brain halves 1A blog post in the esteemed Wall Street Journal Law Blog on Tuesday has me facing a tough brain-teaser. A researcher (and law professor) makes the case that traditional legal education exercises only one portion of students’ brains. Professor Paula Franzese says that the law school classroom gives short shrift to what’s commonly called the creative side of the brain.

Hemispherically speaking, she says, law schools head only half-way ‘round the world, and take three years to do it.

Here’s the professor:

“‘Much of what we tend to do in the law school classroom is aimed at honing left-brain thinking,’ writes Ms. Franzese in a forthcoming essay in Seton Hall Law Review.”

“The left-brain approach emphasizes ‘reasoning through precedent.’ Students are taught the facts of a case; the strengths and holes in the arguments; how and why a court ruled a certain way; how it was different from what came before.”

“That kind of training often misses the bigger picture of things—a conceptual, contextual and empathetic understanding that gives the other side of the brain a workout, says Ms. Franzese.”

The Wall Street blog post is here.

And you can read Professor Franzese’s paper, “Law Teaching for the Conceptual Age,” here.

I promise you that I have stretched my synapses thinking about this one, I really have. And I’m still not sure I get it.

brain halves 2My memories of law school are potholed with a wide variety of amazing conversations about high-falutin’ concepts. Professor Franzese mentions Property and suggests how the focus on black-letter law could be improved and really move into Concepts. But it took me a few months of sitting and stewing in Real Property before our professor related anything remotely, um, real. Our Civil Procedure provided us windows into fascinating realms of expectation, rights, notice; all great, and all only peripherally connected to law practice. Concepts with a capital C, all.

You should understand that I appreciated (most of) those conversations (until I realized that all exams, including the Bar Exam, would be on black-letter law, and that it was up to the students to learn that law on their own; thanks, Teach).

So I think law school kept quite a bit of my brain exercised. How about you?

Socrates and his big male brain

Socrates and his big male brain

Meantime, here is yet another take on that good old Socratic dialogue. This post examines the question of whether it disadvantages women law students. And why would that be? Because male students are so damned enamored of their own voices and certain of their analyses that classrooms reverberate with their grand male thoughts. Or something.

I recall many hours of law school class that were highjacked by the drone of students who decided to use others’ tuition-paid time to channel their inner Professor Kingsfield. And the actual professor, sensing a kindred spirit, reveled in the repartee. Because I still suffer from law school PTSD, though, I cannot recall how many of those students—if any—were women.

Not everyone agrees with the notion that the Socratic dialogue unfairly affects women more. Here is Above the Law on the topic.

Today, the Ninth Circuit made an intriguing ruling—not so much for its conclusion, but for its rejection of a certain portion of the state’s evidence. Do you agree?

In Breiner v. Nevada Dep’t of Corrections, the Court held that Nevada’s refusal to allow men to serve as correctional lieutenants at a female prison violates federal law. The result is that Nevada may not restrict to only women eligibility for promotions to supervisory positions at a female prison.

Here is the summary:

“In 2003, an inspection at the Southern Nevada Women’s Correctional Facility demonstrated that inappropriate sexual relationships between women inmates and male guards were frequent. In response to this problem and the media firestorm it caused, the State of Nevada decided that only women could be promoted to supervisory lieutenant positions at the facility. Several male corrections officers applied for the lieutenant positions and, when rejected, sued under Title VII of the federal Civil Rights Act of 1964. The federal district court for the District of Nevada (Dawson, J.) concluded that, because they could apply for other lieutenant jobs at other facilities, and because Nevada had lawful reasons for restricting the promotions to women, its policy was lawful. The Ninth Circuit reversed. Just because other promotional opportunities remained open to men, it reasoned, is not sufficient to permit Nevada to restrict certain promotions to women only.”

So far, I thought, it’s a moderately interesting case. Sure, some people may be pleased (and even surprised) at seeing the Ninth Circuit protect the rights of male workers as well as female workers. But a straightforward application of the law, especially when it protects any rights, is just a day at the office for the Circuit.

Reading further, though, I came across the Court’s reasoning in regard to the State’s position:

“Moreover, the district court’s determination that Nevada had good reasons to restrict the promotions at the all-female facility to women was flawed. Nevada argued that female lieutenants would be less likely to tolerate sexual misconduct by corrections officers and more likely to understand the needs of female inmates. The Ninth Circuit concluded that such claims rested on unproven and invidious gender stereotypes.”

Unproven and invidious? Maybe, but I might have expected “unproven and complimentary,” or “unproven and salutary.” I do understand how stereotypes, even “positive” ones, often serve as an obstacle to understanding and advancement (like the “model-minority myth” that Asian Americans must struggle with). Nonetheless, the phrase made me pause.

Though I cheer any ruling that makes the employment world a more equal place, I wondered about the evidence.

Could the State have proven up that part of its case? Does sharing the same gender—even across an officer–inmate divide—mean anything at all? And is there any way to determine who “would be less likely to tolerate sexual misconduct”? Is it at all possible that people at increased risk of being the brunt of such behavior might, I don’t know, get it more?

Maybe the Court was absolutely right, and such thinking is retrograde. But isn’t one of the benefits of our generation-long transformation to a more diverse workplace that when you gather people with multiple experiences, you get responses and outlooks that are multiple? That transformation has been a great and welcome one, and we still have quite a ways to go. But that evolution is premised, at least in part, on the notion that we shouldn’t hire people who are identical to ourselves if we want better results.

America has learned that difference is very important to the workplace. But important how? (as I’m sure Nevada wondered).

It’s quite likely I’m missing something here, so what do you make of this case? Could women corrections officers bring different and valuable insight to the job?

The opinion is available here.