Clark Memorandum: Spring 2008 J

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Spring 2008 Clark Memorandum: Spring 2008 J. Reuben Clark Law Society

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Recommended Citation J. Reuben Clark Law Society, BYU Law School Alumni Association, and J. Reuben Clark Law School, "Clark Memorandum: Spring 2008" (2008). The Clark Memorandum. 43. https://digitalcommons.law.byu.edu/clarkmemorandum/43

This Article is brought to you for free and open access by the Law School Archives at BYU Law Digital Commons. It has been accepted for inclusion in The lC ark Memorandum by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. clark memorandum J. Reuben Clark Law School Brigham Young University Spring >> 2008 c o n t e n t s Bradley Slade cover photograph

The Relevance of Religious Freedom Michael K.Young On Being Ethical Lawyers Sandra Day O’Connor

On the Wings of My Fathers A Walk by Faith m e m o r a n d a Larry EchoHawk Elder Bruce C. Hafen + colton chair + chief justice roberts + j. reuben clark dvd

+ susan purdon sully + faculty news + class notes + life in the law 2 8 14 20 27

Kevin J Worthen, publisher 30 Scott W. Cameron, executive editor Jane H. Wise, e d i t o r Joyce Janetski, associate editor David Eliason, art director Bradley Slade, photographer

The Clark Memorandum is published by the J.Reuben Clark Law Society, the byu Law School Alumni Association, and the J. Reuben Clark Law School, Brigham Young University. © Copyright 2008 by Brigham Young University. All rights reserved.

The J. Reuben Clark Law Society draws on the philosophy and personal example of the Law School’s namesake, J. Reuben Clark Jr., in fulfilling the following mission: We affirm the strength brought to the law by a lawyer’s personal religious conviction. We strive through public service and professional excellence to promote fairness and virtue founded upon the rule of law. to have the opportunity I’m delightedto address the members of the J. Reuben Clark Law Society. Your Our country was shaped organization’s commitment to public service, by some ﬁne lawyers, starting fairness, and virtue in the law is commend- with Thomas Jefferson. able. ’ I am here to talk to you about what you need to do to become ethical lawyers.

I’m sure everyone in this audience both here since he had been convicted. Instead, it was the difference between life and death for a and participating through satellite broadcast is the result of conduct that took place 11 years defendant. I am sure that none of you would already firmly committed to being an ethical, ago, before Atkins was convicted. ever consider behaving in this manner. An moral lawyer. You do not need any more sto- The crucial point in the prosecutor’s case ethical lawyer must, at all times, refrain from ries of lawyers who pervert the law for their against Atkins was that, out of all the other doing that sort of wrong. own ends. And I’m sure I don’t need to tell you codefendants who were involved in this case, But what would you do if you were Mr. to avoid unethical, shady situations. Your own Atkins was the man who pulled the trigger Jones? Mr. Jones was present in the room. He commitment to your faith has already coun- and killed the victim. If Atkins was only watched these events transpire. ! ! ! seled you in that regard, and I am sure that no the actual gunman, he would have He did not ask his client to change one here would engage in behavior that would been eligible for the death penalty. This speech his testimony. He did not take part in bring shame on the legal profession. If he was not, he could at most have was presented the conversation. He was not himself Instead, I want to talk to you about the been sentenced to life in prison. The at the J. a wrongdoer. hardest part of being an ethical lawyer. There lawyer, whom we will call Mr. Jones, Reuben What Mr. Jones did was go to his are at least two important parts to being an represented a man who testified against Clark state bar’s ethics counsel and ask for ethical lawyer. First, as an ethical lawyer, you Atkins at trial. Mr. Jones’ client was Law Society advice. He was told in no uncertain must refrain from doing things that are wrong. one of Atkins’ codefendants. The tes- annual terms that he could not make these I trust that all of you who are listening will do timony his client offered went to that fireside events known to Atkins’ defense or to that without more encouragement on my part. crucial point at trial: Did Atkins actu- held on the the public. After all, he was a lawyer. He I want to focus on the second part of ally shoot the victim? Arizona had an ethical obligation not to preju- being an ethical lawyer. An ethical lawyer Mr. Jones had an interesting story State dice his own client’s case. If he spoke must affirmatively choose to do things that to tell. Now, I should caution you that University the truth, he could have jeopardized are good. I think you will find out as you the prosecutor in this case has denied campus his client’s deal with the prosecution. enter practice that this second part will pose the truth of Mr. Jones’ story. But I on February Mr. Jones did not speak, and Atkins the greater challenge to you. want to tell you this story for the ethi- 15, 2008. was convicted and sentenced to death. As you enter the practice of law, you will cal ramifications. Before Atkins went Year after year, stretching over the ! ! ! find that it is not always easy to figure out to trial, Mr. Jones’ client gave his side last decade, Mr. Jones wrote to the bar’s what is “right” and what is “wrong.” On the of the story to the prosecutor. The conversa- ethics counsel, asking if he could now speak one hand, it is your duty to act as a zealous tion was tape recorded, and the client began up. Year after year they told him that he could advocate for your clients. You need to look out by describing the position of the individuals not. Finally, after 10 years of silence, Mr. Jones for their interests and advance them, when- and the firing of the shots. wrote again, emphasizing that his client’s case ever it is proper to do so. You need to hold What Mr. Jones alleges happened when was over. There was no possibility of retrial their confidences in the utmost secrecy. On his client started in on that description was and no likelihood of any prejudice to his client the other hand, as a lawyer, you are a profes- that the prosecutor “reached over and stopped if he spoke. Under those circumstances, the sional. You are an officer of the courts before the tape recorder.” She turned to another indi- state bar’s ethics counsel finally relented and which you practice, and you owe the highest vidual and said, “Do you see we have a prob- allowed him to tell his story. duties of fidelity to justice and the rule of law. lem here?” According to Mr. Jones, there was a The prosecutor in this case insists that Mr. You might think it is easy to navigate your significant problem: Mr. Jones’ client’s testi- Jones’ story is false. But if it is not, I want you way through that maze. But it won’t always mony did not match the physical evidence that to imagine the ethical dilemma that Mr. Jones feel that way. Let me give you an example of a the police had gathered from the crime shouldered for the last 10 years. On the one thorny ethical dilemma that a lawyer recently scene. The prosecutor realized that the hand, he was bound as a lawyer not to faced. Some of you may recall the Supreme testimony would be damaging to the prejudice his client’s case. On the other Court’s decision in Atkins v. Virginia, where the prosecution. Then, for 15 minutes—off hand, he knew that the evidence he had Court decided that it was unconstitutional to the record, without any tape record- could literally make a life-or-death dif- execute mentally retarded defendants. But you ing—the prosecutors coached Mr. ference to another man. There was no might not be familiar with its aftermath. Jones’ client to produce the “right” easy ethical or moral answer for him. After the Supreme Court’s decision, the testimony, that is, testimony that If you were Mr. Jones, what Virginia courts decided that Atkins was not could be used to prove that Atkins would you do? mentally retarded and therefore could be exe- fired the fatal gunshot. Let me give another example cuted consistently with the Constitution. A Now, if this story is true, and that has been much in the news. Move few weeks ago, in late January of this year, he I do not know if it is, there is a the clock back several years. Suppose was nonetheless removed from death row. problem. No prosecutor should you are one of the bright young The reason had nothing to do with whether ever attempt to manufacture evi- transactional lawyers who worked Atkins was or was not mentally challenged, dence to obtain a conviction. That for Enron. You are approached by nor did it have anything to do with the litiga- obligation is doubly true when the your supervisors, who tell you that tion that had taken place over the decade manufactured evidence could spell they think they’ve come up with a

4 clark memorandum way to structure transactions in a manner that cutor’s office is the kind of moment that you form, you have a duty to your client and to the hides debt and overreports income. Of course, need to learn to recognize. If you let it slip by law to speak up against shady practices. These your client and your supervisors both insist in silence, you will find that events pass you by days, that duty is codified in statute. But even that it’s all completely—100 percent—within all too quickly. It is probably one of the hard- before it was written as law, an ethical lawyer the bounds of the law. You check; you’re not est moments a lawyer can face. It is a moment had an obligation to affirmatively do what sure if they’re right. Maybe their actions could when you need to do a lot more than refrain was right and tell her superiors that she be within the letter of the law, but you’re from doing things that are wrong; you need to believed that their plan was inconsistent with pretty sure that what they’re suggesting vio- actively choose to do that which is right. the obligations imposed on them by law. I lates the spirit of the law. It would be hard for Jones to interrupt a think you can all also see in the case of Enron But the client did not ask you about prosecutor who has promised to deal less harshly that what might have appeared as “zealous either the letter or the spirit of the law. Your with your client in order to say these words: “I advocacy” for the client in the short term did client asked you to draw up documents to am sorry, but I cannot allow you to advise my not serve the company well in the long term. allow the misleading transactions to go for- client to give testimony that may not be true.” I bring up the matter of Enron to empha- ward. They’re not asking you to provide the But that is what Jones should have done. size to you that when you become an officer of faulty legal analysis. They’re not asking you Think about all the things you may lose the court, you cannot pooh-pooh the mean- to fill out misleading reports to the sec. for your client by speaking up. If your client ing of that term because you plan to become a They’re asking only that you write the con- does not have useful testimony to give at transactional attorney. Some of you will never tract and structure that deal. All they ask is trial, he may not be able to bargain for a stand before a court or address a jury. You that you do the job you were hired for. lower sentence. His own version of events may never enter a courtroom. But that does What do you do? could be called into question; perhaps the not mean that the obligations imposed on you I hope you understand that my point in prosecution might try to pin that fateful shot are in any way lessened. giving you these examples is to illustrate that on him instead. By speaking up, you may well As a lawyer you are not just an advocate for being an ethical lawyer is not simple. I hope hurt your client’s future. your client. You are a representative of the law. that none of you are ever faced with these The hardest thing you must accept as an It is your duty not only to act according to the sorts of ethical dilemmas. Being an ethical, ethical, moral lawyer is that it is not your job highest ethical standards but to make sure that moral lawyer can be a tough responsibility. to win for your client at all costs. You are an you speak up when others intend to do other- When you are admitted to the bar of a officer of the court; that means that one of wise. Your highest fidelity is to the law; you state, it is not an empty formula. You have to the costs you must never pay is to put the serve your clients best by making sure that they take and pass the bar exam. You must raise law to one side. No matter how much it may understand the duties imposed on them both your hand and vow to support the law. prejudice your client, you must never advise under the letter and under the spirit of the law. Let us look at Mr. Jones’ ethical problem. him—either through action or inaction—to Now, I’ve spent a lot of time telling you Once he was caught on the horns of his break the law or tell an untruth. about how hard it may sometimes be to be an dilemma—once he was forced to choose Now, I don’t want to judge Mr. Jones too ethical lawyer. Hopefully, none of you will between keeping his client’s case in confi- harshly. His repeated efforts to bring this mat- face the kind of situation that I’ve detailed dence and allowing a potentially egregious ter to light show that he is a strongly ethical today. But if you do, you must make up your death sentence for another man to stand— man who was deeply troubled by the events he mind well in advance that you will speak up there was no good way out. I don’t envy him witnessed. What this story shows is that if you instead of being silent. I know you are all those 10 agonizing years. are not vigilant about those crucial moments,if capable not only of refraining from wrongdo- But I do want to point out one thing. you let silence reign when you must speak up, ing but also of doing and saying what is right. The account is quite bare. We do not know even the best-intentioned of us might find our- What I have just asked you to do is very exactly what happened in that room with the selves in an unspeakable dilemma. difficult. But I’m going to ask you to do some- prosecutor. And because they did not tape It is a heavy responsibility that is placed on thing in addition. There is another extremely record those crucial 15 minutes, we will never your shoulders when you become an officer important aspect to being an ethical, moral know. But there is one thing missing from of the court. We ask for your vigilance, not lawyer. Not only must you be sure that your Mr. Jones’ version of the tale. When the pros- only in the courtroom but out of it. We ask for actions with your client meet the highest ethi- ecutor stopped the tape and started prompt- your constant fidelity to the law. We ask you to cal standards, but you must also strive to be an ing Mr. Jones’ client to change his testimony, do and say things that could make you very outstanding citizen lawyer. what did Mr. Jones say? unpopular, perhaps with the people who are Today we do not often use the term citi- This, you see, was the absolutely crucial paying your salary. We demand that each and zen lawyer. Most Americans today rarely have moment. I know that this audience intends to every one of you stand for truth and the rule of a favorable opinion of lawyers in general. be ethical and moral. In order to uphold those law, no matter the personal consequences. They are most often thought of as hired guns. standards, you cannot let yourself forget that Now let us look at the matter of the But our country has been shaped by the you are an officer of the court and that you young Enron attorney. You can see that it is work of thousands upon thousands of citizen are dedicated first to truth and justice. That similar to the example of Mr. Jones. Even if lawyers who have tirelessly labored to make moment Mr. Jones experienced in the prose- there is nothing wrong in the duties you per- this world a better place. These lawyers have

clark memorandum 5 been citizens first. Their role has not been matically respect the rights of the people that of just the navigator. Instead, their con- just because they had fought and won a war. tributions have been closer to the visionary They were wary of governmental power, and and the architect. Instead of maneuvering so when it was time to build our new nation, about the law, they have chosen to use the they knew that the structure of the govern- law to build vibrant communities. ment had to resist tyranny. They needed to As lawyers you also will have the power build a structure that was flexible enough to to shape communities. However, more and survive the ravages of time but strong enough more in recent years I have heard that young not to fold under the first great blow. lawyers often have very little time to act as It is obvious to us now that the solution citizens. You’ve all heard the statistics, I’m to this problem is to write a constitution that sure. Law firms are increasingly worried divides power among those various branches about “billable hours.” Even jobs spent work- of government. In a nation that is committed ing for the government, in an era where cash- to the rule of law, our Constitution estab- strapped local, state, and federal officials pull lishes what law rules. But when our nation out all the stops to make every dollar go as far was first conceived, the notion of a federal as possible, are beginning to turn into heavy constitution was not the first thought that workloads. Lawyers today work more hours occurred to the newly independent states. than lawyers in years past. Madison built upon the vision of Jefferson: In fact, the first form of government after But it is also true that our civic need for He explained and educated the community about the Revolutionary War was the ineffectual lawyers has increased at an unprecedented rate. how the Constitution created a government Continental Congress, which governed under By some estimates, almost 80 percent of the that would be ideally situated to serve the people. . . . the Articles of Confederation that left the need for pro bono services in our communi- Madison, like Jefferson, was a citizen lawyer. national government far too weak. ties goes unmet. Boards of civic organizations When it became clear that a new form claim they see fewer young lawyers volunteer- In Jefferson’s time, those truths were of government was necessary, it was again to ing. As a result, our communities are suffering. far from self-evident—they were revolution- lawyers that our nation looked. At the time, I hope to inspire you not only to do right ary. The Declaration of Independence that it was by no means clear what sort of govern- but also to do good. In addition to being an Jefferson drafted was not merely a legal document we should establish. Most of the states ethical advocate for your clients, I urge you to ment informing Britain it had lost 13 of its were deeply wary of national government become advocates for your communities. finest colonies. Instead, Jefferson’s work set and were loathe to give up the tiniest bit of I hope to impress upon you the vast dif- forth a vision for our fledgling nation: Our their power to a potentially tyrannical federal ference that individual citizen lawyers have challenge was not just to win independence power. It was James Madison who helped to made in this country. Today we live in a coun- from taxation but also to forge our country build a legal document that bridged those try that just celebrated the 400th birthday of into a refuge from monarchy and tyranny, a concerns. Madison proposed establishing Jamestown. That settlement brought us the place where all citizens could strive to attain three independent branches of government, English common law and the rule of law. It life, liberty, and happiness. each of which would act as a check on the was critically important. That vision, articulated by Jefferson, epit- others; he restricted the potential reach of Our country was shaped by some fine omizes what it means to be a citizen lawyer. the federal government. lawyers, starting with Thomas Jefferson. There is no question that the Declaration of After the Constitution was drafted, Jefferson, as we all know, lived in a period of Independence is a lawyer’s document: it sets Madison, along with Alexander Hamilton and political upheaval. Instead of seeing himself as forth grievances, details the appropriate rem- John Jay, campaigned tirelessly for its adop- a mere navigator of law, Jefferson was brave edy, and prays for relief. But it did so in a way tion by the states. Instead of hiding the enough to envision a country in which law, that created community. At the time it was powers of government behind legal maneu- rather than reinforcing a centuries-old social written, it unified thousands of Americans vers, he explained the simple provisions of order, could be used to bring about change. around the common themes of freedom and the Constitution and set forth the operation Using his skills as a lawyer, he drafted the equality. Even today the promise of that doc- of government. In so doing, Madison built Declaration of Independence. That document ument inspires citizens to make a positive upon the vision of Jefferson: He explained was not composed of dry legalese, detailing the difference in our world. and educated the community about how the rights and obligations of citizens. It did not After the Americans had won their free- Constitution created a government that would hide the details of American independence in dom from British tyranny, they faced a big- be ideally situated to serve the people and fine print. Instead, it contained a startling vision ger challenge: How were they to enshrine bring about the ideals of our young nation. of the future of this great nation. That docu- the ideals represented in the Declaration Madison, like Jefferson, was a citizen ment stated not only that all men were created of Independence in their government? The lawyer. He envisioned a future and acted to equal but that “[g]overnments . . . deriv[e] their founders of our country knew better than bring that future to fruition. He educated just powers from the consent of the governed.” to believe that their government would auto- and inspired others to believe in that future.

6 clark memorandum All good lawyers act as zealous advocates our legal community. Before his appoint- for their clients. Early citizen lawyers acted ment to the Supreme Court, Justice Lewis as zealous advocates for the future, and, in Powell oversaw school integration efforts in so doing, they shaped our fledgling nation. Richmond, Virginia, and served as president They defined what it meant for “law” to rule, of the American Bar Association. Justice and they established the necessary conditions Ruth Bader Ginsburg was a staunch advocate for law: democratic consent of the governed for women’s rights who cowrote the first law and independent executive, legislative, and school textbook on sex discrimination. judicial branches. Without the contributions If we look across our nation today, we will of those early citizen lawyers to this country’s find innumerable lawyers who are dedicated future, the ideals of the American Revolution to a vision of the future in which the rule of may well have perished despite our success in law brings freedom and equality to all. These gaining independence. people work on issues that range from inter- Of course, since those early days, our national affairs down to local interests. They country has been pushed forward by a great are involved in civic organizations. They sit many citizen lawyers who have made impor- on corporate boards. They serve in state gov- tant contributions to our society. ernment and in the judiciary. I am sure that One of our great citizen lawyers was they all serve their clients zealously. But good Justice Louis Brandeis. Before his appointment Thurgood Marshall takes a moment to reflect citizen lawyers undoubtedly know that, in the to the Supreme Court, Brandeis was famous after presenting the naacp’s case to the Supreme long run, their clients will be best served by for submitting a brief to the court that detailed Court in the momentous Little Rock school zealous advocacy for the future as well. the damaging effects of a lengthy workday on integration case in 1958. Behind him is a portrait I encourage you all to remember that the women. Oregon had mandated a maximum of Supreme Court Justice Louis Brandeis. challenge of being an ethical, moral lawyer is workday of 10 hours for women who worked much greater than merely refraining from doing in manufacturing positions. Up until that law school. He argued that the “separate but what is wrong. Instead, I expect each and every point, the Supreme Court had regularly struck equal” mandate of Plessy v. Ferguson was inap- one of you to do both what is right and what is down similar legislation. But Brandeis submit- plicable because there was no law school avail- good in this world. You can act as a powerful ted a brief that detailed the ill effects of striking able to African-Americans. Marshall won his force for change, and I expect to hear in the down the legislation and convinced the Court case before the Maryland Supreme Court. coming years that every one of you has done so. to let the Oregon law stand. He continued to win victories for black In that vein, I would like to leave you As a Supreme Court justice, Brandeis Americans through the years. Of course, his with the wise words of John Wesley: often spoke out for those who were unpopu- civil rights work culminated in his most lar. He and Justice Oliver Wendell Holmes Jr. famous case. Marshall argued the case for Do all the good you can, regularly spoke out in favor of the free speech the African-American Kansas schoolchildren By all the means you can, rights of political dissidents in the First before the Supreme Court in Brown v. Board In all the ways you can, World War. He favored an expansive view of of Education. A unanimous Supreme Court In all the places you can, the Fourth Amendment, one that protected agreed with Marshall, and, with that deci- At all the times you can, privacy and property rights of u.s. citizens. sion, a momentous change was wrought To all the people you can His service on the Supreme Court drastically in our country. School districts across our As long as ever you can. altered the character of that institution. nation desegregated, and the words of Brown Although his views on the First Amendment soon worked their way into the vision of Sandra Day O’Connor served as associate justice of were first expressed in dissent, today they are our nation. We had been told for two cen- the Supreme Court of the United States from 1981 to recognized as the law of the land. turies that all men were created equal. Now 2006, the first woman to hold that office. She is cur- No discussion of citizen lawyers would Thurgood Marshall unified that vision of rently the chancellor of the College of William and be complete without reference to Thurgood equality with a picture of integration: one Mary in Williamsburg, Virginia. Marshall. From the very beginning of his in which the racist mantra of “separate but career, Marshall was dedicated to a higher equal” became a contradiction in terms. art credits ideal. While he served his clients zealously, Thurgood Marshall’s exemplary service to Page 2: Photography by Bradley Slade, hand-lettering by Elvis Swift he did so with an overarching goal in mind: the community did not, of course, stop with (and on cover). Page 3 and back cover (detail): Gilbert Stuart, Portrait ending racial segregation. Soon after graduat- this monumental change. He was eventually of Thomas Jefferson, Bowdoin College Museum of Art, Brunswick, ing from law school, Marshall found himself appointed to the Supreme Court, where he Maine; bequest of the Honorable James Bowdoin III. Page 4: in the thick of the fight for racial equality. In continued to work as a tireless champion for Photography by Bradley Slade. Page 6: Gilbert Stuart, Portrait of one of his very first court cases, Marshall chal- individual rights and equality. James Madison, Bowdoin College Museum of Art, Brunswick, lenged the University of Maryland’s refusal Nor was Justice Marshall alone among Maine; bequest of the Honorable James Bowdoin III. Page 7: to enroll an African-American student in its Supreme Court justices in his service to Photograph, © Bettmann/corbis.

clark memorandum 7 - 25—-ON THE This devotional - speech was presented in the Marriott Center at Brigham - Young University on August 7, 2007. — -WINGS — — 30 Illustration by Gianni De Conno — — — — -OF Echo Haw k: that is the English translation of the name given to my great-grandfather, a Pawnee - Indian who did not speak English. He was born in the mid- 1800s in what is now called Nebraska. Among the Pawnee, -MY the hawk is a symbol of a war- - rior. My great- 35 grandfather was —FATHERSknown for his bravery, but he was also known as a quiet man who did not speak of his own deeds. As members of his tribe - spoke of his good deeds, it was like an “echo” from one side of the village to the other. Thus he was named Echo Hawk. -BY According to accounts of the ﬁrst white men who encountered - the Pawnee people, the Pawnee -LARRY were estimated to number about 40—-ECHOHAWK

20,000. Under the laws of the United States I faced a daunting task because there had not For me life began to change at the age of they had the right to occupy 23 million acres been a member of my political party elected 14, when two missionaries from The Church of land on the plains of Nebraska. When my as attorney general in 20 years. There had not of Jesus Christ of Latter-day Saints, Lee great-grandfather was 19 years of age, the been a person from my county elected to any Pearson and Boyd Camphuysen, came into Pawnee people were forced to give up their statewide office in 38 years. And, in all the my home and presented the missionary les- homeland along the Platte River to make history of the United States, there had never sons. Up until that time I knew very little way for white settlers. In the winter been an American Indian elected to about Christian religion and had seldom of 1874 the Pawnee people were any statewide, state constitutional attended any church. When the time came marched several hundred miles office (such as governor, lieutenant for the missionaries to challenge our family to a small reservation located governor, secretary of state, or to be baptized, they first challenged my dad, near the Cimarron River in the attorney general). then my mother, and then the children, Oklahoma Indian Territory. Furthermore, right after I starting from the oldest child and descend- Like so many other tribes filed my declaration of candi- ing to the youngest. By the time they got before them, the Pawnee had dacy with the secretary of state, to me, the second youngest in the family, their own Trail of Tears. Tears a political writer for the largest everyone else had said yes. When they asked on that trail from the Platte to newspaper in the state wrote an me, I remember looking at my dad. He had the Cimarron were shed for loss article saying I had no chance to this stern look on his face, and I knew what of a homeland, loss of the great win the race for attorney general. my answer should be. buffalo herds slaughtered for their He said: “Larry EchoHawk starts I was baptized, but I did not have a testi- tongues and hides, and loss of a way with three strikes against him: he is mony of the truthfulness of the Restoration of life. After arriving at that small Great-grandfather a Mormon, Indian, Democrat.” In of the gospel of Jesus Christ through the Oklahoma reservation, the Pawnee “Echo Hawk” was response to this challenge, I just Prophet Joseph Smith. I was, however, glad people did not number 20,000. born in 1855 in the went out and worked as hard as I that my family had been baptized. Prior to They did not number 5,000. Not Pawnee homeland could on that campaign. joining the Church I had doubts about even 1,000. Less than 700 Pawnee (now Nebraska). On election night I was at a whether my family would stay together people survived. hotel where voting results were being because my father had a drinking problem, That is a painful history. But the pain was reported. Late that night I received a call from and this had led to problems within our not limited to one generation. In his child- my opponent conceding the election. I remem- home. After we were baptized, my father quit hood my father was taken from his parents by ber hanging up the phone and thinking about drinking and family life was much better. the federal government and sent to a boarding what I should say to a large group of news However, I continued to live much the same school far distant from his home. There he reporters who were waiting for me to comment as I had before I was baptized. was physically beaten if he spoke the Pawnee on that historic election. After a few moments Fortunately my parents made me go to language or in any way practiced his native of reflection, I walked out to meet the news church every Sunday, and I had the benefit of culture or religion. In my generation my media and made a statement. I did not have a listening to Sunday school teachers, priest- oldest sister was sent home from a public written speech. I did not need one. I simply hood leaders, and sacrament meeting speak- school because her skin was the wrong color. I spoke from my heart, repeating words I had ers. I paid attention, but church attendance remember sitting in a public school classroom heard when I was 15 years old. They were spo- was not influencing my life. and hearing the teacher describe Indians as ken by a black civil rights leader on the steps of Things began to change between my “savage, bloodthirsty, heathen renegades.” the Lincoln Memorial: junior and senior years of high school when And, as I look back through past years, per- Richard Boren became my priests quorum haps the most painful thought is the realiza- I . . . have a dream. It is a dream deeply rooted in advisor. I felt like he took a special interest tion that in my childhood my family had no the American dream that one day this nation will in me. He was a successful lawyer, and expectation of achieving a higher education rise up and live out the true meaning of its creed: I admired him very much. He told me and becoming doctors, lawyers, or engineers. “We hold these truths to be self-evident, that all repeatedly, “You can do anything you want. A college education seemed beyond our reach. men are created equal.” . . . You can go to college, get a good education, But out of that pain was born promise. I have a dream that my . . . children will one and do wonderful things with your life.” Of the six children born to my parents, all six day live in a nation where they will not be judged by He pulled me aside and said, “If you really of us went to college. Four of us graduated the color of their skin but by the content of their char- want to do well in sports, you have to from Brigham Young University. Three of us acter. [Martin Luther King, Jr., “I Have a work at it. You have to set goals and develop became lawyers. We have received the best Dream,” speech at the Lincoln Memorial, yourself.” this country has to offer—the full promise of Washington, d.c., 28 August 1963] At this point I was not a particularly America. good football player. Although I wasn’t a The most vivid realization of that prom- That night I felt the power of those bad athlete, I wasn’t anything special. With ise for me came in 1990. That year I ran for words and the realization of that dream. I felt Brother Boren’s encouragement and guid- the office of attorney general of Idaho. I knew the full promise of America. ance, I set my goal to become a good foot-

10 clark memorandum I had to lie in bed for a week. You can The coach called me over, told me the imagine how devastating this injury was to first play to run, and sent me into the game. me because I had worked so hard and the The play was a bootleg, pass-run option. I first game of the season was just a week was supposed to fake a handoff to the half- away. I kept saying to myself, “How could back, hide the football on my hip, and roll this happen? Why me? How unfair.” out around the end. If the field was clear, I But this was a turning point in my life was supposed to run with the ball. If the field because, as I lay there in bed, for the first time was not clear, I was supposed to try to throw I started to seriously think about the other the football to a receiver. I took the snap, things Brother Boren had talked about. He faked the handoff, and rolled out around the had talked about the gospel of Jesus Christ, end. I could tell after just a few strides that I the teachings of the Book of Mormon, and wouldn’t be able to run the ball for a gain. Idaho Attorney General the power of prayer. The other team had the play well-defended. Larry EchoHawk addresses the Ada I remember slipping out of bed to my A defensive end was rapidly pursuing me and County Courthouse, 1994. knees. It was the first time in my life that was about to tackle me for a loss. At the last I had ever prayed intently. There I was, second I saw one of my teammates down- ball player. We set up a program of weight with bandages on my eyes, alone in my bed- field. I planted my foot, and—this is where lifting, running, and skills development. room, praying for help. I remember saying, the weight lifting paid off—I threw the foot- I was small in size. To become a good “Heavenly Father, please, if you are there, lis- ball as far as I could. As soon as I turned the football player I had to gain weight. Weight ten to my prayer and help me not lose the ball loose, I was clobbered. I was on my back lifting would help, but I had to do more. I sight in my eye.” I said, “I promise, if I can when I heard a loud roar in the stadium. I began mixing up a special weight-gaining for- just keep the vision in my eye, I will read the remember thinking, “I don’t know whether mula to drink. It consisted of raw eggs, pow- Book of Mormon as Brother Boren has chal- they are cheering for my side or the other dered milk, peanut butter, and other fattening lenged me to do.” side.” I jumped up and looked downfield. I things. I always put a little vanilla in it to make When the bandages came off, at first I saw my teammate with the ball 68 yards it taste better. It still tasted awful. could not see out of the injured eye. But grad- down the field in the end zone. It was a In one year I gained 20 pounds. When I ually, day by day, my sight came back to near- touchdown! That was the greatest moment showed up for football practice at the begin- perfect vision within a week. of my teenage life. To me, it was an answer ning of my senior year of high school, my My Farmington High School football to my prayer. football coaches could hardly believe their team had played their first game, and the sea- I played the rest of the game. I passed eyes. I thought I was going to be a defen- son was underway. Soon the doctor cleared for another touchdown and ran for two sive back, but when practices started, the me to practice with the team. I was able to more. That night my team, the Farmington coaches had me listed as a quarterback. This travel with the team to the next game in Scorpions, came from behind to beat the was disappointing because the captain of the Grand Junction, Colorado, but I didn’t think Grand Junction Tigers. The next day my football team was the starting quarterback. I I was going to play in the game. name was in the headlines of our local feared that I would again be on the bench. That night our team fell behind by two newspaper. But I was prepared to compete, and I gave it touchdowns in the first half. Just before half- I had another eventful football game that everything I had on the practice field. After a time my coach approached me and asked year in Albuquerque. We played the state few days of practice, I came into the locker me if I wanted to play. I said yes. During championship team harder than they had room and saw my name listed as the first- halftime in the locker room the coach came been played in any other game that year. team quarterback. I had beaten out the cap- to me and said my doctor and parents had After the game ended, one of the football tain of the football team! cleared me to play. He said to be ready coaches from the University of New Mexico A life-changing moment occurred during because I might get a chance to play in the came into our dressing room. He introduced two-a-day practices before the first game of second half of the game. Our team did not himself to me and said, “We like what we saw the season. Between practice sessions I was play well at the start of the second half. tonight.” He shook my hand and told me that playing with my brother and two friends. Finally the coach came to me and said, “The he would be watching me the rest of the year. Someone threw a ball. I turned around at the next time we get the ball, you are going in to When I recovered my sight after the wrong time, and the ball hit me squarely in play quarterback.” I remember being on the accident, I had immediately started reading the eye. It was a serious and painful injury. I sideline and kneeling on one knee, like foot- the Book of Mormon. I had not been a good was taken to the emergency room at the hos- ball players sometimes do to rest and watch student through junior high and high school. pital. My eye was swollen shut. I couldn’t see the game. I just dropped my head and said a I struggled because my mind was not a thing out of that injured eye. The doctor prayer. I whispered that prayer “with real focused on school. I loved sports but not aca- told me and my parents that it was too early intent” (Moroni 10:4) because I was about to demics. The Book of Mormon would be the to tell, but I might lose the sight in that eye. face my biggest challenge on an athletic field. first large book that I had ever read from He bandaged both eyes and sent me home. This would be my chance. cover to cover.

clark memorandum 11 As Brother Boren had suggested, I Reading the Book of Mormon and receiving to us in a raspy voice. My thought was, “Is this planned to read 10 pages every night. I never a testimony of it gave me an unexpected but him?” The wonderful thing about him was missed a nightly reading. When I finished welcome gift in my life. that he befriended us all very quickly. This the entire book, I knelt down and prayed. At Being a student-athlete at byu for four was a real feat because it is not easy to get that moment I had my first very strong spiri- years was a remarkable spiritual experience close to Indian youths. tual experience. I knew then the Book of for me. I associated with many great men and Later, when I was a student at byu, I Mormon was true. I had received my most women and learned important lessons in life heard him speak several times. Like Brother important answer to prayer. Up until that under their tutelage. I became a product of Boren, he provided a blueprint for my life. moment I had not realized that Heavenly the byu experience. My testimony of the When I was a byu student he gave a speech Father had been watching over me and giv- gospel of Jesus Christ grew, and I solidified entitled “This Is My Vision.” In this talk he ing me answers to all my prayers for healing my vision of what I should do with my life. related a dream: “I woke up and I’d had this and for a witness of truth. There was a companion spiritual influ- dream about you—about the Lamanites. I It seemed to me that the Book ofMormon ence in my youth: Spencer W. Kimball. He wrote it down. It may be a dream. It may be was about my Pawnee Indian ancestors. The was one of my greatest mentors. At church in a vision. But this is what I saw you doing.” Book of Mormon talks about the Lamanites, New Mexico, people talked about the apostle In one part of the speech he said, “I saw you a people who would be scattered, smitten, and who had a great love for Indian people. The as lawyers. I saw you looking after your nearly destroyed. But in the end they would be name of Spencer W. Kimball was revered. people. I saw you as heads of cities and of blessed if they followed the Savior. That is Prior to coming to byu I met him at an Indian states and in elective office” (for a more exactly what I saw in my own family’s history. youth conference in Kirtland, New Mexico, a detailed description of the 1946 dream, see When I read the Book of Mormon, it gave me largely lds community about 10 miles outside Dell Van Orden, “Emotional Farewell in very positive feelings about who I am, knowl- of Farmington. I remember standing out on a Mexico,” Church News, 19 February 1977, 3). edge that Heavenly Father had something for softball field with several other Indian youths, To me it was like a patriarchal blessing and me to accomplish in life, and instruction in waiting for this apostle to come. There was a a challenge from a prophet of God: “Get an how I could be an instrument in His hands lot of anticipation. A car pulled up. Men in education. Be a lawyer. Use your education in serving the needs of other people. dark suits got out and started walking across to help your people.” That is what I wanted After I had finished reading the Book of the field toward all these young Indians wait- to do. I carried an excerpt from that talk in Mormon and football season had ended, I ing for the apostle. As the men approached, my scriptures. At a certain point in my life I was sitting in a class one day when a student I stood there thinking, “Which one is he?” read the passage where he said we could messenger passed me a note. It said I was to Finally he stepped forward. He started talking become leaders of cities and states, and it go see the football coach. I went down to his office. The door was closed. I knocked, and he said to come in. I opened the door and looked across the room. The head football Quarterback Larry coach of the University of New Mexico EchoHawk plays football was sitting there. I remember that moment for byu on a full-ride vividly because as soon as I saw him I knew I scholarship, 1969. was going to college. Brigham Young University also recruited me, but I wasn’t sure if byu would offer me a scholarship. I remember the meeting with Tommy Hudspeth, the head football coach. He asked me if I had any other scholarship offers. I said, “Yes, I have a full-ride scholarship to the University of New Mexico.” I happened to have the scholarship offer from New Mexico in the notebook I was carrying. I handed him the letter, and he read it. He folded it up, handed it back, and said, “You have a full scholarship at byu if you want it.” My hard work, encouraged by Brother Boren, had paid off, opening a door to a college education. But, more important, a seemingly freak accident had opened a spiritual door through which celestial blessings have continued to pour on me and my family.

12 clark memorandum was as if it were directed specifically to me. Even though I had never envisioned running for elective office, I knew that I could and should do it. New recruit EchoHawk stands I loved President Kimball. The day he at attention during marine passed away, I cried. I was overcome because basic training at Quantico, I had felt his love for me. I had seen so much Virginia, summer 1968. of the good that he had accomplished for all people. But I was especially grateful for what he had done to lift Native Americans. When I graduated from byu, I decided to become a lawyer for one reason: to help Indian people. After graduating from law school I spent nine years working as the attorney for Idaho’s largest Indian tribe, the Shoshone-Bannock Tribes, located at the Fort Hall Indian Reservation. I saw a mar- velous awakening under laws that now help Native Americans to become self-sufficient and economically strong. I have always thought it no accident that Indians were able to survive as a separate, identifiable people. I don’t know how the Lord is going to use such people in His ultimate plan, but I see many Native Americans who have been able to earn Marine EchoHawk visits a college education and do the same kinds of the Iwo Jima Marine things I have done. There has been a very def- Corps Memorial in inite positive cumulative impact. Washington, d.c., 1968. During the Vietnam War I volunteered for service in the United States Marine Corps. Soon after I arrived in Quantico, Virginia, for boot camp, I found myself standing at attention in front of my bunk grabbed my Book of Mormon. He then ridiculed and disparaged with vile language. in our barracks along with 54 other Marine walked up to me, and I braced myself for his He thereafter did the same with every other Corps recruits. I met my drill instructor attack. I expected that he would yell at me recruit. when he kicked open the door to the barracks as he had done with all the other recruits. I have often wondered why that tough and entered while yelling words laced with Instead, he stood close to me and whispered, Marine Corps drill instructor spared me that profanity. He was a tough, battle-hardened “Are you a Mormon?” day. But I am glad I was able to say without veteran who had been previously wounded As instructed, I yelled, “Yes, Sergeant hesitation that I am a Mormon and that I in Vietnam. He started at one end of the Instructor!” know the Book of Mormon is true. That tes- barracks and confronted each recruit one by Again, I expected he would then rip into timony is a precious gift given to me with the one. Without exception, the drill instructor me and my religion. He paused, raised his help of two missionaries, a priests quorum methodically found something about each hand holding my Book of Mormon, and leader, and a prophet of God. For this I am recruit to ridicule with vulgar language. I then, in a very quiet voice, said, “Do you very grateful. dreaded that it would soon be my turn. believe in this book?” I bear my testimony of the truthfulness of When it was my turn, the drill instructor Again I yelled out, “Yes, Sergeant the gospel of Jesus Christ as contained in the grabbed my duffle bag and dumped my per- Instructor!” Book of Mormon, and I do so in the name of sonal belongings onto my bunk. I could not At this point I was sure he would yell out Jesus Christ, amen. see what he was doing because I had my back disparaging words about Mormons and the to my bunk, and we had been instructed to Book of Mormon. But he just stood there in Larry EchoHawk is the former attorney general stand at attention with our eyes looking silence. Finally he walked back to where he of Idaho, Bannock County prosecuting attorney, straight ahead. When we spoke to the drill had dumped my personal things and gently and chief general counsel for the Shoshone-Bannock instructor we had to call him “Sergeant laid my Book of Mormon down. He then Tribes of the Fort Hall Reservation. He is currently Instructor” and yell out our words. The drill proceeded to walk right by me without stop- a tenured professor at the J. Reuben Clark Law instructor looked through my things and ping and went on to the next recruit, who he School at Brigham Young University.

clark memorandum 13

|e elevance R of Religious f r e e dom W by w michael k. young

Tonıght! I will talk about some of the lessons I’ve learned about religious liberty as I’ve worked in academics and government— I want to discuss how those lessons can teach us what needs to

photos by val brinkerhoff be done, and how we as committed members based organizations. For example, the White ing and purpose? How do we raise our chil- of The Church of Jesus Christ of Latter-day Lotus Rebellion, the Taiping Rebellion, and dren? What do we teach our children? What Saints can fill those needs. the Boxer Rebellion all came during times happens when we die? The most basic human I’ve spent 25 years as an academic studying when the present government was viewed elements of human dignity are found in those Asian economic trends, political trends, and as morally corrupt and relatively weak, so sets of questions—what it means to be human rights, and I spent four years in gov- alternate sources of loyalty began to develop. human—and, therefore, to individuals, reli- ernment service in the George H. W. Bush In each instance the Chinese government gion is profoundly important. It is how we administration. The timing in that adminis- reacted and successfully suppressed the rebel- define ourselves. We are not defined by the tration gave me an opportunity to work close- lions, only to lose power within a few years government; we are not defined by our exter- ly on the issue of German unification as well because the cost of suppression was so high nal circumstances. Religion is the opportunity as on some significant trade and human rights and because the very rise of the movements for us to reflect and define ourselves. treaties. After my work in the Bush adminis- demonstrated the fundamental weakness and This is important to governments pre- tration, I returned to Columbia University invalidity of that government. Chinese lead- cisely because it is important to individuals, to direct and organize a program on interna- ers are no fools. They understand the threat who act collectively as a nation. People who tional human rights and freedom of religion. that something even as innocuous as Falun are religiously observant necessarily have I also served on the u.s. Commission on Gong presents to them. an allegiance to something higher than

International Religious Freedom, a statutorily So here is point one: Throughout ! ! ! the state. And for some governments it created watchdog commission designed to my career in academics and in gov- is very threatening to know there may give the State Department, the nsc, and the ernment, I have seen again and again This article be organizations out there more likely president advice on how to integrate issues of that religion is important—profoundly than the government to secure the alle- is adapted human rights more deeply into our foreign important—to virtually every major giance and the adherence of their mem- policy, especially issues related to freedom of geopolitical event. It seems like a simple from a talk bers. It also means that those who are religion. Through all of this I was an obser- point, but it is the first point, and one religiously oriented believe there are presented vant, dedicated, committed member of The not shared very commonly by many some areas of life into which the gov- Church of Jesus Christ of Latter-day Saints. policy makers around the world. at Campus ernment can’t intrude. There are things Each of these roles informed my understand- The second point I want to make I an individual can do that the state can- Education ing of the world and particularly of people learned from my experience at Columbia not suppress and is not entitled to sup- who are religiously observant and hope to as well as from my work on the u.s. Week at press. That’s why religion is important remain so. Commission on International Religious to governments, particularly govern- Brigham What did I learn from academics and gov- Freedom. Again, this commission was ments that seem to be insecure or ernment? Religion is very important in every created by Congress to provide input Young authoritarian. Religious liberties are geopolitical event I have ever studied or par- into our foreign policy formation often the ﬁrst rights to be suppressed— University ticipated in. For instance, in the 1930s and process that would ensure that our the canary in the coal mine of human ’40s, the Japanese government manipulated foreign policy was better designed to on August rights. (I use that analogy and nobody an indigenous set of morals and ethics into a advance human rights, particularly under the age of 40 ever understands it, 21, 2007. religion that became known as State Shinto, human rights related to freedom of so I’m going to ask you who are under a form of the Shinto religion allowing the gov- religion. This was in part because of ! ! ! 40 to ask your parents what “canary in ernment to control the priests and the doc- congressional mistrust of the State the coal mine” means.) Suppression of trine and eventually to manipulate the religion Department and of the administration. We religion is an early warning signal of more into a form of nationalism. had a chance to study religion and how it was repression to come. Religion is fundamental We all know the role that the Catholic being treated in a variety of countries around and profound; therefore it is threatening in Church played in the solidarity movement in the world and to then formulate ideas about some ways to governments that are them- Poland, but lesser known is the role that the how those repressed people might be helped selves insecure in their power. church has played in Germany. There has by our persuading their governments to While on the commission I learned that been a religious influence in a number of dif- repress them a little less vigorously. governments are capable of extraordinary ferent countries such as Hungary and Russia. So what did I learn from that? I learned repression and can be remarkably vicious. China had an extraordinarily extreme reac- that religion is important not only to geopo- I met persecuted people face-to-face: Christians tion to Falun Gong, a combination of Daoism litical movements but also to individuals. in China, southern Sudan, Vietnam, and North and Buddhism, and repressed the religion Geopolitical movements are amalgams of peo- Korea; Jehovah’s Witnesses in Belgium; with enormous ferocity. Why were the ple’s preferences, their views, and their beliefs. Muslims in India and Gujarat; Buddhists in Chinese so concerned about this seemingly Religion is important geopolitically precisely Vietnam, Laos, Pakistan, and Mahis; Jews in harmless form of meditation? It has to do because, to the vast majority of the world’s Iran; Scientologists in Germany; and members with the astute sense of history that Chinese population, religion is profoundly important of the Unification Church in Japan. Many were leaders have possessed as they have seen polit- individually: Why are we here? Where did we persecuted, humiliated, and discriminated ical movements derived out of religiously come from? How do we live a life with mean- against, and, believe me, there is significant

16 clark memorandum death and torture out there. The reasons for them to everybody, whether a person is a talked about Russia and the former Russian suppression vary from government to govern- member of that religion or not. There is often republics as well as countries in Asia, Latin ment, but they are in the end very relevant to an overlap between official authority and reli- America, and Africa. Interestingly, it was a what we think about as we think about the gious authority. useful exercise because, as I looked at the world going forward. My third point is that governments are patterns of repression, I realized that govern- Authoritarian governments are one exam- divided between majority and minority reli- ments that suppress religious freedom for ple of governments that are often insecure gions and don’t have the authority, the power, reasons relating to political control may do it with respect to religion. They impose and or the capability to mediate between those quite differently from governments that do maintain social and political control, their religious differences. Think of Indonesia and it in an attempt to repress intercommunal leaders aren’t chosen by the people, and peo- the tremendous outbreak of violence there in violence. The former countries are actually ple have little say over state decisions. Religion ’98 or the conflict in Malacca in’99. Think of loosening their restrictions around the can be seen in those cases as an alternate the slaughter of the Muslims by the Hindus in world. One may look at China, Vietnam, source of loyalty and therefore very threat- Gujarat, India. and Cambodia—not free, to be sure, but ening. Examples of nations with such gov- I was asked a year ago if I would be certainly freer than they were a decade ago. ernments are North Korea, Turkmenistan, willing to do a presentation for the Area On the other hand, countries that control Uzbekistan, and China. Committee of the Church, which consists of religious expression because of concerns Then there are governments that on their a number of General Authorities who help over intercommunal violence—such as own cannot garner adequate support and so watch over Church activities throughout the Pakistan, India, and Turkey—are getting rely on some identification with the majority world. It includes a number of members of substantially worse in terms of freedom. religion to remain in power. These are coun- the Twelve and the Seventy. I was told to Circumstances have an enormously power- tries that may establish official religious laws cover a few countries in 10 minutes, leaving ful impact on how governments deal with conforming to the main religion but apply some time for questions and answers. I the issue of religious freedom.

clark memorandum 17 This is a point that I want to turn to now. regate wars through smaller countries, and run the secular human rights community. The other thing I realized in the course of this that has dramatically reduced the need for One of the things we learned as we tried to presentation was that the world is in a very battles in Nicaragua, Iran, and other places. bring these groups together is how compli- good place in terms not only of religious free- Additionally, the decline is due to the spread cated these issues are. It’s very easy to agree dom but of many things. We read the newspa- of democracy. I think at the end of World that people should stop killing each other, but pers and we continue to think the world is a War II there were approximately 20 countries after that it becomes more complicated. violent, disastrous, terrible place going down- that you could have identified as having most For instance: head scarves. On the one hill. But let me read you some statistics. As we of the characteristics of a democracy. Now hand, we say it should be a matter of freedom think about human rights, let me cite some the number is close to 90. That’s an extraordi- whether somebody wears a head scarf or not. important statistics from a report by the nary difference. On the other hand, some say that to reject the Human Security Centre at the University of Professor Amartya Sen, a Nobel lawyer head scarf is a political signal of rejection of British Columbia. It found that by the end of and economist at Harvard, spoke at our uni- certain fundamental values for which the gov- the Cold War in 1990, armed conflicts had versity recently and made the point, quite ernment stands. So maybe they should be able declined by 40 percent around the world. The profoundly I thought, that no two democra- to stop head scarves and not allow driver’s number of deadly conflicts—those that kill cies have ever fought a war against each other. license pictures of people showing only their eyes. If you start from the supposition that covering one’s head is a sign of respect and a reflection of a view that perhaps people, men in particular, will be less tempted if they don’t see anything and therefore more capable of living their religion, then this becomes a different issue, an issue that if put in the context of pornography we perhaps will begin to understand in a different way. And there are issues relating to proselytization, for example. You may have seen the recent article in the paper about how the World Council of Churches has created pro- tocols on proselytization. There is a concern in many developing countries that rich reli- gions are coming in, buying up converts, and disadvantaging the indigenous religion that may not have the resources to do that. Well, that sounds plausible, but isn’t the most profound purpose of religion to per- form work for the needy? Isn’t that the mes- more than 1,000 people—have declined by Tom Friedman, who wrote the famous book sage of every single major sermon in the 80 percent. Civil wars have dropped by 80 The World Is Flat, describes it differently. He Book of Mormon? percent. The number of military coups said, “No two countries with a McDonald’s It’s easy to think that our Church doesn’t has dropped dramatically. Genocides have have ever fought a war against each other.” really confront any of those issues because we dropped by more than 80 percent. Not only But whatever the touchstone is, the point is are very respectful in proselytizing. But in that, the number of people killed in an average that the world may be in a place where there’s Europe one finds that there is an increasingly conflict has dropped extraordinarily. In 1950 more opportunity to do good than at any powerful gay and lesbian movement with per- the number of people killed in an average con- time since the end of World War II. That is fectly appropriate people demanding rights. flict was 38,000. Today it is 600. From 38,000 an exciting development. What are some of the mechanisms they are to 600 is a 50-fold decline. Now, for those who Nevertheless, the third point I want to thinking about for enforcing that? Well, were killed, I don’t mean to diminish the hor- make is that this challenge is complex. This organizations that may not provide equal ror and the terror of war as it does exist, but is what I learned at Columbia. The pro- rights would not be entitled to government what we have to understand is that we are in a gram we designed was to bring the secular benefits like the right to establishment, the very different place than we were even 15 years human rights community—which is not right to own property, and the right for ago. I can talk about a substantial decline of the faith-based, and, indeed, is sometimes a bit tax deductions. Well, this is appalling, we number of refugees, and the list goes on. dismissive of expressions of faith—together think. Yet here in the United States we have Now, why is that the case? Well, part of with the religious liberties community— done precisely that with respect to racial it has to do with the end of the Cold War. which is generally faith-based and somewhat discrimination. In a major case, Bob Jones Also, countries are no longer fighting seg- mistrustful of the Godless humanists who University’s tax-exempt status was denied,

18 clark memorandum and deductions given to Bob Jones University Let me give you a couple examples of this reply to Moroni’s rather intemperate letter were no longer considered tax deductible, in the Book of Mormon. First, take Alma’s to him. As you recall, the Lamanites were because of the school’s racial discrimination. interaction with the anti-Christ Korihor in knocking at the door while some grasping These are complex, difﬁcult issues that chapter 30 of the book of Alma. Korihor Nephites were attempting to take over the require serious, sustained thought. begins to preach against the prophecies that country. Moroni is very unhappy; there are Religion is profoundly important intel- had been spoken by the prophets. The Book no supplies coming. At this point he writes a lectually. We cannot understand geopolitical of Mormon makes it clear, however, that this rather scathing letter to Pahoran. Pahoran movement, economics, politics, and history was not a concern of the law. Even before we writes a scathing letter back, but he puts it in without taking seriously the role and the learn how pernicious Korihor’s teachings a drawer and then later writes a more temper- nature of religion in the process. I think, by were, we learn that “the law could have no ate letter. In it he says that he understands and large, the academies in America, and hold upon him” (Alma 30:12). Now, in case we the problem and wants to send supplies, but indeed the world, have failed. Religion has miss the point, the scriptures tell us that “there he can’t because he’s defending his people. been largely written out of the curriculum. was no law against a man’s belief ”(v.7); this is Would Moroni come and beat back the That’s not as important as the fact that as a beginning to get kind of repetitive. But they Nephites who are trying to destroy the king- powerful component of various intellectual don’t leave it at that; three more verses say it dom? But Pahoran doesn’t want to leave the other people undefended, so he says to send Lehi and Teancum to contend with the four-fifths of invaders. He urges Moroni to give them the world’s people are “power to conduct the war . . . according to profoundly religious, the Spirit of God” (v.15). Not a surprising injunction to be given to such spiritual people! and religion matters He goes on to say that this spirit “is also the spirit of freedom which is in them” (v.15). I’m going to stop here and just say that as I look at the world, I stand back and think that not only have I had an intellectual and a 4|5 professional interest in religious liberty, but for me there is a sense of religious urgency to enormously in their this mission as well. I feel like when the last lives. we cannot day comes, be it my last day or the world’s last structure policies day, I want to be found with my shirtsleeves rolled up. I want to be found with sweat com- without taking their ing down my brow. I want to be found with views seriously. my lip a bit bloody from the fight to protect not only my freedom and your freedom but also the freedom of everyone around the disciplines, rebellion is almost totally absent. was strictly contrary to the commands of God world, because even if others make choices That has to change. that there should be a law that should bring with which I profoundly disagree, the imper- We also must take religiously oriented peo- men onto unequal grounds. This teaching is ative to give them the same opportunity that I ple seriously. We can no longer dismiss their not prudential—this is a commandment. But have is one that finds profound and important claims and their concerns. Four-fifths of the it’s a commandment because it is essential to support in the scriptures—it is an obligation world’s people are profoundly religious, and reli- keep people on equal grounds. And the very that goes to the very heart of the gospel. I say gion matters enormously in their lives. We can- next verse tells us why: “For thus saith the this in the name of Jesus Christ, amen. not structure policies without taking their views scripture: Choose ye this day, whom ye will seriously. That’s very hard. That emphasizes my serve” (v.8). In other words, this command Michael K. Young is the president of the University third point: These are complex and difficult issues. from God is essential; it’s predicated on the of Utah and the former dean of the George Let me conclude with one last thought. It most profound principle of all, and that is Washington University Law School. comes from a longtime membership in our agency. Anything else, whether it’s designed Church and an enormous amount of thought to give us choice or someone else choice, even photography by val brinkerhoff about what that means. What I’ve conclud- if it’s a choice we don’t like very much, is con- Page 14: Mary and Baby Jesus with Stars and Pillars, 1436, ed, a bit to my surprise, is that freedom of trary to the commands of God. In fact, this is Duomo, Florence, Italy. Page 15: Moai Statues, 1400, Easter religion is not merely a practical, prudential, said in the context of Korihor, who is saying Island, South Pacific. Page 17: Towers, north view, San Diego and wise policy. It is in fact profoundly theo- things about as repugnant as one can imagine. California Temple, 1993. Page 18: Middle period temple, 1100, logical, and it may be more theological than it Pahoran says the same thing in Alma 61 Bagan, Myanmar (Burma). Page 19: The Blue Mosque, 1617, is practical and political. when he gives that tremendously temperate Istanbul, Turkey.

clark memorandum 19

My main qualification to talk tonight is that i was present at the law s c h o o l ’s f o u n d i n g. in 1 971, when i was four years out of law school, the new president of byu, dallin oak s, h i r e d me as his assistan t—pri- m a r i ly to help get the a alk by Faıth Wfoundıng storıes of the law school

by elder bruce c. h a f e n The following speech was presented at the J. Reuben Clark Law School Founders Day dinner held at Little America Hotel in Salt Lake City on August 30, 2007.

photography by bradley slade Law School started. I accepted that job more clear. The process of acting on an “Both locally and nationally, the interests of because I hoped to be on the school’s faculty. inspired premise and then discovering a sup- the Church and its members are [best] served I’ve been encouraged to tell some of the porting rationale by hindsight is not unusual. when we have . . . good men or women run- Law School’s founding stories. Why would That is what happened with the Law School’s ning [from both parties], and then no matter those stories interest us after so many years? founding, and it happens in other ways when who is elected, we win.” Because there is power in stories. Even the we walk by faith. I once heard President Faust say that his scriptures are primarily a collection of per- Dallin Oaks was a full professor at the most satisfying experiences as a lawyer came sonal stories. In His desire to give us guidance University of Chicago Law School and not in representing big corporations but in about life, God could have given us a large a stake presidency member in Chicago representing those he called “the little peo- rule book, a series of essays, or perhaps a during the discussions about two concur- ple,” meaning people who are disadvantaged Gilbert’s outline with the title “Life, in Black rent events—appointing someone to replace in some way, perhaps including their ability Letter Law.” But He didn’t. He gave us scrip- Ernest Wilkinson and creating the Law to afford legal advice. As a lawyer, he was a tural stories about people like ourselves. We School. When the Brethren talked with him humane servant and a spiritual healer. can identify with these stories, and then we about becoming byu’s president, they knew Is it inconsistent to be both a healer and an learn from them. Think of it as case law— his reservations about starting a law school. advocate? The Master Healer often referred real cases about real people who are often in They said they only wanted a school that to Himself as our “advocate with the Father.” I perplexing circumstances. What these people met very high professional standards, and will forever be grateful that Christ, the greatest discover teaches us about principles derived they were willing to fund it. Then they Advocate, is willing not only to represent the from real-life experience. Sometimes the scrip- asked, if he were president, would he see it as guilty but also to heal them. The story of the tures tell us a story and then say, “And thus we his duty to carry out their vision for the Savior’s life and mission is the most significant see . . .” Some of the Law School’s founding school? President Oaks accepted their coun- story embedded in the deepest foundations of stories are like that. sel and superbly carried out their mandate. the Law School. The person who first proposed the J. Thus we see that giving counsel to Church Let me return to 1971 and 25 years of Reuben Clark Law School was Ernest L. authorities means two things: give your best working closely with Rex Lee. Rex was one Wilkinson during his final years as president honest advice; and, when they make a deci- of the most talented and colorful characters of byu. President Wilkinson had done more sion, don’t oppose it—advocate it. ever to walk among us. He came from a tiny than anyone to create the magnificent byu Here’s how I learned firsthand about the town in Arizona to byu in 1953 as a wide-eyed campus we see today, and I am grateful to nonpolitical attitude of the Brethren toward freshman who dreamed of someday becom- him that he proposed a law school. However, the Law School. President Marion G. Romney ing one of the greatest lawyers in America. his vision of legal education carried some was the First Presidency’s representative for Rex’s first great victory as an advocate political overtones that some of the Church’s Law School matters. He had chaired the came in his byu student days, when he leaders did not share. Moreover, his proposal committee that recommended Dallin Oaks persuaded Janet Griffin to marry him. With ran counter to byu’s basic mission as an to be byu’s president. That same committee her grace, refinement, and deep spiritual undergraduate university. So Ernest’s motion later selected Rex Lee to be the founding instincts, she made that Arizona diamond in might have died for want of a second. But dean. President Romney also conducted a the rough really sparkle. Early in their dating, somehow the law school idea caught the First personal interview with each prospective law Rex once heard that Janet had been out with Presidency’s imagination enough that they faculty member. somebody else. His way of communicating chose to pursue it in their own way. During his interview with me, President his feelings was to call her on the phone, and They talked with many leading lds Romney said, “Now, let’s talk about your pol- without identifying themselves, Rex and his lawyers and law professors. None of the three itics.” That got my attention. He said, “Are cousin played their guitars and sang to her lawyers who ended up as the Law School’s you either a Socialist or a John Bircher?” I with pure Arizona honky-tonk pathos: “Your first leaders—Dallin Oaks, Rex Lee, and Carl said, “Some people think those are the only cheatin’ heart will tell on you. . . .” Hawkins—at first thought the Law School’s two choices.” He said, “I know. That’s why Rex never lost his rural Arizona sense of creation was a very good idea, and they all I’m asking. Are you a Socialist or a Bircher?” I humor. Once when he was telling jokes at a expressed that view to Church leaders. They said, “No, I’m neither.” He said, “Then you’re byu fund-raising dinner, a non-lds visitor at saw no need to train more lds lawyers, and alright. Let’s talk about something else.” our table said, “Who is that guy? Listen to his they worried that the school might become Later on, when I shared that experience with sense of timing! He could make a fortune as a someone’s political captive. President Oaks, he said, “Tell that story— stand-up comedian.” I still remember one of In spite of that candid advice, and even widely and often.” Rex’s favorite stories—maybe he told it that though they chose not to adopt President One of the best role models for the Law night: A very frugal man dies. His widow, Wilkinson’s politically flavored model, the School’s commitment to political diversity is honoring his frugality, calls the local paper Brethren decided to create the Law School President James E. Faust. He was once pres- and asks, “What is the cheapest obituary I anyway. They had felt a clear spiritual nudge, ident of the Utah State Bar, and he served can buy?” The paper agent says, “We’re hav- and they knew from experience that the rea- in the Utah legislature as an active Democrat. ing a special today—you can get six words sons for that nudge would eventually become While in the First Presidency, he once said, for the price of three—just 15 dollars.” She

22 clark memorandum says, “Is that your cheapest obituary?” He as a faculty member, though he had taught says, “Yes.” “Alright,” says the widow, “let’s a part-time class or two. He had graduated try ‘Fred died Wednesday.’” “Okay,” he says, at the top of his class at Chicago and had “you get three more words—it’s all included clerked for Justice Byron White; but his was in the 15 dollars.” “Oh,” she says, “‘Fred died a career of potential, not accomplished fact. Wednesday. Toyota for sale.’” Only later would Rex go on to be assistant Rex and I served in the same byu student u.s. attorney general, then solicitor general, stake for a few years; he was on the high and then a star Supreme Court advocate. council and I was in the stake presidency. Because other lds candidates considered Once he told me why he liked being on the for dean had far more experience in legal edu- high council so much. He said, “That calling cation, I was frankly a bit astonished when has the best ratio between work and glory Rex was chosen. Yet just before I learned of of any job in the Church.” We didn’t know his selection I had a strong premonition that whether to increase his work or decrease his Rex would be the dean. I once had a chance glory. Another time we sat together in a to ask President Romney why his committee sacrament meeting on a warm afternoon. chose Rex. He said in his matter-of-fact way, o president Rex had dozed off. I nudged him and whis- T pered, in jest, “Rex, you’re supposed to get up Well, I told the Brethren that I didn’t know and give the closing prayer.” He opened one anything about how to pick a law school dean. But I r o m n e y,... a s eye and said, “The First Amendment to the did know how to pick a stake president, because I’d Constitution of the United States protects done that many times. They said I could do this the to his great the right of religious freedom. You worship same way. So that’s all we did: we interviewed care- your way, and I’ll worship mine.” Then he fully, searched their hearts, and prayed for direction. went back to sleep. All I know is, Rex was the man the Lord wanted, m e n t o r , j. In a more serious vein, may I share what I and I couldn’t tell you why. heard Rex say more than once to graduating reuben clark, law students. With that look he flashed when Now, with over 30 years of hindsight, it he was feeling what he called “deadly seri- was a brilliant decision, for all of the reasons ous,” he would say, Judge Dee Benson cited last year about Rex’s intellectual charismatic leadership and his eventual national If you forget everything I’ve taught you about reputation in the u.s. Justice Department and excellence constitutional law, please remember one thing about beyond. But no one could have foreseen that me. I wasn’t there on that spring day in 1820 when with certainty in 1971. Rex was simply a young Joseph Smith saw the Father and the Son; but I man of promise. The decision to appoint him was simply part know as surely as if I had been there that Joseph was was an act of faith based on a clear prompting God’s prophet and that Jesus is the Christ. to the Lord’s anointed servants. Thus we walk of abundant by faith, not always knowing beforehand the When I heard these words from Rex’s heart, things we should do. I sensed that J. Reuben Clark, whose massive As important as choosing the dean—in s p i r i t u a l old desk was in Rex’s law school office, some ways even more important—was the would have felt glad about the school that selection of the first faculty. The whole idea excellence. bears his name. of trying to build a genuinely religious law In late 1971, after interviewing a number school that would be nationally recognized of people, including some with consider- seemed pretty far-fetched in 1971. A new law able experience as law teachers, President school can’t be accredited until after the first Romney’s committee selected 36-year-old class graduates. So how do you persuade tal- Rex Lee as our founding dean. At the time, ented new law students to risk their future this seemed like a very risky, even audacious, careers on an unknown school? The aba’s decision. The Law School wasn’t accredited; accrediting team was already very skeptical it had no faculty, no building, no library, and about mixing religion with legal education. no students; and everything rode on the aca- And how about the very secular law firms demic reputation of the dean and the faculty. who would need to hire the graduates? Most Rex was a young practitioner from Phoenix important, because so much else hinged on who had never been a full-time law teacher it, how do you persuade experienced lds and had never published a law journal article law teachers to leave secure positions for an

clark memorandum 23 unproven venture? Yet if the Law School and expert witness, attesting to all comers desire for prayerful meditation that day had couldn’t establish strong credibility right at that this law school met the highest standards gone unfulfilled. the beginning, it might have been impossible of professional quality. Nonetheless, as he began praying in his to claim it later on. Some people have attributed Carl bedroom, he reviewed his list of factors for A few months after Rex’s appointment, Hawkins’ decision to the formidable persua- and against going to byu. Carl later wrote in we were getting a little frantic. None of the sive powers of Dallin Oaks and Rex Lee, and his personal history: experienced lds law teachers had commit- it is true that their presence at byu was a posi- ted to come. Rex and others had made per- tive factor for him. But Carl is a very private As I reviewed the list, I drifted into a state that sonal visits to each person on this very short person who doesn’t say much about his most I cannot adequately describe, involving something list, but they were all waiting to see what one personal feelings. Only years later did he tell more than cognitive processes or rational evaluation. man—Carl Hawkins—did. Carl was a senior me the real reason why he came. I share this Each consideration was attended by a composite of professor at the University of Michigan, now with his permission. feelings that could not be expressed in words but still one of the nation’s top law schools. communicated something more true and He was the stake president in Ann more sure than rational thought. Every Arbor, was the coauthor of a well- consideration that I had listed in favor known torts casebook, and was of going to byu was validated by a calm, respected in the world of legal educa- overwhelming sense of assurance. Each tion for both his intellect and his consideration I had listed for not going to integrity. Carl wasn’t about to leave byu was diminished to the point where it all of that to take a chance on byu. no longer mattered. Indeed, he believed he could help [For example,] I had been deeply the Church more by staying at concerned whether my valued colleagues Michigan, because that vantage at Michigan would be able to understand point gave him a more objective sup- my reasons for leaving. Now that concern porting voice. melted away or evaporated into the night In an act of desperation, Rex rec- mists. . . . If some did not [understand], ommended to President Romney that that would be their problem, and it would the First Presidency call Carl on a not diminish me. I fell asleep, content that mission to the Law School. President I had finally made the right decision. Romney said, “We don’t do things that way.” Ever the creative advocate, Soon afterward Carl made that Rex said, “But President Romney, phone call to President Oaks. remember when Joseph Smith and The detailed interaction between Oliver Cowdery received the Aaronic reasoning and revelation in Carl’s Priesthood, and Joseph had to baptize experience illustrates the Lord’s Oliver before Oliver had baptized words: “I will tell you in your mind him? Sometimes when we’re just and in your heart, by the Holy starting out, we have to do things a little He knew his decision was pivotal for Ghost, which shall come upon you. . . . Now, differently.” But it was no use. We could do other people, but he honestly felt he should behold, this is the spirit of revelation” (d&c nothing but pray. stay at Michigan. He “could not imagine a 8:2–3). Then one day Rex and I were in more satisfactory professional position” than “In your mind and in your heart”—so President Oaks’ office with byu’s academic the one he held. An unusually rational and was the Law School founded on spiritual vice president Robert Thomas. President orderly thinker, he made a list of the reasons processes or rational ones? That question Oaks’ secretary called to say that Carl for staying and for leaving. He talked with would have made no sense to President Hawkins was on the line. Dallin took the call friends and family. But as the practical dead- Romney, because he believed that you need and talked softly with Carl out of our hear- line drew near, he decided to fast and pray. to use your head, even when you end up ing. When he hung up he looked out the win- The day he chose to fast turned out to be an following your heart. Of course spiritual dow of his office at Mount Timpanogos, and exasperating day at school, leaving him no processes are more important, but, to him, I saw tears in his eyes. Then he smiled and time for personal reflection. So he went to his as to his great mentor, J. Reuben Clark, said to us, “The Lord must really want this evening stake presidency meeting, where he intellectual excellence was simply part of Law School. And He wants it to be a good one. planned to discuss his question with his abundant spiritual excellence, and religious Carl is coming!” We whooped and hollered counselors. But pressing stake business took devotion was no excuse for professional as if Lancelot were coming to Camelot. From more than their available time. Finally Carl mediocrity. then on, the other positive dominoes fell into arrived home after his wife, Nelma, was At the same time, the stories I’ve told place, and Carl became our senior statesman asleep. He was tired and frustrated that his show that the process of revelation played a

24 clark memorandum bigger part in founding the Law School the power of his influence as missionaries For instance, we are living through a rev- than some people might realize. I bear wit- who had earlier been asked to leave certain olution in the way people think about mar- ness of the divine source and significance of countries could now go back. riage. Traditionally the law strictly limited that inspiration in the decisions to create the When the First Presidency first felt that the terms on which people could either start school, to appoint the first dean, and to bring spiritual nudge to create the Law School, or end a marriage, primarily because the law together the first faculty. how could they have known that within 20 saw marriage as our culture’s primary social I also saw the crucial role of reason, years the Berlin Wall would fall and that institution. But in the 1960s both our courts homework, and professional credibility in Professor Durham’s stature and capacity and our culture began to see marriage more those same decisions and in the later fruits would help open the doors of many new as a private choice than as a social institution. of the early decisions. Someone once said nations to the Church? That opened the door to no-fault divorce, that the most important factor in solving The second example is family law. When which helped make America the world’s most human problems is the character and the I was a law student, family law was among divorce-prone society. That trend has led competence of the people trying to what some call “the remarkable to solve the problems. When I collapse of marriage,” creating many remember those founding fathers— unstable families and damaging President Romney, President Oaks, America’s children. Damaged chil- Rex Lee, and Carl Hawkins—I am “ dren create a damaged society, and grateful not only for their faithful- ll i know i s, when enough families are dysfunc- ness but also for their competence. A rex was the man tional, society itself is dysfunctional. In the 35 years since that found- President Hinckley has said that ing era, I have marveled time after the lord wante d, the number of people hurt by crum- time at incidents that confirm to and i couldn’t tell you bling families today is an interna- me the value and purpose of having tional problem of urgent concern. In this Law School. I’d love to know w h y.” ...but no one his words, “I think it is my most seri- all the stories of graduates and fac- could have foreseen ous concern.” ulty whose personal life experiences We are also now in the midst of together provide that confirmation. that with certainty a national debate about same-gender For now, I offer examples from just i n 1 9 7 1. ... we walk by fait h, marriage. The First Presidency has two legal fields. taken a public position against such First, Marie and I have just not always knowing marriages, but once more they returned from four years in the beforehand the haven’t provided a complete ration- Europe Central Area Presidency, ale. Yet those with legal training can where the process of obtaining legal things we should d o. articulate the developing rationale as recognition for the Church in some it is needed. For example, we can see countries is still unfolding. I saw that the gay marriage movement is firsthand in countries like Slovakia, based on the same individualistic Moldova, and Serbia the fruits of legal concept that created no-fault Professor Cole Durham’s decades-long effort the most boring topics in the curriculum. But divorce in the late 1960s. When the law to establish his professional credibility as an since those days family law has become a upholds an individual’s right to end a mar- expert on international religious freedom. I raging battleground for some of the most sig- riage, regardless of social consequences (as also saw his work greatly augmented by Law nificant legal and social issues of our time— happened with no-fault divorce), that same School graduates who had developed the nec- issues in which the values of the restored legal principle can be used to justify the indi- essary skill and relationships to help make a gospel are very much at stake. vidual’s right to start a marriage, regardless of difference. Just as the Brethren in 1970 couldn’t have social consequences (as happens with same- I have reason to think that Cole’s initial foreseen the fall of Communism, they also gender marriage). steps into the field of religious liberty came couldn’t have known that family life would So what is the rationale for the principle in answer to his own prayers as a young fac- come under the relentless—often legally that our marriage laws should be highly con- ulty member about how his scholarly work based—attacks we see today. cerned with social consequences? And what could someday bless the Church. The quality One way to answer those attacks is to evidence supports the proposition that same- of his work over many years won the respect take prophetic statements, such as the gender marriage is harmful to society? In of other scholars on international human Proclamation on the Family, as the premises general, the rationale for both of these prin- rights long before he knew that new govern- for our reasoning, then to look for the evi- ciples is in the overwhelming empirical evi- ments in Eastern Europe and beyond would dence and develop the rationale to support dence that children do far better by every someday need and welcome the expertise he the premises—something anyone with legal measure of child well-being when they live developed on religious liberty. I recently saw training can do. with both biological parents.

clark memorandum 25 This isn’t the time to develop those build his ship of curious workmanship, the spiritual help for our personal decisions, we comments further, but I’ll share an image Lord told him, simply cannot know everything that would from family law that reflects a larger point. fully explain why a particular path is the right I remember a Japanese family law profes- And I will also be your light in the wilderness; one. So we must often walk by faith, without sor who came to byu a few years ago after and I will prepare the way before you, [and] inas- demanding a complete explanation before we reading some of our faculty’s scholarly much as ye shall keep my commandments ye shall be will proceed. Thus, as Paul wrote, work. He was troubled about the devastat- led towards the promised land; and ye shall know ing effect of individualistic American law that it is by me that ye are led. Cast not away therefore your confidence, . . . on Japan’s traditional, family-oriented cul- . . . After ye have arrived in the promised land, . . . that, after ye have done the will of God, ye ture, but he had seen a much more encour- ye shall know that I, the Lord, . . . did deliver you might receive the promise. . . . aging approach coming from the work at from destruction; yea, that I did bring you out of the Now the just shall live by faith: but if any man our law school. He said, “The Americans land of Jerusalem. [1 Nephi 17:13–14] draw back, my soul shall have no pleasure in him. beat us in the Second World War; why do But we are not of them who draw back.[Hebrews they also have to inflict on us their movies These words apply fully to our Law School 10:35–36, 38–39] and their laws?” After he had been on the of curious workmanship as we look back now campus in Provo a few days, he said, “This and know that “it is by me that ye [were] led.” I am grateful that the Law School founders place is an island of hope in the land were not “of them who draw back.” of the Apocalypse.” He was espe- They were willing both to work and cially curious about the students to wait to see the fulfillment of the he had met. Speaking of them Lord’s promises about the value of he asked, “What is it about these having the school. wonderfully bright and wholesome h e t h e r i n One implication of this theme young people? Please tell me the Wyour family, your is that as we gain experience in fol- secret behind all the shining eyes.” ward, your office, lowing the Lord and His servants, In an important sense, each stu- we will increasingly see reasons for or your daily walk in life, dent and graduate of this Law School the hope that is in us. Your legal has a duty to articulate wisely the the influence of your training will bless you to see those secrets behind his or her shining personal example of reasons unfold after you have com- eyes, whether in religious liberty, faithfulness combined mitted yourself to walk by faith in family life, or any other topic laden some demanding situation. As you with uncompromising compe - with gospel values. These are not see the emerging rationale and evi- mere political issues. In so doing, you tence will do as much dence, you can help others by artic- will illustrate in your own way the as anything else to ulating to them what you see. That inspiration in the founding of the fulfill the law school’s is what good advocates do. As Peter Law School. wrote, “But sanctify the Lord God original purpose. You will also demonstrate that in your hearts: and be ready always inspiration by living lives of conse- to give an answer to every man that crated Christian discipleship. Whether asketh you a reason of the hope that in your family, your ward, your office, is in you with meekness and fear” or your daily walk in life, the influence of I hope we might draw on this doctrine in (1 Peter 3:15). your personal example of faithfulness com- the very personal process of following the I thank the Lord for the hope that is in me, bined with uncompromising competence will counsel of the Lord and His prophet, even above all for my hope in Christ. I testify that do as much as anything else to fulfill the Law when we don’t always fully understand the He lives and that He directs the work of School’s original purpose. I’ve heard people reasons why they give us that counsel. The His servants and answers the prayers of His from all across the country—senior partners Law School’s founding is a type and shadow people, at times communicating with them in law firms, judges, political leaders, Church of other moments when the Lord may give us through “something more true and more sure leaders, and others—speak with admira- a strong prompting or the First Presidency than rational thought,” even to very rational tion about the students from this school. may give us a clear conclusion without sup- people, even law professors. I not only believe I’ve heard them over and over, and when I plying a fully developed rationale. Experience this, I know it. I know it both by a spiritual do, I think, “There’s another example of shows that in such cases, the rationale will witness and because of what Helaman calls why the creation of the Law School was an become more clear with time. “the greatness of the evidences” (Helaman 5:50) inspired idea.” That happened in founding the Law the Lord has shown me—in my life and in the Tonight’s theme about acting by faith School, and it happens in our experience lives of many others, including our collective and understanding by hindsight is funda- as members of a Church that is blessed by experience with the J. Reuben Clark Law mental doctrine. When Nephi first began to prophetic guidance. Sometimes in seeking School. In the name of Jesus Christ, amen.

26 clark memorandum Law School Establishes Sterling and Eleanor

JaLynn Prince JaLynn Colton Chair in Law and Religion

celebration of the lives of Quartermaster George Colton Sterling and Eleanor Colton came to the American shores in and the creation of a chair 1644 seeking a better life and reli- in law and religion in their gious liberty. Six generations later, From left to right: byu President names was held at the in 1838, Philander Colton and his Cecil O. Samuelson, Sterling historic Mayflower wife, Polly, joined The Church of Colton, and J.Willard Marriott Jr. AHotel in Washington, d.c., on Jesus Christ of Latter-day Saints, January 24, 2008, by family and only to be driven out of their friends. Only the fourth endowed homes when religious persecu- From left to right: W. Cole Durham . Smith T chair established at the J. Reuben tion forced them to move west. Jr., Eleanor Colton, Dean Kevin J

Robert Robert Clark Law School and the first Now, another six generations Worthen, and Sterling Colton. since 1992, the Law and Religion later, Sterling and Eleanor Colton Chair will help support the ongo- have found the better life and ing work of Cole Durham and religious expression their fore- Center and their friends’ memo- Chair in Law and Religion with the International Center for Law bears dreamed of. They hope ries of them. In the video, Elder commitments of approximately and Religion Studies at Brigham that through their support of the Dallin H. Oaks expressed: 75 percent of that goal. Interested Young University. center this dream can become contributors who wish to donate Speakers at the event included a reality for others. When we go to a country to in honor of the Coltons and who President Cecil O. Samuelson, Elder Marriott recounted the seek entrance for our missionaries, wish to support the International Dean Kevin J Worthen, J. Willard influence of the Colton family on we must be concerned with the Center for Law and Religion Marriott Jr. (chair and ceo of the founding and growth of the extent of religious freedom, with the Studies may contact Kelly Marriott International, Inc.), Marriott companies. Sterling’s relationship between law and reli- Reeves at 801-422-9347 or at and Sterling and Eleanor Colton father, Hugh Colton, and his wife, gious teaching and freedom in that [email protected]. and their eldest son, S. David Marguerite, came to Washington, country. byu in its concentrations in The Law School is grateful for Colton (’82). David explained: d.c., with J. Willard and Alice law and religion has been a key, a the generosity of the Colton fam- Marriott in 1927 to open the original vital influence, and a source of illu- ily, the Marriott Foundation, and My parents have been support- Hot Shoppe. When Hugh graduat- mination and assistance to the many others who have helped to ers of the Law and Religion Center ed from George Washington Law Church in taking the gospel to every establish the Sterling and Eleanor because they believe the center School, he sold his 50 percent inter- nation, kindred, tongue, and people.. . . Colton Chair in Law and Religion. makes a difference and has expand- est in the Hot Shoppes to return to I have a special personal satis- Their lives are ones of great faith ed the borders of religious freedom. Utah to practice law. Sterling fol- faction in expressing gratitude to and faithfulness, filled with many In fact, they enthusiastically sup- lowed his father’s footsteps into Sterling and Ellie for what they have quiet acts of Christian service ported the work Cole has been doing law, graduating at the top of his done for the Law School and for the and major Church responsibilities. long before the center was created. class at Boalt Hall Law School, and Church in this remarkable gift. They As their son David expressed: It is no wonder when we approached then finding his way back to the have been very precious to me and to Mom and Dad about the idea of Marriott companies. Sterling would my family. They have been very influ- It is important that we expose as creating the chair they were support- subsequently serve as general ential through this important chair many people as we can to examples ive, not because the chair was in counsel to the Marriott companies in law and religion. How appropriate of lives well lived in the service of their name—in fact, they were a bit for many years before retiring. To that a couple so wonderful in their others, that we create a legacy that reluctant to have the notoriety— honor Sterling and Eleanor Colton, own personal life has given such sig- will endure, that we make clear but because of the great good they the Marriott Foundation is provid- nificant support to matters so essen- that a person’s religion, whatever believed could be done through ing a significant contribution to the tial to the work of the kingdom. that religion may be, is special increased, long-term financial sup- Law and Religion Chair. and sacred and should be honored port for the center. During the event at the The video may be viewed at and freely expressed, and that we Mayflower Hotel, a 10-minute www.law2.byu.edu. establish a platform for the world to David illustrated the impor- video of the Coltons was pre- The Law School has estab- hear, in soft and quiet ways, that tance of religious freedom in the sented, showing the couple’s lished a $3 million goal for the religious freedom creates the best lives of his parents and forebears. support of the Law and Religion Sterling and Eleanor Colton hope for conflicts to be reduced.

clark memorandum 27 Chief Justice Responds to Law Students

! ! ! Chief Justice John G. Roberts Jr. addressed the byu student body in a forum assembly at the Marriott Center on October 23, 2007. Afterwards, he visited the Law School for a question/answer hour held with law students. Stephen Mouritsen, first-year law student, attended the session and wrote this report.

! ! ! Jaren Jaren Wilkey

am not sure I know The Court and Its Times if it had been put to a popular dence of the Founder’s intent what all those words vote (347 u.s. 483 [1954]). with regards to the judiciary. He mean,” said the chief jus- Justice Roberts made clear spoke, by way of example, of the The Autonomy of the Judiciary tice, responding playfully that the Supreme Court was gov- impeachment trial of Supreme to a student question erned by constitutional considera- Justice Roberts advocated Court justice and Federalist parti- that had been packed tions and not by shifting social strongly for an independent judi- san Samuel Chase, stating that with an exhaustive list of expediencies. He objected to ciary, free from political infighting. the acquittal of Justice Chase legal terms. The student a student’s characterization that He stated that the politicizing of by the Democratic-Republican– had begun the one- the court served as a mirror of the Court in general and the nom- controlled Senate was an extraor- hour, question-and-answer ses- domestic social values, arguing ination process in particular are dinary example of bipartisan Ision by asking what role the vari- that, if anything, the court has his- the greatest challenges facing restraint that helped solidify the ous philosophies of constitutional torically moved away from pre- the Court in the future. In a very independence of the judiciary. interpretation play, or should vailing notions and public senti- candid moment, Justice Roberts He also was amused by the play, in forming judicial opinions. ment. He cited several examples said that he was entirely indiffer- idea that protestors come to the Justice Roberts said that he does of this circumstance, including the ent as to what the public at large Supreme Court Building to stage not approach cases from any Taney Court’s ruling in Ex parte thought of his judicial opinions, demonstrations, as if he and his particular philosophic standpoint. Milligan that the military trial and observing that he was not sup- fellow justices would look out He simply begins by reviewing suspension of habeas corpus posed to care what people think the window, take note of the the case and then turning to the against civilian defendants was about his work. He noted that vehement public objections to a Constitution, case law, and any unconstitutional in a Union state the insular nature of the Supreme particular issue, and rewrite their relevant statutes. where Federal courts were active Court was anticipated by the decisions in response. While his reticence to allow “in the proper and unobstructed Founding Fathers, citing, as he The Diplomatic Court himself or his fellow justices to exercise of their judicial functions” had earlier that day, the lan- be pigeonholed into a narrow (71 u.s. 2, 3 [1866]). Justice guage of Alexander Hamilton When asked what had sur- category of constitutional inter- Roberts also cited the Supreme in Federalist 78: “The complete prised him most when he came pretation was immediately Court’s early objections to the independence of the courts is to the Supreme Court, the chief apparent, Justice Roberts gen- constitutionality of New Deal peculiarly essential in a limited justice said that he had not antic- erously spent the remainder policies, as well as the Warren Constitution.” He also cited the ipated the diplomatic role that of the hour outlining his views Court’s ruling in Brown v. Board of lifetime appointments of federal the Court had to play. Soon after on the role of the Court and Education, which, he said, probably judges and the near impossibility his appointment he discovered the duties of the justices. would have come out differently of their being impeached as evi- that his responsibilities extended

28 clark memorandum to receiving and instructing results-oriented jurisprudence. jurists from around the world This theme of restraint echoes a who would come to the Supreme theme he had articulated in his J. Reuben Clark Jr. Claire Claire Goussard Court to learn about the confirmation hearings, where, in dvd Available American judicial system from a discussion on judicial checks the justices themselves. on legislative power, he had said, He spoke of a unique experi- “The constitutional limitation The Legacy of J. Reuben ence in which his counterpart doesn’t turn on whether it’s a Clark captures the compelling in the Russian judiciary had come good idea. There is not a ‘good story of the life of J. Reuben to learn about the Court and idea’ clause in the Constitution.” Clark Jr., namesake of the its functions. During his visit, byu Law School. The film Civility and Family Life the Russian judge and his party takes the viewer from Clark’s visited the Arlington National Commenting on the civility earliest childhood days in Cemetery. While there, they of the Court, Justice Roberts the farmlands of Grantsville, were noticed by a tour guide and observed that he had never heard Utah, through his law school education at Columbia University were invited to lecture a group a voice raised in conference. He and his years of government service. of schoolchildren on the impor- later commented that most While Clark was serving as ambassador to Mexico, tance of the judiciary in a demo- Supreme Court decisions were President Heber J. Grant issued him a call to return to Salt cratic government. This same unanimous, and he said that he Lake City and serve as a counselor in the First Presidency. Russian judge had once attended would often try to partner jus- The calling came as a surprise, as the 61-year-old ambassador a conference in Europe and was tices to work together on a case had never served as a bishop or a stake president. Dutifully, asked which judicial system the where they could find common J. Reuben Clark heeded the call and served nearly 30 years as newly democratic Russian courts ground if they had disagreed on a a counselor to three lds presidents. would most like to emulate. previous case. Featured interviews include prominent biographers and The judge said that he would like When asked about balancing scholars, relatives of J. Reuben Clark, and commentary to see a Russian judiciary mod- work and family life, Justice from the First Presidency of The Church of Jesus Christ of eled after the American system. Roberts tried to disabuse stu- Latter-day Saints. A member of the European audi- dents of the view that there are The 35-minute dvd ($14.95) may be ordered online at ence said, “Well, if all you wanted easy ways to achieve such an http://www.jreubenclark.org/ or by calling 1-800-963-8061. was a Coke, you didn’t need equilibrium. “It is hard,” he said, to come to Europe to get it.” The and suggested that one approach judge responded that he didn’t was to establish firm ground rules much like Coke and said, “I like at the outset of your career. my wine French, my beer German, “Dinner at my house is at 6:30 Law Society Member Now Australian my vodka Russian, and my judicial p.m.,” he said, noting that, while institutions American.” he was usually present, he often Federal Magistrate returned to work when dinner Judicial Restraint concluded. Susan Purdon Sully, Although he was reluctant Conclusion Brisbane, Australia, has been to comment on specific cases, appointed to the Federal Justice Roberts stridently rein- Perhaps the most enlighten- Magistrates Court of Australia, forced his views on judicial ing aspect of the event was the the highest legal position restraint. When asked if there opportunity to take a measure of obtained by a member of the were any circumstance when a the character of a chief justice Church in Australia. judge might rule contrary to the of the Supreme Court by listening The court’s jurisdiction law simply because to do other- to his thoughtful historical analy- includes family law, bankrupt- wise would be morally repug- sis of constitutional issues and cy, consumer protection and nant, Justice Roberts answered observing his dispassionate and trade practices, privacy, and emphatically, “No.” He said that respectful response to student industrial law. Prior to her this was often most difficult in questions. Chief Justice Roberts’ appointment she was a part- criminal cases where the law intelligence, affability, and inde- ner in a Brisbane law firm demanded that an obviously fatigable commitment to constitu- practicing in family law and guilty person go free. In these tional principles undoubtedly left a alternative dispute resolution. circumstances judges were to fol- lasting impression on those present. low the law and not engage in —Stephen Mouritsen

clark memorandum 29 appointed as associate academic vice president for faculty at the university. Her responsibilities will Bradley Bradley Slade (3) include promoting and encourag- ing faculty scholarship and super- vising student academic matters and cocurricular programs. Augustine-Adams received a law degree from Harvard University in 1992, after graduating from byu in 1988. She practiced with Covington & Burling in Washington, d.c., from 1992 to David Dominguez Kif Augustine-Adams James R. Rasband 1995, at which time she joined the faculty at the J. Reuben Clark Law David Dominguez Receives can afford; he notes that while it Professor Dominguez’s latest School. Her research interests are Ethics Award has always been a problem for the articles published in nationally mainly citizenship, immigration, poor to access lawyers and the recognized journals are entitled and gender issues. Law classes David Dominguez was presented legal system, “it is now the case “Community Lawyering in the she has taught include Social the Excellence in Ethics Award by that the middle class cannot Juvenile Cellblock,” “Equal Justice Policy and Feminist Legal Thought. the Center for the Study of Ethics afford the financial cost of retain- from a New Perspective,” “Getting at Utah Valley State College (Utah ing legal counsel.” The name given Beyond Yes to Collaborative James R. Rasband Named Valley University as of July 1) on to the effort to address this grow- Justice: The Role of Negotiation New Associate Academic September 19, 2007, as part of the ing malady is the Equal Access in Community Lawyering,” and Vice President for Faculty college’s annual Ethics Awareness to Justice (eaj) movement. “Community Lawyering.” Week. To strengthen the eaj move- Past recipients of the byu law professor James R. “The award is presented ment, Dominguez has developed Excellence in Ethics Award are Rasband was appointed as the annually by the Ethics Across the courses in community lawyering, Michael Zimmerman, chief justice university’s new associate aca- Curriculum Board to an individual through which “lawyers learn that of the Utah State Supreme Court; demic vice president for faculty from the state of Utah who dis- the answer is found not only in the Irene Fisher, founding director on January 14, 2008. plays exemplary ethics in their obvious solution of increasing the of the Bennion Center; the late A byu alumnus, Rasband life,” said Dr. David Keller, director supply of affordable legal services Delmont Oswald, executive received his juris doctorate from of the Center. “David Dominguez but also in diminishing the demand director of the Utah Humanities Harvard University in 1989. He was has demonstrated a deep under- for legal services.” Council; Jay Jacobsen, md, director a law clerk in the Ninth Circuit u.s. standing of ethics and morality in Dominguez contends that of Medical Ethics for lds Hospital Court of Appeals and an attorney his many hours spent serving the community lawyering may be a and the University of Utah Medical for Perkins Coie in Seattle before community in a variety of capaci- good alternative for solving legal Center; Karen Ashton, philanthro- joining the faculty at the J. Reuben ties, most notably with justice issues. Rather than asking attor- pist; Omar Kader, president of Pal- Clark Law School in 1995, where and fairness issues.” neys to provide goodwill and gen- Tech; His Holiness the Dalai Lama; he is the Hugh W. Colton Professor Professor Dominguez received erous services, and waiting until Pamela Atkinson, founder of Pamela of Law. He has served as associate his ba with honors from Yale enough lawyers decide to donate Atkinson Homeless Trust Account; dean for research and academic University in 1977 and his jd enough hours, community lawyer- Dr. Bill Pope, philanthropist;Jon affairs since 2004. from the University of California, ing “takes the initiative to struc- Huntsman Sr., philanthropist; and Rasband’s primary areas of Berkeley, in 1980. He teaches ture activities and opportunities Michael K. Young, president of the expertise are public land law, labor law, individual employment for the low income, the middle University of Utah. water law, wilderness and graz- rights, criminal law, community class, and the wealthy to be ing law, regulations covering lawyering, and advanced commu- equally respected participants in Kif Augustine-Adams the national parks and national nity lawyering at the J. Reuben describing local concerns; fash- Appointed Law School monuments, and international Clark Law School. ioning community-based, user- Associate Dean environmental law. Professor Dominguez is well friendly, inexpensive methods for He is coauthor, along known for providing legal services dealing with those concerns; and Professor Kif Augustine-Adams with James Salzman at Duke to the poor and rich alike. He says deciding the appropriate resolu- has been appointed as associate University and Mark Squillace there is a growing concern in tion.” He believes that community dean for Research and Academic at the University of Colorado, America that justice is an expen- lawyering could prevent legal Affairs at the Law School. She of the law school casebook sive commodity that only the rich problems before they happen. replaces James Rasband, who was Natural Resources Law and Policy.

30 clark memorandum 2007. He has the support of both Arizona sena- law firm Tuverson & Hillyard and a contract tors for this position. Since 2002, Judge Snow attorney for Lorber, Volk, Greenfield & Blick. Class Notes has served on the Arizona Court of Appeals. He fills the vacancy created by the death Prior to that position he was a partner at the of Judge Roberta McPeters. Phoenix law firm Osborn Maledon. Vicki Huebner has been working in legal In Remembrance education for the past 12 years. She currently e-mail your professional news to class of 1989 serves as the assistant dean for Law Career Gene Jacobs, Retired Professor [email protected] Services at Santa Clara University School

Christopher A. Newton was inducted into the of Law in Silicon Valley, California. In 2007 Retired byu law Terre Haute South Vigo High School Hall of she was one of 25 people selected to receive professor Eugene Distinction on April 12. The high school is a 5a a Fulbright Fellowship to participate in the class of 1977 Brown Jacobs school with over 2,100 students and opened in u.s.–Germany International Educational died in Provo on Annette W. Jarvis, a shareholder and member 1971. Chris is the first alumnus of the school to Administrators program in Berlin, Germany. November 25, of the executive committee of Ray Quinney & become a superior court judge in the state of 2007. He was 84 Nebeker p.c., was honored with the Large Indiana. He is currently serving as judge of Vigo class of 1993 years old and had Company Transaction of the Year Award from Superior Court Division 4 and as chief judge of suffered from the Turnaround Management Association at its the Vigo Superior Courts. Galen L. Fletcher is coauthor of “Territorial Legal annual convention in Boston, Massachusetts, on Research for Nevada,” published in Prestatehood health problems for years. October 19, 2007. Annette received this award in class of 1990 Legal Materials: A Fifty-State Research Guide(2006). recognition of her work as lead bankruptcy Upon returning from active counsel in the Chapter 11 cases of usa Karl M. Tilleman was appointed managing part- class of 1994 duty in the Naval Reserve during Commercial Mortgage Company, usa Capital ner of Steptoe & Johnson llp, Phoenix, Arizona. World War II, Gene was admitted First Trust Deed Fund llc, usa Capital He will continue to practice as a partner in Patrick Shen is now working with the to the University of California, Diversified Trust Deed Fund llc, usa Capital Steptoe’s insurance coverage and bad-faith Department of Justice, Civil Rights Division, Berkeley, where he received an Realty Advisors llc, and usa Securities llc, filed groups with a focus on litigating a broad range Office of Special Counsel for Immigration-relat- undergraduate degree. He later in Las Vegas, Nevada, in April 2006. of insurance, antitrust, intellectual property, ed Unfair Employment Practices. Prior to his received a law degree from the business torts, environmental, and other com- new employment, Patrick served as director of Boalt School of Law. He then class of 1978 mercial disputes. government relations for Fragomen, Del Rey, worked as deputy attorney gener- Bernsen & Loewy llp in Washington, d.c. al under Pat Brown at the Ron Gardner was appointed to the u.s. class of 1991 California Attorney General’s Access Board, an independent federal agency class of 2000 office in San Francisco. devoted to accessibility for people with disabili- Tani Pack Downing has been appointed by Utah In 1960 he began working for Manuel Metzner, llm, has been newly appoint- ties, by President George W. Bush on December Governor Jon Huntsman as deputy chief of staff the Los Angeles Community ed counsel at Cleary Gottlieb Steen & Hamilton 13, 2007. The four-year appointment will give and general counsel. Tani had previously served Redevelopment Agency. Within a llp. He has worked as an associate in the com- Ron, who was born blind, a national pulpit to as executive director of the Utah Department of few years he opened his own pany’s Frankfurt and New York offices. address how better access can be given to peo- Workforce Services. office and took on dozens of major Jason S. Nichols was recently named sharehold- ple with disabilities. He has taught business David Leavitt is seeking the Republican nomina- southern California cities and er at Parsons Behle & Latimer. Jason is a mem- law as an adjunct professor at byu for 14 years. tion in Utah’s Third Congressional District. He agencies as clients, having repre- ber of the real estate, banking, and finance and his wife, Chelom (also ’91), run the Leavitt sented and advised more than 80 department and concentrates his practice on all class of 1979 Institute of International Development, which cities and counties as “the father of aspects of real property law, including acquisi- teaches the concept of the American jury trial to California redevelopment law.” In Jerry R. Rigby was reappointed by Idaho tions and dispositions, development, leasing, Ukrainian law students in Kiev, Ukraine. the 1970s, under the Carter admin- Governor Butch Otter to a fourth four-year finance, land use, and zoning. istration, he set up the framework term to the Water Resource Board of the State class of 1992 for the Urban Development Action of Idaho. He was also elected chair of the same class of 2003 Grant program. Idaho Water Resource Board. In 1980, after retiring from his Hal D. Baird is an Army Reserve jag Corps lieu- Shawn P. Bailey recently joined Bearnson & tenant colonel currently on active duty at Camp California law practice, he joined class of 1980 Peck in Logan, Utah. Since graduation, Shawn the faculty at the J. Reuben Clark Victory in Baghdad, Iraq. He was posted there has worked as a law clerk for the u.s. Court Law School, where he taught rede- Chris Cannon is seeking the Republican nomina- from his position at Fort McCoy, Wisconsin, a of Federal Claims, a trial attorney in the u.s. velopment and real estate law tion in Utah’s Third Congressional District. power projection platform mobilizing guard and Department of Justice/Civil Division, and a litiga- classes until 1988. While there, he reserve soldiers in support of the ongoing global tion associate at Greener Banducci Shoemaker in organized and established funding class of 1981 contingency operations. He left active duty with Boise, Idaho. Shawn argued and won an appeal for the student-run Government the army in 1998, returning to Salt Lake City to before the Idaho Supreme Court this year. Carolyn Colton has retired from Marriott practice in the area of intellectual property law and Politics Law Society. International, Inc., and is enjoying traveling with former classmate Jack Pate at Pate Pierce class of 2004 in Scotland, Thailand, Brazil, and France and & Baird. Incidentally, the actual office where Hal spending time with family and friends. worked at the Pentagon prior to leaving active Nicole Pyne joined the Salt Lake City law offices Jason Coles, Law School Alum G. Michael Westfall is a district court judge in duty was destroyed in the terrorist attack on of Raymond J. Etcheverry. Nicole is a member of the Fifth Judicial District for the state of Utah. September 11, 2001. the litigation department and concentrates her Jason Coles, a He is currently serving as the presiding judge David N. Brizzee joined the State Department in practice on general commercial litigation. 2003 graduate of in the district as well as serving on the ethics October 1994 as a foreign service officer. Since the J. Reuben Clark advisory committee. that time, he has been stationed in London and class of 2005 Law School, was Seoul and has spent two years (2002–2004) in killed in a ski acci- Ron Fuller joined the S. J. Quinney Law Library at class of 1984 Islamabad, Pakistan, as deputy consul general. dent on December the University of Utah as an assistant law librari- He then went to Hong Kong and has just finished 17, 2007. Authorities R. Lee Warthen is the author of “Legal Research an. Prior to this position, he was a law clerk for a tour in Shenyang, China, as chief of the con- believe he hit a in the State of Deseret and the Utah Territory, Judge Randy Olsen in Alaska. In December he sular section. His next assignment will be for one tree while skiing. 1847–1896,” published in Prestatehood Legal and his wife, Kathryn, had their second daughter, year as a provincial action officer in Hilla, Iraq. He was married to Materials: A Fifty-State Research Guide (2006). Sophie, joining their oldest, Lilly. Christopher B. Chaney became the deputy Laurie Seal Coles, also a 2003 director for the Bureau of Indian Affairs—Office graduate of the Law School, and class of 1986 class of 2006 of Justice Services in August 2005. The office father to nine-week-old Lily Brynn. Scott H. Hansen is serving a four-year term as a supports tribal law enforcement, tribal court, Rebecca Ryan Clark submitted an amicus brief on The family is accepting donations state court judge in the Brigham County and tribal corrections programs and directly behalf of two Massachusetts domestic violence to Lily’s college savings plan. Courthouse in Blackfoot, Idaho, until the next provides law enforcement, court, corrections, prevention organizations. The Massachusetts Checks may be made payable to election cycle in 2010. He was initially selected training, and internal affairs services for tribes Supreme Judicial Court upheld the authority of “uesp Lily Brynn Coles” and sent by the Magistrate Commission to serve as a that do not have their own programs. courts to protect victims of abuse even in the to Lily Brynn Coles, p.o. Box 981777, magistrate judge in November 2004. Rodney A. Cortez was appointed to San absence of personal jurisdiction over the defen- Park City, Utah, 84098. A memo- Bernardino County Superior Court by Governor dant. To support its ruling, the court adopted the rial account for Lily has been class of 1987 Arnold Schwarzenegger on November 3, 2006. reasoning of Rebecca’s brief, which stated that established in the name of Jason Rodney, of Rancho Mirage, has served as a personal jurisdiction is not required to issue pro- Coles at zionsbank.com or at G. Murray Snow was nominated by President deputy district attorney for the San Bernardino tective restraining orders against nonresident any Zions Bank. George W. Bush as United States district court County District Attorney’s Office since 1996. abusers, as long as the restraining order imposes judge for the District of Arizona on December 11, Previously, he was an associate with the no affirmative obligations on the defendant.

clark memorandum 31 ThreeWeeks of Love by Scott Brown

i frantically packed my luggage. my wife and i were off to russia f o r three weeks to adopt a little girl named Anna. We are genetically incapable of creating girls (we have four boys), and when we first saw a picture of Anna, our hearts melted. Now, after two and a half years of frustrating setbacks and empty promises, we were realizing our dream. I was on leave from work, but like a good lawyer I still brought along my laptop and a cd loaded with documents. I planned to whittle away the long hours in our hotel by catching up on a few projects. On the flight over I pulled out my laptop, eager to get started. I reached into my bag for the cd but found nothing. I searched again without luck. I wondered if I had mistakenly packed the cd in my suitcase, but when we unpacked the luggage in Pskov—a small town that is a bumpy four-hour car ride south of St. Petersburg—the cd was nowhere to be found. Concerned, I contacted a relative back home who confirmed that I had left the cd in my bedroom. I also confirmed that ups and FedEx did not deliver to Pskov and that I couldn’t log onto my firm’s network from any of the town’s three Internet cafés. For the first time since beginning law school nine years earlier, I had three weeks of no school, no work, and no billing to do. I was frightened. But an unforgettable experience ensued. Almost as soon as we arrived, we were whisked along an even bumpi- er road to an even smaller town called Veliki Luki, where Anna lived in an orphanage. Neglected as a baby, she and her older brother were placed in separate orphanages when she was 18 months old. My wife and I began the adoption process when she was two. We were allowed to visit her once when she was three and a half—a rugged, five-day trip that included only one 30-minute visit. We waited another 18 anxious months before we were finally invited back. My father- and mother-in-law were with us as well; they were adopting Anna’s older brother. Upon our arrival at the orphanage, Anna immediately recognized us as “mama” and “papa.” She was nearly five. Her head was shaved for lice and covered in scabs from poor nutrition, but she looked as beautiful to us then as she does now over a year later. The day after we visited her, she was brought to Pskov for the court hearing. When she arrived, my wife and I were already before the judge, answering questions about ourselves, our four sons, our home, and our reasons for adopting Anna. The judge was shocked that parents of four children would want another child! Prior to the hearing, I envisioned a judge suspicious of Americans adopting a Russian child. I was wrong. The judge was a humble and kind woman. She did not have much; her chambers were cramped like a small cubicle, and her courtroom was devoid of electronic equipment. At the end of the hearing, the judge smiled as she looked at my wife and me and announced that we were now the parents of the little girl whom we knew so little but loved so much. Anna greeted us as we walked out of the courtroom, springing into our arms as if she had always been ours. I have exited courtrooms many times, but never as I did that day, full of peace and happiness. The next 19 days in Russia were unforgettable. As expected, we were cooped up in a small hotel room, strangers to the country and to our new little girl. Though there were plenty of hours I could have been typing away on my laptop, I used it sparingly and even then only as a dvd player for Cinderella. Anna didn’t care too much about dvds, but she gratefully wolfed down every meal, examined and played with every toy over and over again, and thoroughly enjoyed every hug. At the end of the three weeks, we brought Anna home to our anxiously awaiting sons. My wife and I finally had our daughter. Our boys finally had a sister. And our daughter finally had a family.

The Clark Memorandum welcomes the submission of short essays and anecdotes from its read- ers. Send your short article (750 words or less) for “Life in the Law” to [email protected]. 07-400 | 4/08 | 8M | 23607 Clark Memorandum J. Reuben Clark LawSociety J. Reuben Clark LawSchool BrighamYoung University