Clark Memorandum: Spring 1999 J

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Spring 1999 Clark Memorandum: Spring 1999 J. Reuben Clark Law Society

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Weightier Matters · Cover Photograph John Snyder contents 40

Portraits 2 James Claﬂin 32 JohnW.Welch Weightier William K.Wallace III Matters The Challenge: Dallin H. Oaks Basing Your Career

on Principles

Elder Alexander B. Morrison 46

Memoranda BYU’s National Moot Court Champions H. Reese Hansen, Dean Scott W. Cameron, Editor Larry EchoHawk Joyce Janetski, Associate Editor CM Awards LoAnn Fieldsted, Assistant Editor David Eliason, Art Director 10 John Snyder, Photographer

The Clark Memorandum The Constitutional is published by the J. Reuben Clark Law Society and the Thought of J. Reuben Clark Law School, J. Reuben Clark, Jr. Brigham Young University. © Copyright 1999 by J. David Gowdy Brigham Young University. All Rights Reserved.

The mission of the J. Reuben Clark Law Society is to promote high moral and professional standards in the legal profession and service to society. In fulﬁlling its mission, the Law Society is guided by the philosophy, personal example, and values of its namesake, J. Reuben Clark, Jr. Those values include (1) public service, (2) loyalty to 16 the rule of law as exempliﬁed by the United States Constitution, and (3) appreciation for the A Courtroom with a View religious dimension in society and in a lawyer’s personal life. Joyce Janetski

weightier

title and subject today

is taken from the Savior’s

denunciation of the scribes and

Pharisees: “Ye pay tithe of mint and by Dallin H. Oaks anise and cummin, and have omitted the Photos by John Snyder

weightier matters of the law, judgment,

mercy, and faith: these ought ye to

have done, and not to leave

the other undone”

(matthew 23:23;

emphasis

added).

matters fast we are moving and that any road will family solidarity to conceal and perpetu- I wish to speak get us to our destination. The Apostle ate some evil practice like abuse. about some“weightier Paul described this attitude as “hav[ing] a The purpose of mortal families is to zeal of God, but not according to knowl- bring children into the world, to teach matters” we might overlook if edge” (Romans 10:2). Zeal is a method, not them what is right, and to prepare all fam- we allow ourselves to focus exclusively a goal. Zeal—even a zeal toward God— ily members for exaltation in eternal family on lesser matters. The weightier matters to needs to be “according to knowledge” of relationships. The gospel plan contem- which I refer are the qualities like faith and God’s commandments and his plan for his plates the kind of family government, dis- the love of God and his work that will children. In other words, the weightier cipline, solidarity, and love that serve those move us strongly toward our eternal goals. matter of the eternal goal must not be dis- ultimate goals. But even the love of family In speaking of weightier matters, I placed by the mortal method, however members is subject to the overriding first seek to contrast our ultimate goals in eter- excellent in itself. commandment, which is love of God (see nity with the mortal methods or short- Thus far I have spoken in generalities. Matthew 22:37–38) and “if ye love me, keep term objectives we use to pursue them. Now I will give three examples. my commandments” (John 14:15). As Jesus I read in the Universe about Professor taught, “He that loveth father or mother Sara Lee Gibb’s message from this pulpit family more than me is not worthy of me: and he last week. She discussed the difference that loveth son or daughter more than me between earthly perspectives and eternal All Latter-day Saints understand that is not worthy of me” (Matthew 10:37). ones. Then, on Sunday, President Thomas having an eternal family is an eternal goal. S. Monson reminded you that eternal life Exaltation is a family matter, not possible choice or agency is our goal. My message concerns that outside the everlasting covenant of mar- same contrast, which the Apostle Paul riage, which makes possible the perpetua- My next example in this message on described in these words: “We look not at tion of glorious family relationships. But weightier matters is the role of choice or the things which are seen, but at the this does not mean that everything related agency. things which are not seen: for the things to mortal families is an eternal goal. There Few concepts have more potential to which are seen are temporal; but the are many short-term objectives associated mislead us than the idea that choice or things which are not seen are eternal” with families—such as family togetherness agency is an ultimate goal. For Latter-day (2 Corinthians 4:18). or family solidarity or love—that are Saints, this potential confusion is partly a If we concentrate too intently on our methods, not the eternal goals we pursue product of the fact that moral agency— obvious earthly methods or objectives, in priority above all others. For example, the right to choose—is a fundamental con- we can lose sight of our eternal goals, family solidarity to conduct an evil enter- dition of mortal life. Without this which the apostle called “things . . . not prise is obviously no virtue. Neither is precious gift of God, the purpose of mor- seen.” If we do this, we can forget where we should be headed and in eternal terms go nowhere. We do not improve our position in eternity just by flying farther and faster in mortality, but only by moving knowledgeably in the right direction. As the Lord told us in modern revelation, “That which the Spirit testifies unto you . . . ye should do in all holiness of heart, walking uprightly before me, considering the end of your salvation” (d&c 46:7; emphasis added). We must not confuse means and ends. The vehicle is not the destination. If we lose sight of our eternal goals, we might think the most important thing is how

Dallin H. Oaks is a member of the Council of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints. This devotional address was given on February 9, 1999, in the Marriott Center.

4 Clark Memorandum tal life could not be realized. To secure Court decisions on the so-called “right to our agency in mortality we fought a abortion.” I have been fascinated with mighty contest the book of Revelation how cleverly those who sought and now calls a “war in heaven.” This premortal defend legalized abortion on demand have contest ended with the devil and his moved the issue away from a debate on angels being cast out of heaven and being the moral, ethical, and medical pros and denied the opportunity of having a body cons of legal restrictions on abortion and in mortal life (see Revelation 12:7–9). focused the debate on the slogan or issue But our war to secure agency was of choice. The slogan or sound bite “pro- won. The test in this postwar mortal choice” has had an almost magical effect estate is not to secure choice but to use in justifying abortion and in neutralizing it—to choose good instead of evil so that opposition to it. We do not we can achieve our eternal goals. In mor- Pro-choice slogans have been particu- tality, choice is a method, not a goal. larly seductive to Latter-day Saints because Of course, mortals must still resolve we know that moral agency, which can be improve our many questions concerning what restric- described as the power of choice, is a fun- tions or consequences should be placed damental necessity in the gospel plan. All upon choices. But those questions come Latter-day Saints are pro-choice according position in under the heading of freedom, not to that theological definition. But being agency. Many do not understand that pro-choice on the need for moral agency important fact. For example, when I was does not end the matter for us. Choice is eternity just by serving here at byu, I heard many argu- a method, not the ultimate goal. We are ments on byu’s Honor Code or dress and accountable for our choices, and only grooming standards that went like this: righteous choices will move us toward our flying farther “It is wrong for byu to take away my free eternal goals. agency by forcing me to keep certain In this effort, Latter-day Saints follow rules in order to be admitted or permit- the teachings of the prophets. On this sub- and faster in ted to continue as a student.” If that silly ject our prophetic guidance is clear. The reasoning were valid, then the Lord, who Lord commanded, “Thou shalt not . . . kill, gave us our agency, took it away when he nor do anything like unto it” (d&c 59:6). mortality, but gave the Ten Commandments. We are The Church opposes elective abortion for responsible to use our agency in a world personal or social convenience. Our mem- of choices. It will not do to pretend that bers are taught that, subject only to some only by moving our agency has been taken away when we very rare exceptions, they must not submit are not free to exercise it without unwel- to, perform, encourage, pay for, or arrange come consequences. for an abortion. That direction tells us knowledgeably Because choice is a method, choices what we need to do on the weightier mat- can be exercised either way on any matter, ters of the law, the choices that will move and our choices can serve any goal. us toward eternal life. in the right Therefore, those who consider freedom of My young brothers and sisters, in choice as a goal can easily slip into the today’s world we are not true to our position of trying to justify any choice that teachings if we are merely pro-choice. We direction. is made. “Choice” can even become a slo- must stand up for the right choice. Those gan to justify one particular choice. For who persist in refusing to think beyond example, in the 1990s, one who says “I am slogans and sound bites like pro-choice pro-choice” is clearly understood as oppos- wander from the goals they pretend to ing any legal restrictions upon a woman’s espouse and wind up giving their support choice to abort a fetus at any point in her to results they might not support if those pregnancy. results were presented without disguise. More than 30 years ago, as a young For example, consider the uses some law professor, I published one of the earli- have made of the possible exceptions to our est articles on the legal consequences of firm teachings against abortion. Our leaders abortion. Since that time I have been a have taught that the only possible excep- knowledgeable observer of the national tions are when the pregnancy resulted from debate and the unfortunate Supreme rape or incest, or a competent physician has

Clark Memorandum 5 determined that the life or health of the conceived, she has not only the right to, but mother is in serious jeopardy or the fetus also the responsibility for that fetus. If it is has severe defects that will not allow the an unwanted pregnancy, she is not justified baby to survive beyond birth. But even in ending it with the claim that it interferes these exceptions do not justify abortion with her right to choose. She herself chose automatically. Because abortion is a most what would happen to her body by risking serious matter, we are counseled that it pregnancy. She had her choice. If she has no should be considered only after the persons better reason, her conscience should tell her responsible have consulted with their bish- that abortion would be a highly irresponsi- Some say ops and received divine confirmation ble choice. through prayer. What constitutes a good reason? Since Some Latter-day Saints say they a human fetus has intrinsic and infinite we should deplore abortion, but they give these human value, the only good reason for an exceptional circumstances as a basis for abortion would be the violation or depriva- their pro-choice position that the law tion of, or the threat to the woman’s right to not legislate should allow abortion on demand in choose what will or will not happen to her all circumstances. Such persons should body. Social, educational, financial, and per- face the reality that the circumstances sonal considerations alone do not outweigh morality. described in these three exceptions are the value of the life that is in the fetus. These extremely rare. For example, conception considerations by themselves may properly by incest or rape—the circumstance most lead to the decision to place the baby for Those who commonly cited by those who use excep- adoption after its birth, but not to end its tions to argue for abortion on demand— existence in utero. are involved in only a tiny minority of The woman’s right to choose what will take this abortions. More than 95 percent of the or will not happen to her body is obviously millions of abortions performed each year violated by rape or incest. When conception extinguish the life of a fetus conceived by results in such a case, the woman has the position consensual relations. Thus the effect in moral as well as the legal right to an abortion over 95 percent of abortions is not to vin- because the condition of pregnancy is the dicate choice but to avoid its consequences result of someone else’s irresponsibility, not should realize (see Russell M. Nelson, “Reverence for hers. She does not have to take responsibility Life,” Ensign, May 1985, pp. 11–14). Using for it. To force her by law to carry the fetus to arguments of “choice” to try to justify term would be a further violation of her that the law altering the consequences of choice is a right. She also has the right to refuse an abor- classic case of omitting what the Savior tion. This would give her the right to the called “the weightier matters of the law.” fetus and also the responsibility for it. She of crimes A prominent basis for the secular or could later relinquish this right and this philosophical arguments for abortion on responsibility through the process of placing demand is the argument that a woman the baby for adoption after it is born. legislates should have control over her own body. Whichever way is a responsible choice. Just last week I received a letter from a thoughtful Latter-day Saint outside the The man who wrote those words also nothing but United States who analyzed that argu- applied the same reasoning to the other ment in secular terms. Since his analysis exceptions allowed by our doctrine—life reaches the same conclusion I have urged of the mother and a baby that will not morality. on religious grounds, I quote it here for survive birth. the benefit of those most subject to per- I conclude this discussion of choice suasion on this basis: with two more short points. If we say we are anti-abortion in our Every woman has, within the limits of personal life but pro-choice in public pol- nature, the right to choose what will or will icy, we are saying that we will not use our not happen to her body. Every woman has, influence to establish public policies that at the same time, the responsibility for the encourage righteous choices on matters way she uses her body. If by her choice she God’s servants have defined as serious behaves in such a way that a human fetus is sins. I urge Latter-day Saints who have

Clark Memorandum 7 taken that position to ask themselves goals are ideals like love and obedience. seek to establish a community of Saints— which other grievous sins should be These ideals do not accept us as we are “one body” the Apostle Paul called it decriminalized or smiled on by the law on but require each of us to make changes. (1 Corinthians 12:13)—where everyone feels this theory that persons should not be Jesus did not pray that his followers needed and wanted and where all can pur- hampered in their choices. Should we would be “diverse.” He prayed that they sue the eternal goals we share. decriminalize or lighten the legal conse- would be “one” (John 17:21–22). Modern Consistent with the Savior’s com- quences of child abuse? of cruelty to ani- revelation does not say, “Be diverse; and if mand to “be one,” we seek unity. On this mals? of pollution? of fraud? of fathers ye are not diverse, ye are not mine.” It subject President Gordon B. Hinckley has who choose to abandon their families for says, “Be one; and if ye are not one ye are taught: greater freedom or convenience? not mine” (d&c 38:27). Similarly, some reach the pro-choice Since diversity is a condition, a I remember when President J. Reuben position by saying we should not legislate method, or a short-term objective—not an Clark, Jr., as a counselor in the First morality. Those who take this position ultimate goal—whenever diversity is urged Presidency, would stand at this pulpit and should realize that the law of crimes legis- it is appropriate to ask, “What kind of plead for unity among the priesthood. I think lates nothing but morality. Should we diversity?” or “Diversity in what circum- he was not asking that we give up our indi- repeal all laws with a moral basis so our stance or condition?” or “Diversity in fur- vidual personalities and become as robots government will not punish any choices therance of what goal?” This is especially cast from a single mold. I am conﬁdent he some persons consider immoral? Such an important in our policy debates, which was not asking that we cease to think, to action would wipe out virtually all of the should be conducted not in terms of slo- meditate, to ponder as individuals. I think he laws against crimes. gans but in terms of the goals we seek and was telling us that if we are to assist in mov- the methods or shorter-term objectives ing forward the work of God, we must carry diversity that will achieve them. Diversity for its in our hearts a united conviction concerning own sake is meaningless and can clearly the great basic foundation stones of our faith. My last illustration of the bad effects be shown to lead to unacceptable results. . . . If we are to assist in moving forward the of confusing means and ends, methods For example, if diversity is the underlying work of God, we must carry in our hearts a and goals, concerns the word diversity. goal for a neighborhood, does this mean united conviction that the ordinances and Not many labels have produced more we should take afﬁrmative action to covenants of this work are eternal and ever- confused thinking in our time than this assure that the neighborhood includes lasting in their consequences. [TGBH, p. 672] one. A respected federal judge recently thieves and pedophiles, slaughterhouses commented on current changes in culture and water hazards? Diversity can be a Anyone who preaches unity risks mis- and values by observing that “a new credo good method to achieve some long-term understanding. The same is true of anyone in celebration of diversity seems to be goal, but public policy discussions need to who questions the goal of diversity. Such emerging which proclaims, ‘Divided We get beyond the slogan to identify the goal, a one risks being thought intolerant. But Stand!’” (J. Thomas Greene, “Activist to specify the proposed diversity, and to tolerance is not jeopardized by promoting Judicial Philosophies on Trial,” Federal explain how this kind of diversity will unity or by challenging diversity. Again, I Rules Decisions 178 [1997]: 200). Even in help to achieve the agreed goal. quote President Hinckley: religious terms, we sometimes hear “cele- Our Church has an approach to the brations of diversity,” as if diversity were obvious cultural and ethnic diversities Each of us is an individual. Each of us is an ultimate goal. among our members. We teach that what different. There must be respect for those dif- The word diversity has legitimate uses unites us is far more important than what ferences. . . . to describe a condition, such as when differentiates us. Consequently, our mem- . . .We must work harder to build mutual President Bateman referred in last sum- bers are asked to concentrate their efforts respect, an attitude of forbearance, with toler- mer’s Annual University Conference to to strengthen our unity—not to glorify ance one for another regardless of the doc- the “racial and cultural diversity” of byu our diversity. For example, our objective trines and philosophies which we may (Merrill J. Bateman, “Brigham Young is not to organize local wards and espouse. Concerning these you and I may dis- University in the New Millennium,” BYU branches according to differences in cul- agree. But we can do so with respect and civil- 1997–98 Speeches [Provo: byu, 1998], p. 366). ture or in ethnic or national origins, ity. [TGBH, pp. 661, 665] Similarly, what we now call “diversity” although that effect is sometimes pro- appears in the scriptures as a condition. duced on a temporary basis when required President Hinckley continues: This is evident wherever differences among because of language barriers. Instead, we the children of God are described, such as teach that members of majority groupings An article of the faith to which I sub- in the numerous scriptural references to (whatever their nature) are responsible to scribe states: “We claim the privilege of wor- nations, kindreds, tongues, and peoples. accept Church members of other group- shipping Almighty God according to the In the scriptures, the objectives we are ings, providing full fellowship and full dictates of our own conscience, and allow all taught to pursue on the way to our eternal opportunities in Church participation. We men the same privilege, let them worship

8 Clark Memorandum how, where, or what they may” (Article of have decried the fact that our universities Faith 11). I hope to find myself always on the have stopped teaching right and wrong, side of those defending this position. Our we are grateful for the countercultural strength lies in our freedom to choose. There position we enjoy at byu. Moral rela- is strength even in our very diversity. But tivism, which is said to be the dominant there is greater strength in the God-given force in American universities, has no mandate to each of us to work for the uplift legitimate place at Brigham Young and blessing of all His sons and daughters, University. Our faculty teach values—the regardless of their ethnic or national origin or right and wrong taught in the gospel of other differences. [TGBH, p. 664] Jesus Christ—and students come to byu for that teaching. We move In short, we preach unity among the In conclusion, diversity and choice are community of Saints and tolerance toward not the weightier matters of the law. The the personal differences that are inevitable weightier matters that move us toward against the in the beliefs and conduct of a diverse our goals of eternal life are love of God, population. Tolerance obviously requires obedience to his commandments, and a noncontentious manner of relating unity in accomplishing the work of his powerful modern toward one another’s differences. But tol- Church. In this belief and practice we erance does not require abandoning one’s move against the powerful modern tides standards or one’s opinions on political or running toward individualism and toler- tides running public policy choices. Tolerance is a way ance rather than toward obedience and of reacting to diversity, not a command to cooperative action. Though our belief and insulate it from examination. practice is unpopular, it is right, and it toward indi- Strong calls for diversity in the public does not require the blind obedience or sector sometimes have the effect of pres- the stifling uniformity its critics charge. If suring those holding majority opinions to we are united on our eternal goal and vidualism and abandon fundamental values to accommo- united on the inspired principles that will date the diverse positions of those in the get us there, we can be diverse on individ- minority. Usually this does not substitute ual efforts in support of our goals and tolerance rather a minority value for a majority one. consistent with those principles. Rather, it seeks to achieve “diversity” by We know that the work of God can- abandoning the official value position not be done without unity and coopera- than toward altogether, so that no one’s value will be tive action. We also know that the contradicted by an official or semiofficial children of God cannot be exalted as sin- position. The result of this abandonment gle individuals. Neither a man nor a obedience and is not a diversity of values but an official woman can be exalted in the celestial anarchy of values. I believe this is an kingdom unless both unite in the example of byu visiting professor Louis unselfishness of the everlasting covenant cooperative Pojman’s observation in a recent Universe of marriage and unless both choose to Viewpoint (October 13, 1998, p. 4) that keep the commandments and honor the diversity can be used “as a euphemism for covenants of that united state. action. moral relativism.” I testify of Jesus Christ, our Savior. There are hundreds of examples of As the One whose atonement paid the this, where achieving the goal of diver- incomprehensible price for our sins, he is sity results in the anarchy of values we the One who can prescribe the condi- call moral relativism. These examples tions for our salvation. He has com- include such varied proposals as forbid- manded us to keep his commandments ding the public schools to teach the (see John 14:15) and to “be one” (d&c wrongfulness of certain behavior or the 38:27). I pray that we will make the wise rightfulness of patriotism and includes choices to keep the commandments and attempting to banish a representation of to seek the unity that will move us the Ten Commandments from any public toward our ultimate goal, “eternal life, buildings. which gift is the greatest of all the gifts of In a day when prominent thinkers God” (d&c 14:7). I say this in the name of like James Billington and Allan Bloom Jesus Christ. Amen.

Clark Memorandum 9 the constitutional

thought of j.j. reuben clark, jr.jr.

by J. David Gowdy

This address was given at the Dallas/FortWorth Chapter of the J. Reuben Clark Law Society on February 16, 1999.

n july 1935, j. reuben clark, jr., spoke University, where he graduated with an torical process. . . . [and saw] the framers of at a luncheon at the California Club llb degree in 1906. He excelled in law the Constitution as being men of great his- on the subject of the Constitution school and was elected to the editorial torical knowledge as well as practical and said in part: board of the Columbia Law Review. experience.” He said: I During his public career from 1906 to 1933, We are deaf today to the approach of tyranny Clark served as assistant solicitor, solici- The Framers of our Constitution . . . were because we have lived so long under the pro- tor, and undersecretary of the u.s. State trained and experienced in the Common tection of the Constitution that we take for Department, taught as an assistant pro- Law. They remembered the barons and King granted the blessings of liberty. . . . We need fessor of law at George Washington John at Runnymede. They were thoroughly more people today with strong convictions in University, and crowned his public career indoctrinated in the principle that true sover- support of the Constitution and with courage by serving as u.s. ambassador to Mexico. eignty rested in the people. . . . Deeply read in to back their convictions. [ J. Reuben Clark, It was during his service as undersecretary history, steeped in the lore of the past in Jr., Stand Fast by Our Constitution (Salt of the State Department that he published human government, and experienced in the Lake City: Deseret Book Company, 1973), his inﬂuential “Clark Memorandum on approaches of despotism which they had, p. 4 (cited herein as “Clark”)] the Monroe Doctrine” (after which our themselves, suffered at the hands of George society’s publication is named). From 1933 the Third, these patriots, assembled in solemn One of the fundamental purposes of on he served for 28 years as a member of convention, planned for the establishment of the J. Reuben Clark Law Society is to the First Presidency of The Church of a government that would ensure to them the emphasize “loyalty to the rule of law and Jesus Christ of Latter-day Saints until his blessings they described in the Preamble. to the Constitution of the United States.” passing on October 6, 1961. [Clark, p. 145, 147] “From the time I stood at my mother’s knee, I have been taught to reverence the Constitution asGod-given.”

Since the substance and meaning of the I have divided the constitutional Yes, he revered the Framers and, describ- Constitution has of late been such an thought of J. Reuben Clark into two cate- ing them, said, “As giants to pygmies are important subject in our national discourse gories: (1) his thoughts on the fundamental they when placed alongside our political and in the minds of many Americans, it principles upon which the Constitution is emigrés and fellow travelers of today, who seems appropriate for us to focus our based and (2) his thoughts on the impor- now traduce them with slighting work and attention upon the constitutional thought tance of individual vigilance in under- contemptuous phrase” (Clark, pp. 135–36). of that great statesman for whom our soci- standing and upholding the Constitution ety is named: J. Reuben Clark, Jr. in our day. As a further preface to these Fundamental Principles of the J. Reuben Clark, Jr., was the first native remarks, please note that this is a brief Constitution Utahn to receive national and interna- summary of his thoughts on the subject J. Reuben Clark firmly believed that tional acclaim for his legal and diplo- only and is not intended to be comprehen- the cornerstone of limited government matic skills. Dallin H. Oaks described sive in nature. Next, I believe it is impor- under the Constitution lies in its provi- J. Reuben Clark as “a widely acclaimed tant to understand the context in which he sion for the separation of powers. He authority in international and constitu- viewed this great document. J. Reuben believed, with Locke and Montesquieu, tional law, and a distinguished public ser- Clark declared, “[T]he Constitution of the that “a combination of legislative, execu- vant,” and said, “His coherent philosophy United States is a great and treasured part tive and judicial power in one person or of law and government was born of bril- of my religion” (Clark, p. 7). It was his body was destructive of all freedom and liance and nurtured by superior educa- firm belief that the Constitution was justice” and that this fact was key in the tion, experience, love of country, and indeed inspired by the hand of Providence. founders’ minds in providing in the devotion to God” (address to J. Reuben He told a group of bankers in 1938: “From Constitution for a “government in which Clark Law School, 1973). the time I stood at my mother’s knee, I these three branches were distinct and Joshua Reuben Clark, Jr., was born have been taught to reverence the wholly independent the one from the on September 1, 1871, in Grantsville, Constitution as God-given” (Martin B. other” (Hickman, p. 263). Clark stated: Utah, to Joshua Reuben Clark and Mary Hickman, “J. Reuben Clark, Jr.: The Great Louisa Woolley Clark. He graduated as Fundamentals,” BYU Studies 13, no. 3 [1973], It is this union of independence and depen- valedictorian in the first class at the p. 257 [cited herein as “Hickman”]). He was dence of these branches—legislative, executive University of Utah in 1898 and married also a devoted and lifelong student of his- and judicial—and of the governmental func- Luacine Annetta Savage in September of tory and of the roots of the American tions possessed by each of them, that consti- that year. They became the parents of founding. With particularity he studied tutes the marvelous genius of this unrivaled three daughters and one son. In 1903 Clark the Roman legal system and its progeny. document. The Framers had no direct guide moved his family to New York City to From this background he viewed the in this work, no historical governmental attend the law school at Columbia Constitution “as emerging from a long his- precedent upon which to rely. As I see it,

12 Clark Memorandum Photographic Archives, Harold B. Lee Library, Brigham Young University, Provo, Utah (2) Provo, University, Brigham Young Photographic Archives, Harold B. Lee Library,

The Clark family gathers for a photograph on July 24, 1892. Standing (from left) are Esther, Elmer, Reuben (J. Reuben Clark, Jr.), Edwin, and Frank. Seated (from left) are Mary Louisa Woolley Clark, John (on lap), Samuel, Alice, Joshua Reuben Clark, Sr., and Lucille.

it was here that the divine inspiration came. lation. But there is growing up the custom for It was truly a miracle. [Hickman, p. 265] the chief executive not only to recommend legislation, but actually to draft it, and sub- His understanding of this basic framework mit it to his favorites in Congress to secure its of the Constitution led him to make spe- passage. The administration support in cial efforts “to call attention to the dan- Congress takes the bill and makes every gers involved in permitting either of the effort to pass it. . . . While in [Roman] days three branches of government to usurp men were executed as traitors for not going powers that did not rightfully belong to along with the program, in our days, political them” (Id.). These efforts included his vengeance is visited, either by denying opposition to congressional subservience patronage, or by social ostracism, or by active to presidential demands and to presi- opposition at the polls against recalcitrant dential usurpation of congressional pre- lawmakers. [Clark, p. 153] rogatives. With respect to the ﬁrst issue, “congressional subservience to presiden- With respect to the latter, “presidential tial demands,” he set forth what he usurpation of congressional prerogatives,” believed to be usurpation by presidents of he spoke out on the issue of the presi- the legislative power. He stated: dent’s right, as commander in chief, to act in times of war—and “he argued that the Luacine Annetta Savage Clark wears her wedding gown We the people provided in our Constitution plain words of the Constitution granted as she poses in the studio of her father, C. R. Savage, that the President should report the State of war powers speciﬁcally to Congress” (Id.). Utah’s foremost early photographer. the Union to Congress and recommend legis- Although he agreed that the president

Clark Memorandum 13 Photographic Archives, Harold B. Lee Library, Brigham Young University, Provo, Utah (2)

could act to repel an invasion, he warned ing regulations, these administrative bodies Ambassador J. Reuben Clark, Jr., sits at his desk at of the growing excesses in presidential really legislate, not only in procedural mat- the U.S. Embassy in Mexico City, September 1,1931. power to conduct a war without congres- ter, but in substantive matters” (Clark, p. 151). sional authority (note that this was in the In describing the concept of federalism hands of a bureaucrat in a far-away national pre–Vietnam War era). He asserted that: inherent in the Constitution, J. Reuben capitol, who, to all intents and purposes, is an Clark emphasized that there is a dual alien to us and our affairs. This plan gives the [T]his authority and these powers are to be jurisdiction in our constitutional form of largest possible measure to local self-govern- measured exclusively by the express statutory government—state and federal. He felt ment controlling and directing matters per- enactments of the Congress, passed pursuant strongly that a limited federal government taining to our personal liberties and to the to and in virtue of the duty and powers of is what the Founding Fathers clearly security of our private property; it will not Congress to provide for the waging of war by intended in the Constitution and that abide with us if we lose our local self-govern- the United States as specifically authorized by “local government governs best.” He said: ment. [Clark, pp. 187–88] Constitutional provision. They are not to be considered as growing out of, or in any neces- The Federal Government may only do what Another key feature of the Constitution sary way, concerned with, related to, or we the people have authority to do; if it important to J. Reuben Clark was the enlarged by his powers as Commander in does more it is guilty of usurpation. The peo- Bill of Rights—particularly the First Chief. [Clark, p. 156] ple have reserved to themselves or to their Amendment. He observed that “the great- State governments every right and power est struggle that now rocks the whole earth Finally, on the same premise, President they have not delegated to the Federal more and more takes on the character of a Clark warned of the “growing tendency for Government, which must always look to the struggle of the individual versus the state” our Congress to turn over to administrative Constitution and its amendments to find its (Hickman, p. 268). In this regard “he was commissions the power to make laws. This rights, for it has none other. This system puts particularly concerned with the protection plan carries the innocent description of the great bulk of our daily life activities in of the freedoms guaranteed by the First making regulations to enforce the laws. But the hands of our own neighbors who know Amendment: freedom of the press, of lawyers know that under the guise of issu- us and our surroundings, and not in the speech, and of religion” (Id.). His firm

14 Clark Memorandum opinion was that “[t]he fathers felt that cials, “no matter how great or small they J. Reuben Clark acknowledged the when they protected freedom of speech may be,” but that the only allegiance we great price paid by so many to both deliv- and of the press against government inter- owe as citizens runs to our Constitution. er and redeem this nation and to uphold ference, they had effectively guaranteed the He stated that “[t]his principle of allegiance our precious liberty in subsequent wars. citizens freedom to talk and write as they to the Constitution is basic to our free- He minced no words in his call to each felt and thought about their own govern- dom” (Clark, p. 189). He decried “those citizen to remember those sacrifices in ment” (Id., p. 269), and that this was essen- who . . . are incapable of understanding or order to appreciate and uphold our con- tial to a free society. appreciating the fundamentals of, or to stitutional freedoms when he stated: With respect to freedom of religion, J. think practically and creatively about, the Reuben Clark revered the soul of man as problems of free self-government.” He I say to you that the price of liberty is and “the holy of holies” (Id.). expressed the conviction that “those who always has been, blood, human blood, and if understand the spirit as well as the word of our liberties are lost, we shall never regain them He was outraged that the state should intrude the Constitution will be able . . . to pre- except at the price of blood. [Clark, p. 137] onto such sacred ground and there seek to serve its great principles and the republican dethrone God and exalt the state into God’s form of government for which it provides” Finally, in connection with constitution- place. [He stated:] “This is the archest treason (Clark, p. 158). al learning and vigilance, he vigorously of them all. For man robbed of God urged each citizen to be watchful becomes a brute.” President Clark and to discern gradual encroach- was explicit in his belief that for gov- ments to our liberties under the Constitution. James Madison stated: “I believe that there are more instances of the abridgment of the J. Reuben Clark, Jr., pauses for a group freedom of the people by gradual picture in Toluca, Mexico, September 14, and silent encroachment of those in 1931, while serving as U.S. ambassador. power than by violent and sudden usurpations.” In this regard J. Reuben Clark said: ernment to trespass on the religious life of its citizens was a sin of highest [I]n the whole history of the human magnitude. “This sin must be felt, race, from Adam until now, Tyranny not told, for words cannot measure has never come to live with any peo- the height and breadth of this iniquity.” [Id., In regard to the founding documents ple with a placard on his breast bearing his pp. 269–70] with which every citizen should be famil- name. He always comes in deep disguise, iar and conversant, J. Reuben Clark was a sometimes proclaiming an endowment of free- His conviction, no doubt, was born of the diligent student of the history of the dom [or rights], sometimes promising to help memory of the trials, persecution, and founding and particularly of the Federalist the unfortunate and downtrodden, not by cre- suffering of the Mormon people. In an Papers. He made the statement (in agree- ating something for those who do not have, April conference of the Church in 1935, he ment with Thomas Jefferson) that “[t]hese but by robbing those who have. But Tyranny stated that nothing was so important to essays have been appraised as ‘the greatest is always a wolf in sheep’s clothing, and he this people as “this guarantee of religious treatise on government that has ever been always ends by devouring the whole flock, freedom, because underneath and behind written,’ and its writers have been ranked saving none. [Clark, p. 5] all that lies in our lives, all that we do in as of the same order with Aristotle, our lives, is our religion, our worship, our Montesquieu, and Locke” (Id., p. 135). He I don’t think that his message to us would belief and faith in God” (Id., p. 270). quoted Fiske stating that “for all posterity be any different if he were here today. the ‘Federalist’ must remain the most In conclusion, I hope that each of us The Importance of Individual Vigilance authoritative commentary upon the may learn from the words and example of in Understanding and Upholding the Constitution that can be found” (Id., p. our society’s namesake and that we, as Constitution 167). He also loved George Washington’s members of the J. Reuben Clark Law J. Reuben Clark, Jr., continually stressed poignant farewell address, describing it as Society, may be found to be both loyal to the need for all American citizens (and par- a “prophetic admonition and warning.” the Constitution and courageously stand- ticularly Church members) to “constantly He frequently quoted excerpts from the ing up in defense of the divine principles review the purposes for which the address when writing or speaking on the upon which it is based. Constitution was written” (Id., p. 271). He meaning of the Constitution and earnestly taught that our patriotic allegiance should recommended to his listeners “to read it Photo on page 11 courtesy of Photographic Archives, Harold B. not run to individuals or government offi- in its entirety.” Lee Library, Brigham Young University, Provo, Utah.

Clark Memorandum 15

by joyce janetski illustration by craig frazier

photos by john snyder

ONEOFTHEGREATEST

OPPORTUNITIES A LAW SCHOOL

GRADUATE CAN HAVE IS THE CHANCE TO SERVE

as a clerk for a United States Supreme remarkable, given the relatively recent Court justice. Although a clerkship in any founding of the byu Law School.” court—federal or state, appellate or trial— No one knows better how difficult it is is a powerful learning experience, a per- to be chosen for the honor than those who spective on judicial decision making have been. “It’s so hard to get one,” says sharpened at the Supreme Court level Jay Jorgensen, who will start his clerkship cannot be compared. “Clerkships of all this fall. “I was so surprised when Chief kinds . . . expose young lawyers to chal- Justice Rehnquist’s secretary called. I was lenging legal problems and provide a win- flabbergasted.” Steve Sargent, who five dow into our legal system that can be years ago also clerked for the chief justice, obtained in no other way,” says David recalls, “I just assumed that ‘no news was Campbell, visiting professor at the byu bad news’ when I hadn’t received any word Law School. “[But] as a federal clerk,” he from Chief Justice Rehnquist. Then when adds, “you get to see the world from the his secretary called and told me I had been mountaintop.” selected, I couldn’t believe it.” Several of the jrcls Supreme Court JUDGED AN HONOR clerks testify that—aside from being quali- fied to compete—it was just chance that Just like the few who make it to the got them the position. As Von Keetch highest summit, a Supreme Court clerk thinks back on his 1989 Term in the court- enjoys an opportunity that is not only room of Justice Antonin Scalia and Chief great but also rare. The competition is Justice Warren E. Burger, he admits, plenty tough for the few clerkship slots at the top of our judicial system. The honor One factor above any other that applies to the is defined by the statistics: approximately selection process is pure luck. That’s not to say 40,000 students will graduate from that qualifications aren’t important. To the American law schools each year; only contrary, applying from a law school other about 25 to 30 of them will obtain clerk- than Harvard, Yale, Chicago, or Stanford, it ships at the Supreme Court level. is almost a prerequisite that one finish in the Yet since its first graduating class in top one or two in his or her class. . . . But as I 1976, the J. Reuben Clark Law School has looked over the résumés of those who applied produced nine graduates who have earned for clerkships while I was at the Court, I liter- the distinction of being selected to serve ally found hundreds of applicants who had as a judicial clerk for the high Court. This those qualifications. [Much] is just a product of number places the Law School in the darn good luck. small percentage of law schools who can boast such a high representation. “The Even the Law School’s first Supreme Court overwhelming number of Supreme Court clerk, Monte Stewart, responds to the ques- clerks have come from a few of the tion of selection criteria with a pause fol- nation’s elite law schools,” notes Douglas lowed by a common conclusion: “Luck?” Floyd, law professor and member of the But, as Keetch points out and as every faculty judicial-clerkship committee. “The law student knows, it takes more than luck achievement of nine byu graduates in to become a Supreme Court clerk. The attaining these positions has been quite qualifications are the highest: a lofty class

18 Clark Memorandum rank, law review editorial experience, a clerkship with perhaps a “feeder” federal Monte N.Stewart,’76 appellate court, and, hopefully, some legal practice. The competition is the stiffest: the best law students from the most prestigious law schools. “Other clerks had graduated at the top of their classes from hen Rex Lee and Bruce Hafen were scouting for outstanding indi- Harvard, Yale, and Stanford. . . . There is viduals they wanted at BYU’s new law school, people who would a certain mystique about the legal educa- Winspire others to come, they looked to Monte Stewart to boost their tion at these schools,” says Keetch. When student recruitment. “Stewart’s decision to join the charter law class at BYU Stewart showed up for his clerkship, he influenced a number of his classmates to do the same,” notes Carl Hawkins. greeted two Harvard grads and a southern- When it came time after his gradu- MORE THAN LUCK er from the University of Virginia. “I was ation from law school for Stewart to the Mormon from Las Vegas,” he relates. seek a judicial clerkship in the Supreme Court, the leaders of the Law School Though most of the clerks confess remembered Stewart, who recalls, “A lot of people supported me, and Rex, they were a bit nervous during their first obviously, was at the center of that.” few summer days in Washington, they Another person who spoke highly of Stewart was Judge J. Clifford Wallace quickly put things in perspective. “When of the Ninth Circuit Court of Appeals in San Diego, for whom Stewart clerked I first arrived at the Court, I must admit after his graduation from law school. When Chief Justice Warren Burger to having felt extremely intimidated,” called on the judge to see what kind of says Keetch. clerk Stewart had been, Wallace “went to bat” for the young lawyer. Two weeks I feared that it would be obvious just how later, Stewart learned he had been select- far behind I was. The other clerks, however, ed for a Supreme Court clerkship. couldn’t have been better. From the start they Stewart began his clerkship with treated me as an equal. During the time I was Chief Justice Burger the summer of 1977. at the Court, I never felt from them a sense of “I was of the view then—and still am,” superiority, nor did I see any other indication Stewart says, “that there were many clerks that they were “looking down their noses” at with a whole lot more candlepower than I a BYU graduate. They knew and respected had, but I believe I had enough candle- Rex Lee and other professors at BYU, and power that I felt that I did well as a law more than anything else, they repeated their clerk. I know that Chief Justice Burger was amazement at my having received an excel- pleased with my performance.” Likewise, lent legal education without having to incur Stewart took a good view of the chief jus- the large debt that they all carried. tice. “I was impressed with Chief Justice Burger’s wisdom and instincts,” he says. “I Stewart agrees. “I felt that the liberal gained an appreciation for the sincerity of the justices in striving to do the right education I got here was as good as the thing and make the right decision in very difficult and challenging cases.” education that any of the other Supreme When his year at the Supreme Court was up, Stewart returned to San Court clerks had received,” he says. “I basi- Diego to practice with Gibson, Dunn & Grutcher, the law firm that had cally had access to the same cases and case- originally hired him out of law school. Two and a half years later he books and the same law review articles. moved with his growing family to his hometown of Las Vegas to join his And my teachers in my estimation were as uncle’s firm, Heaton & Wright. When his uncle died in October of 1982, good as those these other clerks had had, Stewart formed his own firm—Wright, Shinehouse & Stewart—a successful although my teachers probably were not as civil practice for which he worked for more than 10 years. well known nationally. There’s no question But in 1991 Stewart shifted gears, accepting an appointment to serve as a in my mind . . . that in some cases they United States attorney in Nevada for 18 months. Then in June 1995 he inter- were better than the more-famous teachers rupted his law career to serve as mission president in the Georgia Atlanta found at other prominent law schools.” Mission for three years. Michael Mosman, who clerked for Stewart and his wife, Ann, eventually moved their family, which includes Justice Lewis F. Powell, Jr., during the seven sons and three daughters (in that order), to Provo. Now on the Law 1985–86 Term, also felt well prepared for his School’s faculty, he serves as director of the Advocacy Program, focusing on clerkship by his law training at the Law the legal research, analysis, writing, and oral advocacy skills of first-year law School, “particularly Woody Deem’s crimi- students. Stewart remains of counsel to his previous employer, the Provo law nal law and procedure classes and Doug firm Fillmore, Belliston & Israelsen.

Clark Memorandum 19 Eric G.Andersen,’77

asting, prayer, and the advice of friends and mentors helped Eric Andersen make F “the better choice . . . between studying law and pursuing a PhD in history.” Prompted particularly by then Law School professor Bruce Hafen, Andersen says, “I was intrigued by the adventure of being in the second class of the new law school at BYU and, after considering enrolling at a few other fine schools, felt that BYU was where I belonged.” The road that led Andersen to a judicial clerkship with Justice Lewis F. Powell, Jr., in 1978 and a satisfying career has been paved with high opinions of the young lawyer. Not only Hafen but also then BYU President Dallin H. Oaks brought Andersen to the attention of Justice Powell. And his clerkship with Powell, Andersen claims, was “the single most important thing for getting a job teaching.” Following his graduation from law school, Andersen and his wife, Catherine (Hardy), a member of the Law School’s charter class, whom he had married right after her graduation, moved to San Diego, California, for a clerkship with Judge J. Clifford Wallace of the United States Court of Appeals for the Ninth Circuit. The next year they moved to Washington, D.C., to clerk for Justice Powell. “Other law-related experiences—both in prac- FREE AGENT tice and teaching—have been of great value,” Andersen says, “but the concentration of learning was greater during the Supreme Court clerkship than at any other time in my professional life.” Immediately after his clerkship Andersen spent a year working in the Washington, D.C., office of Vinson & Elkins, a Houston-based firm. When the firm had an opening in its London office, Andersen and his wife moved to England, where they lived for the next four years. In 1984 Andersen left London to accept a teaching position on the faculty at the University of Iowa College of Law in Iowa City. “After a while we knew we’d have to make the jump sometime from practice to teaching, so we couldn’t get too used to the lifestyle and salary of practicing.” He has been on the faculty ever since and is currently devoting half of his university time as associate academic dean of the law school. With two of their children in college (one at BYU, the other at BYU— Hawaii) and the third in junior high school, Andersen and his wife are finding a little more time for themselves. Yet even their getaway of driving four hours to the Chicago Illinois Temple is within the context of responsibilities shaped by the Church. Andersen admits that his life’s choices may seem “boring” in comparison to those who live a bit closer to the edge, but that’s the way he likes it.

20 Clark Memorandum Floyd’s class on federal courts.” He relates, Supreme Court—literally opened doors Besides professors and administra- “I went to both my clerkships really con- for promising young lawyers. tors, judges have a strong influence on cerned about how a byu graduate would Eight of the nine byu law grads point the selection of Supreme Court clerks. stack up against graduates of the best to Lee as a key factor in obtaining their Andersen notes that “part of the reason schools in the country. I felt that the train- Supreme Court clerkships. Jorgensen, the he received the clerkship was Justice ing I had at byu prepared me to go toe-to- ninth and most recent clerk, was recom- Powell’s personal ‘affirmative action’ poli- toe with those people. . . . I didn’t feel mended for his 1999 clerkship by several cy in recruiting clerks. Powell generally shorted.” Law School professors but still recognizes secured three clerks from the more presti- Denise Lindberg, who clerked for the impact of Lee. “Part of the reason I gious law schools, and then he would Justice Sandra Day O’Connor during the chose to attend the J. Reuben Clark Law be ‘willing to go with a lesser-known 1990–91 Term, agrees that she felt just as School,” he says, “is a professor I knew at school.’ The justice would go out of his prepared as clerks from the Ivy League the Law School—Rex Lee.” way to give the top students of lesser- schools but adds that she and other clerks Like the other clerks, Jorgensen can known schools a chance for a clerkship.” from “second-tier” schools felt “more thank many of his Law School professors With a similar appreciation, Stewart keenly the need to prove [them]selves for their support. Richard Wilkins, says that Chief Justice Burger broadened as individuals and as representatives of Gerald Williams, and Kevin Worthen sent his field of vision when looking for good [their] schools.” clerks. “He was not an elitist, evi- Though all nine Law School denced by the fact that he took as grads felt they had the “right a law clerk someone who was from stuff” for their clerkships, they a brand-new law school. It was not admitted it helped to have some- uncommon for him to take law one help them get their foot in the THROUGH HIS OWN clerks from the less well known door of the courtroom. Keetch law schools, whereas some of the concurs that “the strongest factor REPUTATION AND POWER justices tended to hire their law over which the applicant has clerks from only a handful of four some control is references.” When TO PERSUADE, REX LEE or five of the most prestigious law choosing clerks, “justices rely a LITERALLY OPENED schools in the country.” Stewart great deal on those whom they also notes that Justice Powell— know and respect throughout DOORS FOR PROMISING though he had declined him a the legal community of lawyers, clerkship—“told the chief some judges, and educators.” He finds YOUNG LAWYERS. very favorable things about me” that it helps to find someone such and that Judge Wallace, for whom as “a former clerk, a professor, or Stewart had previously clerked, a judge who knows one or more also “went to bat for me.” of the justices and to cultivate Sargent credits a recommendation a sterling recommendation from from Judge Deanell Reece Tacha of that person.” the Tenth Circuit, for whom he had Perhaps the best-known advocate for recommendations to the justices in his clerked in 1993, in getting him a clerk posi- law grads was Rex E. Lee, founding dean behalf, although Jorgensen is sure that as tion with Chief Justice Rehnquist the fol- of the Law School and president of they were writing letters to the justices, lowing year. Brigham Young University prior to his “they were thinking I didn’t have a Mosman recounts that he “had three death in 1996. It is no coincidence that chance.” Karl Tilleman, who served for main qualifications: (1) Judge Malcolm Lee also served a Supreme Court clerk- the retired Chief Justice Warren E. Burger Wilkey recommended me, (2) Judge ship (for Justice Byron White) after grad- and for Justice Clarence Thomas during Malcolm Wilkey recommended me, and (3) uating first in his class from the the 1992 Term, recalls that Tim Flanigan Judge Malcolm Wilkey recommended me. University of Chicago Law School in and Rex Lee were influential in his secur- 1963. Well known for personally recruiting a Supreme Court clerkship. OPENING EYES ing a strong group of law faculty and Eric Andersen, a clerk for Justice Powell students at the Law School’s inception, during the 1978–79 Term, credits a byu presi- The true value of a clerkship lies not Rex Lee saw to it that this strength dent for his opportunity. “The ‘qualifica- so much in the honor of the position but would carry on after, and far beyond, tion’ that made the difference was the in how it will enlighten the lawyer in those first commencement exercises. outstanding support I received from faculty becoming a better person. When he con- Through his own reputation and power and administrators, including then byu pres- templated a judicial clerkship, David to persuade, Lee—who during his life ident Dallin H. Oaks (who had ties with Campbell asked himself, “Will this be a argued nearly 60 cases before the Powell). . . . I owe them an enormous debt.” valuable way to spend my time?”—a far

Clark Memorandum 21 superior question, he believed, than “Will As an expert in discernment, a several different ways. As a result, attrib- this experience be a stepping-stone in my Supreme Court judge functions as a men- utes such as whether the judge is scholar- career?” or even “Will I be a better lawyer tor to the clerk who wants to learn the ly in his or her approach to the law as for having had this experience?” (The law and then apply it wisely to individual well as fair, impartial, unbiased, thought- value of a Supreme Court clerkship is cer- situations. Those serving clerkships find ful, and wise in properly assessing the tainly not found in any immediate finan- that the judge serves as a model for deci- conflicting legal, equitable, and policy cial rewards. Clerks are paid less than a sion making. They also come to realize considerations at issue in a case are at the new associate at a law firm—about $38,600 that the judge is where he is because of heart of assessing the quality of a judge’s for an average starting salary, compared to this ability. decisions and the value of a clerkship $110,000-plus at a firm.) As a law review article by Rex Lee and with that judge.” The clerks all concur Once a judge has chosen a law gradu- Richard Wilkins states: “The judge has the that the quality of their judge’s decisions ate for his clerk, he will greatly define the ancient task of settling disputes between was high and, consequently, was one of value of that clerk’s experience. Elder specific individuals, groups, or institu- the main rewards of their experience. Dallin H. Oaks, a former justice of the tions. [A] judge must interpret the laws Rex Lee quoted Leon Friedman to Utah Supreme Court, stated: “The most passed by the legislature and the regula- express his view that “Justice White important thing in dictating the quality of tions issued by executive agencies and ‘approaches each case without precon- a clerkship is not whether the court is monitor the conduct of government agen- ceived ideas and with a desire to examine state or federal but the quality of the individual problem in that case the judge and the way he or she rather than deducting the result uses law clerks.” Once a judge has from set principles. His approach opened the door for a young . . . makes for greater justice in the lawyer, he can help open their cases coming before our highest eyes to the value of the law and to AS AN EXPERT IN Court.’” Kevin Worthen sees in their potential to use the law for DISCERNMENT, A SUPREME White a “thirst for knowledge and the benefit of the human race and a great capacity to assimilate and the world it touches. COURT JUDGE FUNCTIONS analyze information.” In a law The nine Law School clerks AS A MENTOR TO THE CLERK review tribute to the chief justice, agree. Von Keetch says, “Justice he quotes one of White’s former WHO WANTS TO LEARN Scalia taught me to question law partners referring to the man everything. . . . Case law and prece- THE LAW AND THEN APPLY IT as “the only lawyer he ever knew dent . . . are only as strong as the who physically attacked a library” WISELY TO INDIVIDUAL reasoning upon which they are and another describing him as “a based. . . . Despite a résumé that SITUATIONS. fierce worker who advanced on a contains the highest honors that problem, shredded it, and put it the legal profession can bestow, together again.” he was always searching for new Though they saw at the time viewpoints and concepts that that their research, writing, and could be utilized to get the very debating had some impact on the best out of the law. [He taught me that] we cies, public institutions, and even private judge’s decisions, the clerks knew that, as do not exist as servants to the law; the law individuals and groups in light of the Von Keetch says, “the justices—and the exists as a servant to us.” Constitution.” To this purpose Denise justices alone—made the ultimate decision Lindberg adds, “Justice O’Connor taught on how a case would be decided.” He JUDGE AS LAW MENTOR me the importance of having thought relates, “Justice Scalia’s writings are truly through the issues carefully—not just in Justice Scalia’s writings. . . . He would As a member of a select group com- the present context but in thinking about always take whatever rough draft he prising a chief justice and eight associate the ramifications of a proposed decision received, improve upon it dramatically, justices, a Supreme Court judge is in in other contexts.” and, through additional arguments and charge of reviewing 140 to 150 cases a “The quality of a judge refers largely to reasoning, make it his own.” term—the hardest cases, those that could the quality of the judge’s decisions,” notes Other clerks agree with Keetch. Monte not be settled in lower courts. The highest Judge Larry M. Boyle, former member of Stewart says, “In my experience Chief of appellate courts sees lawsuits that have the Idaho Supreme Court and present u.s. Justice Burger knew how he wanted to already been through much debate and magistrate judge for Idaho. “The ‘correct- rule on all the court matters, [though] the judgment and that are making their final ness’ of the decision is only one consider- chief’s law clerks had the responsibility to appeal before some of the most discrimi- ation because many judicial decisions make a statement of the judge’s view.” Eric nating minds in the nation. involve issues that could be decided in Andersen relates that “Justice Powell . . .

22 Clark Memorandum Kevin J.Worthen,’82

s Kevin Worthen looks out the window of his fifth-floor office in the Law School building at BYU, he sees more than mountains: he enjoys a A clear vision of the power and potential of the law. In his role of law professor, he hopes to clarify that vision to new generations of lawyers. “I want every law student to gain a thorough understanding of how the law develops from and impacts the society in which we live,” Worthen says. “Such an understanding inevitably generates passionate enthusiasm for participation in the legal process and a keen appreciation of the enormous responsibility that accompanies that participation. It is what makes a life in the law so rewarding and so challenging.” Perhaps the main thing that convinced Worthen that he wanted to teach law rather than practice it was his clerkship with Justice Byron White during the 1983–84 Term. “I found that I enjoyed discussing and debating the law and what it can and should do. After my clerkship I could continue to approach law this way through teaching.”

STILL ENJOYING THE VIEW

In addition to his desire to teach law, Worthen developed a particular interest in Indian law during his Supreme Court clerkship, a period of time when several Indian lawsuits reached the high Court. Previously at the Law School he had taken an Indian law course and found the field “sort of an uncharted area of law . . . with few court decisions, [yet one] about Constitutional issues.” Following his clerkship he headed southwest to Phoenix, where the practice of Indian and environmental law flourishes. There he became an associate in the natural resources department of the Jennings, Stouss & Salmon firm, where he split his time three ways between Indian law, appellate courts, and environmental law. Worthen’s desire to teach, however, drew him back to BYU, where he joined the Law School faculty in 1987. He often draws from his experience clerking for Judge Malcolm R. Wilkey of the United States Court of Appeals for the D. C. Circuit, as well as from his clerkship with Justice White—not only as a teacher but also as a judicial clerkship coordinator for the Law School. He is a strong advocate of the clerkship experience and the opportunity it offers to “take part in an invaluable mentoring process” with a judge. He asserts, “Students can’t get that kind of insight anywhere else.” Worthen, who went to the College of Eastern Utah in Price, “just a few blocks from [his] home,” before coming to BYU for undergraduate and law degrees, has an older brother, Clyde, who is also a graduate of the J. Reuben Clark Law School. Worthen and his wife, Peggy, wonder if any of their three children—Collin, 13; Aaron, 11; or Kaylee, 7—will someday be enjoying the same view from that Law School window.

Clark Memorandum 23 usually reached a decision without a lot of Michael Mosman,’84 discussion with his clerks. . . . The clerks had some influence in the details of the look at Michael Mosman’s pedigree might lead one to think that he lives opinion, [but] Justice Powell reviewed and breathes the law. His father and two brothers practice law together every word carefully and invariably made A in Moscow, Idaho. His great-grandfather was a lawyer in Virginia until changes in what we proposed.” he left to become the only lawyer in Cul-de-Sac, Idaho. Even Mosman’s broth- Worthen knows that with Justice er-in-law is in law. But those acquainted with Mosman and his sense of humor White “there was rarely any doubt about and zest for things nonlegal know that he frequently comes up for fresh air. who would make the final decision.” He Before serving a clerkship with Justice Lewis F. Powell, Jr., during the 1985 remembers “Justice White’s oft-repeated Term, Mosman cruised through his undergraduate years at Ricks College and statement that the clerks were ‘rarely in Utah State University, then looked at BYU’s Law School. “I did not plan my doubt and often in error,’ whereas the jus- education or my career—which explains why I went to law school,” he says. “I tices ‘were often in doubt and rarely in chose the J. Reuben Clark Law School for three reasons: (1) I thought my edu- error.’” He adds, “Although Justice White cation would be a unique blend of legal training and gospel influence, (2) I would occasionally refer to his clerks as was offered a scholarship, and (3) I wanted to live in the Mountain West for as ‘the big brains,’ there was little question as much of my life as possible.” to who the big brain really was. . . . As one former clerk observed, ‘You have to AIR APPARENT remember, he’s three steps ahead of every- Mosman did well enough in law school body else.’” to obtain a clerkship with Judge Malcolm Wilkey of the U.S. Court of Appeals for the JUDGE AS LIFE MENTOR D.C. Circuit, a stint that helped him into Justice Powell’s chambers. About his In addition to “the wonderful quality chance to work for the Supreme Court, he of law practiced at the highest level,” recalls, “I was nervous at first, partly from remarks Monte Stewart, “I appreciated the many changes—moving, the birth of the goodness and the humanity of all nine our third child—that occurred within weeks of the justices and their intent, their of starting my D.C. clerkship. By the time I effort, to do right in every case. I was started the clerkship, I felt confident. impressed with Chief Justice Burger’s wis- “I evaluated petitions for certiorari, dom and instincts. . . . He was very good wrote bench memos, drafted opinions, and kind, . . . very genuine.” Karl Tilleman dealt with urgent death penalty filings, echoes Stewart’s sentiments: “I learned a and played basketball in the highest great deal about the law during my clerk- ‘court’ in the land,” he says. “Justice ships, but, more important, I learned of Powell was a southern gentleman. He taught me that you could be a very suc- integrity and honor.” cessful lawyer and still maintain high standards of conduct.” Mosman found From the first to the most recent Law that the most satisfying aspect of his clerkship was having “the ability to exer- School graduate serving a Supreme Court cise some positive influence on important issues.” clerkship, words describing impressions of Following the Powell clerkship, Mosman “wanted most to go to the small- the judge as a person expose a layer of the est city that had a good legal system” and consequently left Washington, D.C., experience that underlies a clerkship’s ulti- the summer of 1986 for Portland, Oregon. “I spent the next two years as an mate worth. One of the elements that bind associate at Miller, Nash, Wiener, Hager & Carlsen,” he relates about the law judge and clerk as they sort through the firm—which emphasizes work for timber companies, import and export in the intricacies of the law is the benevolence Pacific Rim, and political work in the Portland area. “I tried several cases revealed during that struggle. (mostly pro bono) and learned a lot from talented lawyers,” he adds. Michael Mosman tells a story about “Contrary to a common perception, I enjoyed these two years very much.” Justice Powell, “a southern gentleman who “My family grew from three children to five, 181/2 years apart; my oldest is taught me that you could be a very suc- a freshman at BYU, my youngest, 11/2 years old. On a given day in June in cessful lawyer and still maintain high stan- Portland, if you drove quickly, you could ski on Mt. Hood, windsurf the dards of conduct”: Columbia, water ski on the Williamette, golf at Pumpkin Ridge, nap on the beach, and then go deep-sea fishing. We love it here.” We had more capital punishment cases that Mosman left Miller, Nash in October 1998 to become a federal prosecu- term by far than any since 1976. During the tor—“the finest legal job in America,” he affirms—and is currently an assistant time when they came in, there was no way United States attorney, still living in Portland. we could leave for anything—Powell knew

24 Clark Memorandum that. One time, however, my wife was sick. Powell knew we had three children and Von G.Keetch,’87 found out that my wife was ill. So he insisted on paying out of his own pocket for a private professional nurse to come in and take care of rom his youngest days in Pleasant Grove, Utah, Von Keetch had hoped my wife and the children while I had to be for the opportunity to attend Brigham Young University for his under- away working for him. F graduate degree. While his hopes were being fulfilled, he became We ended up not using the nurse, but it was very familiar with the J. Reuben Clark Law School. Even though Keetch had all set up. He wouldn’t take no for an answer. law school opportunities from “a number of so-called ‘top echelon’ law Powell wouldn’t feel comfortable keeping me schools,” he chose BYU. there while my wife was sick. “By far the most influential factor in my decision was the faculty,” Keetch says. “As the time came to make my law school decision, I had significant Eric Andersen, another Powell clerk, exposure to such nationally known BYU professors and administrators as Rex agreed that the justice “took a personal RED, WHITE, AND COUGAR BLUE interest in his clerks.” Andersen remembers, “He took the time to become Lee, Bruce Hafen, Carl Hawkins, and others. Put very simply, I wanted to acquainted with our families and was con- learn the law from these individuals. More than anything else, they were the cerned for their well-being.” reason I decided to stay at BYU for law school.” Karl Tilleman, who served as the clerk These individuals not only impressed Keetch, they also helped him become for the retired Chief Justice Burger, relates, a Supreme Court judicial clerk. In July 1989, immediately following a clerkship “I worked very closely with him, traveling with Judge George C. Pratt on the United States Court of Appeals for the a lot. . . . I found that after he got to know Second Circuit in New York City, Keetch began a year with Justice Antonin you and trust you that a personal relation- Scalia. He particularly remembers the “long afternoon[s] of discussion and ship developed that was very warm and debate focus[ing] on all of the cases that had been argued that week. These extremely rewarding.” discussions were always fasci- In their role as a human being, says nating; rarely did all of the Kevin Worthen, a judge is “a true mentor. clerks agree on a particular Most judges treat their clerks almost like outcome. Opinions were often their children—taking time to help them strongly held, and sometimes understand what is going on, pointing the discussion was lively.” out ways in which they can improve. . . . During the Term, Keetch This mentoring relationship continues, also worked several hours per and even deepens in some cases, after the week for retired Chief Justice clerkship ends. . . . I heard one of his for- Warren Burger. “Because the mer clerks refer to the judge as his chief was retired, he did not ‘father-in-law.’” engage in any court work. My In his own relationship with Justice duties for him included writing White, Worthen discovered to his delight speeches, assisting him with that “the impact was not solely on the intel- his writing, and participating lectual process.” Such experiences as “din- in numerous activities com- ner at the Whites’ home, field trips to memorating the Bicentennial buildings in Washington, d.c., and basket- of the Constitution.” ball games . . . created a bond [that] goes Immediately after his clerk- much deeper than that of intellectual men- ship Keetch accepted a posi- tor and pupil. . . . Although reserved in tion with the Salt Lake City law demeanor, the justice managed to convey firm of Kirton & McConkie. “In my practice,” he says, “I spend a great deal of to his clerks the genuine warmth he felt my time providing advice to [the Church] in the areas of constitutional, reli- for them.” gious, and appellate law. When time permits and when I truly find a case of Worthen also describes White as a interest, I also greatly enjoy filing petitions for certiorari or filing an amicus “man who defined the experience by the brief on behalf of interested parties.” force of his personality,” one who taught “An avid basketball player and fan,” Keetch finds relaxation in sports and and showed his respect for you through spending time with his wife, Bernice, and their five children at home in toughness. The justice’s teaching style is Highland, Utah. “From time to time,” he says, “I serve as an adjunct professor illustrated by one of Worthen’s many sto- at the J. Reuben Clark Law School, where I have taught first amendment law ries about Byron White: and a seminar on the United States Supreme Court.”

Clark Memorandum 25 Denise Posse-Blanco Lindberg,’88

hile Denise Lindberg was serving as a judicial clerk for Justice Sandra Day O’Connor in 1990, she noticed a pillow in the justice’s Wchambers embroidered with the words “Maybe in error, but never in doubt.” Eight years later, on the day Lindberg was sworn in as a trial judge for the Third District in Utah, her daughter-in-law gave her a pillow with the same saying. She says, “I keep it in my chambers as a daily reminder of Justice O’Connor and of the need to be true to my own voice.” As the first woman from BYU’s Law School to serve as a Supreme Court clerk, as the school’s first clerk with a minority background, and as the first BYU clerk to serve Justice O’Connor, Lindberg could point to herself as being unique. But before she ever went to law school she stood out from the crowd. The story of her life before and after coming to the United States as a Cuban immigrant par- tially explains her drive. Lindberg was born into a life of privilege in Havana, where she attended private schools until Fidel Castro’s oppressive regime forced her family to flee the country. Stripped of their wealth, the Posse-Blanco family settled in New Rochelle, New York. Education became Lindberg’s refuge. “One of the few things I did well was school,” she says. “It was a place where I found I could control the outcome.” And well she did: Converted to the Church while in high school, Lindberg earned a bachelor’s degree at BYU, then completed two master’s degrees and a PhD at the University of Utah. Thinking her “days of formal schooling were over,” she discovered after talking with BYU law professor Eugene Jacobs—who said she was “ornery enough that [she]’d probably make a good lawyer”—that she was wrong. Within three weeks she was accepted to BYU’s Law School and awarded a full scholarship. Lindberg graduated second in her law class HER OWN ROBE before serving a one-year clerkship with the Honorable Monroe G. McKay of the United States Court of Appeals of the Tenth Circuit in Salt Lake City. This background, plus “Rex Lee’s recommendation,” led her to the clerkship with Justice O’Connor. Having lived in Washington, D.C., for some time, first as an associate attorney with the D.C. office of Sidley & Austin (Lee’s law firm), then as a clerk for the Supreme Court, Lindberg and her husband decided to remain in the D.C. area so that the youngest of their two sons could finish high school there. She practiced for three years with Hogan & Hartson before the Lindbergs moved back to Salt Lake City, where she worked as general counsel for Aetna Life Insurance Co. and then was recently appointed as a judge. Lindberg’s husband “wanted to get in on the act” and graduated from BYU’s Law School two years after his wife. He now practices as a land-use attorney in Draper, Utah. Lindberg, who looks forward to being a grandmother twice this year, says, “Our youngest son also anticipates a career in the law.”

26 Clark Memorandum On one occasion early in the Term, I wrote a basketball,” said one White clerk. “Every them a full plate of work. Kevin Worthen bench memo noting that the briefs of one day was like the Athenian youth going feels that some of the writing assign- party had not adequately responded to what I with Socrates, and Socrates won 38 to 0 ments, such as draft opinions, are “more thought was the determinative argument. on a daily basis.” interesting and ‘prestigious’ than others. Several days after I had turned in the memo, Chief Justice William H. Rehnquist Work on draft opinions, after all, might but before conference on the case, the justice impressed Steve Sargent as “a tremendous actually be published in a somewhat rec- and I were discussing the case. When I raised teacher. He was also a great man with a ognizable form for the world to see. what for me was the dispositive argument, wonderful sense of humor.” Sargent says, Bench memos, on the other hand, are gen- the justice countered in quite a loud voice, “He taught me much about how to work erally read only by the justice and then “Don’t you think [the party opposing the out a compromise and about how to relegated to the case file, never again to argument] rebutted that argument in the make your views known without being see the light of day.” brief?” I said, somewhat hesitantly, “No.” offensive or didactic.” Clerks have to keep reminding them- Then even more challengingly he said, “You Though he has yet to clerk for the selves of all the skills they are honing as really don’t think they did?” I said, somewhat man, Jay Jorgensen has also gotten a sense they wear out the clock and themselves. more assertively, “No.” He then smiled and of what Chief Justice Rehnquist is like. In Dissents from denial, where the clerk said, “I guess you’re right.” his interview with the chief justice, he was “had to read the cases themselves and cer- tify whether the conflict was real,” Worthen explains, “The challenge recalls Worthen, were “an often came not because Justice White unanticipated addition to the volu- wanted to unnerve me but because minous work for which the clerk he wanted to make sure I had was already responsible.” Michael thought deeply enough about my THE FREEDOM FROM Mosman admits that the work was position to be confident of it.” exhaustive; he would arrive at the The respect between justice OBLIGATION TO A PARTICULAR judge’s chambers about 6 a.m. so and clerk was apparently mutual CLIENT WHILE DEBATING he could leave early enough to during Worthen’s term at the spend some of the evening with Supreme Court. White’s clerks REAL-LIFE LEGAL ISSUES WILL his family. were in awe of the man, who has PAY OFF LATER FOR LAW Knowing that there is method been described as being “as close to this madness helps make all the CLERKS WHEN THEY BANK ON to a true Renaissance person as work palatable to the clerks. our modern complex times will THEIR ABILITY TO SEE ALL Worthen learned that though the allow.” Not only was he a capable SIDES OF AN ARGUMENT. judge ultimately made his own judge but he was an All-American decision in a case, he “wanted to and professional football player. hear all that the clerks had to And as difficult as their workload say. Clerks were used as sound- was, notes Worthen, “it was hard ing boards to make sure that the [for the clerks] to complain about justice fully considered all possi- too much work to a justice who ble arguments and points of view. even in his 70s arrived at work at 7:00 a.m. surprised to learn that not only had . . . One former clerk observed that and who regularly frequented chambers Rehnquist heard of the small rural town Justice White ‘[w]asn’t invested in an on weekends. . . . One former clerk of Roosevelt, Utah, where he grew up, but argument; [if] you could hit him back observed, ‘I tried beating [ Justice White] as a young man Rehnquist hiked across with a chair, intellectually speaking, he into work in the morning, but I finally fig- the country and slept on the Vernal court- could be convinced.’” ured it was like trying to open the refrig- house lawn. “I was surprised how gracious “[This] role of sounding board or erator door . . . before the light comes on. and down-to-earth Rehnquist was in our debate opponent was for many the most It can’t be done.’” interview,” Jorgensen says. gratifying aspect of their clerkships,” says But Justice White “valued competition Worthen. “To be able to engage in free- not because it gave him a chance to show LIFE IN THE FAST LANE flowing debate on important legal issues— off his magnificent abilities,” Worthen knowing that the justice really wanted to reemphasizes, “but because it was a way Life at Court is illuminating, but the know what you thought, not what you of bringing out the best in those who sources of that enlightenment can come at thought he thought—was an unforgettable competed.” And the clerks enjoyed having law clerks from all directions, and they and, for many White clerks, a never-again- their best brought out: “Clerking for soon discover that they have to keep their to-be-paralleled experience. Justice White was a thrilling and wonder- eyes wide open. A daily menu of research- “At times this leeway in drafting opin- ful exercise in combat, from intellectual to ing, writing, and recommending offers ions and expressing views about a case

Clark Memorandum 27 could be heady for the clerks,” adds Karl Tilleman,’90 Worthen. “As clerks worked on draft opinions, they could entertain thoughts of shaping the course of the law, of pen- ning words that would live on in Supreme Court decisions to be studied with awe by arl Tilleman’s first shot at being a professional was not in a court of succeeding generations. But the euphoric law—it was on a basketball court. Once told he was the first dreams were generally short-lived—termi- K “Canadian Olympic athlete” to clerk at the Supreme Court, Tilleman nated with the return of the draft bleeding views his career move as circumstantial. He explains the rebound: with red ink from the justice’s pen.” I became an attorney because the night I One of the satisfying things about proposed to my wife, Holly, my father-in-law told working at the Supreme Court level me that I should think about my future and how I is, as Jim Gordon writes in The Judicial would support a family. He told me that he Clerkship Job Hunt Book, “You do not believed I should be some type of “professional.” represent a particular client, and you Having failed at being a professional basketball influence the decision-making process player and wanting badly to marry Holly, I decid- in important ways [as you work] with ed I would be an attorney. He approved, and I the judge and the other clerks.” David proceeded to prepare for law school. Campbell adds, “For one year you get to The Calgary, Alberta, native did well question what is right or wrong in par- enough at BYU’s Law School to win the sup- ticular cases. From then on in the prac- port of his professors in obtaining clerkships tice, the right answer will be your with retired Chief Justice Warren E. Burger and client’s answer unless you become a Justice Clarence Thomas. “Frankly, I found my judge. So there is an objectivity you get initial days at the Supreme Court to be some- to bring into it and a creativity that what intimidating,” Tilleman admits. “Four most lawyers will never get the opportu- years earlier I was playing basketball in Canada. At first I had to wonder nity to experience.” what I was doing clerking at the Supreme Court of the United States. I also This freedom from obligation to a found my coclerks to be extremely bright and competent. I felt after several particular client while debating real-life weeks, however, that I was able to do my job as well as the other clerks.” legal issues will pay off later for law Tilleman says that “being able to analyze complex legal issues quickly and clerks when they bank on their ability to then write effectively about those issues” were his greatest qualifications for see all sides of an argument. “Seeing how the Court clerkship, skills he learned not only in law school but also during a things work at the decision-making level clerkship with the Honorable John T. Noonan, Jr., Ninth Circuit Court of is immensely valuable when one begins Appeals, in 1990–91. While in Noonan’s chambers he “researched issues, to practice law and to craft arguments prepared bench memorandum concerning in support of a particular legal position,” SUITING UP pending cases, debated issues with other clerks says Von Keetch. The Judicial Clerkship in the chambers, and assisted the judge”—experience he would need at the Job Hunt Book reports, “Almost all court of Justice Thomas two years later. lawyers who have worked as law clerks Before joining four other clerks in Justice Thomas’ chambers, Tilleman will tell you that they are better advo- served as the clerk of the retired Chief Justice Burger. “I assisted him with a cates as a result.” variety of duties in his capacity as the retired chief justice, including . . . writing speeches, a book, and several articles,” he says. And, Tilleman adds, POSITIVE SIDE EFFECTS although the chief justice “was known for observing a lot of formalities,” he got to know him personally as he worked and traveled with him. “Both my As they considered the value of their wife and I felt very close to the justice and his wife.” Supreme Court clerkships, several of the Following his Supreme Court clerkship, Tilleman went into private practice Law School graduates commented on with Jones, Day, Reavis and Pogue in Washington, D.C., working alongside two personal benefits: self-confidence and Timothy Flanigan, a former clerk of Chief Justice Burger and a BYU graduate. satisfaction. Three years later Tilleman left for Phoenix, Arizona, where he continues to When asked what the most gratifying work for the law firm Dalton, Gotto, Samson, and Kilgard. thing about his clerkship was, Monte Though Tilleman became an attorney, he “also married Holly,” he points Stewart—who was an academic leader out, which “has been worth it all.” When he is not spending time with his wife in his senior class at byu and had been and four children, Tilleman finds relief from his law work “by being a bishop, offered admission to Harvard Law which helps keep everything in perspective.” School—responded: “Finding out that I

28 Clark Memorandum could do it.” What the clerkship adds to the already-high self-confidence of these Stephen M.Sargent,’94 capable Law School grads is often in itself worth the experience. Kevin Worthen “would recommend that students pursue clerkship options shift from accounting to law seemed like a natural move to Stephen based solely on the personal satisfaction Sargent, who grew up in Fruit Heights, Utah, in a home with a father they will receive during the experience.” A who continues to practice law after 30 years. “He seemed to enjoy Von Keetch’s greatest satisfaction came his work, and he always made time for his children,” Sargent says. “In talk- from “working with colleagues who were ing with him, I decided the practice of law was something that seemed both among the brightest the legal profession challenging and satisfying.” Apparently Sargent’s decision was right. had to offer on issues that were some of His acceptance as a judicial clerk for Chief Justice William H. Rehnquist the most difficult to be found in the law.” for the 1994–1995 Term capped Sargent’s legal education. Having served Karl Tilleman says, “The most satisfying FIVE PERCENT BASKETBALL thing about my clerkship was getting to know such remarkable men and women.” as editor in chief of the BYU Law Review during the 1992–93 school year, he Although Denise Lindberg agrees that sat for the Washington State Bar in July 1993, then moved with his wife and the “continuing relationships are, by far, the young daughter to Kansas, where he clerked a year for Judge Deanell Reece most satisfying part of a clerkship,” she adds Tacha of the U.S. Tenth Circuit Court of Appeals. After a year in Kansas, that “having a front-row seat . . . observing Sargent began his clerkship in the day-to-day workings of the Court— Washington, D.C. which to most outsiders (even in the law “I felt that law school profession) remains a mystery—was very prepared me pretty well for exciting. Despite the unrelenting hard work, my clerkship,” Sargent relates, it was always a thrill to sit in ‘my’ justice’s admitting that he “was intimi- chambers on the Saturday before oral argu- dated clerking with others who ments . . . absorbing . . . the core principles had gone to the ‘big name’ that guided her decision making.” schools.” But working on cases that ranged from Vernonia—a OPENING DOORS fourth-amendment case ques- tioning the legality of drug test- Opportunities are like dominoes: one ing of student athletes—to can activate another. Those “lucky” enough death penalty actions, he dis- to serve clerkships for a Supreme Court covered “an opportunity to see justice find that the door to the courtroom and work with some of the not only opens to a valuable learning expe- brightest legal minds in the rience but also opens up other opportuni- country.” He says, “It taught me ties benefiting their law careers. the value of hard work in the The decision of what that career will be legal field. I gained a great is often shaped by a clerkship experience. appreciation for the Supreme Kevin Worthen says, “The longer I am Court as an institution and a tremendous amount of respect for the justices away from the actual clerkship, the more I who serve on the Court.” Like many judicial clerks, Sargent also appreciated have come to appreciate the positive that the docket of hard work often included a good game of basketball as impact that a judicial clerkship can have on well as tennis doubles with the chief justice every week. (No, the gold stripes a person’s life and career in ways that I had on the sleeves of Rehnquist’s robe—added by the chief during Sargent’s not anticipated while clerking.” He con- clerkship—were not intended for athletic reasons.) cedes that his interest in Indian law grew Leaving the Supreme Court but not Washington, D.C., Sargent worked as while he clerked for Justice White and a litigation associate at the city’s law firm of Hogen & Hortson for two years. saw three or four Indian law cases reach In September 1997 he and his family moved west to Salt Lake City, where the Supreme Court. Worthen, a byu Law Sargent continues to work in estate planning for the law firm of Parr School professor, also says, “One of the Waddoups Brown Gee & Loveless. main things my clerkship did was to con- Sargent says that just about anything that takes him away from his law vince me I wanted to teach law. I enjoyed work provides a break for him. But he particularly enjoys basketball and golf the pure discussion and debate of the law and, of course, spending time with his wife, Kathryn, and their four children: and what the law can and should do.” Maren, 8; Spencer 4; Kendall, 2; and Samantha, 1.

Clark Memorandum 29 Jay T.Jorgensen,’97

ay Jorgensen, the most recent Law School graduate to serve a Supreme Court clerkship, is the first to receive the position since the passing of J BYU President and first Law School Dean Rex E. Lee in March 1996. Jorgensen acknowledges, however, that his knowing Lee was a reason he chose to attend the Law School and that Lee’s opinion of his own Supreme Court clerkship influenced his decision to apply for a clerkship. Jorgensen, who will work for Chief Justice William H. Rehnquist this coming fall, relates, “After I’d gotten news that I would interview with the chief justice, I spoke with several of his previous clerks to try and learn what I should expect, and I spoke with Steve Sargent” (who clerked for Rehnquist in 1994). “I don’t know why I got it. . . . I was so surprised when the chief justice’s secretary called.” Thinking back on why he went into law, Jorgensen describes his early decision: “I have known that I wanted to be a lawyer since I was about seven or eight. It’s kind of funny, the thing that made me want to be a lawyer: I was sitting in my living room watching television, and my parents were watching

THE LAST AND THE FIRST

President Carter give an address, and I thought to myself, you know, I want to be just like him. So I decided right then that I would become a lawyer. . . . It wasn’t until years later that I learned that he wasn’t a lawyer.” Besides the influence of Lee, Jorgensen’s desire to “have some spiritual grounding in the law” helped him choose BYU’s Law School. “My own personal experience shows me that law school tends by its very nature to invite people to rely on their own reasoning and not on what I would call the Spirit,” he says. “I thought I would get that at the J. Reuben Clark Law School—and, indeed, I did.” During that three-year period, Jorgensen participated in various activities, including law review, trial advocacy, writing competitions, and the Federalist Society for Law & Public Studies. He also served as the national editor for an issue of the Harvard Journal of Law and Public Policy. During the summer of 1996 he worked in the Washington, D.C., office of Kirkland & Ellis, where he became acquainted with former Solicitor General Kenneth W. Starr. Solicitor General Starr occasionally spent time with Kirkland & Ellis’ law clerks discussing his litigation background, an experience that influenced Jorgensen’s desire to seek a litigation and appellate practice. The fall after graduating from law school, Jorgensen clerked for Judge Samuel Alito, Jr., of the United States Court of Appeals for the Third Circuit. Following the clerkship with Alito, he returned to Utah as an associate at Stoel Rives in Salt Lake City, where he will continue to work until moving to Washington, D.C., in June. Jorgensen and his wife, Melissa, are pleased to return to Washington—this time with two “wonderful” daughters, who are four months old and 18 months old.

30 Clark Memorandum Eric Andersen says, “Ever since law course of a clerk’s future career,” writes school I had wanted to be a law school Worthen in The Judicial Clerkship Job teacher,” and the clerkship “had great Hunt Book. “The people with whom a value in preparing me to teach law.” clerk works, especially judges and other Andersen, a faculty member of the clerks, are either in influential positions— University of Iowa College of Law for the in the case of judges—or often headed in past 15 years and now associate dean, says, that direction—in the case of clerks.” The “I read judicial opinions far differently handbook further reads,“The recommen- than if I had not served as a judicial clerk, dation of a judge known in the legal com- and I try to pass some of that insight munity will carry a great deal of weight along to my students.” with potential legal employers.” For Karl That a Supreme Court clerkship, Tilleman, Timothy Flanigan, a fellow through its very prestige, empowers career clerk of Chief Justice Burger as well as a opportunities was observed by Monte byu alum, introduced him to the law firm Stewart when the Law School’s charter he joined after his clerkship. class was graduating, but no law firms Aside from what others can do for were coming on campus to interview. their careers, the clerks simply appreciate the individuals with whom they worked. It was tough—nobody could get a job with a Von Keetch muses, “I will always treasure big firm, no matter what your credentials the friendships and relationships fostered were, even if you were editor in chief of the during the year I was at the Court.” law review and top of your class. We plas- tered one room of the law review with rejec- A BRIGHT HORIZON tion letters from big firms. Suddenly (after the clerkship) I’d get tele- The view has been and will be great for phone calls out of the blue from senior part- the nine Law School graduates who have ners of top firms around the country calling seen the law from the “top of the moun- as if we were good buddies and wanting to tain.” But will this record continue? Will see if I would go with their firm. future generations of J. Reuben Clark Law School students climb to such heights and The correlation between Supreme clerk for the Supreme Court? Court clerkships and law careers is not The outlook appears favorable for those imagined. Many of Justice White’s clerks students who work hard and set their sights “have gone on to distinguished careers. . . . as high as those of their predecessors— [T]here are four federal courts of appeals capable men and women who have become judges, a former solicitor general of the very good at seeing the finest detail in the United States [Rex E. Lee], a member of big picture and for spotting those who Congress, a former state attorney general, should follow after them. Michael Mosman the president of a university [Rex E. Lee], believes, “Anyone who puts a decent and the dean of an Ivy League law amount of effort into law school at byu will school,” Worthen reports. “There are also, come out with the same training as any of course, numerous law professors,” he prestigious school graduate.” quips. “Not even Justice White could Is it worth the climb? The Law redeem all his clerks.” Andersen believes School’s nine grads who made it think so. that for him “the single most important Von Keetch speaks for each of them when thing for getting a job teaching was [his] he says, “A lawyer’s product is himself or clerkship with Powell.” herself. Refining that product and making The personal connections lawyers it as effective as possible—to vigorously make while serving as clerks also increase represent one’s client and to promote jus- their visibility within the legal profession. tice as an officer of the court—should be “Who you know” at this level of the law the paramount goal of each and every can pave the way for a lawyer’s career. “A attorney. There is no greater university for clerk often creates a lifetime network of learning and applying this concept than a friends and professional acquaintances clerkship position at the United States who can have a positive impact on the Supreme Court.”

Clark Memorandum 31 the Challenge: Prıncıplesbasing your career on in their best-selling book of a few years ago, entitled

In Search of Excellence, Peters and

by Elder

Alexander B. Waterman point out that the great-

Morrison,

First Quorum est fear people have is not that they

of the

Seventy will die—it is not the fear of sep-

> This address aration from loved ones, or even of

was presented

to the J. Reuben extinction—but the fear that life

Clark Law

Society in will not have mattered, that its

Edmonton,

Alberta, Canada, struggles and triumphs, tears and

on February

26, 1999. laughter will all have been in vain.

ILLUSTRATIONS BY BRAD HOLLAND

In the cynical world in which we live, One of the great tragedies of life confronted each day as we are by “man’s inhumanity to man,” by the cruelty and indifference of much of human existence, it seems to many that life does indeed is to observe men who up the have little meaning. struggle We live in a society saturated with self- absorption, which promotes and rewards was against the wrong wall. excessive materialism, mocks and derides leaning moral principles, and worships secularism. Increasingly, Western society is bereft of the enduring virtue of honor, of which Pericles, the great Athenian statesman, said two and a half millennia ago: “For it is love of honor that never grows old; and he spoke at Harrow School in October of honor it is, not gain, as some would have 1941. He said: it, that rejoices the heart of age and help- lessness.” Do not let us speak of darker days; let us Faced with the wintry reality of life, speak rather of sterner days. These are not with all its contradictions and imperfec- dark days: these are great days—the greatest tions, cruelty and injustice, one can feel days our country has ever lived; and we must As I went to bed at about 3:00 a.m., I was some sympathy for those who, in their all thank God that we have been allowed, conscious of a profound feeling of relief. At despair, proclaim that life is but a hollow each of us according to our stations, to play a last I had authority to give direction over the charade, an obscene joke, or, in the words part in making these days memorable in the whole scene, and I felt as though I were walk- of Shakespeare’s Macbeth, “a walking history of our race. ing with destiny, that my past life had been a shadow, a poor player that struts and frets preparation for this honor, for this trial. I his hour upon the stage, and then is heard I group my advice under several head- could not be reproached, either for having no more . . . a tale told by an idiot, full of ings: prepare yourselves temporally and made the war or for lack of preparation for it, sound and fury, signifying nothing” (Act spiritually, and see that preparation as one and yet I felt I knew a good deal about it and 5, Scene 5, lines 26–28). grand eternal round; set your priorities I was sure I would not fail. But I must tell you in the strongest straight; learn the spirit of service and the possible terms that those who feel like joy of work; and let devotion to duty and He was prepared! No preparation can that are wrong, tragically and terribly so. honor be the hallmarks of your life. occur in the absence of work. What the “Man is that he might have joy,” the world mistakes for genius is, as Edison scriptures tell us. Our task is to fulfill the Prepare Yourself Temporally and Spiritually pointed out, 90 percent perspiration and measure of that destiny by tasting the 10 percent inspiration. If you wish to sweetness of the joy the Lord wishes for If you are to serve yourself, your family, serve, prepare yourself through study, us. As we do so, the scales of cynicism, community, country, and church properly; work, and faith. pride, indifference, and disregard for oth- if you are to be your brother’s keeper in As you struggle to learn and relearn in ers will fall away from our eyes, and we the sense that you accept your measure of the intellectually demanding field of the will begin to see who we are and what responsibility for others, you must be pre- law, I urge you to cultivate a flexibility of God expects us to do with our lives. pared. You cannot contribute if you don’t attitude, a willingness to venture into My only wish today is to help con- have the skills and knowledge to do so. fields not yet cultivated by you, a catholic- tribute to your search for understanding. I Sincerity will not suffice and goodwill will ity of interest that sees all learning as have no quick-fix “do-it-yourself” recipe not win. Consider Winston Churchill’s interrelated. You must make learning an book to offer—only a few principles that words as he described the day he became eternal quest. If I may be permitted a per- are well worn but proven. As we apply prime minister on May 10, 1940. If ever sonal comment, the chance to learn is to basic principles, we gain a perspective of there was a time for action and not for me one of the greatest privileges of life things as they really are. We see in life’s preparation, that was it. The French army and one of the great attractions and fasci- challenges opportunities to serve. was collapsing piecemeal before the fero- nations of the restored gospel. Indeed, The darkness of night portends the cious fury of the German blitzkrieg. two doctrines of the Church attracted dawning of a new and better day. The Britain stood alone, nearly defenseless. me as a young university student in greatest Englishman of this century, There was serious doubt the British Edmonton nearly half a century ago: eter- Winston Churchill, knew of the opportu- Expeditionary Force could be saved. nal marriage and eternal progression. I nities to serve during difficult days when Churchill said of that day: remain grateful for them and perhaps

34 Clark Memorandum Get Your Priorities Straight Sometimes you will not get it right (at least I certainly haven’t), but keep on try- Several years ago President David O. ing. Call down the powers of heaven to McKay in speaking to a group of Church help you in your struggle. I promise you ladder of their careers [and find it] employees put into perspective what we the needed assistance will be yours. should concentrate on in our lives. He said: “It takes more nobility of character,” Stephen Covey has said, “to do whatever Let me assure you, brethren, that someday is necessary to build that one relationship you will have a personal priesthood inter- [the family] than to labor diligently and more knowledgeable about their impor- view with the Savior Himself. If you are faithfully for the many others outside it.” tance now than I was as a callow youth. interested, I will tell you the order in which One of the great tragedies of life is to President Spencer W. Kimball encour- He will ask you to account for your earthly observe men—and increasingly women— aged us to lengthen our stride. That responsibilities. who struggle up the ladder of their advice applies in the temporal realm as First, He will request an accountability careers, perhaps, though certainly not much as in the spiritual. Learn to stretch report about your relationship with your necessarily, over the backs of colleagues, your mind, to reach a little further each wife. Have you actively been engaged in and in the process, through carelessness, day in testing the limits of your intellectu- making her happy and ensuring that her neglect, or selfishness, lose their families. al capacity. We are told that most of us use needs have been met as an individual? They divorce their spouse, from whom, in less than 25 percent of our intellectual Second, He will want an accountability the euphemism of the day, they claim to abilities. We can all do much more than report about each of your children individu- have “grown apart” in their search for we now do. That stretching may be ally. He will not attempt to have this for sim- “personal fulfillment,” whatever that is. painful. It will certainly be exhausting. ply a family stewardship but will request Their children drift away, finding no But it is ever so exhilarating. Indeed, it is information about your relationship to each warmth, no giving, no help, no under- intoxicating! Make it a lifelong habit to and every child. standing, and then, perhaps in the twilight flex and stretch your intellectual muscles. Third, He will want to know what you of their lives, these gray husks of men find There is a Chinese proverb that states: personally have done with the talents you that all they’ve done has turned to ashes. were given in the preexistence. The ladder up which they climbed was To live and not to learn is not living; Fourth, He will want a summary of your leaning against the wrong wall. It led not To learn and not to understand is not activity in your Church assignments. He will to light and joy but to darkness of mind learning; not be necessarily interested in what assign- and spirit. To understand and not to do is not under- ments you have had, for in His eyes the home It need not be so. Many there are standing. teacher and a mission president are probably whose lives are tributes to the happiness equals, but He will request a summary of that comes from commitments made and Seek to understand. Develop and retain how you have been of service to your fellow- renewed daily. President Gordon B. an eternal curiosity. Some of you may man in your Church assignments. Hinckley tells a sweet and loving story remember Merlin’s advice to King Arthur: Fifth, He will have no interest in how you that illustrates, far better than I could, the earned your living, but if you were honest in strength and joy that come from having The best thing for being sad . . . is to learn all your dealings. proper priorities in life. He relates the fol- something. That is the only thing that never Sixth, He will ask for an accountability lowing: fails. You may grow old and trembling in on what you have done to contribute in a your anatomies, you may lie awake at night positive manner to your community, state, I think of two friends from my high school listening to the disorder of your veins, you country, and the world. [Reported by and university years. He was a boy from a may miss your only love, you may see the Cloyd Hofheins in a talk to the Seventies country town, plain in appearance, without world about you devastated by evil lunatics, Quorum of Provo, Utah, Oak Hills Stake, money or apparent promise. He had grown up or know your honor trampled in the sewers May 16, 1982] on a farm, and if he had any quality that was of baser minds. There is only one thing for it attractive it was the capacity to work. He car- then: to learn. Learn why the world wags and You will note that the Lord puts first ried bologna sandwiches in a brown paper bag what wags it. That is the only thing which emphasis on family—your relationships for his lunch and swept the school floors to pay the mind can never exhaust, never alienate, with spouse and children. He is certainly his tuition. But with all of his rustic appear- never be tortured by, never fear or distrust, less interested in how you earn your living, ance, he had a smile and a personality that and never dream of regretting. Learning is though He is most concerned whether seemed to sing of goodness. She was a city girl the thing for you. [T. H. White, The Sword you are honest in your dealings. Whatever who had come out of a comfortable home. She in the Stone, p. 183] else you do, provide time for your family. would not have won a beauty contest, but she If you are as busy and active as you should was wholesome in her decency and integrity In a few words: Seek always to learn! be, it will not always be easy to do so. and attractive in her decorum and dress.

Clark Memorandum 35 36 Clark Memorandum Something wonderful took place between would that ye should impart of your sub- them. They fell in love. Some whispered that stance to the poor, every man according there were far more promising boys for her, to that which he hath” (Mosiah 4:26). and a gossip or two noted that perhaps other We lighten Christ’s yoke as we accept girls might have interested him. But these some of the burdens of others, as we help two laughed and danced and studied together them to have hope rather than dark through their school years. They married despair, as we apply a healing balm of when people wondered how they could ever Gilead to their scarified, suffering souls. earn enough to stay alive. He struggled A few years ago the Wall Street Journal through his professional school and came out (November 13, 1992, pp. a1, a16) recounted well in his class. She scrimped and saved and a heartwarming tale of suffering, compas- worked and prayed. She encouraged and sus- sion, and Christlike service. Some 20 years tained, and when things were really tough, ago, Dr. Ian Jackson, a world-famous cran- she said quietly, “Somehow we can make it.” iofacial surgeon, was on a charity mission Buoyed by her faith in him, he kept going from his native Scotland to Peru. There he through these difficult years. Children came, met David Lopez, a tiny Indian boy, just and together they loved them and nourished two years old, who had virtually no face at them and gave them the security that came of all. A gaping hole covered the areas where their own love for and loyalty to one another. his mouth and nose should have been. Now many years have passed. Their children There were no upper teeth or upper jaw. are grown, a lasting credit to them, to the To drink, David simply tilted back his Church, and to the communities in which head and poured the liquid straight down. they live. . . . His lower teeth could actually touch his . . . Forty-five years earlier people without forehead. Most of David’s face had literally understanding had asked what they saw in been eaten away by a terrible parasitic dis- each other. . . .Their friends of those days saw ease called leishmaniasis. only a farm boy from the country and a smil- Relief workers begged Dr. Jackson to ing girl with freckles on her nose. But these help. He was leaving for Scotland the next two found in each other love and loyalty, day, but he agreed to try to rebuild peace and faith in the future. David’s face if the boy could come to There was a flowering in them of some- Scotland. Eventually a way was found, thing divine, planted there by that Father and the Jackson’s went to Glasgow who is our God. In their school days they had Airport to pick up David. As he walked lived worthy of that flowering love. They down the ramp, they saw a tiny boy wear- had lived with virtue and faith, with appre- ing scuffed white boots and a hand-knit ciation and respect for self and one another. poncho. A woolen cap was pulled so low In the years of difficult professional and eco- on his head that only his big brown eyes nomic struggles, they had found their greatest and the round hole beneath them were earthly strength in their companionship. visible. Now in mature age, they were finding peace The Jacksons took David into their and quiet satisfaction together. Beyond all home and into their hearts. There followed this, they were assured of an eternity of joyful long years of surgery—more than 80 opera- association through priesthood covenants tions in all—as Dr. Jackson attempted to long since made and promises long since give David a new face. All of the doctor’s given in the House of the Lord. [Ensign, services were donated. Each summer, as March 1984, pp. 3–4] other children played, David would be in the hospital, his head swathed in bandages. Having prepared yourself, or, more The painstaking, pioneer surgical efforts accurately, having begun the eternal task to rebuild David’s face went on for 15 years. of preparing yourself, go forth to serve, Today David looks like a young man who expressing always the joy of work, seeing has been in a serious automobile accident, it as a spiritual necessity as well as a tem- but he is well adjusted and fully function- poral imperative. As you do so, I admon- al. He used to be teased and tormented ish you to keep ever in your mind these about his looks, but over the years, that has inspired words of King Benjamin: “I died away.

Clark Memorandum 37 We must move beyond a unidimensional view of man

to consider all that is needed to

will donate an additional $100,000. I com- give meaning and value to life. mend that sort of initiative to you, tai- lored, of course, to fit the needs of your own community. It will take both courage and commitment if you are to help change the world as it must be changed. Do not lose your ideal- ism. Do not slip into the sophisticated cyni- Nephi, “I know in whom I have trusted. cism of those who sell their moral integrity My God hath been my support; he hath for this world’s goods. Do not become so led me through mine afflictions in the tied to your mortgage payments, career wilderness; and he hath preserved me ambitions, company loyalties, or profes- The Jacksons now live in the United upon the waters of the great deep. He hath sional associations that you become afraid States, where Dr. Jackson continues to be filled me with his love, even unto the con- or unwilling to search for the truth and to one of the leading craniofacial surgeons in suming of my flesh. . . . he hath heard my speak out in its defense. Corporate greed, the world. In 1982 Mrs. Jackson flew to cry by day, and he hath given me knowl- bureaucratic empire-building, and political Peru to try to find David’s parents. After a edge by visions in the nighttime. . . . And venality all flourish because otherwise good long journey downriver from a remote upon the wings of his Spirit hath my body men and women are unwilling to say no to Catholic mission, David’s father was been carried away. . . . I will trust in thee what they recognize in their hearts is found. He explained that the boy had forever” (2 Nephi 4: 19–21, 23, 25, 34). wrong. “I was only obeying orders,” they been born healthy, but when he devel- Now of course you can’t do all that say. “You can’t fight City Hall.” Of such is oped leishmaniasis after having been bit- needs to be done to help change this born the moral outrage of our time. In less ten by an infected sandfly, he was taken to world, but you can do your best and hope spectacular fashion, but of equal impor- the mission to seek treatment. The father that others will follow. tance, such a decline in commitment to gave permission to the Jacksons—who As you strive to serve others, I urge moral integrity leads to an indifferent, had developed a deep love for David—to you to look beyond those who are your almost passive acceptance of the myriad of adopt him as their own. Since 1984 David clients. They deserve your very best, of minor corruptions of our society. Lopez has been David Jackson. course, but your concern must not stop The demands of the future relate not I don’t know whether Dr. Jackson is a with them. You must look to the broader only to man’s physical needs but to all of Christian or not. But I do know he is community in which you live and work. the dimensions of human existence. It is doing God’s work. “When ye are in the Voluntary service to others will be an ironic that the rise of materialism has service of your fellow beings ye are only increasingly significant characteristic of resulted in a decline in the quality of man’s in the service of your God” (Mosiah 2:17). caring communities in the new millenni- spiritual life. This potentially fatal imbal- As we lose our lives in compassionate um. It takes many forms, including work ance can only be redressed if we begin to service to others, we develop a deeper in your church, neighborhood schools, pay proper attention not only to the things understanding of our dependence on God. and professional and service organizations that are Caesar’s but also to those that are I return again to the wisdom of King and assistance to the disadvantaged—the God’s. Man obviously needs food, shelter, Benjamin: “And now, if God, who has cre- poor, children, immigrants, etc. In Utah, clothing, clean water, education, and health ated you, on whom you are dependent for lawyers are being encouraged by Legal care. But he also needs love and hope and your lives and for all that ye have and are, Services, the Disability Law Center, and those other attributes of the spirit that col- doth grant unto you whatsoever ye ask the Legal Aid Society to donate each year lectively contribute to the quality of life. In that is right, in faith, believing that ye shall the monetary equivalent of two billable Teilhard de Chardin’s words, we must seek receive, O then, how ye ought to impart hours to provide free legal services to for a future “consisting not merely of suc- of the substance that ye have one to those in need. The Church has announced cessive years but of higher states.” The cur- another” (Mosiah 4:21). Said faithful that if the drive to do so raises $300,000, it rent witless pursuit of materialism bears

38 Clark Memorandum within it the seeds of death for industrial “Political and intellectual functionar- few hours time—but not without a price societies and perhaps for the world as we ies,” Solzhenitsyn continues, “exhibit being paid. Often the price is tragically know it. We must move beyond a unidi- depression, passivity, and perplexity in high: anxieties that must be calmed with mensional view of man to consider all that their actions and in their statements, and tranquilizers or alcohol, children who is needed to give meaning and value to life, even more so in their self-seeking ratio- grow up not knowing their father (or, all that contributes to the formation of the nales as to how realistic, reasonable, and increasingly, their mother), and lives spent whole man. intellectually and even morally justified it in acquiring rather than giving. is to base state policies on weakness and It will take courage for you to step far Let Devotion to Duty and Honor cowardice.” Although Solzhenitsyn was enough away from the glamour and Be Your Hallmarks referring primarily to political courage of excitement of the speedway of life to see the kind needed by national leaders, the it for what much of it really is: a poor, There will be opportunities—some bla- courage of nations begins with the tawdry counterfeit of what life can be. I tant, some seductive—for you to lose your courage of individuals. for one am delighted to note that increas- integrity every day. The adversary will see Courage is the great need of our time, ing numbers of people are doing just that, to that. It may be the lure of compromising courage to accept the ineluctable truth deciding that the game isn’t worth the your principles of honesty: the chance to that greatness can never be achieved with- candle, and that there are more important make a somewhat soiled dollar in a some- out adversity, that struggle is the prerequi- things to do in this world than to act like what shady deal. Or it may be the tempta- site for growth. Edmund Burke taught a speeded-up version of the Roadrunner. I tion to break one of the other moral laws: to this well when he said: can’t tell any of you, nor would I wish to, lie a little, cheat a little, or be a little dishon- what speed to run your life at. All I ask is est, to have just one drink, or to be unfaith- Adversity is a severe instructor, set over us that you be honest enough to take a hard ful to your spouse just once. Almost always by one who knows us better than we do our- look at what you really want and coura- the temptation will come wrapped in glitter selves, as He loves us better, too. He that geous enough to act on your decision, and gloss, dressed up to look like what it is wrestles with us strengthens our nerves and even if it means fewer material posses- not, the devil’s counterfeit. And to the sharpens our skill. Our antagonist is our sions and less worldly acclaim. extent you succumb you will be weakened helper. This conflict with difficulty makes us Finally, I remind you that the final stage and deprived of your manhood or woman- acquainted with our object and compels us to in the development of an exceptional pro- hood. The work of the Lord will be imped- consider it in all its relations. It will not suf- fessional is that of teacher and mentor of ed, and the Devil will laugh. Conversely, as fer us to be superficial. the next generation—the young men and you rise above temptation, you will grow in women just entering the profession and in spiritual stature and enjoy the approbation Yes, adversity is the refiner’s fire that need of the example and guidance of those of good men and women everywhere. bends iron but tempers steel. It is in the who have already scaled the heights and “Duty,” said the great Confederate military fire of struggle and stress that greatness is who are the skilled practitioners of their commander Robert E. Lee, “is the most sub- forged. A measure of your greatness as craft. Law school provides the intellectual lime word in any language. Do your duty in men and women will be your response to framework for the practice of law, but does all things. You cannot do more. You should adversity, the courage you have as you little to actually teach students how to be not expect to do less.” wrestle with problems that can strengthen lawyers. That is done as the new graduate Duty achieves its highest expression your nerves and sharpen your skill, as learns the realities of practice at the knee when carried out within the framework of Burke said. of one who is more experienced. and adherence to a firm set of moral stan- Hastiness and superficiality have been Each generation has a solemn obligation dards. Many observers have commented on termed the psychic disease of the 20th to give a helping hand to those coming the slackening of moral fiber in the century. The pace of modern life, which behind, who will in their turn be the carri- Western democracies over the past several seems to grow more frantic each year, ers of the torch. A profession that loses that decades. In his celebrated commencement penalizes thoroughness and promotes vision has at best an uncertain future. address at Harvard a few years ago, haste. Society demands speed—speed at The choice is clear: If you want to do Alexander Solzhenitsyn drew attention to all costs, speed regardless of the conse- more than exist, if you want to soar as on the most outstanding weakness of the quences to the health and happiness of eagle’s wings to the outermost limits of Western democracies: their growing lack of individuals, speed at the expense of your potential as a human being, you courage. In Solzhenitsyn’s view, this decline diminishing supplies of irreplaceable must pay the price. That price is an amal- in courage is particularly striking among resources. We demand instant communi- gam of discipline and desire, lightened by the ruling and intellectual elites. In part it cation, ever more rapid means of trans- hope and love, bound together by the may arise from having too many of this port, faster decisions. Business deals steel hoops of work and service, tempered worlds’ possessions, too easily come by. are conceived in Toronto, planned in in adversity, undergirded by faith, and Those who remain courageous (and there Edmonton, and consummated in overlaid with courage. This is your chal- are many) have little impact on public life. Vancouver or New York or Tokyo, all in a lenge, and I send you forth to accept it.

Clark Memorandum 39 James Claﬂin in A Man for All Seasons

by Scott W. Cameron

ommenting on his recent portrayal of Sir Thomas More in the byu production A Man for All Seasons, James Claﬂin, ’91, pro- c claims, “It was the greatest theater experience I have had.” A criminal defense lawyer in Salt Lake City, James’ interest in theater began at Orem High School, where it took only one drama class to discover that his ability matched that interest. Following high school, he accepted a scholarship in theater to byu, fully intend- ing to enjoy his education and then attend law school. During his sophomore year at byu, however, James became convinced that he had to choose a “real” major to prepare for law school, that is, until he heard Bruce Hafen speak to undergraduates interested in law. Dean Hafen indicated that law schools admit students from every academic discipline and that performance within the discipline was more important than the type of discipline. He also told the students that if they had a passion for something, they would excel at it. This was enough incentive for James to renew his theater scholarship and to appear in at least two byu dramatic pro- ductions each of his next three years. For two years law school intimidated James enough to keep him from audition- ing for any plays. However, by his third year, with an offer at the Phoenix ﬁrm of

Brown & Bain ﬁrmly in hand, he accepted Mark Philbrick the part of Stanley, opposite his brother, Scott, as Eugene, in the byu production of Neil Simon’s Broadway Bound. The play

40 Clark Memorandum USING SKILLS OF ORATORY WORTHY OF SIR THOMAS MORE,

HE KNOWS THAT “IT WAS A CRIMINAL DEFENSE

ATTORNEY THAT WOULD HAVE REPRESENTED JOSEPH SMITH.”

won a berth in the Irene Ryan American of their five children—Stephanie (11), tunities to play heroes. He comments that Collegiate Theater Festival held at the Christopher (9), James (7), Samantha (4), he could learn so much from playing a Kennedy Center in Washington, d.c. and Brett (6 months)—single-handedly for character like Captain Moroni, knowing Immediately following his law school con- several months while James was in that in the portrayal he would come to vocation at the Provo Tabernacle, James rehearsals. James refers to this opportuni- know the character and hence have a more flew to Washington, d.c., to perform in the ty as “Amy’s gift to me.” She sensed that profound sense of the character’s goodness. play. He won the Best Scene Partner he would be happier with the opportunity This tribute goes to both More and Bolt, Award at the competition, and his brother to act and knew that it would be a chance for it is Bolt who clothes More’s sainthood won the Best Actor Award. for their children to see an additional side with the appropriate cloak of speech. After two years in Phoenix at Brown of their father’s personality. The play provided another opportuni- & Bain and hoping for more trial experi- When asked what it was like to play ty for James to play opposite his brother, ence, James moved his family to Salt the part of Sir Thomas More, as interpret- Scott, who played the part of Thomas Lake City, where he worked first with ed by Robert Bolt, James responds, “I feel Cromwell. James and Scott Claflin have Berman & O’Rorke and then with forever better, forever improved for having the good fortune of being brothers and Scalley & Reading. He now does pre- been so intimately connected with such a closest friends. According to James, the dominantly criminal defense work as a great piece of work.” As a family man, opportunity to work with his brother for solo practitioner. Commenting on his James feels he had an advantage in inter- the first time since Broadway Bound was a work, James indicates his love of his con- preting More. He understands that for the singular pleasure. stitutionally-based practice, which com- sake of “principle,” More made a choice Among the lines James grew to revere pensates for being a part of a criminal that was not in his family’s best material in Bolt’s play was More’s stinging rebuke defense bar that is often misunderstood. interest. James discussed the difficulty of of Richard Rich who perjured himself and Using skills of oratory worthy of Sir keeping the first scene light, knowing how betrayed More in exchange for a govern- Thomas More, he knows that “it was a somber the second scene becomes. It is mental position in Wales: “It profits a man criminal defense attorney that would also a challenge to play a “saintly” man nothing to give his soul for the whole have represented Joseph Smith.” Also who would not see himself in that way. world.” This became the line printed on commenting on trial practice, James indi- Pondering the depth of More’s integri- the cast T-shirt for the production. A cates that it provided him with a “final ty, James feels that his own lawyering has mind filled with expressive lines as well as bit of growing up.” changed slightly. He indicates that he now a keen sense for the goodness of Thomas Law is a demanding profession, and pays even closer attention to principles More are two of the benefits carried from eight years had passed since James’ last and how they guide his life. He has an the production. performance. Another eight years might increasing consciousness that situational James vowed it will not be another have gone by were it not for the loving ethics are corrupt ethics, that following eight years before he acts in another play. intervention of his wife, Amy. She encour- guiding, immutable principles is the only This trial attorney/thespian has finally aged James to audition for a role in A Man antidote to the claim that one must wear accommodated two important parts of his for All Seasons and further encouraged him different hats for different roles. personality. For those of us who have to take the role once it was offered. Amy Having developed such profound feel- observed his acting, this accommodation did this knowing she would be taking care ings for More, James longs for other oppor- is one to be congratulated.

Clark Memorandum 41 John W. Welch: Safe at Home by Carl Cranney hile visiting a reception for the board of visitors at Associate Dean Kathy Pullins’ house, Professor John W. (Jack) Welch was w amused to see that the Pullinses’ welcome mat was an old home plate. (Kathy’s husband is the dean of baseball coaching at byu.) Kathy explained that they wanted people to feel “safe at home.” For Jack, “home” for many years has been the J. Reuben Clark Law School. “The Law School has been a wonderful ‘home base’ for the many projects I am involved in,” he says. As founder and former president of farms (Foundation for Ancient Research and Mormon Studies), editor of BYU Studies, and a teacher of several different classes, his projects may include anything from editing poetry for BYU Studies to displaying ancient Babylonian law tablets. He also has served on the Encyclopedia of Mormonism editorial board and is currently working on myriad projects, including monitoring farms’ work on volume 14 (of 20) of The Collected Works of Hugh Nibley. Jack was instrumental in bringing the Masada exhibit to byu in 1997. Originally, he conceived the idea while visiting the Archaeological Institute at the Hebrew University in Jerusalem on Mount Scopus. Arranging the preliminary legal contracts alone took nearly three years, but the reward was well worth it. According to Jack, the Masada exhibit was an “extraordinary and memorable part of my academic experience.” More than 175,000 people visited the popular exhibit during its six months at the byu Museum of Art. Jack spends about half his university time with the Law School, and he occu- pies the remaining time with various projects that are assigned him by the university, such as serving as editor of BYU Studies for the past eight years. BYU Studies is a quarterly lds journal featuring articles, essays, art, poetry, book reviews, and bibliographies dealing with academic

subjects of interest to Latter-day Saints. John Rees Besides the journal, BYU Studies also pub- lishes books and resource materials.

42 Clark Memorandum With BYU Studies celebrating its 40th Much like when he was practicing law, anniversary this year, Jack feels that “40 Jack still writes on the run. “You never years in the wilderness is long enough. know when the Muse will sit on your There are still people who don’t know shoulder,” he says. If he is driving and has a about us. The information we publish is thought, he will pull over to the side of the exciting. It’s new. It’s not the same old road and write a paragraph. Since he stuff. We’ve got new documents coming believes in a collaborative model of schol- out, new research that’s being done, new arship, he uses many different people to questions being asked.” help edit and critique his writings, from his Another of Jack’s current projects students to fellow editors and professors. includes a book he has been working on Even the family trip seems to transform intermittently for 20 years that deals with into written metaphors. Recently Jack and the legal trials in the Book of Mormon. In his family hiked the Grand Canyon from the book, he examines and analyzes the the north rim, a 28-mile round-trip. He trials, legal issues, procedures, and prece- says, “I found the whole hike down . . . a dents set by the cases. metaphor of descending into mortality and The university also keeps Jack busy back up, returning to where we started— teaching several classes. He teaches a class but not without a lot of pain.” on ancient Near Eastern and Biblical law Jack’s strong drive comes from his love that primarily deals with legal issues to of what he does. “I love exploring old sub- 600 b.c. The class is a springboard for jects. I love the challenge of reexploring studying law in the Book of Mormon. old subjects and thinking through and fig- (After all, Lehi’s party did leave Jerusalem uring out as much as I can about a topic,” about 600 b.c.) Masada and the World of he relates. “When I get up in the morning the New Testament, published by BYU I don’t ever say to myself, ‘Darn, I’ve got Studies, serves as a textbook for the New to go to the Law School this morning.’ I Testament class he co-teaches with John just love it.” Hall. At the Law School, Jack also teaches Yes, Jack still finds time for an active nonprofit and corporate tax courses. Church life. Recently released as the first When asked why someone who had stud- counselor in the byu 14th Stake presidency, ied Greek philosophy in the original he now teaches the high priests and a Greek at Oxford had become a tax lawyer, course in temple preparation. But his most his reply was, “If there is anything I have critical calling, he says, is as the executive read that is similar to reading Aristotle in assistant to the Relief Society president in Greek, its reading the complex regulations his ward (his wife, Jeannie). under the Internal Revenue Code.” Jack deeply believes that “someday Jack writes prolifically. Every day he we will all be asked, in the Final tries to block out time for writing. His list Judgment, what we’ve done with the tal- of published books and articles, from the ents we’ve been given. How have we used Jewish Law Association Studies to the them? How have we developed them?” Ensign, is exhaustive. Since 1969 he has He expresses, “I think that these things published more than 125 articles, books, are not given to us for our own amuse- reviews, and papers. ment or to satisfy our own curiosity but “You’ve not really thought about some- to do good in the world. My great joy thing until you’ve written about it,” says in this work is thinking that someone Jack. “I like the discipline and the self-dis- out there might read and benefit from covery that goes on in the writing process. anything that we publish at BYU Studies, How do I really know what I think until in the Law Review, at farms, or other I’ve written it out and examined and cri- places.” tiqued it? It’s an enriching process of self- The Law School has served as a good discovery and adventure into terrains that home base for Jack Welch. “So much of I’ve not explored very thoroughly before. I what I do radiates out from the approach- like thinking of things in new ways, putting es and the latitude that I have as a profes- old pieces together in ways that open up sor here,” he says. “I really do feel ‘safe new perspectives on old, familiar subjects.” at home.’”

Clark Memorandum 43 William Ka‘ua‘iwi‘ula‘okalani Wallace III The Caretaker of the Bones of His Ancestors by Scott W. Cameron

fter more than 40 years, William K. bones have been uncovered by developers Wallace III, ’84, is finally growing into over the past decades and deposited in his middle name, Ka‘ua‘iwi‘ula‘okalani, or boxes in the Bishop Museum in Honolulu. a “the red bones of the heavens.” “In 1994 Although not the first alumnus to Wallace went with his cousin, a member leave full-time law practice for other pur- of the Oahu Burial Council, to Kokololio suits, Wallace’s choice of careers, preserv- Beach Park in Hauula to rebury some ing Hawaiian and Polynesian culture and ancient bones that had been unearthed. language, has certainly been one of the Wallace recalled that when he reached for most interesting, and his reason for leav- the bones, ‘Suddenly I could hear my ing one of the most compelling. During grandmother’s voice ringing in my ear. law school he could not have predicted She said, “Now you are beginning to his career path. He spent his first two understand the purpose of your name.”’. . . years after graduation as assistant attor- Wallace realized his grandmother had ney general in American Samoa. He then given him a name he could not elude . . . returned to Hawaii and for four years Ka‘ua‘iwi‘ula‘okalani, [which] loosely trans- built his own general practice, specializing lated, means ‘the caretaker of the bones of in criminal defense. At the conclusion of your ancestors.’”1 his first major securities fraud defense Wallace and his cousin, Cy Bridges, cul- trial, where the jury held for his client, he tural island director at the Polynesian thought his practice was on the high road Cultural Center, were both Mormon bish- to success. However, his mentor from ops at the time. They believed that the the history department at byu—Hawaii, power of the priesthood made them sensi- Dr. Kenneth Baldridge, had another idea. tive to their responsibilities. Wallace said Baldridge told him that byu—Hawaii that, as he climbed into the hole that had needed a center for the study of Hawaiian been excavated and approached the bones, and Polynesian culture and that Wallace in addition to the prompting from his was the person to head it up. Although it grandmother he could hear the voice of a did not seem logical, in his heart Wallace young girl singing. After gathering the felt that he should accept. bones in a traditional woven basket, he told In joining the faculty to chair the archaeologists that the bones belonged to a Center for Hawaiian Language and young girl who was buried next to her Cultural Studies at byu—Hawaii in 1992, father. A week later an archaeologist came Wallace realizes that he was responding back to Wallace and verified that their tests to feelings of kinship with his ancestors. showed that the bones, in fact, belonged to He does not feel that he has abandoned a young girl of six or seven years and that law, but he has spent the past seven years the other bones were of a mature male. developing and teaching courses in Since this first incident, Wallace and Hawaiian and Pacific Island studies, Bridges have been involved with the rebur- Hawaiian language, Hawaiian history, and ial of the remains of 80 individuals whose the history of Polynesia. He has also

44 Clark Memorandum developed a passion for research projects by some people, because it was adjacent with upper-division students ranging from to an ancient Hawaiian temple, or hei‘au, cultural studies to environment studies, located on the campus of byu—Hawaii. from traditional family practices in a Wallace helped craft an agreement where- modern setting to native Hawaiian sover- by the treatment center would be built eignty. One of his recent projects has been and the hei‘au would be restored. Because to develop a course in land stewardship of his knowledge of Hawaiian culture, he and responsibility, in which the students was able to act as mouthpiece for the learn to plant and care for taro. elders in the community, the kapuna, in Wallace teaches his students as he, allowing the project to move forward. The in turn, was taught by his grandfather, restoration of the hei‘au will provide byu— William Sr., that planting is to be done Hawaii with the opportunity to demon- with prayer: “William Sr. often wrapped strate its desire to preserve both Hawaiian his grandson in a blanket and carried him culture and its sacred past. outside into the pre-dawn chill to let the In acting as a bridge between his cur- child watch as he planted. The senior rent students and their Polynesian ances- Wallace would rub soil tenderly into each tors, Wallace feels that he has not only plant’s roots, lift it to the sky and pray been caring for the bones of the dead, he aloud, “Kokua, kokua, Ke Akua,” or “Please has also been caring for the bones of the help, Father God.”2 living. As his students have learned from Although the connection between cul- their past and have grown to reverence the tural studies and law may seem tenuous, land and the ocean and the culture that has

John Snyder (2) Wallace has used the skills he acquired in grown from them, Wallace has been caring law school on a daily basis. He is no for their bones as well. By example, he has longer engaged in white-collar criminal also taught that the study of law can be an defense, but he continues to handle cases asset in solving problems wherever they involving abused and neglected children. might arise. His students at byu—Hawaii He has served as a guardian at litem and may have affectionately called him “Uncle consulted with the courts regarding the Billy,” but to his friends at the J. Reuben cultural relevance of the service plans in Clark Law School, Wallace will be remem- cases involving Tongan, Samoan, and bered as distinguished graduate William Hawaiian families. He has been asked to Ka‘ua‘iwi‘ula‘okalani Wallace iii, Esq., the speak several times at judicial conferences “caretaker of the bones of his ancestors.” on cultural perspectives. Wallace has combined his knowledge of dispute resolution with his cultural sensitivity to achieve favorable results. For 1 Esme M. Infante, “What Makes Us Ohana—A example, recently there was need to Tapestry of Peoples,” Honolulu Advertiser, February 22, 1999. expand the wastewater treatment plan in Laie. The plan was vehemently opposed 2Ibid., 3.

Clark Memorandum 45 days of intense competition, they not only BYU’s National Moot Court Champions left behind a favorable impression but they took with them first-place honors. The Irving R. Kaufman Memorial Security Law Moot Court Competition is held each spring at Fordham University School of Law in New York City. The Kaufman Competition is an interscholas- tic moot court competition that focuses on legal issues in federal securities law. It is held in honor of Judge Irving R. Kaufman, a Fordham alumnus who served on the United States Court of Appeals for the Second Circuit for many by LoAnn Fieldsted hen Jonathan Boyd, Maren Daines, and years, including a seven-year tenure as Dawn Hendrickson, second-year law stu- chief judge. The Kaufman Competition is dents at the J. Reuben Clark Law School, well respected among practitioners and flew to New York City on March 4, 1999, law schools and attracts a nationwide w 24 to compete in the th Annual Irving R. audience. This year, representatives from Kaufman Memorial Securities Law Moot 30 schools throughout the United States Court Competition, they looked forward and Canada participated. In order to compete in New York City, the byu team argued in moot court competitions for almost two years. During winter semester of the second year, the scores from both years of competitions were weighted to determine the team who would represent Brigham Young University at the national competition at Fordham University. The byu team knew they would face tough competition in New York City, and they also knew the judges would be demanding critics. Preliminary-round judges at the Kaufman Competition included, among others, experienced securities litigators from top New York City firms, law school professors, Securities and Exchange Commission practitioners, and legal in-house counsel at investment John Rees banks. The semifinal round panels consist- ed of partners from top law firms involved in securities and Internet legal issues. In Dawn Hendrickson and Jonathan Boyd to the week with eager anticipation. They addition, this year the competition was didn’t know what the next few days would honored to have Justice Antonin Scalia of bring, but they did know what they want- the United States Supreme Court, Judge ed. “All of us on the team from byu wanted Joseph McLaughlin of the Second Circuit, to do well, not only for ourselves but for and Judge Ilana Diamond Rovner of the Brigham Young University and for the J. Seventh Circuit presiding on the final- Reuben Clark Law School,” says Jonathan. round panel. Maren Daines appreciates “We all feel very strongly that we have a the opportunity she had to argue before great law school, and we wanted to make such distinguished panels of judges and sure, if we could, that the impression we feels the moot court experience is of great left with our competitors and with the value to law students. She says, “Because judges in New York was favorable.” When of moot court competitions, I was able to the byu team left New York City after four argue before u.s. Supreme Court justices

46 Clark Memorandum two times this year. These are memories I Jonathan didn’t go home. The team kept looked like ordinary people—people with will treasure for the rest of my life. Not advancing, taking it one day at a time, big titles, but still just ordinary people. many get to have this experience, and I one round at a time. Dawn remem- As soon as the competition began, how- realize these are opportunities I may not bers, “A fleeting moment of joy rushed ever, they no longer seemed so ordinary. have again.” through me each time our team was They roasted each of their opponents, But having this once-in-a-lifetime announced, followed by a rush of stress forcing them to rescind earlier statements opportunity did not come without prepa- as I realized that meant preparing all or to admit they simply didn’t know ration and hard work. The byu team heft- over again. The most exciting part of the something. Dawn says, “Jonathan argued ed a stack of 30 briefs onto the plane in competition was hearing our school’s third and answered their questions Salt Lake City, one from each school that name, Brigham Young, announced round like a master, unshaken and confident.” was participating in the competition, and after round, especially in light of the fact Jonathan felt it was a unique experience spent the five-and-a-half-hour plane flight that many schools present at the compe- to argue before Justice Scalia and says, poring through each brief and bouncing tition were unaware that byu even had a “His questions were detailed and focused, ideas off each other. Throughout their law school, and also knowing that part- and he expected answers that made sense. stay in New York City, the dedicated law ners in large New York City securities He isn’t the type to let you off the hook students continued to work. In fact, they firms were present as judges and were if he asks a hard question—you’ve got to didn’t take much time for sightseeing, just getting familiar with byu as a compe- answer the question, one way or the even though their hotel was situated in a tent law school.” The team members other. The other judges on the panel were great tourist location near Central Park were well aware that they were helping equally tenacious with their concerns . . . and Times Square. Dawn Hendrickson to build byu Law School’s reputation. and no oralist got off easy.” Dawn pre- recalls, “None of that mattered in the end, And build that reputation they did. sented her arguments last, and after she since we worked in our hotel rooms all After the byu team had advanced through finished, she says, she felt uncertain day, taking fresh air only to grab a bite to the preliminary rounds, the round of 16, whether they had won. When the judges eat or traverse the one city block to par- the quarter finals, and the semifinals, it emerged from deliberations, however, ticipate in another round of competition.” was announced that byu would face Wake they announced Jonathan Boyd as Best Jonathan Boyd adds, “When you keep Forest in the final round. The byu law stu- Oralist and Brigham Young University as winning and advancing to the next round, dents knew they had a lot to do to get Best Team, an honor that would make the little time you have between rounds is ready for the event. Two of the three any law school proud. too precious to be spent on sightseeing. team members would compete the next The byu Law School is indeed proud Our team argued six times in four days. It day, and they had a big decision to make. of these students. Not only did they help was an oft-repeated cycle of preparation, Jonathan had competed each round argu- build the reputation of the J. Reuben performance, and critique that never ing Issue One, so they determined that Clark Law School by winning a national seemed to get any easier, regardless of he should continue arguing. Maren and moot court competition, but they repre- how many times we did it.” Dawn had alternated arguing Issue Two sented byu and the Church in a posi- Though the byu law students found in the preceding rounds. Dawn argued tive way. Dawn recalls that “throughout the week of preparation and competition the petitioner side, and Maren argued the the competition, many individuals from stressful, the team members also saw a respondent side. As the coin tosses had other schools and judges for the com- positive side of their experience. Maren fallen, they had argued petitioner four of petition asked about Brigham Young, relates, “Not only did we have the oppor- the five rounds, so Dawn had done most the honor code, the Church, and our tunity to represent our school, but this of the arguing at that point. Now, in the standards. We were pleased to be ‘ambas- intense experience of arguing and prepar- final round, they had been assigned to the sadors’ from byu.” These remarkable ing every day, developed our skills— side of respondent. Maren felt, though, students are also grateful for the oppor- skills that will be valuable in our future that Dawn should argue, since she had tunity the Law School gave them to practices.” argued most of the rounds and because compete in moot court competitions. The byu team knew there were six she had already had the opportunity to Maren states, “It would be much more total rounds of competition, including argue before a u.s. Supreme Court justice, difficult to hone our advocacy skills the final round, but didn’t anticipate Justice Clarence Thomas, a few months without this opportunity. We are grateful advancing all the way to the finals. “If we earlier at a moot court competition held that money is set aside for this purpose. had,” Dawn says, “the task would have at byu. In the spirit of teamwork, Maren It’s interesting to see ourselves compete seemed overwhelming at that point.” In selflessly relinquished the opportunity to against other schools—to see the skills of fact, each night Jonathan would tell his argue before Justice Scalia and told Dawn others and to learn from their tech- teammates that if they didn’t advance, he to step in. niques.” It’s clear, though, that other would fly home the next day to be with The final round was intimidating. moot court competitors can learn a thing his wife, who had just given birth to When the justices entered the room, or two from the award-winning team their baby the previous week. But Dawn says she was amazed to see they representing byu.

Clark Memorandum 47 Professor Larry EchoHawk to Serve on cymaker often focused on juveniles. As a National Council Bannock County prosecuting attorney from 1986 to 1990, he was responsible for juvenile cases in Idaho’s fourth largest Larry EchoHawk, a professor at the J. county. Before that, he was a member of Reuben Clark Law School, was recently Idaho’s House of Representatives. From appointed by President Clinton to the 1977 to 1986 EchoHawk was chief general National Coordinating Council on Juvenile counsel for the Bannock-Shoshone tribes, Justice and Delinquency Prevention. serving as special prosecutor for the Attorney General Janet Reno is the chair Navajo Nation in 1985. He has also of the council and makes recommenda- served on the boards of American Indian Clark Memorandum Draws Awards tions to Congress and the president each Services and the Land and Water Fund year. The council coordinates all federal of the Rockies and as vice president of Continuing a tradition of strong graphic programs that care for unaccompanied the National Association of Attorneys design and content, the magazine of the J. juveniles or relate to missing and exploited General. He received a bachelor’s degree Reuben Clark Law Society and the jrc Law children. It examines how separate pro- from byu in 1970 and a jd degree from the School has earned prestigious awards from grams can be coordinated among federal, University of Utah in 1973. three organizations for its 1998 publications. state, and local governments to better serve Because of his background as a policy- “For its creative design, excellent use at-risk children and juveniles. maker, prosecutor, and professor of crim- of resources, and substantive content,” Professor EchoHawk believes that the inal law and criminal procedure, EchoHawk the Clark Memorandum received a silver recent killing spree by two teenagers at has been contacted by the White House medal in the special constituency maga- Columbine High School Personnel Ofﬁce several zines category of the 1998 annual Council in Littleton, Colorado, times over the past years for the Advancement and Support of will undoubtedly intensi- to take full-time posi- Education (case) Circle of Excellence fy the work of the coun- tions. Each time he has Award Program. The national award was cil. He expects it will declined because of his the highest given in its category this year examine issues relating work at the Law School. and honors the spring/summer and winter to what causes teenagers However, the appoint- issues. case also applauded the magazine to act so violently, what ment to serve on the with gold and silver medals for editorial

can be done to iden- National Coordinating design of two feature spreads in the win- EchoHawk of Larry Photo courtesy tify dangerous youth in Council on Juvenile ter issue, designed by David Eliason. advance, whether some- Justice and Delinquency The Clark Memorandum received a thing more can be Prevention interests him, Copper Ingot Award from the Salt Lake done to keep guns and not only because it is City Chapter of the American Institute bombs out of the hands a part-time position but of Graphic Arts (aiga). The award, one of teenagers, and how because of the issues of 10 chosen from the 100 best pieces of to better safeguard chil- the council focuses on. design and advertising during the year, dren attending schools. Commenting on his distinguishes the overall design of the EchoHawk feels that the council will for- appointment to the council, EchoHawk spring/summer issue by Linda Sullivan. mulate recommendations to Congress for says, “I hope to use the experience I have In addition, the publication received enactment of new laws to address these gained as a county prosecutor, state attor- a Merit Award from the Society of important issues. Council members may ney general, and criminal law professor to Publication Designers during its 34th annual also be called upon to testify on various try to improve how the resources of the competition. Selected from more than 7,500 bills that may be considered by Congress. federal government are used to address the worldwide submissions, the spring/summer “I look forward to participating in these growing problem of juvenile violence in and winter issues of Clark Memorandum are discussions,” EchoHawk says. “I am partic- America. I also have a special interest in showcased in the spd’s Publication Design ularly interested in trying to ﬁnd ways to addressing the factors contributing to the Annual and Exhibition in New York City. lessen the exposure our children have to increase in juvenile violence and delinquen- The full-color, 266-page annual contains the violence on television, video games, and cy occurring within Indian reservation work of the graphic industry’s leading the Internet.” communities. Hopefully, this experience designers, photographers, and illustrators. Juvenile-related issues are not new to will lead me to do legal research and writ- The spd award recognizes the cover of EchoHawk. Prior to joining the Law ing in the area of juvenile justice.” Professor the spring/summer issue, designed by Linda School faculty in 1995, he served as EchoHawk began his appointment in Sullivan, and a feature spread of the winter Idaho’s attorney general from 1990 to March and will meet with the council quar- issue, designed by David Eliason with pho- 1994, where his responsibilities as a poli- terly in Washington, d.c. tography by John Snyder.

48 Clark Memorandum Clark Memorandum J. Reuben Clark Law Society J. Reuben Clark Law School Brigham Young University