent possibility of disciplinary creativity, but the quotidian reality of professional drudgery. Most jazz, like most law, is plodding and mediocre, and the intentional production of novelty is exceedingly rare in both practices. In the end, I argue, criticisms of law and judicial decisions are best and most usefully launched from within the relevant disciplinary practice, not from the perspective of other disciplines.

Download the article from SSRN at the link.

Link to William W. Buzbee, Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules, 2023 Ill. L. Rev. 151 (2023).