Lawyering on the Right Side of the Brain

There has been quite a bit of news lately on neuroscience and the law. The Law and Neuroscience Blog specifically focuses on the topic, discussing everything from lying to U.S. Supreme Court decisions which cite neuroscience research. This trend enhances the right brain vs. left brain discussions that have been around for decades. While modern technology is challenging some of those assumptions, recent studies have taken the right brain vs. left brain discussion into politics. Right brain functions are typically identified as more creative, while the left side of the brain is often identified with analytical skills, logic, and other functions one might typically associate with skilled lawyers.

This blog post from the ABA showcases a lawyer who tapped into both sides of his brain and filed a cartoon amicus brief opposing a price-fixing settlement between the DOJ and three e-book publishers. While in the end the federal judge approved the settlement, she quoted Emily Dickinson in the ruling.

Curious about your own right brain/left brain tendencies? There are many tests on the web; this test from the Art Institute of Vancouver provides a detailed analysis focused on creativity. Want to tap into your creative side? Try Drawing on the Right Side of the Brain by Betty Edwards.

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Effective Assistance of Counsel and Tribal Courts—A Different Standard?

Virtually none of the U.S. Constitution’s guarantees or prohibitions applies to the actions of Indian tribal governments when those governments are exercising their inherent or retained powers. For this reason, among others, Congress in 1968 passed the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1303, which imposes on tribal governments most though not all of the guarantees found in the Bill of Rights and 14th Amendment. After almost 45 years, however, it remains uncertain whether or to what extent ICRA’s statutory guarantees must parallel the interpretations given to the respective constitutional guarantees on which they are based.

Among ICRA’s original provisions is a command that “[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person in a criminal proceeding the right . . . at his own expense to have the assistance of counsel for his defense . . . .” This, of course, is an analog to the 6th Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence,” which the U.S. Supreme Court has interpreted as requiring “reasonably effective assistance,” Strickland v. Washington, 466 U.S. 668, 687 (1984), by “an advocate who is . . . a member of the bar,” i.e., a licensed attorney. Wheat v. United States, 486 U.S. 153, 159 (1988).

In the recent case of Jackson v. Tracy, No. CV 11–00448–PHX–FJM, 2012 WL 3704698 (D. Ariz. Aug. 28, 2012), a federal district court has held that ICRA’s assistance-of-counsel guarantee requires neither that one’s advocate be a licensed attorney nor that the advocate be held to the standard of a reasonably effective attorney.

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Reading and Briefing Cases in Law School

In my first semester of law school, a very smart friend came to visit me for a few days. I handed her a case from my legal writing problem set and asked her to read the case. She could barely make any of it out. I felt significantly better about myself, for I had been wondering if I had forgotten how to read.

I think this feeling is common in the first few weeks or months of law school. Reading the law for the first time can be disorienting for several reasons, including the foreign terminology, the new structure of the cases, and the lack of context. Translating the written text into something that makes sense and then being able to communicate that material orally in class is a difficult skill to master for new law students.

If reading and briefing cases are skills that a student would like to strengthen, I recommend Ruth Ann McKinney’s book Reading Like a Lawyer: Time-Saving Strategies for Reading Law Like an Expert. The book starts with the premise that being an “expert reader” is a pre-requisite to excelling in law school and in the practice of law. The book goes on to tackle both reading and briefing cases with concrete strategies for both.

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