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Clark Memorandum: Fall 2009 J Brigham Young University Law School BYU Law Digital Commons The lC ark Memorandum Law School Archives Fall 2009 Clark Memorandum: Fall 2009 J. Reuben Clark Law Society BYU Law School Alumni Association J. Reuben Clark Law School Follow this and additional works at: https://digitalcommons.law.byu.edu/clarkmemorandum Part of the American Politics Commons, Christianity Commons, and the Legal Profession Commons Recommended Citation J. Reuben Clark Law Society, BYU Law School Alumni Association, and J. Reuben Clark Law School, "Clark Memorandum: Fall 2009" (2009). The Clark Memorandum. 46. https://digitalcommons.law.byu.edu/clarkmemorandum/46 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]. dean james r. r a s b a n d clark memorandum J. Reuben Clark Law School Brigham Young University Fall >> 2009 c o n t e n t s John Snyder John cover photograph The Heart of Lawyering Kristin B. Gerdy Originalist Roots of Substantive Due Process Latter-day Saint Lawyers Frederick Mark Gedicks and the Public Square m e m o r a n d a Elder Quentin L. Cook awards and + The Triumph appointments of the Atonement church calls + Elder Earl C. Tıngey life in the law + 2 12 28 38 20 James R. Rasband, p u b l i s h e r 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 J.Reuben Clark Law Society, byu Law School Alumni Association, and the J. Reuben Clark Law School, Brigham Young University. © Copyright 2009 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. LATTER-DAY SAINT LAWYERS AND THE PUBL iC SQUARE BY ELDER QUENTIN L. COOK OF THE QUORUM OF THE TWELVE am grateful to be with you this evening. I have always enjoyed being with lawyers. Let me take this opportunity to express my heartfelt i gratitude to our Church general counsel: Elder Lance B. Wıckman, ----- This talk was presented at a J. Reuben Clark Law Society fireside at the Church Conference Center in Salt Lake City, Utah, on March 13, 2009. ----- PHOTOGRAPHY BY BRADLEY SLADE William Atkin, and Boyd Black. They render Kimball’s son is attending the University of was divinely inspired. He said he wanted magnificent service to the Church overseeing Utah Law School and is here tonight with them to know about his personal beliefs and the General Counsel’s Office. some of his classmates. predilections. He recognized that the students I am sure each of us here has a reason we As I began preparing for this talk and would need to reach their own conclusions. decided to attend law school. The genesis paying more attention to what is being said This announcement made quite a stir at of my own decision to become a lawyer today about lawyers and the law, I was inter- the law school and engendered both discus- came from two sources. The first was my ested in an article in the January 12, 2009, sion and humor. The students would inquire father. His uncle, David S. Cook, had been issue of Forbes magazine and in a subsequent of each other, “Do you attend the inspired a successful attorney and had created in account in the New York Times by Evan R. constitutional law class or the uninspired con- my father a favorable disposition toward Chesler. Mr. Chesler is the presiding partner stitutional law class?” the law. (Incidentally, this uncle had roomed at Cravath, Swain & Moore, and the Forbes My intent here this evening is not to deliver with Albert E. Bowen at the University article was entitled “Kill the Billable Hour,” a scholarly discourse on the u.s. Constitution. of Chicago Law School. Elder Bowen, of with a subheading of “Lawyers Should Bill However, before I speak to the two concepts I course, was later an apostle.) In addition to the Way Joe the Contractor Does.”1 I have to do want to cover, a historical overview of how his uncle, my father had utilized lawyers in admit that there were three aspects to my some have viewed the inspired aspects of the his various businesses, and as he used to say, interest in his statements. First, I have always u.s. Constitution might be interesting. Both in a tone that made it clear he wasn’t serious had a soft spot in my heart for the Cravath President J. Reuben Clark and Elder Dallin and with a big smile, “Lawyers have a license firm. In 1966 when I graduated from law H. Oaks, two apostles who had previously to steal.” To be completely fair, he used the school as a new lawyer, Cravath increased the been eminent lawyers, share a common view same language to describe doctors. I suppose “going rate” by a few hundred dollars to a of our understanding that the Constitution that, viewed from the competitive business magnificent sum exceeding $8,000 per year is divinely inspired. Neither of them has seen world in which he was involved, the law for beginning lawyers. My new firm decided every word of the Constitution as being seemed like a pretty safe haven. My guess to match that rate, and I was the grateful ben- inspired. Elder Oaks has said, “[Our] reverence would be that most of us here would not eficiary of what at that time seemed like a sig- for the United States Constitution is so great concur with my dad’s assessment, particu- nificant increase. Lest you think we were that sometimes individuals speak as if its every larly with the difficult economic times many starving to death, very adequate homes could word and phrase had the same standing as lawyers are experiencing today. be purchased for $20,000–$30,000 in those scripture.” He continues, “I have never consid- The other person who influenced my days. Second, Mr. Chesler described himself ered it necessary to defend [that possibility].”2 decision to become a lawyer was my second as the presiding partner of his firm. That is President J. Reuben Clark enunciated a simi- mission president, Elder Marion D. Hanks, new terminology to me. When I was practic- lar view in an address given in 1939.3 I concur who is also a lawyer. In a serious conver- ing, the term was managing partner. But even with their assessment. sation I had with him near the end of my then it seemed like an oxymoron. Managing President Clark saw three elements mission, I told him the educational options lawyers, an almost impossible task, has always of the Constitution as being particularly I was considering. He told me that he thought resembled the oft-quoted comparison to herd- inspired. First is the separation of powers I should pursue a legal education. From that ing cats. Third, and most important, any- into three independent branches of govern- very moment my decision was made. It wasn’t thing that would take away the burden of ment. Second is the guarantee of freedom of just because he said it, but because I knew he billable hours would constitute an improve- speech, press, and religion in the Bill of was right. ment to the legal profession. Rights. And the third is the equality of all While I thoroughly enjoyed the practice When I was a second-year law student men before the law. of law, I did not feel inclined to influence our at Stanford University, a visiting professor Elder Oaks, while concurring with children toward any particular occupation. arrived to teach first-year constitutional law. President Clark on these three elements, also Nevertheless, two of the three did become His name was Arvo Van Alstyne, and he was includes the federal system with the division lawyers and are both here this evening: my then a law professor at ucla. He had also of powers between the nation as a whole and daughter, Kathryn, who after a 14-year hiatus been president of the Los Angeles California the various states and the principle of popu- raising four wonderful children has returned Stake. He was teaching constitutional law to lar sovereignty. The people are the source of to part-time legal practice; and my son, half of the first-year class. The constitutional government. Larry, who practiced for a time on Wall law teacher for the other half was Gerald I think most of us would agree with Street for Sullivan and Cromwell and is now Gunther, who had clerked for both Judge President Clark and Elder Oaks that these a partner in a private equity firm. Learned Hand and Chief Justice Earl Warren. incredibly significant fundamental principles I should also mention that I have two He had been my teacher the previous year. elegantly combined in the constitutional doc- cousins who are distinguished lawyers, and In the first few days of class, Professor Van uments are indeed inspired and coincide with they are both here. One is Judge Dale Kimball, Alstyne informed his students that he was a doctrinal principles in our scriptures.
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