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Spring 2010 Clark Memorandum: Spring 2010 J. Reuben Clark Law Society

BYU Law School Alumni Association

J. Reuben Clark Law School

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Recommended Citation J. Reuben Clark Law Society, BYU Law School Alumni Association, and J. Reuben Clark Law School, "Clark Memorandum: Spring 2010" (2010). The Clark Memorandum. 47. https://digitalcommons.law.byu.edu/clarkmemorandum/47

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n n [ t h e m o s t i m p o r t a n t t h r e e

things in the world [ c o n t e n t s rataedl cover photograph

Still on the Border: The Fractured Membership Rights of the The Most Important Undocumented Worker Three Things in the World Carolina Núñez Brett G. Scharffs

m e m o r a n d a “Unto Whom + conference excerpt Much Is Given” + new era excerpt James R. Rasband + a w a r d s a n d appointments Stories That Defined + in memoriam Our Law School + class notes Dale A. Kimball + life in the law­

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James R. Rasband, p u b l i s h e r

Scott W. Cameron, executive editor

Jane H. Wise, e d i t o r

Joyce Janetski, associate editor

David Eliason, art director

Bradley Slade, photographer

The Clark Memorandum is published by J. Reuben Clark Law Society, the byu Law School Alumni Association, and J. Reuben Clark Law School, Brigham Young University. © Copyright 2010 by Brigham Young University. All rights reserved.

J. Reuben Clark Law Society draws on the philosophy and personal example of the Law School’s namesake, J. Reuben Clark Jr., in fulfilling the following mission: We affirm the strength brought to the law by a lawyer’s personal religious conviction. We strive through public service and professional excellence to promote fairness and virtue founded upon the rule of law. the most important

by brett g. scharffs 1

i n t h e w o r l d

I wish to thank President express my gratitude for Sophelia, and Ella. They are Samuelson, Academic the beautiful music and missing school to be here, Vice President Tanner, to Megan Grant and so I know I have a grateful and Advancement Vice Suzanne Disparte for their audience of at least three. President Worthen for prayers. They are two of As I prepared to speak the opportunity to speak my research assistants who with you today, I actually today. I am grateful for prop me up on a daily basis; worked through three these devotionals and the so it is entirely fitting that different topics, each more occasion they give us to they do the same thing here. personal than the last, and explore what it means to I want to also acknowledge I hope you will forgive me be a community of faith my father and stepmother; as I speak from the heart as well as a community my wife, Deirdre; and about some aspects of my of reason. I want to my three children, Elliot, own journey of faith.

4.)))).)))))))).)))))))).)))))))).)))))))).)))))))).))))))))))))).)$This address was given at a devotional at Brigham Young University on May 12, 2009.

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I traveled in my mind’s eye back to my are the foundational Christian virtues. Each and we can see clearly in every direction. student days. At Oxford University I attended is a trait of character to be cultivated and There is something quite beautiful about a series of lectures in which a famous and developed. Each is a set of attitudes and this stage of faith. To me it is exemplified by fashionable professor asserted confidently that beliefs to guide thought and action. Each is hearing a chorus of Primary children sing “I the study of ancient Greek philosophy was a choice. Each is a gift from God. Know My Father Lives.”9 one of the three best things in life. With a sly Faith, hope, and charity may be likened to The second stage Ricoeur calls the desert smile and an arched eyebrow, he did not tell us the three legs of a stool. As a boy visiting my of criticism. At some point, often during out loud what he thought the other two were. grandmother’s farm, I was impressed with adolescence, we descend from the mountain But his assertion left me wondering: the three-legged stool used for milking cows. of childlike faith and enter the critical world. What are the most important three things Just as the stool’s three legs enabled it to rest We might label this world “high school” or, in the world? Later, during my personal firmly on uneven ground, if we are grounded better yet, “college.” Here we find that others scripture study, I searched the Topical Guide in faith, hope, and charity, we too will be on do not share our faith. In fact, some openly for inspiration and was led to Paul’s famous solid footing, even when the ground beneath disparage what we hold dear. We learn that formulation in 1 Corinthians: us is rough or bumpy. Just as a one- or two- the very idea of faith is thought by many to legged stool will teeter precariously, we too be childish or delusional. We may become Though I speak with the tongues of men and will be vulnerable to toppling over if we skeptical, perhaps even cynical. of angels, and have not charity, I am become as neglect any of these three virtues. The desert of criticism is akin to being in sounding brass, or a tinkling cymbal. In my study of this topic, I’ve noticed the midst of a blinding sandstorm, where you And though I have the gift of prophecy, and ­several things. First, faith, hope, and charity are forced to lean into the wind and take one understand all mysteries, and all knowledge; and are mutually reinforcing. An increase in one step at a time without a clear view of where though I have all faith, so that I could remove tends to result in an increase in the others. If we you are going. Walking by faith becomes mountains, and have not charity, I am nothing. . . . are feeling weak with respect to one, we can difficult. Some of our former beliefs cannot And now abideth faith, hope, charity, these gather strength by focusing on the other two. survive the desert of criticism. three; but the greatest of these is charity.2 There is also a temporal dimension to the Ricoeur did not malign the desert of relationship. Faith is rooted in the past—in criticism, for some childish beliefs are At the very end of the Book of Mormon, Christ’s death and resurrection and in His incorrect and should be abandoned. As the after completing his abridgement of the Atonement for our sins. Hope is focused Apostle Paul says in his discourse on faith, Jaredite record, the prophet Moroni is on the future—in the promise that through hope, and charity, “When I was a child, I surprised to find that he is not dead3 yet. Christ’s Atonement and by the covenants we spake as a child, I understood as a child, I Fortunately, he catches a second wind and make and keep, we can return to the presence thought as a child: but when I became a man, recounts a few of his father’s teachings, of our Father in Heaven. And charity is I put away childish things.”10 ­including Mormon’s powerful discourse enacted in the present—because it is only Furthermore, it is only in coming down on faith, hope, and charity.4 And then, in here and now that we can really love. from the mountain that we are able to enter Moroni 10, the last chapter of the Book of There is also a dimension of progression into the world and engage others who are Mormon, Moroni returns to this theme as he and culmination: faith and hope lead to different from us. To a great extent this is offers his final exhortations. (By my count, charity, and it is charity—Christ’s love for where life is lived and where we can make in that chapter alone he uses the words us—that never fails.6 If we desire to develop a difference in the world. Some people exhortation or exhort nine times.) Moroni says: and be endowed with this Christlike love, it never leave the desert of criticism, and will be by traveling the road of faith and hope. in time the memory of their childlike faith And I would exhort you, my beloved brethren, may dim. After prolonged exposure to the i - faith that ye remember that every good gift cometh of # 3 desert of criticism, some even lose their faith Christ. . . . First, a few words about faith. altogether. Ricoeur maintained that once Wherefore, there must be faith; and if there As a freshman at Georgetown University, one has entered the desert of criticism, it is must be faith there must also be hope; and if there I took a required course, The Problem of not possible to return to the mountain of must be hope there must also be charity. God, from a wonderful professor, Dr. John F. childlike faith. It is a little like leaving Eden. And except ye have charity ye can in nowise Haught. This Catholic theologian became one Something has been lost; life and faith can be saved in the kingdom of God; neither can ye be of my most influential teachers and mentors. never be quite so simple again.11 saved in the kingdom of God if ye have not faith; One day toward the end of fall semester, But he held out the possibility of a third neither can ye if ye have no hope.5 Dr. Haught introduced theologian Paul stage of religious faith. On the other side of Ricoeur’s concept of the three stages of the desert of criticism lies another mountain, Today I would like to spend our time together religious faith.7 not as tall as the mountain of childlike faith, talking about faith, hope, and charity. The first stage, childlike faith, may be with views that are not quite as clear and These are not simply three good things likened to the clear, unimpeded view that unobstructed. But we can, as Dr. Haught on a list. In a certain sense, they are the most one enjoys standing atop a tall mountain.8 As explained it, remove ourselves periodically ­important three things in the world. They children, our faith is simple and uncritical, from the desert of criticism and ascend this

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more impressive than the fact that god could save shadrach, meshach, and abed-nego was that they could trust god.

somewhat less majestic mountain. Ricoeur As Paul puts it, “Brethren, be not children the story.14 King Nebuchadnezzar com- calls this possibility of a second faith “post- in understanding: howbeit in malice be ye manded all his subjects to worship a golden critical naïveté” or a “second naïveté.”12 ­children, but in understanding be men.”13 image, and these three young men boldly Here the truths and realities of our childlike My father told me about an experience refused. They were condemned to death by faith can be reaffirmed or revised. Although he had when he was roughly the age of most fire. The furnace was heated to seven times its the view is not completely unimpeded, and of you. As a young adult he was, in a sense, normal strength15 and was so hot that the guards the storms of the desert of criticism remain in the desert of criticism and found himself around it were consumed by the flames.16 As in view, and some of our childish beliefs may questioning his faith and the Church. One the three young men walked out of the fiery be left behind, we can emerge from the storm day he took out a pad of paper and made a furnace, not a hair of their heads was singed, and reaffirm our faith. Our faith will not be list of his criticisms and doubts. He put the their coats were not burned, and they didn’t as simple as it once was, but it need not be list in a drawer and forgot about it. Years later even smell like smoke.17 That’s impressive. lost. In fact, I believe our faith may become he found it again, and he was surprised that But to me there is another aspect to the more powerful than before, for it will have nearly every concern had been answered in story that is even more impressive. When weathered and survived the assaults of the his mind and in his heart. He reflected upon Shadrach, Meshach, and Abed-nego addressed desert of criticism. how different his life, and the lives of his King Nebuchadnezzar before being thrown To me, postcritical naïveté is a state in posterity, would have been if he had followed into the fire, they declared: which both our hearts and our minds are open his ­questions and concerns out of the Church. and we remain willing to experience childlike One of my favorite stories that illustrates Our God whom we serve is able to deliver us from spiritual wonder; it is a place where we remain what faith and trust mean is the account of the burning fiery furnace, and he will deliver us out open to the promptings of the Holy Spirit. Shadrach, Meshach, and Abed-nego. You recall of thine hand, O king.

clark memorandum 5 But if not, be it known unto thee, O king, that repeated this in my mind with the revolution there is comfort in the concept of hope, we will not serve thy gods, nor worship the golden of the bicycle pedals: “Honor your priest- understood as a quiet confidence and belief image which thou hast set up.18 hood, remember your covenants. Honor that my best will be good enough and that your priesthood, remember your covenants.” Jesus Christ is there to carry me the rest of The words that impress me are “but if not.” I I stopped my bike, looked up to heaven, the way. understand Shadrach, Meshach, and Abed- and exclaimed, perhaps audibly, “You don’t Maybe because I am a lawyer, one of my nego to be saying that even if God, for His care where I go to law school! You want favorite descriptions of the Savior is that He own reasons, does not intervene to save me to honor my priesthood and keep my is our Advocate. Both John and Mormon them, they will not question or doubt His covenants.” As I spoke these words, I was describe Jesus Christ as our Advocate with the power and goodness. Their trust in God is flooded with the classic confirmation of the Father.22 And in the Doctrine and Covenants unequivocal.19 Holy Spirit, a combination of a shiver down we read: Trust like that is not easy. Faith is not my spine and a burning in my chest that was the power to bend God’s will to ours, but so strong I could hardly stand it. Listen to him who is the advocate with the rather the power to align our will with that of So I went to the law school of my choice. Father, who is pleading your cause before him— Heavenly Father. During my years there, when I was tempted to Saying: Father, behold the sufferings and death God is mighty to save, but sometimes He think too much of myself or to be too caught of him who did no sin, in whom thou wast well does not intervene in the affairs of men. He up in the cares and preoccupations with pleased. . . . allows mind-boggling evil and suffering in which I was surrounded, I thought often, Wherefore, Father, spare these my brethren that the world. He allows us to hurt each other in “Brett, honor your priesthood and remember believe on my name, that they may come unto me unimaginable ways. To me, more impressive your covenants.” It was precisely the message and have everlasting life.23 than the fact that God could save Shadrach, I needed to keep me on track during those Meshach, and Abed-nego was that they three years of law school. My prayers had Perhaps less familiar is the description of could trust God, whatever the physical been answered in a deeply meaningful—but Satan, who is not our advocate but is rather outcome of their being thrown into the fire.20 entirely unexpected—way. our accuser. Revelations 12:10 says: In my experience, sometimes God gives I have had the opposite experience as well, us direction that is unmistakable and clear. in which I was directed to a particular place. And I heard a loud voice saying in heaven, Now But the answers to our prayers do not always On those occasions, too, the answer was is come salvation, and strength, and the kingdom come in the time frame and way we expect. sometimes quite different than I expected. of our God, and the power of his Christ: for the Perhaps you will indulge me another accuser of our brethren is cast down, which accused ii - hope personal story. I had the dream of becoming # 3 them before our God day and night. a law professor even before I went to law A few words about hope. Hope is not school. In an abundance of caution, I applied just a positive attitude, a sunny disposition, Isn’t this description of Satan interesting? to 10 schools and found myself in a fortunate or looking on the bright side of life. Hope is He accuses us before God both night and situation, like you have, with a number of rooted in Jesus Christ and the prospect of day. Lucifer is relentless in his desire to good choices. being with Him back in the presence of God. accuse and convict us before God.24 I knew where I wanted to attend, but I Deep down, it is a surrender and a trust in In our own lives we often hear voices decided to ask Heavenly Father. I prayed and God and His promises—that He, and they, that tell us that we are not good enough and pondered without receiving an answer. As the are real. Shadrach, Meshach, and Abed-nego that we are unworthy or even unredeemable. days turned to weeks, I’m sorry to say I grew had hope, but not just that they would survive Sometimes, and most dangerously, these impatient, annoyed, and perhaps even angry. the fiery furnace. They also had confidence voices come from within our own heads and “If I’m willing to do your will,” I complained, in God’s plan. hearts. I believe that these voices, external “you could at least have the common courtesy Hope is neither ethereal nor wispy; it is an and internal, are often tools and messages of to tell me what your will is.” anchor for the soul. Hope is focused on the the adversary. If he can convince us that we After weeks had passed, I decided to future and gives us the disciple’s perspective are failures, or if he can persuade us that we make a more serious attempt. I climbed on that the current state of affairs will not last. are good for nothing, unloved, or unlovable, my bicycle and rode to a quiet place beside Hope is not simply the truism “This too shall then he is succeeding in accomplishing his a small river a few miles out of town. I spent pass,” helpful though that truism is.21 Rather, work and his glory, to bring to pass the death the day on my knees with my scriptures and hope is a quiet confidence about what shall and eternal damnation of mankind.25 a notebook. Finally, as the shadows grew come to pass—that Christ is mighty to save Which voice will we heed—that of the long, I gave up in frustration. I was pounding and that His grace is sufficient for us. Savior, whose message is that even when we the pedals on my bicycle as I rode home. Perhaps the reason I am so drawn to the stray or fail, His hand is outstretched still,26 Gradually I calmed, and my cadence slowed. concepts of faith, hope, and charity is that or that of Satan, whose aim is to make us A thought entered my mind, at first faint, even though I work hard and am reasonably miserable like unto himself?27 and then increasingly distinct: “Honor your diligent, sometimes I get discouraged or Not only is the Savior our Advocate with priesthood and remember your covenants.” I frustrated with my own limitations. For me the Father, pleading for us, but Jesus also

6 clark memorandum pleads with us to keep His commandments so Discourse is always incomplete and always that we may enjoy the complete blessings of requires interpretation, filling in missing premises, His Atonement: understanding ambiguities, etc. Our rational reconstructions depend on charity because we Hearken, O ye people of my church, to whom are inevitably making choices in understanding the kingdom has been given; hearken ye and give ear another.40 . . . Listen to him who is the advocate with the In striving to become charitable listeners, Father, who is pleading your cause before him . . . we may gain an increased appreciation for Hearken, O ye people of my church, and ye Mormon’s observation that an essential elders listen together, and hear my voice while it is component of charity is being “meek and called today, and harden not your hearts.28 lowly in heart.”41 It takes a certain measure of humility to strive to understand others rather For example, the passage in d&c 45 we than to construe them in a way that serves just read, about Christ being our Advocate our purposes. pleading for us, is bookended by Jesus Consider Mormon’s description of charity pleading with us to hearken, give ear, hear His while focusing specifically on seeking to voice, and harden not our hearts.29 become a charitable listener:

iii - charity # 3 And charity suffereth long, and is kind, and Finally, charity. The importance of envieth not, and is not puffed up, seeketh not her charity can scarcely be overstated. The own, is not easily provoked, thinketh no evil, and Apostle Paul calls charity the greatest of rejoiceth not in iniquity but rejoiceth in the truth.42 all things30 and says that without it we are nothing.31 Mormon urges us to “cleave This is an impressive road map of how we unto charity,”32 and the Doctrine and should listen to one another. Covenants instructs us to clothe ourselves in it.33 Paul mentions charity 75 times and Charity in Giving calls it “the end of the commandment,”34 The second degree of charity involves and John mentions it 30 times.35 Amulek the way we give to and seek to serve others. puts it starkly: “If ye do not remember to Charity in this sense is often associated be charitable, ye are as dross, which the with almsgiving, which can easily lead to refiners do cast out, (it being of no worth) a distorted understanding of what charity and is trodden under foot of men.”36 really means. The British have a phrase, “as Perhaps picking up on the concept of the cold as charity,” which they use to describe three degrees of glory, I like to think of three the heart and attitude of charity given in a degrees of charity. The first involves how we t h o u g h way that is condescending or self-righteous. listen, the second how we give, and the third i h a v e a l l When we act with genuine charity, we how we love. seek to lift others up or to give them a boost, f a i t h , ­perhaps while we stay below.43 Charity in Listening s o t h a t i The first degree of charity involves the Charity in Loving way we listen to and seek to understand c o u l d The third degree of charity involves the others. Charity in this sense is often r e m o v e way we care for and love others. Charity in associated with being fair-minded and giving this sense is celestial. others the benefit of the doubt.37 m o u n t a i n s , Perhaps the most moving definition of This sense of charity is captured in a n d h a v e charity is found in the Book of Mormon. The The Oxford English Dictionary’s definition of prophet Mormon declared, “Charity is the charitable as “inclined to think no evil of others, n o t pure love of Christ, and it endureth forever; to put the most favourable construction on c h a r i t y , and whoso is found possessed of it at the last their actions.”38 This definition echoes Paul, day, it shall be well with him.”44 who declares that charity “thinketh no evil.”39 i a m There seems to be a progression from The philosopher Eugene Garver has n o t h i n g . the easier to the more difficult among the written thoughtfully about what it means to three degrees of charity. We cannot hope to listen and understand with charity: have genuine charity if we are not charitable

clark memorandum 7 as listeners and givers. Not surprisingly, cultivating the “pure love of Christ” involves taking steps. We do not simply develop such love instantly; for most of us, it will be a lifelong process. Ultimately, it is a gift of God. # conclusion 3 In conclusion, I stand with Paul in declaring the centrality of faith, hope, and charity. In saying this, I am constrained to acknowledge that we often find most appealing those ideals that we recognize we fall short of ourselves. This is certainly true in this case with me. Nevertheless, I do have faith. God is our Father and we are His children, with all that implies. I pray that the wind and dust in the desert of criticism will not blind us to the truths of the gospel and that we may seek and find our own postcritical naïveté—a place where we can sing with wholehearted childlike amazement (as we have this morning):

Then sings my soul, my Savior God, to thee, How great thou art! How great thou art!45

I testify that Jesus Christ is the Savior and Redeemer of the world, and of you and even of me, and that He is mighty to save!46 This faith gives me hope that Christ’s Atonement is sufficient for us—for you 4.)))).)))))))).)))))))).)))))))).)))))))))))))))))))).)$I am grateful that our Savior is our Advocate with the Father. and for me. I have hope that through the principles and ordinances of the gospel and by making and keeping covenants, we will be saved as “children of God: and if children, then heirs; . . . joint-heirs with Christ.”47 I am n o t e s 50 articles and book chapters and has made more than 150 grateful that our Savior is our Advocate with scholarly presentations in 20 countries. He is currently the Father, pleading for us, and also pleading 1 Brett Scharffs is professor of law at J. Reuben Clark finishing two books: Law and the Limits of Logic and with us, to come unto Him. Law School at Brigham Young University and associate Law and Religion: u.s., International, and Comparative Law I testify that charity—Heavenly Father and director of the International Center for Law and Religion Perspectives. He is currently program chair of the Law Jesus Christ’s pure love for us—is real. I pray Studies. Professor Scharffs is a graduate of Georgetown and Religion Section of the Association of American that we may be blessed with a more abundant University, where he received a bsba in international Law Schools (aals). He and his wife, Deirdre Mason measure of charity in accordance with the work business and an ma in philosophy. He was a Rhodes Crane Scharffs, are the parents of three children. Thanks of our hands and the desires of our hearts. scholar at Oxford University, where he earned a BPhil to Suzanne Disparte and Megan Grant for research Finally, I am grateful that “God so loved in philosophy. He received his jd from Yale Law School, assistance. Copyright © Brett G. Scharffs, 2009. the world, that he gave his only begotten where he was senior editor of the Yale Law Journal. 2 1 Corinthians 13:1–2, 13. Son, that whosoever believeth in him should Professor Scharffs was a law clerk on the u.s. Court of 3 See Moroni 1:4 . not perish, but have everlasting life.”48 In the Appeals, d.c. Circuit, and worked as a legal assistant 4 See Moroni 7:20–48 (verses 20–39 discuss faith, 40–43 name of Jesus Christ, amen. at the Iran-u.s. Claims Tribunal in The Hague. Before hope, and 44–48 charity). teaching at byu, he worked as an attorney for the New 5 Moroni 10:18, 20–21. art credits York law firm Sullivan & Cromwell. He has previously 6 See 1 Corinthians 13:8. taught at Yale University and The George Washington 7 Dr. Haught’s discussion was an adaption of Paul Pages 3, 7, and back cover: Christ Church Cathedral, Oxford, University Law School and is a recurring visiting Ricoeur’s thought. See Paul Ricoeur, The Symbolism of Ralph Williamson. Page 5: rataedl. Page 8: © by Intellectual professor each year at Central European University in Evil, trans. Emerson Buchanan (Boston, Massachusetts: Reserve, Inc. Budapest. In his 12-year academic career, he has written Beacon Press, 1967), at 347–57; see also John F. Haught,

8 clark memorandum The Cosmic Adventure: Science, Religion and the Quest for (Abraham Lincoln, address before the Wisconsin State to bear with their failings and infirmities” (ed. Alexander Purpose (New York: Paulist Press, 1984), at 94–95. Agricultural Society, Milwaukee, Wisconsin [Sept. Cruden [Grand Rapids, Michigan: Baker Book House: 8 Ricoeur calls this “primitive naïveté” or a “precritical 30, 1859], in 3 The Collected Works of Abraham 1958], s.v. “charity”). form of immediate belief” (Symbolism of Evil, at 351–52). Lincoln, 471, 481–82 [Roy P. Basler ed., 1953].) 39 1 Corinthians 13:5. 9 Songbook, 5. 22 See 1 John 2:1–2 and Moroni 7:28. 40 Eugene Garver, “Why Should Anybody Listen? The 10 1 Corinthians 13:11. 23 d&c 45:3–5. Rhetoric of Religious Argument in Democracy,” 36 11 See Symbolism of Evil, at 351 (“Does that mean that we 24 I express gratitude to Louis Pope for drawing my Wake For. L. Rev. 353, 378–79 (2001). Garver continues, could go back to a primitive naïveté? Not at all. In attention to the distinction between Jesus Christ the “Like friendship, being trustworthy involves complicated every way, something has been lost, irremediably lost: Advocate and Lucifer the accuser. relations between speaker and hearer” (“Why Should immediacy of belief.”). 25 Compare Moses 1:39 with Moses 4:3–4. Anybody Listen?” 378). Thus, listening with charity 12 Symbolism of Evil, at 352 (“I believe that being can still 26 See 2 Nephi 1:14–15 and Jacob 6:5. involves not just the skillful use of techniques; rather it speak to me—no longer, of course, under the precritical 27 See 2 Nephi 2:27. reflects a certain type of disposition or character. Indeed, form of immediate belief, but as the second immediacy 28 d&c 45:1, 3, 6. the techniques may vary. For example, sometimes charity aimed at by hermeneutics. This second naïveté aims to be 29 d&c 45:1 begins, “Hearken, O ye people of my church, requires looking beyond the words spoken, while the postcritical equivalent of the precritical hierophany.”). to whom the kingdom has been given; hearken ye and sometimes it requires taking words at face value. But the 13 1 Corinthians 14:20. give ear to him who laid the foundation of the earth.” underlying attitude of the charitable listener will remain 14 See Daniel 3. And in verse six, the verse following the passage about constant. Listening with charity will always involve 15 Daniel 3:19. Jesus pleading our cause, Christ again pleads with us: generosity, trust, good faith, and being large hearted 16 Daniel 3:22. “Hearken, O ye people of my church, and ye elders listen and fair-minded. 17 Daniel 3:27. together, and hear my voice while it is called today, 41 Moroni 7:44. 18 Daniel 3:17–18 (emphasis added). and harden not your hearts.” We see something similar 42 Moroni 7:45. 19 I express my gratitude to Brent Bowles for helping in Moroni’s account of his father Mormon’s words, in 43 It may be that because the modern ear associates the me appreciate this aspect of this story. See Dennis E. which Mormon pleads with us to “cleave unto every word charity with alms-giving, and because such giving Simmons, “But If Not . . . ,” Ensign, May 2004, 73–75. good thing” (Moroni 7:28) and teaches that Christ has often magnifies rather than reduces the differences 20 Many years ago I heard a story about a pioneer couple, and said, “Repent all ye ends of the earth, and come unto between ourselves and others, that most modern it deeply impressed me. They had joined the Church and, me, and be baptized in my name, and have faith in translations of the New Testament render the Greek with their infant child, made the difficult trek to Utah. me, that ye may be saved” (Moroni 7:34). The passage word agape as love, rather than charity, in order to avoid Their journey was treacherous, and along the way their in 1 John describing Jesus as our Advocate with the the minimalist, even negative, associations of charity. only child died. Husband and wife were heartbroken, and Father is also followed with an admonition to keep the The Encyclopedia Americana notes, however, that “in neither would ever be the same again. But their responses commandments (see 1 John 2:3–5). the Middle Ages the Latin word caritas, from which to this tragedy were very different. The husband became 30 See 1 Corinthians 13:13; see also Moroni 7:46. charity is derived, was filled with the richest meanings hard, bitter, and angry with God and the Church, and 31 See 1 Corinthians 13:2; see also Moroni 7:46. of self-denial and self-sacrifice for the sake of others. It he developed a heart of stone. His wife, on the other 32 Moroni 7:46. was only in the post-Reformation period that charity hand, became more empathetic to the suffering of others 33 d&c 88:125. became identified with alms-giving. To the Reformers, and developed a deep spirituality and trust in Heavenly 34 1 Timothy 1:5. giving alms was a pretended means of winning merit, Father. Her heart became tender and soft. 35 See, e.g., 1 John 4:8; see also Ether 12:34. and this led to the rejection of ‘charity’ in Biblical texts Perhaps this story made such an impression on me 36 Alma 34:29. and hence in general religious usage among Protestants.” because I recognized in myself the capacity to respond 37 When listening with charity, we are not primarily Nevertheless, The Encyclopedia Americana continues, to life in both of these ways. When confronted with concerned with ourselves and planning our response, but “the word is too rich in meaning to be abandoned: pure disappointment or difficulty, I can become withdrawn with seeking genuinely to understand. Being a generous charity is the noblest of virtues” (International edition, and distant, I can turn inward, and I can feel my heart listener reduces the distance between oneself and others. s.v. “charity”). harden. But I have also taken the other road—perhaps 38 2 oed 288, 1978. A related definition of charity in The 44 Moroni 7:47. The lds Bible Dictionary definescharity as the road less traveled—in which I respond with a Oxford English Dictionary is “A[a] disposition to judge “[t]he highest, noblest, strongest kind of love, not merely softening of my heart. To me, this story represents the leniently and hopefully of the character, aims, and affection; the pure love of Christ” (s.v. “charity,” 632). To very different reactions we can have to the hard realities destinies of others, to make allowance for their apparent his disciples, Jesus said, “A new commandment I give of life: we can remain in the desert of criticism, or we can faults and shortcomings; large-heartedness. (But often unto you, That ye love one another; as I have loved you, seek a deeper faith—our own “postcritical naïveté.” it amounts barely to fair-mindedness towards people that ye also love one another. By this shall all men know 21 In an address to the Wisconsin State Agricultural disapproved of or disliked, this being appraised as a that ye are my disciples, if ye have love one to another” Society in 1859, Abraham Lincoln observed, “It is said an magnanimous virtue.)”@(2 oed, at 289). This sense is (John 13:34–35). Eastern monarch once charged his wise men to invent summed up in the oed as “fairness; equity.” Cruden’s 45 “How Great Thou Art,” Hymns, 1985, no. 86. Text: Stuart him a sentence, to be ever in view, and which should be Dictionary of Bible Terms includes this dimension of K. Hine, *Author’s original words are works and mighty. true and appropriate in all times and situations. They charity in its expansive definition of the term. “A person Music: Swedish folk melody, ca. 1891; arr. Stuart K. Hine. presented him the words: ‘And this, too, shall pass away.’ endued [with charity] does not interpret doubtful things 46 See 2 Nephi 31:19–20. How much it expresses! How chastening in the hour to the worst sense, but the best; is sorry for the sins of 47 Romans 8:16–17. of pride!—how consoling in the depths of affliction!” others, but rejoices when any one does well, and is apt 48 John 3:16.

clark memorandum 9 by Dale A. Kimball1 ••• The following speech was presented at the byu Law School Founders Day commemoration at Little America Hotel in Salt Lake City, Utah, on August 27, 2009.

•••

G O O D E V E N I N G ,

LADIES AND GENTLEMEN.

IT IS SO GOOD TO SEE

ALL OF YOU. I AM GRATEFUL

Y O U A R E A L L H E R E ,

REGARDLESS OF WHO PAID

FOR YOUR DINNER.

E L D E R Q U E N T I N C O O K

IS HERE, AND I APPRECIATE

T H AT. H O W E V E R , H E

HAS TO BE HERE BECAUSE

H E I S M Y C O U S I N A N D

BECAUSE I ATTENDED HIS

E X C E L L E N T S P E E C H

TO J. REUBEN CLARK LAW

S O C I E T Y I N M A R C H

OF THIS YEAR.

••• Photography by Bradley Slade

10 clark memorandum clark memorandum 11 It is always good to see President Samuelson. I call him President/Elder/Cec. He and I were and law school classmate, Roger Thompson, in the Utah Air National Guard together many years ago. The official slogan of the Utah Air put it this way: “For me, law was a magi- National Guard is “Sleep well. Your Air National Guard is awake.” However, the unofficial cal combination of logic, reason, history, enlisted men’s slogan was “Sleep well. Your Air National Guard does.” Whatever the slogan, advocacy, and public policy. It appeared to we did our duty and we served. offer many opportunities for employment Thank you so much, Bruce, for that wonderful and kind introduction. We have now and public service. It also provided a founda- been friends of the Hafens for 45 years. It has been a priceless friendship, and we too also tion in problem solving that could be used in hope that the friendship continues forever. One of my goals in life is to outlive the “Lee- almost any activity.”2 These insightful com- Kimball-Benson story.” My only defense is that even though I started it, Rex Lee and Dee ments, unbelievably, were contained in a Benson perpetuated it. I freely confess before all of you that that is no defense at all. dunning letter seeking to raise funds for the It is good to be here to celebrate the founding of a great law school, to be reminded of University of Utah’s law school. the importance of that interesting experiment begun so many years ago. I was honored then Each person associated with byu Law to be asked to play a small role in the beginning and am honored again to be asked to speak School has a story. Each of you so connected in this setting where we annually and collectively consider where we are going with respect has a story. My story explains why I care so to J. Reuben Clark Law School. much about the success of J. Reuben Clark I was privileged to give the keynote speech on the occasion of the 25th anniversary of the Law School. charter class graduation on October 19, 2001. Perhaps a portion of a letter from Bill Wingo My story is this: I graduated from byu extending that invitation will at least partially describe my qualifications for this effort in August 1964 and from the University tonight. I quote from the Wingo letter: of Utah College of Law in June of 1967. As the committee has considered the program Beginning in the late ’60s, rumors started for the reunion, we have all felt that our classmates about a law school at byu. One day in 1971 would enjoy hearing from you because of your my friend and law partner, Keith Rooker involvement over the years with students, alumni, (known to many students in the earlier and faculty of the Law School. Not only were you classes at the Law School as Professor our professor and friend, but you have also had Kingsfield), told me that he had heard an opportunities as a practicing lawyer and judge to announcement that the law school was a assess the impact of the Law School on the legal go. I did not feel good about it. I now quote community and society in general. You are probably from page 18 of Carl Hawkins’ interesting in as good a position as anyone to evaluate whether book on the founding of the Law School. the “grand adventure” upon which we embarked in Carl, who is here tonight, summarized what 1973 has, in retrospect, been worth the cost. I told him better than I could resummarize it myself. Incidentally, he also said in the letter, and I quote, “We are confident that the black Dale Kimball, a 1967 graduate of the robes of the judiciary and the ‘weightier mat- University of Utah College of Law, was practic- ters of the law’ have not smothered your keen ing in the same Salt Lake City law firm as Keith wit that we so enjoyed during law school.” Rooker in 1971 when he heard the announced plans There is no longer any way to measure for a law school at byu. Kimball feared that the either my wit or my intellect, for that matter. school would become a captive of [extremists] and People who never laughed at anything I said would, therefore, not be taken seriously in the legal before I became a judge now laugh at almost academic world and detract from the reputation of every joke I tell. People who appeared to byu and the Church. believe that I was somewhat intellectually Several months after Rex Lee had been impaired before I went on the bench now appointed as the founding dean of the new law suggest to me I have become brilliant. school, he opened a dialogue with Dale Kimball The law and lawyers have been interest- and asked him to think about joining the faculty. ing and important to me since I was a teen- Kimball had never seriously considered teaching ager thinking about how I wanted to spend before then, but he felt some sense of obligation if my working life. The law always seemed to asked to serve to help Lee make the law school into me to be a fascinating career coupling the one that would be worthy of respect. Kimball did academic with the practical, doing some not think, however, that he could break away from good, serving, and making a decent living. his law practice before 1974, when the new law I have not been disappointed. A close friend school would begin its second year of classes.3

12 clark memorandum

I am sure that Keith sold me to Rex. Bruce Hafen, I am sure, also had a hand in it. Bruce I am just writing to thank you for taking the and I were law school classmates and friends. Also, my older brother, Lyn, had served a mis- time to speak to the Freedom Academy students on sion in Mexico with Rex. Incidentally, my brother Lyn told me that anything that Rex Lee August 2. By all accounts, you did an outstanding was associated with would be a successful first-class operation. job and your remarks were well received. I am par- When asked to help, I felt I had a duty to comply. I felt like I had to put my money, so ticularly appreciative that you were willing to step to speak, where my big mouth had been. I felt honor bound to do my little bit to have this up and do this after your colleague and my former law school become a real law school with an excellent faculty and superb students—a law friend, Judge Benson, dropped the ball. This, of school respected among law schools. I had no right to be worried. In a legal sense, I had no course, is no surprise to you. standing—I was nobody. I admit it was highly presumptuous. Rex Lee and Bruce Hafen were Further, I regret ever having spread rumors involved. Dallin Oaks had been a noted and respected professor at the University of Chicago about you in law school, and I promise to stop Law School and had a vision of a first-class law school backed and supported by the board of spreading any other rumors in the future as well. trustees. Carl Hawkins and other reputable, experienced law faculty types signed up. Some Again, thank you for helping out. perspective and realistic humility took over as I realized I was greatly honored to even be thought of by anyone as part of this effort. With warmest regards, Those early days were full of promise. Who can forget the first years at the St. Francis Paul M. Warner / United States Attorney School over on Ninth East rented from the Catholic Church, affectionately known to many of us as St. Reuben’s. Who can forget the Charter and other early classes, the members of Incidentally, within the last month, Paul which exhibited some degree of courage in taking a chance on a new law school. Many of Warner, now one of our magistrate judges, those, perhaps not surprisingly, were characters exhibiting a great deal of independence. I told me that he had been a whiz at math share with you a letter I received from one of them back in 2001. when it was just numbers. He further said

clark memorandum 13 though that when they started to mix in the well they do it? I quote from a speech given letters, he was lost. I assume that the “they” in by James D. Gordon III, then acting dean of his complaint was the conspiratorial educa- J. Reuben Clark Law School, to entering law tional establishment in his junior high school. students on August 20, 2008: I recall the Order of the Cuff. I recall with nostalgia being charged by some stu- Lawyers help make the rule of law possible. dents of being in substantial overcompli- They do so as law clerks, judges, legislators, and ance with the dress and grooming code. I members of local governments. They do so by rep- recall most of all serious and sustained effort resenting entities and private parties, by enforcing on the part of the students, the faculty, and the law, by defending against government over- the administration to produce—to create— reaching, by resolving disputes, by solving problems, good, able, honest lawyers. and by helping the civil and criminal justice systems The stories continue to this day. Let me to function. They counsel and help people to com- tell you one more recent story. In late 2005 ply with the law and protect and vindicate people’s or early 2006, I received a telephone call rights. They are essential to a free society.4 from a friend of ours who lives near Eureka, California. She said that she was a good Incidentally, I am pleased to reveal that the parties. Our employment relationships friend of a young woman who was gradu- Jim Gordon started as a practicing lawyer in provide fertile areas for dispute resolution. ating from nyu who wanted to go to byu my old firm. Civil rights and freedoms are violated and Law School. The young woman was not The history of our own people demon- must be defended and vindicated. We see a member of the Church, but her mother strates the difficulties encountered when honest disputes over benefits and retirement had joined a few years before. Her father, the law is not honored. We were in some issues. There are many public and private incidentally, is a doctor who had been in a instances subject to mob activities and the land issues. There are interesting questions difficult business relationship with an lds perversion of the law. In those instances regarding patents, trademarks, trade names, partner. The young woman was an excel- when due process was afforded the lds domain names, and on and on and on. It is lent student and a fine athlete. Princeton people in Ohio, Missouri, and Illinois, it was so critical that able, fair, intelligent, honest had offered her a golf scholarship. nyu had almost always because a courageous local lawyers represent their clients with a com- offered her an academic scholarship, which lawyer or judge was willing to help vindi- mitment to the rule of law. Additionally, she accepted. My friend said, “Help her get cate rights rather than allow power and cor- lawyers are often in the forefront of many into the Law School.” I said I would do what ruption to carry the day. To again quote Jim service organizations, contributing time and I could. I called Tom Lee, who agreed to Gordon, “If any people believe in due process money. In many respects we would be vastly interview her. She was so anxious to attend of law, in protecting people’s constitutional poorer as a country without our able lawyers. that she flew to Salt Lake City and drove rights, and in the rule of law instead of mob Years ago when I was serving as a to Provo for interviews. I had done what I rule, it should be the Latter-day Saints.”5 regional representative, I was assigned by could: I called Tom Lee. Tom apparently did Lawyers have the capacity to provide one of the senior brethren to help him call a what he could. Most important, the young a specialized type of service. Lawyers have new stake presidency in one of my stakes. I woman was impressive and was admitted. unique knowledge and skills that most do picked him up at his home on both Saturday She joined the Church while she was attend- not have. Lawyers have access to the systems and Sunday. I took him home both days after ing law school and, perhaps more remark- provided to resolve disputes and settle differ- our work and meetings. We talked of many ably, so did her father. The intelligent, able, ences in civilized and lawful ways. Lawyers things. One of the interesting items that he and friendly women students at the Law have the duty and responsibility to counsel shared with me (and I don’t know whether School were instrumental in her conversion. and to help others with respect to some of this is still true, but I suspect that it is) was She was a very good student and was manag- their most important and profound affairs. that lawyer members of the Church had ing editor of publication of the Law Review. Despite being periodically maligned, among the highest rate of Church dropouts. She graduated in April of this year and is this nation is generally fortunate to have However, he also told me that those who working in San Diego. She and thousands many members of the legal profession who were in were really in. Those lawyers who of others (about 5,000 to date) have attended are honorable, fair, effective, and reason- remained active members, he said, because the Law School, have been shaped and influ- able advocates. Most lawyers I know believe of their training, capacities, and experience enced by it and all it offers, and then have in the rule of law. Consider the range of were among the foremost in leadership abili- proceeded to scatter and do good and influ- legal advice provided by lawyers to mem- ties, in solving problems, and in the ability to ence their part of the world. bers of society. People quibble over fence render effective service. Apparently what is Why does it matter whether lawyers are lines and boundaries. People need to be true in society is true in the Church as well. properly educated and trained? Why does prosecuted and defended ably. Most busi- Lawyers have much power for good or ill it matter what lawyers do? What difference ness arrangements require honest and care- in American life. Except for the most recalci- does it make what lds lawyers do and how ful lawyering to achieve the ends desired by trant and belligerent clients, lawyers can calm

14 clark memorandum fessional mediocrity.”7 My father, Griff Kimball, perhaps foreshadowing Donald Trump, said it this way: “You’re fired! You and Bob are fired!” This happened late one morning on a hot summer day on my dad’s farm in Draper, Utah. He suggested that my best friend and I, if we couldn’t or wouldn’t thin his sugar beets properly, could get out of his field. We left partly ashamed and partly hoping that, for a while at least, we did not have to continue one of the worst jobs on earth. We had been abysmal. We had been paying no attention whatsoever to a job that requires constant and close attention. We had been talking about baseball and girls and throwing, fairly successfully, dirt clods and soothe. Lawyers can often impose sense and rationality on persons and situations leading at each other. My dad was right. Our lack of to settlements or trials focused on real issues rather than on some of the peripheral nonsense competence was going to cost him money that pervades some of our trials. Occasionally, in civil matters, you may just have to walk away in the fall when the beets were harvested. from a dishonest or impossible client even though it is economically painful. I am not suggest- However, as he always did, a short time later ing, incidentally, that you not represent those charged with crimes. (Sometimes the double he found us and said, “I am going to give you negative is useful and necessary.) They are entitled to intelligent and fair representation. It is boys a chance to redeem yourselves.” He was absolutely critical that good advocates hold the federal and state governments to their burdens big on redemption. Thereafter we performed of proof to ensure that the enormous power of the prosecutor is wielded fairly. It is also very competently. We did good work. We were important that prosecutors, particularly those who are lds, not abuse prosecutorial power or redeemed. May we all be able to say we do hide evidence or do other nefarious things that we occasionally observe or hear about. good work or be redeemed when we do not. By properly performing their jobs and public service, lds lawyers can have enormous I suggest also that commitment and dili- power and influence for good in the Church and in society. It is critical and important that gence are critical in the law and with respect lawyers, including lds lawyers, are properly educated and trained and faithfully perform the to any endeavor that matters. You can be huge functions that have been carved out for them in the American nation from its inception. highly competent but not be committed. A Since each person associated with the Law School has a story, perhaps each also has lawyer not committed is not much of a lawyer a vision or a hope of what it ought to do, what it should be, and what kinds of lawyers it no matter how competent. I quote Elder F. should produce. I offer my vision and my hopes. Burton Howard about commitment. He was In part, I share a portion of the view President Marion G. Romney expressed in the dedica- speaking primarily of Church commitment, tion of the Law School in 1975 when he said that at least one of the purposes for this enterprise but his statement has general application: ought to be “to teach, train, and inspire . . . students to be topflight lawyers and superior judges.”6 Competence is a valuable quality in any undertaking. It is surprising to me that some lawyers The Church does have many needs, and one of who have undergone seven years of higher education aren’t more competent, aren’t more able. them is for more people who will just do what they There are many intelligent, dedicated lawyers who exercise excellent judgment, who give have agreed to do, people who will show up for work their clients first-rate advice, who argue motions well, and who are superb in trying cases. and stay all day, who will quietly, patiently, and There are brilliant and able practitioners who guide their clients through difficult business and consistently do what they have agreed to do—for tax transactions and who are very skilled at negotiating the complications associated in deal- as long as it takes, and who will not stop until they ing with various administrative agencies. have finished.8 And yet it is very disappointing to read incoherent briefs and listen to weak and rambling arguments. It is almost heavenly to listen to lawyers skillfully examine and cross-examine wit- There is a great need for lawyers to be nesses. It is painful to witness those who do not and to observe some lawyers who seem to committed, to do what they say they will do, have little acquaintance with the rules of evidence. We expect our mechanics, our doctors, to be where they say they will be, to perform our contractors, our accountants, our teachers, all who serve us, and all on whom we rely to in a manner implied by their professional know what they are doing. It is not too much to ask that lawyers trained at J. Reuben Clark degree, and to finish what they start. These Law School will be skillful, knowledgeable, informed, and good at what they do. Clients qualities do not seem to me to be too much need competence. Courts need competence. Justice and society are served by good, skillful, to ask of anyone, let alone professionals. Was competent, able, reasonable lawyers. Consequently, much of my hope and vision would be for it Woody Allen or Kareem Abdul Jabbar competency—a consistently high level of the practice of law. who said (joined by many others I am sure) We have an obligation to be competent in what we do. Elder Neal Maxwell said it this that much of success in life is assured by just way: “We cannot let the world condemn our value system by calling attention to our pro- showing up. Let us show up.

clark memorandum 15 Hugh Nibley has urged that there ought to be a gospel culture. He suggests a good begin- ning point would be our 13th Article of Faith9: “We believe in being honest, true, chaste, benevolent, virtuous, and in doing good to all men.” We teach and talk a great deal about chastity and virtue; I am not taking issue with that. However, perhaps more emphasis on honesty would be useful. From where I sit, I would suggest that one of the greatest needs in today’s world and in our Church is honesty. In our Court we see the unpleasant consequences of dishonesty in a variety of ways in both criminal and civil cases. It appears to me that an uncomfortable number of members of the Church seem to believe that it is permissible to steal from people if it is not done violently or at gunpoint. They are wrong. Neither is it moral nor honest to file false or inflated insurance claims. It is not moral or honest to cheat on tax returns. It is not moral or honest to not work for what you get. It is not moral or honest to not pay people employed by you what they are worth. I remember with sorrow the former local Young Women president standing in front of me for sentencing after being convicted of social security fraud. I confess that I am tired of reading about alleged lds Ponzi schemes and other fraudulent behavior by members of the Church. Some is only alleged. Let me assure you that much has been proven in various forms and in various forums. Surely if more of us were less greedy and less gullible there would at least be more forced honesty. I restate: One of the greatest needs in our society is for more honesty. Not only should we be truthful, but we should not engage in the games of material omissions. Remember the point about lawyers having a disproportionate influence for good or for ill. Lawyers can often cut off fraudulent behavior at the inception. Lawyers can not only be honest themselves but also be good examples to those around them in connection with

16 clark memorandum behaving honestly in business and person- “You know about these things. Take Elder n o t e s ally. I plead with all associated with this law Hunter to the piers and help him get these school to be pillars of honesty. trunks.” Elder Hunter knew the name of 1 Dale A. Kimball is a judge for the United States district President Spencer W. Kimball stated the ship. I made a few calls and ascertained court for the District of Utah. his vision for the Law School in terms of at which pier the relevant ship was docked. 2 Letter from Roger H. Thompson to Dale A. Kimball, broad community and societal needs. He In those days San Francisco was still one dated October 1, 2001. wanted lawyers who would “be responsive of the major world ports. I got the mission 3 Carl S. Hawkins, “The Founding of the J. Reuben to community needs, to heal and cure the station wagon, Elder Hunter got in, and off Clark Law School,” byu Studies, 18. inevitable conflicts of our society, . . . to . . . we went. I said, “Do you have any shipping 4 James D. Gordon III, “Lawyers and the Rule of Law,” serve the world.”10 This sounds to me like documents?” He said, “No.” I said, “Do you Clark Memorandum, spring 2009, 4. an appeal to go about doing good as the have a bill of lading?” He said, “No.” I said, 5 Id. at 5. Master did and an appeal to be good. It is “Do you have any documents at all relat- 6 Marion G. Romney, “Why the J. Reuben Clark Law a call to serve the poor, the outcast, the ill, ing to these trunks?” He said, “No.” I said, School?” Dedicatory Address and Prayer of the J. Reuben and the helpless—legally and generally. “I don’t think we’re going to get them.” He Clark Law Building, Dedication: To Justice, to Excellence, Joseph Smith said that a good person not said, “Have some faith, Elder. We will.” to Responsibility: Proceedings at the Convocation and only would be prompted to do good in his We reached the pier and parked. We or Dedication of the J. Reuben Clark College of Law, Brigham or her neighborhood but also would range rather he talked his way through the clerks in Young University, Provo, Utah, September 5, 1975, 47. far and wide seeking such opportunities.11 the outer office and through the clerks in the 7 Bruce C. Hafen, A Disciple’s Life: The Biography of Neal A. Our Book of Mormon teaches in the first inner office, and we arrived at the main office Maxwell (Salt Lake City: Deseret Book Co., 2002), 380. chapter of Alma, verse 30, that good mem- man. After a discussion with him, he said 8 F. Burton Howard, “Commitment,” Ensign, May 1996, bers of the Church should do good to all, that if we went out onto the pier and could 27–28. help all, and share with all “whether out of persuade the longshoremen to find and bring 9 See Temple and Cosmos: Beyond This Ignorant Present, vol. the Church, or in the Church.” More specif- the trunks to us, we could take them. After 12 of The Collected Works of Hugh Nibley: Ancient History ically, Joseph Smith said we are “to feed the Elder Hunter talked to the longshoremen, (Salt Lake City: Deseret Book Co., 1992), 543. hungry, to clothe the naked, to provide for they found the trunks and offered to and did 10 Spencer W. Kimball, “Honoring the Trust of Our the widow, to dry up the tear of the orphan, carry them to the car for us. All of this was a Founding Fathers,” Dedication: To Justice, to Excellence, to to comfort the afflicted, whether in this miracle to me. Responsibility: Proceedings at the Convocation and Dedication church, or in any other, or in no church at Transactions at the piers worked with of the J. Reuben Clark College of Law, Brigham Young all, wherever he finds them.”12 In short, we proof and documents. Longshoremen do University, Provo, Utah, September 5, 1975, 20. need to minister to each other. The insti- not do favors. I knew Elder Hunter had 11 History of the Church, 4:226–27. tutional Church does much institutional been a lawyer, and this helped affirm my 12 Editor’s reply to a letter from Richard Savary, Times and good. There is a great need for all of us, par- mid-teen decision to be a lawyer, since I Seasons, March 15, 1842, 732; Joseph Smith was the edi- ticularly educated and professional lawyers, had never before observed anyone equaling tor of the periodical. graduates of the Law School, to go about his abilities. However, later, as I reflected 13 Dallin H. Oaks, “The Challenge to Become,” Ensign, doing good and being good. I remember a on this experience, I realized that his legal November 2000, 32. release from a particularly difficult Church abilities were actually irrelevant. What mat- calling that had lasted for many years. I tered was that after spending a few moments remember thinking on that occasion that I with him, not one person dealing with him would now have the time to do much more could believe that he would lie. He did not unassigned and unstructured good. I have advertise his goodness, but it was apparent done some, but I still have much to learn to the toughest of the tough within a minute and much to do in that effort. or two. The toughest of the tough went out Many years ago as a young missionary of their way to help him and accommodate in northern California, I met then Elder him just because of what he was. What he Howard W. Hunter, who was a relatively was, what he had become, a magnificently new member of the Quorum of the Twelve. good person, was what Elder Dallin H. Oaks He was touring our mission. I was to help. suggested in one of his conference speeches At the end of his tour he said he needed that we all ought to become13—particularly, to pick up some trunks belonging to his I say, those who have had any connection to son who had returned from a mission in J. Reuben Clark School of Law. Australia. The son had flown to Los Angeles Thank you for this opportunity. If we and on to Salt Lake City. The trunks had are competent, if we are committed, if we been shipped to San Francisco. Some of my are honest, and if we are good, a magnifi- mission assignments included much of the cent legacy for J. Reuben Clark Law School mission business. My mission president said, is assured.

clark memorandum 17 18 clark memorandum United States workforce includes over eight million undocumented immigrants.2 They work in the shadows to evade deportation, and they accept jobs and work- ing conditions that their documented counterparts will not accept. As invisible as their day- to-day work may be, undocumented workers are an integral, though unsanctioned, part of the u.s. economy. They build our houses, tend our crops, and slaughter our livestock. They help satiate the American craving for affordable abundance. At the same time, unauthorized immigrants are not supposed to be here, and their mere presence undermines our understanding of community and membership. Relied upon but unwelcome, among us but uninvited, undocumented workers labor on the border of inclusion and exclusion and are the subjects of a series of challenging questions: Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? Who belongs?

Who is a member? Unfortunately, the answers to these approach. Broadly speaking, the status-based disfigure society.”3 Indeed, “[w]e ought not to questions are less than clear. For much of approach distributes membership rights based subjugate immigrants, not because we owe u.s. history, undocumented workers have on an individual’s legal status. Under such a them anything, but to preserve our society as enjoyed many of the same rights that u.s. conception of membership, undocumented a community of equals.”4 citizens have enjoyed by virtue of mere pres- immigrants have no formal, consensual rela- ence within u.s. territory. Recently, how- tionship with the state and therefore are not MUTUALITY OF OBLIGATION ever, some undocumented workers have members, while citizens enjoy the full suite found that they cannot effectively enforce of rights available. In contrast, territoriality A second possible rationale for territoriality many of their statutorily protected employ- distributes membership rights and benefits is the mutuality of obligation rationale: the ment rights, including the right to partici- according to geographic boundaries without state owes individuals within the territory pate in union organizing activities, work regard to legal status. Under a territorial membership rights because those individu- in a discrimination-free environment, and approach, individuals within the state bound- als are subject to the obligations imposed by be compensated for work-related injuries. aries are members entitled to all rights offered the state. Under this rationale, territorial Undocumented workers, it seems, are not by the state, while individuals outside the presence evidences the individual’s accep- considered full “members” of the employ- state boundaries have no guaranteed rights. tance of the state’s jurisdiction over her. This ment protection franchise. Although this Territoriality enjoys wide support in the concept flows from Westphalian notions trend is not surprising given rising concern academic community, no doubt because of of territorial sovereignty under which the and anger over the large number of undocu- its broad inclusiveness. However, skeptics nation-state is a unitary, self-contained actor mented immigrants filling u.s. jobs, the have challenged territoriality’s theoretical with complete and exclusive jurisdiction over denial of membership rights to individuals underpinnings, and the challenge is not an the people within its territory. Under such a based solely on unauthorized status is actu- easy one to meet. What is it about territorial system, no state may act within the boundar- ally a significant deviation from the theory presence that requires the distribution of full ies of another sovereign nation-state. Thus, a of membership developing in broader u.s. membership rights? Why reward territorial nation-state may only impose obligations on law. Outside of the employment sphere, presence at all? Territoriality’s supporters offer and protect the population within its territo- courts are not looking to status to deter- three potential responses to these questions. rial borders. If a nation-state can only apply mine membership. Rather, they are increas- its rules within its territorial boundaries, then ingly affording rights to individuals based COMMUNITY PRESERVATION where an individual resides, rather than who on more fundamental indicators of mem- the individual is, determines which rules apply. bership including an individual’s ties to the One potential rationale for territoriality is the That is, presence within the nation-state’s ter- surrounding community and subjection community preservation rationale. Under this ritory determines an individual’s obligations. to u.s.-imposed obligations. Here, I argue rationale, equality of membership is impor- The nation-state, in turn, affords those indi- that the distribution of employment-related tant, not because all individuals deserve mem- viduals whatever membership rights and ben- rights should conform to this emerging, bership rights equally, but because equality of efits it has undertaken to provide residents. more nuanced approach, not merely for the membership preserves the nature of the com- The mutuality of obligation rationale sake of a consistently applicable membership munity. This argument is not about fairness for territoriality makes perfect sense in a theory but to avoid the draconian incentives to strangers, but it is about preservation of a purely Westphalian system. The reality, produced by effectively denying undocu- system, i.e., egalitarianism is worth preserv- however, is that states often do impose obli- mented immigrants work-related rights. ing, not because newcomers to the territory gations outside their borders and selectively deserve to be treated as equals, but because suspend obligations within their own ter- I. The Concept of Membership those who were already here desire to live in ritory. Embassies, for example, function as an egalitarian community and do not want to islands of immunity from the obligations The distribution of rights, regardless of risk becoming a part of a future subclass of imposed by the host state within its terri- type, boils down to a single question: Who residents. Under this rationale, even an indi- tory even though embassies operate within belongs? This question follows naturally vidual’s consent to substandard treatment the host state’s territory. States also routinely from the assumption that members—those could not justify unequal treatment because pass laws to govern the acts of their nation- who belong—deserve a certain type of the effect would be the same—the perpetua- als abroad. This incongruous relationship treatment, and those who are not members tion of a second-class caste. between modern notions of jurisdiction deserve another. In that sense, the distribu- Community preservation explains vari- have led some to call for the rejection of ter- tion of membership rights is as much about ous scholars’ and courts’ espousal of territori- ritoriality and the adoption of a model based determining who does not belong as it is ality. Owen Fiss, for example, has argued that entirely on mutuality of obligation. about determining who does belong. the principle of self-preservation is implicit in Two competing mechanisms or theories the Fourteenth Amendment as “a statement COMMUNITY TIES for sorting members from nonmembers have about how society wishes to organize itself, historically coexisted in the United States: and prohibits subjugation, even voluntary Many have defended territoriality based on the territorial approach and the status-based subjugation, because such a practice would a community ties rationale. Under this view

20 clark memorandum of territoriality, territorial presence serves as an indicator of an individual’s ties to other individuals and entities within the territorial boundaries of the state. This view of territo- riality is attractive in its recognition of real human relationships as a basic social fabric, but the question remains: What is it about the existence of human relationships that requires the bestowal of membership rights? One answer is that an individual’s ties to the surrounding community foster com- mitment and loyalty to the surrounding community. As an individual becomes dependent on her surrounding community, her personal interests align with those of the community. The individual is therefore more likely to make valuable contributions to the community and refrain from harming it in order to augment her own existence within the community. Affording member- ship rights to such an individual rewards her contribution. Another answer is that as strangers develop ties to the surrounding commu- nity, they begin to help define the char- acter of the community. In other words, not only do the individual’s ties to the community merit the individual’s inclu- sion as a member, but the community’s ties to the individual require inclusion of that indi- vidual. By including such an individual, the state preserves the community’s char- acter, which is a function of its members’ social affiliations. This argument is merely a restatement of what I have termed the community preservation rationale. That stem from a shared interest, familial ties, or II. Territoriality’s Metamorphosis is, those who are members owe individu- professional obligations, rather than from als who have formed ties to the community physical proximity. Courts have begun to recognize territorial- nothing. Rather, they owe it to the com- Second, territoriality’s binary concep- ity’s failure to always produce results consis- munity—to themselves—to preserve those tion of members and nonmembers—in tent with its underlying rationales. Territorial ties and the community built on those ties. which those within the territory are full presence, it turns out, is an inadequate proxy Despite the appeal of the community members and those outside the territory for the more fundamental indicators of ties rationale, it does not hold up well in receive nothing—does not coincide with membership encompassed by territoriality’s practice. First, in today’s world, ties to other this affiliations-focused rationale. The types, underlying rationales. While a century ago individuals and entities do not necessar- depth, and number of community ties vary u.s. courts held territorial presence to be an ily depend on physical proximity. In fact, by individual. Community ties distribute inviolable guarantee of many membership as the popularity of Internet-based social across a spectrum, not on a binary toggle. rights, strict territoriality has recently begun networking sites suggests, individuals may Is there a threshold number and type of con- to wane. Instead of distributing rights based easily maintain affiliations with individu- nections required of a “member”? If com- exclusively on an individual’s territorial pres- als in other countries. It is also entirely pos- munity ties underlie territoriality, shouldn’t ence, modern courts have begun to distribute sible for an individual to have very few an individual with more connection to the rights to individuals only where consistent affiliations with those inside the country in surrounding community have a greater claim with the rationales of territoriality. Thus, ter- which she resides. Moreover, even where on membership rights than one whose only ritoriality is undergoing a transformation; in an individual does have ties to others within connection to the surrounding community this new conception of membership, which I the same nation-state, these affiliations may is mere presence in it? call the “postterritorial” approach; courts are

clark memorandum 21 shedding their preoccupation with geogra- economically productive lives to the benefit cannot impose any obligations upon indi- phy and focusing on mutuality of obligation, of us all,”11 and “sustain[] our political and cul- viduals abroad. Rather, the u.s.’s only obli- community preservation, and community tural heritage. . . .”12 gation was to Japan to conduct its consular ties as the driving forces behind the distribu- Some of the first hints that territo- affairs on mutually agreed terms. tion of membership rights. rial presence would no longer categorically Reid v. Covert,18 decided more than 70 Territoriality’s metamorphosis has gained guarantee rights to aliens within u.s. ter- years later, signaled a shift in the Supreme momentum only in the last several decades. ritory appeared just a few years after Plyler Court’s approach. There, the Court held In early u.s. history, being present in the in Verdugo-Urquidez.13 There, the Supreme that two u.s. citizens living abroad and con- United States categorically secured a great Court, in a plurality opinion, suggested victed by a u.s. military court for the mur- deal of membership rights for aliens within that territorial presence may not be enough der of their husbands enjoyed the right to a the United States, although the rationale for for some membership rights to attach. The trial by jury and indictment by a grand jury. a territorial distribution of rights remained Court’s opinion boldly recharacterized Yick Backtracking on its reasoning in Ross, the undeveloped for many years. In Yick Wo v. Wo and its progeny: “These cases . . . estab- Court suggested that mutuality of obligation Hopkins,5 for example, the Supreme Court lish only that aliens receive constitutional did require the u.s. to offer the defendants emphatically proclaimed, without explana- protections when they have come within the the requested membership rights. The Court tion, that the Fourteenth Amendment’s guar- territory of the United States and developed reasoned that when the u.s. enforces obliga- antees “are universal in their application, to substantial connections with this country.”14 The tions on citizens abroad, it must also offer all persons within the territorial jurisdiction, defendant in Verdugo, a Mexican national corresponding protections: “[W]e reject the without regard to any differences of race, of who had been brought to the United States idea that when the United States acts against color, or of nationality.”6 In the years follow- against his will while u.s. law enforcement citizens abroad it can do so free of the Bill of ing Yick Wo, the Court routinely held that agents searched his house in Mexico without Rights. . . . When the Government reaches immigrants, even those that were not law- a warrant, had not established such connec- out to punish a citizen who is abroad, the fully within u.s. territory, were entitled to tions: “[T]his sort of presence—lawful but shield which the Bill of Rights and other membership rights by virtue of their presence involuntary—is not of the sort to indicate parts of the Constitution provide to protect within u.s. borders.7 However, the rationale any substantial connection with our coun- his life and liberty should not be stripped for such a territorial conception of member- try.”15 The Court stopped short of requiring away just because he happens to be in ship remained vague. an individual to have significant community another land.”19 It was not until a century later, and per- ties in the u.s. as a prerequisite to the enjoy- Reid rejected strict territoriality in favor haps due to increasing concerns about the ment of membership rights, but its language of an approach based on mutuality of obli- wisdom of offering constitutional rights to certainly suggested that affiliations might be gation. While much of the Reid opinion undocumented immigrants, that the Court indicative of membership within the u.s. focused on the defendants’ u.s. citizenship offered a detailed defense of territorial- Territoriality’s transformation is per- as the cornerstone of mutual obligation ity’s guarantee of membership rights to all haps most obvious in Supreme Court prec- (and therefore suggested that a status-based within the national territory. In Plyler v. Doe,8 edent determining the rights of individuals approach to membership would govern), the the Court invalidated a Texas statute that outside u.s. borders. While strict territorial- Court’s recent opinion in Boumediene v. Bush20 allowed local public schools to deny enroll- ity would categorically exclude such indi- indicated that aliens, too, may enjoy some ment to undocumented children. Those chil- viduals from the distribution of membership Constitutional protection outside of u.s. dren, the Court reasoned, were within the rights, the Supreme Court has recently borders. In Boumediene, the Court squarely United States and therefore entitled to the rejected strict territoriality in favor of a faced a question of membership—of which equal protection of Texas law. In arriving at more functional, postterritorial approach. membership model to apply to determine that conclusion, the Court offered a mutual- This is a significant departure from early whether enemy combatant detainees held ity of obligation rationale for territoriality. precedent. In Ross,16 a seminal case that gov- at Guantanamo Bay were members for The Court reasoned that Texas was under an erned u.s. law for several decades, the Court purposes of enjoying a right to the writ of obligation to protect all those upon whom it denied that a sailor on a u.s. merchant ship habeas and the protections of the Suspension could impose obligations—all individuals had a Sixth Amendment right to a jury trial, Clause. In its lengthy opinion, the Court within Texas borders. As a second rationale even though he had been tried by a u.s. con- struggled to define the contours of member- for territoriality, the Court emphasized the sular court in Japan: “[t]he Constitution can ship, acknowledging that formal status and need to preserve the national community’s have no operation in another country.”17 territorial presence within the u.s. were tra- character. The Court reasoned that educa- Notably, the Court defended the territori- ditional indicators of membership. tion “has a fundamental role in maintaining ally based denial of constitutional rights However, despite the detainees’ lack of the fabric of our society.”9 According to the based on the absence of mutual obligations status and territorial presence, the Court Court, we must afford unauthorized immi- between the petitioner and the u.s. govern- held that Congress could not deny them the grants a public education in order to preserve ment. The Court suggested that a govern- privilege of habeas corpus without comply- “a democratic system of government,”10 ment has no obligation to an individual ing with the Suspension Clause. In reject- ensure that individuals will be able to “lead outside its own territory because the state ing a strictly territorial approach, the Court

22 clark memorandum observed that the u.s. was the sole entity III. Territoriality’s Demise in the employers who knowingly hire or continue to imposing its laws at the naval station. No employ unauthorized workers.) Castro’s only Employment Sphere: Where Work other government had effective jurisdiction remedy—and Hoffman’s only sanction—was over Guantanamo Bay. Thus, there was no and Borders Collide an order to cease and desist from engaging in reason the United States could not, in prac- violations of the nlra and to post a notice of tice, afford constitutional protections to the Given strict territoriality’s decline in u.s. that order at Castro’s former work site. detainees. In effect, the Court highlighted law, it should come as no surprise that The Hoffman majority opinion highlights territoriality’s failure to preserve the notion with respect to employment-related rights, the duality of the undocumented worker’s of mutual obligations. The Court’s argu- immigrants can no longer solely rely on position in the workplace. Undocumented ment can, in part, be read as a critique of their territorial presence to secure pro- workers labor on the border of the territorial Westphalian notions of territoriality: since tections. However, territoriality’s decline and status-based models. By recognizing that governments can and do impose obligations in the employment sphere has not followed undocumented workers present in the United abroad, they also can and ought to afford the same trajectory that territoriality has States are “employees” covered under the corresponding protections: “Even when the followed outside the employment sphere. nlra, the Supreme Court offered a measure United States acts outside its borders, its In employment-related cases, courts are not of inclusion and membership to Castro and all powers are . . . subject ‘to such restrictions as focusing on the rationales underlying ter- undocumented workers. However, Castro’s are expressed in the Constitution.’”21 ritoriality to distribute membership rights. membership ended there. Castro’s status as A bird’s-eye view of territoriality’s role Rather, in this realm, territoriality is giving an undocumented immigrant foreclosed back in u.s. law suggests that strict territorial- way to the status-based membership model pay because, under irca, Castro could not ity may not survive into the next century. rather than to the developing postterritorial legally have worked at Hoffman during the This is not to say that territory no longer model discussed above. For documented period for which back pay was awarded. matters; it does. But territory no longer workers, this poses no obstacle to the enjoy- Hoffman has added a new dimension defines relationships in the way it once did, ment of employment rights, as authorized to both federal and state employment law nor does territory pose the impenetrable status secures membership rights under the litigation. Immigration status has now barrier of sovereignty and exclusive juris- status-based model. Undocumented work- become a relevant factor in the distribu- diction idealized by Westphalian territorial ers, however, having no legal status under tion of various employment rights in many preeminence. Territorial presence is thus the law, have increasingly found themselves jurisdictions. In Escobar v. Spartan Security no longer a consistently adequate proxy for excluded from the effective enjoyment of Service,23 for example, the court held that fundamental indicators of membership. In many employment-related rights. back pay was not available to a claimant territoriality’s stead, a more flexible post- It was the Supreme Court’s 2002 deci- who had been undocumented at the time territorial membership approach is emerg- sion in Hoffman Plastics22 that solidified the of his employer’s alleged sexual harass- ing in which membership is not based on status-based model’s encroachment into the ment, sexual discrimination, and retaliation the fiction that territorial presence signi- employment sphere. There, the petitioner, even though the claimant had since gained fies membership in a society but on actu- Castro, had been unlawfully fired from his authorization to work legally in the u.s. al indicators of membership—community job because he was engaging in union orga- Similarly, a federal district court in Florida ties and mutuality of obligation—as well nizing efforts, an activity protected under held that the estate of an undocumented as an effort to preserve the character of the the National Labor Relations Act. Castro employee injured in a forklift accident national community. Courts are looking to brought a claim for back pay (payment for could not recover lost u.s. wages in its the rationales that historically justified ter- work that would have been done if not for claim against the forklift manufacturer.24 ritoriality and evaluating membership with the unlawful termination of employment). Citing Hoffman, the court reasoned that direct reference to those rationales. In that However, during the resolution of his claim, lost wage compensation was sufficiently sense, territoriality is not dying; it is mak- Castro admitted he had no authorization to like the back pay denied in Hoffman for ing a transformation to keep up with the work in the United States and that he had the court to find that immigration status realities of modernity. Thus, courts are now secured employment at Hoffman with a precluded its award to an undocumented asking and will likely increasingly be asking fraudulent Social Security card. The Supreme worker: “Awarding lost wages is akin to whether an individual (or class of individu- Court acknowledged that Castro was pro- compensating an employee for work to als) (1) has significant and substantial ties tected under the National Labor Relations be performed. This Court cannot sanction to the surrounding community and (2) is Act by virtue of his presence in the United such a result.”25 In what is likely the most subject to u.s. law in a way that triggers the States, but it refused to award Castro back expansive view of Hoffman, a Virginia court u.s. government’s reciprocal obligations. pay. The Court reasoned that awarding back ordered a worker’s compensation claim- However, even where an individual does pay would run counter to the Immigration ant to respond to the employer’s discovery not seem to evidence these two aspects of Reform and Control Act’s underlying policy request regarding immigration status.26 membership, courts will need to evaluate of preventing the employment of undocu- Citing Hoffman, the court held that the whether denying rights will threaten the mented immigrants. (Passed in 1986, irca claimant’s immigration status was relevant, character of u.s. society. imposes civil and criminal penalties on not merely to the remedies available, but to

clark memorandum 23 fulfill its employment obligations. The rem- edies approved by the majority in Hoffman, an order that the employer cease and desist its illegal conduct and post a notice to employees of the nlra violation, are a small price to pay for improper termination of an employee. With no remedy to enforce an ostensibly legally ensured right, employees will have little incentive to report their employers’ labor law violations, especially where employers threaten to expose an undocumented worker’s legal status during litigation. As a result, undocumented work- ers will have little option but to continue working under substandard conditions. This, in turn, encourages the hiring of undocumented workers, a practice specifi- cally prohibited by irca and ostensibly the very focus of irca. As the Hoffman dissenters recognized, the denial of back pay “lowers the cost to the employer of an initial labor law violation. . . . It thereby increases the employ- er’s incentive to find and to hire illegal-alien employees” or at least encourages employers to hire “with a wink and a nod those poten- tially unlawful aliens whose unlawful employ- ment (given the Court’s views) ultimately will lower the costs of labor law violations.”28 In addition, the reverse incentives cre- ated by the failure to afford equal remedies to undocumented immigrants erode workplace standards for all employees, especially where undocumented workers compose a high percentage of the workforce. Where undoc- umented workers are readily available and the claimant’s qualification to bring suit at easily coerced into remaining quiet about all: “Essentially, Plaintiff’s argument that he labor law violations, documented workers, is entitled to make a workers’ compensation too, will be reluctant to report those viola- claim, even if he is an illegal alien, is ‘fore- tions out of a fear of being replaced by an Undocumented closed by federal immigration policy. . . .’”27 undocumented worker or as a result of pres- workers The fractured view of membership sure from undocumented coworkers who widely applied to the distribution of employ- do not want to risk exposure of immigra- contribute to ment rights and benefits creates significant tion status. Statistics suggest this dynamic a collective concerns on many levels. Perhaps most dis- may indeed be present: industries in which turbing, the Hoffman approach to undocu- undocumented workers compose a high per- effort and add mented workers undermines federal immi- centage of employees (which are often the value to an gration policy, the very issue with which the most dangerous and lowest paying indus- majority claimed to be concerned. As many tries) exhibit a high incidence of wage and enterprise. have argued, the exclusion of unauthorized hour law violations. immigrants from labor protections is likely to In addition to the troubling incentives cre- create incentives for employers to continue ated by the use of a status-based approach to hiring unauthorized workers. First, removing deny employment-related rights and benefits back pay as an available remedy for the viola- to undocumented workers, the status-based tion of any employee’s employment rights approach is inconsistent with the emerg- severely diminishes an employer’s incentive to ing postterritorial approach to membership

24 clark memorandum emerging outside of the employment sphere. an employee—it allows employers to govern ship may help illuminate the difficult path Territoriality’s trajectory in the employment employees without legal constraint. that lies ahead as the United States engages in sphere represents a stray branch in the overall Third, and perhaps most important, the immigration reform and makes difficult deci- trajectory of membership theory within u.s. failure to enforce the rights of the undocu- sions about who belongs and what belonging law. While outside the employment sphere mented worker is likely to create a subcaste here means. territoriality is undergoing a transformation of workers without enforceable rights. Aside into a more principled, nuanced membership from leaving a group of residents without n o t e s approach, territoriality as it has historically full legal recourse for blatant violations applied in the employment sphere is giving of employment rights, this threatens our 1 D. Carolina Núñez is a visiting assistant professor of way to an even more formalistic approach. To societal norms of equal rights in the work- law at J. Reuben Clark Law School. She graduated from avoid the undesirable incentives created by the place and ultimately endangers the rights the Law School in 2004. use of a status-based model in the employment of authorized workers and citizens. Absent 2 Jeffrey Passel & D’Vera Cohn, Pew Hispanic Center, A sphere and to bring the distribution of mem- full protection for undocumented workers, Portrait of Unauthorized Immigrants in the United States 12 bership rights within the employment sphere employment standards could be weighed (2009). in line with territoriality’s broader transforma- down by the sheer number of undocumented 3 Owen Fiss, The Immigrant as Pariah, 23 Boston Rev. 5 tion, courts must begin to employ the emerg- immigrants working under subpar condi- (Oct./Nov. 1998). ing postterritorial approach to distribute tions. A bifurcated system of employment 4 Id. employment-related rights. protections in which one group enjoys more 5 Yick Wo v. Hopkins, 118 u.s. 356 (1886). Under the developing postterritorial remedies than the other cannot be sustained 6 Id. at 369. approach to membership, undocumented for long; such a system brings to mind 7 See, e.g., Wong Wing, 163 u.s. 228 (1896). workers, as a category, are members of the Thomas Jefferson’s warning against the pas- 8 Plyler v. Doe, 457 U.S. 202, 226 (1982). employment sphere entitled to the full dis- sage of the Alien and Sedition Acts: “The 9 Id. at 221. tribution of membership rights available in friendless alien has indeed been selected as 10 Id. at 221. that sphere. First, undocumented workers the safest subject of a first experiment; but 11 Id. at 221. have significant affiliations with their - sur the citizen will soon follow. . . .”29 12 Id. at 203. rounding community. Their employment, 13 u.s. v. Verdugo-Urquidez, 494 u.s. 259 (1990). alone, ensures the existence of these ties. IV. Conclusion 14 Id. at 271 (1990) (emphasis added). Undocumented workers contribute to a col- 15 Id. lective effort and add value to an enterprise. The increasing presence of undocumented 16 In re Ross, 140 u.s. 453 (1891). Their employers and the broader economy rely workers in the u.s. labor force poses challeng- 17 Id. at 464. on undocumented workers to perform what ing questions for courts and elected officials 18 354 u.s. 1 (1957). are often undesirable and dangerous tasks that about the meaning of immigration status, 19 Id. at 6. few authorized workers care to perform. presence in the United States, and, as I have 20 128 S. Ct. 2229 (2008). Second, the principle of mutuality of argued here, the broader concept of member- 21 Id. at 2258 (quoting Murphy v. Ramsey, 114 u.s. 15, 44 obligation further suggests that undocu- ship. I do not claim to have all the answers (1885)). mented workers, despite their lack of to these questions. Rather, my hope is that 22 Hoffman Plastic Compounds, Inc. v. Nat’l Labor Relations work authorization, are members entitled I have given a larger context to questions Board, 535 u.s. 137 (2002). to full membership rights. On one level, surrounding undocumented workers, and 23 Escobar v. Spartan Sec. Serv., 281 F. Supp. 2d 895 (s.d. and as articulated in Boumediene, the only more broadly, undocumented immigrants. Tex. 2003). law that applies to undocumented work- Membership rights can be distributed many 24 Veliz v. Rental Service Corp. usa, Inc., 313 F. Supp. 2d 1317 ers in the United States is u.s. law, and the different ways. It is important that the u.s. (m.d. Fla. 2003). government must not impose obligations choice of a membership approach be a delib- 25 Id. at 1336. upon undocumented immigrants without erate, conscientious choice that furthers our 26 Xinic v. Quick, 69 Va. Cir. 295, 2005 WL 3789231 (Va. also affording corresponding protections. overall policies and goals rather than the Cir. Ct. 2005). But on a more specific level, the relation- result of a hasty reaction to surging unauthor- 27 The court was unhindered by the relevant workers’ ship between employee and employer is ized immigration. In the employment sphere, compensation statute, which defined an “employee” as one of reciprocal obligations. An employee I believe u.s. law has diverged from a broader “every person, including aliens and minors, in the ser- subjects herself to the requirements and u.s. commitment to and trend toward a more vice of another under any contract of hire . . . whether instructions of an employer on the express principled approach to membership. But it is lawfully or unlawfully employed. . . .” Va. Code Ann. § 65.2- assumption that the employee will abide not too late to correct the course of employ- 101 (emphasis added). by legally imposed standards. To allow an ment rights distribution. Indeed, commenta- 28 Hoffman Plastic Compounds, Inc. v. Nat’l Labor Relations employer to circumvent these standards by tors from both ends of the political spectrum Board, 535 u.s. 137, 156 (2002). denying undocumented immigrants certain are calling for an overhaul of our immigration 29 Thomas Jefferson, “Drafts of the Kentucky Resolutions remedies is to approve of the employer’s policy. My hope is that analyzing the undocu- of 1798,” in 7 The Writings of Thomas Jefferson, 1795–1801, refusal to fulfill its reciprocal obligations to mented worker through the lens of member- (Paul Leicester Ford, ed. 1896).

clark memorandum 25 By James R. Rasband1

n behalf of my faculty Ocolleagues as well as the rest of the administration and staff, I welcome you to byu Law School. Among the many choices and opportunities you have had, I am convinced you have chosen well. We all consider it our duty to help ensure that your choice bears good fruit. The theme for my remarks today will be a familiar one that I believe is applicable to all of us—students, faculty, adminis- tration, and staff. It comes from the book of Luke: “Unto whom- soever much is given, of him shall be much required: and to whom photography by bradley slade men have committed much, of him they will ask the more” (Luke 12:48; see also d&c 82:3). clark memorandum 27 All of us who gather today do so as the Let me assure you that all of you have the In the causeway crash case, for example, beneficiaries of the sacrifices and efforts of capacity to succeed. You are those who have is reasonableness defined simply by our quick others. We all inherit a law school with a been given 10 talents. When you leave law intuitive judgment of what we think a county strong foundation and excellent reputation school, you’ll have even more. The question should do to make its roads safe? Is the answer because of the efforts of so many students and will be how you will use them. an economic one—to look at the costs of faculty who have passed through our halls. But for now, as you embark on this installing stronger guard rails vs. the number You are the beneficiaries of an incred- endeavor, there may be times when you will of accidents prevented? Is the answer a look ibly low tuition because of the generosity be tempted to think that you lack the neces- at custom? Does it matter how other coun- and sacrifice of many, many members of the sary ability. As a counterweight let me sug- ties and states are building guardrails? And for Church. In these economic times, that gen- gest a couple of areas in which it is important any potential rule adopted, what sort of social erosity is welcome because it will allow you to have some perspective. impacts will it create? Will counties respond to avoid incurring so much debt, particularly First, it is wise to remember that when we by building better guardrails or building fewer if you are careful with your expenses over the do something for the first time, it is almost roads? What is the best way to care for per- next three years. But in light of the economic always difficult. When you begin preparing for sons, like Smith, who suffer severe injuries? times and the many competing uses for those class, it may take you a couple of hours to read, Is it the judicial system or some form of social funds, it makes the gift of the tithe payers all brief, and understand a three- to four-page insurance? And for all of these questions, what the more remarkable. This is particularly the case. Even then, you will walk into class, is the relative role of courts, the legislature, and case because the vast majority of them will thinking that you are surely prepared, only to the executive branch in such decisions? not ever be able to partake of this gift find out that the issues and questions In the hands of superb faculty, this sort of themselves. Parents and spouses are This raised by the case run much deeper than dialogue and the complexity of class discus- also likely giving much—financially you had imagined. sion will go much further and peel back many address was and emotionally—so that you can be Think for the moment about a more layers than this quick peek at the issues. here and succeed. given to garden-variety torts case, a personal At the beginning, the process may feel You have been given much not just injury case, where an older gentle- a bit excruciating, particularly if you are on the entering by others but also by your Maker. This man—we’ll call him Smith—was driv- the proverbial Socratic hot seat, but you will is a remarkably gifted class whose col- first-year ing across an elevated causeway, lost improve over time if you give it your best lective experience and knowledge will control, hit a wooden guardrail, and effort. students of be a well from which I hope you will plunged 100 feet to a severe injury, Everything takes longer when you begin. all drink deeply during your three years J. Reuben after which he sued the county that Experience tends to be a little painful and a here. The truth is that one of the great- had constructed the bridge. little embarrassing. But the alternative is no Clark Law est gifts this law school will give you is In preparing for class, you’ll need to growth. to introduce you to your classmates. In School on read and understand this basic plotline I began law practice in September 1990 this group gathered today in this moot of facts, but that won’t be enough. Nor in Seattle, Washington, following a clerk- August 19, court room are those who I hope and will it be enough just to understand ship in San Diego. I had not yet taken a expect will become your lifelong friends. 2009. the legal issue and doctrine in the case: bar examination, mostly because when All of us are persons to whom much here, was the county’s construction of I headed off to do a clerkship I hadn’t yet has been given. It is not cause for congrat- the causeway and guardrail negligent, reason- decided where I wanted to practice law, ulation—although I can’t help but pause and able, and the cause of the injury? and I certainly wasn’t eager to take the bar congratulate ourselves on putting together In addition to the facts and the legal exam twice. What this meant was that from another such fantastic class—rather, it is cause rule, you’ll also need to think about the pro- September until April or May of the next for reflection and, ultimately, for sacrifice. cedural posture of the case: should the court year, I would not be able to appear in court There truly is much required of each one of us. assume the allegations of Smith are true or sign any court pleadings. In all of my cor- Now, I recognize that today, of all days, because it is the county who has moved to respondence with opposing counsel, my despite sterling academic credentials that dismiss the case or vice versa? signature read: “James R. Rasband, not yet place you among the top classes in the coun- You’ll need to look at other cases and admitted to the bar.” try, many of you probably do not feel like consider how this particular case fits with That fall, soon after I started, I was the person who has been given 10 talents. precedent and whether it is distinguishable approached by a partner to handle an unlaw- More likely, many are wondering whether in meaningful ways. ful detainer case, an ideal opportunity for a they’ve been given enough talent for the task Likewise, you’ll need to consider what young associate. The basic idea of an unlaw- ahead. And if you are not wondering that a word like reasonable means. Think about ful detainer is that a tenant who is in posses- today, you surely will over the next weeks how often each of us confidently asserts that sion of a leased property refuses to pay rent and months as you are subjected to searching a particular argument is “unreasonable” or a or leave the premises. This particular case Socratic questioning or as you hear a class- particular policy “unfair.” Part of learning involved a western-wear store in Ellensburg, mate’s response and think, Why didn’t I see the law is learning to unpack such words and Washington, about 100 miles east of Seattle. that? What am I missing? give them content and meaning. As I recall, the tenant had not paid rent for

28 clark memorandum a little more than a year, and the landlord by a reasonably competent attorney in one Apostles of our sponsoring church, spoke at decided he needed the help of the legal system. hour, but it took “James R. Rasband, not yet a fireside sponsored by J. Reuben Clark Law These are very straightforward cases, admitted to the bar,” four hours.” Society, a society made up predominantly but everything took me a great deal of time By the time of the fee request, I had been but not exclusively of lds attorneys, which because I was so new. I puzzled over every admitted to the bar, much to the surprise of most of our graduates join in addition to the step and would have preferred not to bill most my opposing counsel. Unfortunately, that byu Law School Alumni Association. Elder of my time because much of it was wasted. meant that I was fully capable of arguing Cook, as most of you know, is an attorney, as The partner in charge, however, told me to the fee motion to the court. I headed over are two of his three children—a daughter and write it down and that he would write off what to Ellensburg to take my whipping. As luck a son, who is a graduate of our law school. was unnecessary once the case was resolved. would have it, the opposing counsel had In one section of his address, Elder Cook One early puzzle I remember was filing filed his response brief late and the court suggested that too often our sense of happi- what is called a “motion to shorten time.” refused to consider it. The judge, who had ness is derived from our perception of how we Basically, a motion to shorten time—as the done many, many unlawful detainer cases, are doing vis-à-vis others. He told a story of title suggests—is a request for the court assigned a reasonable fee, and we were done. how, years ago, he had been running a health to shorten the amount of time normally Here I was, after three years of law care system and hired a consultant to help the required for a particular legal procedure. school and one year of a clerkship on the company resolve some merger issues. The I’d never heard of a motion to shorten time. Ninth Circuit. I was still learning and still consultant had started by asking the group to I read the rules. I thought about the list some of the skills that were important equity. I looked at cases. I thought about to what they needed to do, such as delega- the theory. I can’t recall precisely, but I tion, public speaking, working with oth- probably spent five hours on that motion ers, etc. Elder Cook recalled listing out the to shorten time. Later, I would learn that various skills, at which point the consul- all I needed to do was dictate a quick tant asked him to list individuals who he note to my secretary and have her pre- had met in his lifetime that were the very pare the motion for my signature. It was best in each area. Elder Cook related: probably a 10-minute task and certainly no more than 30 minutes. As I recall there were approximately 10 of The motion to shorten time was not these skills. He then listed them across the top the only task that took me more time than of the whiteboard and asked me, using an abc an experienced attorney. I was young and grade formulation to identify how each of these learning. superstars performed in the other nine areas. To In any event, the case moved for- my great amazement, I realized that no one got ward and we succeeded. It was certainly straight As across the board. Most had signifi- not a triumph of brilliant lawyering on cant numbers of Bs, and many had some Cs. my part. It’s not too difficult to prove The consultant then pointed out that what unlawful detainer when the defendant each of us do in life is compare ourselves with the failed to pay rent for at least a year on a A+ performers in each category that we value, commercial lease. and then we feel inadequate and unsuccessful in Once the case was over, the Washington feeling inadequate. Now, the truth is that what we are doing. statute under which we proceeded allowed byu does a much better job with teaching You might ask, “Why am I sharing this with us to seek attorneys’ fees. The partner in you some basics of lawyering skills than I you?” Law and the process of becoming a lawyer charge told me to draft the motion and seek received. Nevertheless, you are likely to find are very competitive. The respect for credentials can fees from the other side. Knowing how long your own versions of motions to shorten reach an inappropriate level where they are virtually everything had taken me, I was a bit queasy. time. It’s okay. In fact, it is necessary. Spend “idols.” . . . In the hothouse environment of the law, We cut back the request some but plainly the time to get it right. Don’t be worried or there are many people who are very skilled, and there not enough, because I will never forget the ashamed that your first effort takes longer. It is always somebody who seems to be better in all the response from opposing counsel. almost always gets easier as you go. ingredients that make up the qualifications to be a Opposing counsel dissected the fee Let me suggest a second counterweight lawyer. Notwithstanding these issues, I would ask, request and my billing statements line by to the almost inevitable feeling as you begin “Do we have to be an A in everything to be happy?” line. The motion to shorten time, he said, law school of lacking the necessary talent. could be prepared by a reasonably competent Please keep in mind that lasting happiness Elder Cook went on to suggest that our attorney in 30 minutes, but it took “James R. and peace is not a function of comparing position vis-à-vis others cannot be the source Rasband, not yet admitted to the bar,” and yourselves to others. of happiness. It is ephemeral, and we will he quoted, five hours. And so it went, this Last spring Elder Quentin L. Cook, who always find some character or attribute where task or that task could have been performed is a member of the Quorum of the Twelve another person appears to be scoring higher.

clark memorandum 29 It is our own best effort that must be the ther into the semester. Former dean Reese This is not just a function of Christian source of peace. Hansen, when he spoke to the entering kindness. It is also good lawyering. When I have always thought of learning the law class, sometimes recalled, “It is often said you understand another’s views in their best as being something like learning a foreign that the boorish behavior of first-year law light, you will be better able to evaluate the language. For some, learning the language students has ruined more Thanksgiving Day wisdom and strength of your own, or your may come easily. It just clicks. For others, is family dinners than any other single factor.” client’s, position. It is neither charitable nor comes with great difficulty. But for all who I always nervously chuckled at Dean wise to assume that because a classmate dis- are willing to work hard at it, it comes. Hansen’s remarks, knowing that I myself had agrees he is misinformed, unreasonable, or To this I would add that the categories spoiled the occasional dinner because I just unthinking. In law practice, whether in deal- of legal skills upon which law school tends to couldn’t resist taking out my shiny Socratic making or in litigation, once you understand focus are just a part of the broader equation pin and popping someone’s balloon. the concerns animating the other side, it is of being a lawyer. Just like speaking a lan- I am not suggesting that we do not much easier to find an acceptable resolution. guage doesn’t make the missionary, knowing stand up for our principles or that we refrain Even if you can’t find a solution, you will bet- the law isn’t enough to make the lawyer. It’s from advocating causes about which we ter understand the nature of a just resolution what you do with the language or what you are passionate. Instead, what I hope is that to the dispute. do with the law that matters. as you study the law, one of the lessons you Your education to this point, and the Whether you are someone for whom internalize is the importance of what I would skills of careful analysis and critical thinking the language of the law comes quickly or call charitable disagreement. that we hope you will hone during law school, one for whom it comes at a more regular At a basic level, charitable disagreement will give you significant power and influ- pace, look for ways to help others. Learning should take the form of civility. The study ence in society, indeed, in almost any group is a gift that ought to be shared. It is the par- of law is the study of the rules that regulate of which you are a part. As dean of this law adox of charity that the giver benefits more human behavior. Because you come from school, that is precisely what I want. I want than does the receiver. This is certainly true different backgrounds and have had different you to be influential leaders. But as you wield in education. Those of us who have taught experiences, it is likely—indeed certain— your influence, remember that worthy influ- know this best. There is no better way to that you will not see eye to eye with all of ence can be maintained only “by persuasion, learn something than to teach it. As you your classmates about what rules are best for by long-suffering, by gentleness and meek- work to help classmates—in study groups, ordering society. I hope that what that leads ness, and by love unfeigned” (d&c 121:41). in carrels, and elsewhere—your own legal to in your classrooms is robust debate. It is Let me now suggest a second expecta- skills will develop even faster. By help, I do out of such debate that real learning comes. tion where so much has been given. It is not mean just spending time to explore the Feel free to disagree vigorously and to dis- the expectation that we work hard to take permutations of any particular legal doc- agree often, but to disagree respectfully. advantage of our blessings and then to make trine. I mean also taking the time to comfort Professor Brett Scharffs once told me them available to others. Hard work is a life- during times of stress or sorrow and taking that his mother used to say that if you find long way to give back a little of what we have the time to broaden your social circle. These yourself disagreeing, and I paraphrase from been given. This isn’t just work at the office; too are lawyering skills. memory, “there is no need to shout or get it is work in the community, in your church, Although I want you to have some per- angry. If you are right, you don’t need to. and in your home. spective at what is likely a time of uncer- And if you are wrong, you don’t want to.” Later this fall we intend to give each of tainty, my primary goal is that we recognize The law is an adversarial profession, but you a dvd documentary about the life of J. how much we have been given and ask what it works best and is most ennobling and sat- Reuben Clark Jr., after whom this law school should be required of this group of students isfying when it is practiced with respect for was named. President Clark, of course, was and this law school to whom so much has opposing counsel and opposing clients. The a former member of the First Presidency been given by those with so much less. Let best place to practice those traits before you of the Church, a former ambassador to me suggest a few ways in which we can enter the workplace will be in your class- Mexico, and a former undersecretary of exemplify our recognition of this blessing. rooms here at the Law School. state. Before all of that he grew up on a farm First, I suggest that as you learn the skills Civility is, in some measure, a lesser law. in Granstville, Utah. One of my favorite pas- of analyzing, taking apart, and making argu- When I speak of the importance of chari- sages in the dvd quotes three diary entries ments that are the staple of a legal education, table disagreement, my hope is that we do from President Clark’s father describing his you remember how critical it is to deploy more than simply be civil. Instead, I hope 12-year-old son, Reuben: those skills with charity and civility. you will learn to dispute with real concern Charity may seem easy today, particu- and care for those with whom you disagree. m o n d a y larly where the primary concern may be a I hope you will listen, really listen, to your A very stormy morning. Snowing and the wind faculty member dissecting your argument. classmates and work to understand their blowing from the north. Snow drifting. We advised But soon, perhaps too soon, it may not be. arguments and positions in a charitable light. the children not to go to school. Reuben thought Experience suggests that the humility may When you attempt to see another’s position he could stand it and so went. Edwin and Elmer start to wear off for some as we move fur- charitably, they often reciprocate. remained at home.

30 clark memorandum t u e s d a y not paid. What you receive instead is a “cre- of privilege and authority associated with A bitter cold morning. I think we are now having dential.” Think about that word. It comes the professional label. At the same time, the the coldest weather that I have ever experienced in from the Latin word credentia, which means understanding of law as one of the original the month of February. The boys started to go to “trust.” The dictionary defines the word “cre- noble professions seems to be dissipating. school this morning but it was so cold and stormy dential” as “that which entitles one to confi- To fight the former would seem to be a mis- that we called two of them back. Reuben had got out dence, credit, or authority.” In essence, what placed focus on retaining a privileged posi- of hearing. Edwin and Elmer remained at home. the Law School certifies to the world upon tion in the hierarchy of job categories. But your graduation is that you are entitled to the we must not give in to the latter trend of law w e d n e s d a y confidence, credit, and trust of your clients. drifting from its noble professional moor- The weather was extremely cold last night and this As you begin law school, recognize that ings. How powerful it would be if every morning. . . . We thought it was too cold to send many of you will be under the greatest aca- byu student and graduate took seriously the Edwin and Elmer to school today, but Reuben demic pressure in your life. The workload is traditional professional label, working dili- would rather miss his meals than to miss a day significant. Being graded on a curve along- gently to obtain knowledge and skills worthy from school. He is getting along well with his stud- side so many hardworking and accomplished of the title and then sharing those skills with ies. [David H. Yarn Jr., Young Reuben: The classmates can be stressful. The deadlines in integrity and a felt obligation to give back for Early Life of J. Reuben Clark, Jr. (Provo, Utah: law school are typically firmer than in your what we have all been given. Let it not be on Brigham Young University Press, 1973), 51–52] prior academic work. With all of these pres- our watch that the professional label is fur- sures, the temptation to cut corners in law ther drained of its content. My hope is that this same sort of passion can school can be great. Please remember that no I’d like to conclude by quoting two energize our entire learning community at temporary success on a paper or an exam is speakers who spoke to the very first Law the Law School. When you finish here, I hope worth the price of your integrity. School class when the Law School was you will have a lifelong passion for learning. Let me mention a final duty that accom- founded. Their challenge rings down The truth is that the critical and analytical panies our privileged status: the obligation through the years and is no less compel- thinking skills that we teach in law school are to serve those who are less fortunate. Law— ling today than it was 36 years ago. only the beginning of real learning, because along with medicine and the clergy—is one Speaking to the Law School’s charter they are the tools with which you will read, of the three original professions. As tradi- class, President Marion G. Romney, then study, and learn for the remainder of your life. tionally understood, members of a profes- a counselor in the First Presidency of the What I also hope that you develop or, sion were held to a specific code of ethics Church, said: more properly, retain—because most of you and required to swear some form of oath already possess this in abundance—is the to uphold those ethics, thereby “profess- You have been admitted for your superior qualifi- capacity to work until the task is done. Let ing” to a higher standard of accountability. cations. Appreciate your opportunities; make the it be said of byu graduates that they always The essence of being a genuine profes- best of them. Set a high standard for your succes- do their share and more. Certainly, save time sional, whether a doctor or a lawyer, was the sors to emulate. You know why you are here, what for your family and friends. Relationships expectation that a professional would use your school, the Board of Trustees, your own loved are more important than prominence in the her privileged position and her specialized ones, and yes, your Father in Heaven expect of you. workplace. Nevertheless, integrity demands knowledge for all who required it and not Don’t let any of them nor yourselves down. . . . Be that you give a full measure of effort in your simply for personal advantage. your best. Society needs you, your country needs employment. The gifts you have been given This is why the Rules of Professional you, the world needs you. demand that you give much of yourself. Conduct provide that “[e]very lawyer has a Let me take just a moment on another professional responsibility to provide legal At the same meeting, then university expectation that flows from the privilege services to those unable to pay” (Model president and now Apostle Dallin H. Oaks and status afforded a lawyer—namely, the Rule 6.1.). Helping the less fortunate is added: “We are privileged to participate in expectation of integrity. You have probably part of the compact between lawyers and this great venture. It is our duty to make it heard the term before that a lawyer is “an society. This service obligation, along with great. He who builds anything unto the Lord officer of the court.” This means that a law- the obligation of ethical conduct, is what must build in quality and flinch at no sacri- yer owes a duty not just to her client but also undergirds the unique and privileged posi- fice toward that end.” to the court. A lawyer has a duty to the pub- tion of lawyers. Thus far, states and the To their words of challenge, I add my lic to ensure that judicial proceedings are fair. public have largely allowed state bars (in words of welcome. I and my colleagues are More broadly, a lawyer has a duty to place other words, groups of lawyers) to regulate excited that you have decided to join us at professional standards and integrity ahead of who is able to practice law and what rules the Law School, and we are eager to begin any individual or client advantage. govern a lawyer’s conduct. This privilege with you the ennobling adventure of learn- Integrity is also something that goes to brings corresponding duties. ing and then practicing law. the very heart of what an academic institu- These days it seems as though every tion, and particularly a law school, does. At job is labeled a profession, partly, I imag- 1 James R. Rasband is the dean of J. Reuben Clark Law the end of your time at law school, you are ine, because of the historical connotation School at Brigham Young University.

clark memorandum 31 essentially destroyed all of her to depend on car pools for his affection. She cared nothing transportation to work, but on about what he did, nor did she the very first morning when believe that he would ever join he had to report, there was no the Church or, if he did join, opportunity to become a part of that he would ever be able to a car pool. So with great fear and abstain from the use of alcohols. apprehension, he decided he had So she said to him, “If you want no choice but to drive. to join their church, you go On his way to work he was ahead. But I’m not interested. proceeding in a normal and Sometimes I think that the only orderly fashion, when for some reason I am staying with you is small offense—I think it was for the security of myself and our associated with changing lanes son, not for any other reason.” or some such thing—he was So with this really rather stopped by a policeman. It was, negative aspect in view, Bob was of course, immediately ascer- baptized. Due to the commit- tained that he did not have his ments of his prebaptismal inter- driver’s license in his possession. view and teaching, he totally Only he knew the real conse- abstained from that day on from quence of that fact. the use of alcohol and tobacco, That day when I returned much to the surprise of his own home from work, Bob called wife. Needless to say, she began me and said. “Bishop, I am sorry to see the fruits of his conversion to say this, but I am resigning and the reality of it in his life. She as the ward Scoutmaster. I am began to soften her attitude. She resigning my ward teaching

commenced to take a closer look assignment, and I will not Hunt Robert at the Church and subsequently attend church for an extended The following excerpt is from Harry sionaries in the area who were was baptized along with her son. period of time. I want to be J. Haldeman, “Talk of the Month: ‘There tracting up and down our street. In the year or so that fol- excused from everything and to Is a Law,’” New Era, July 1975, 16–19. One day they came to the home lowed, Bob made excellent be left alone. That’s really all that of a certain man who allowed progress in the Church. I called I have to say.” them to come in, and they briefly him to be the Scoutmaster of the . . . Finally, after a period of “There Is a Law” told their introductory story ward troop. He accepted the time, he told me briefly that he and made their introductory call and was functioning in his had been picked up for a driving by Harry J. Haldeman comments. For some strange calling and doing a very fine job. offense, and because of his long reason unknown even to himself, Because of his many history and record of drunk- At a Young Adult area conference this man, whom I will call Bob, years of drinking, he had driving violations, he knew held on Catalina Island, the Santa invited them to come back. amassed a long record of drunk absolutely that he would be sent Barbara Region delegates were Bob was subsequently driving convictions and other to prison when he was taken to assigned to meet in the courtroom of taught the gospel, and his wife tainted and sordid types of con- court. He said to me. “You don’t city hall for one session of the confer- and small son were also present. victions relative to his drinking; want to have your Scoutmaster ence. At the end of the session, Brother At the conclusion of the lessons, his driver’s license had finally be a jailbird, and the Church Harry J. Haldeman, priesthood leader Bob decided he would become been taken away from him. doesn’t want to be associated of the region’s Young Adult program, a member of The Church of He was therefore not allowed with people of this quality, so stood at the judge’s bench and addressed Jesus Christ of Latter-day Saints. to drive, and he scrupulously I am dissociating myself from the hushed courtroom of eager young His wife, however, was totally observed this ruling, with his the Church and from my call- people. This is the story he told. disinterested. She felt that she wife doing the driving for them ings, and if you will just leave no longer loved her husband in the family. . . . However, there me alone and not be concerned n the early 1950s I was the because he was essentially and came a time when he left his about me, eventually I will find bishop of the Rosemead very tenaciously a continuing employment as an expediter for my way back.” IWard of the Los Angeles drunk. But he stayed sober dur- a manufacturing operation and He refused to tell me California East Stake. It was an ing weekdays and maintained took a job with another concern; where the traffic violation had average-size ward of about 500 a good job. He had drunk for it was a much better job. As in occurred or when he was to people. There were full-time mis- years—so much so that he had his previous job, he expected appear in court. His wife knew

32 clark memorandum little about it, but with a bit of prepared myself and had prayed before by my opportunity. I Honor. I will never break my detective work I was able to find diligently to the Lord that as his remember it took me several promise to that man.” out where he was to appear, the servant and as the bishop to this seconds before I had the com- There was a silence again for seriousness of the offense, and man, I might have the oppor- posure to stand. I slowly rose to a moment, and the judge said, the hearing date that was set for tunity to speak to the court my feet and said in a somewhat “One of the finest men I have him. . . . Bob did not know I was and hopefully mitigate to some weakened and quivery voice, ever known was a man named coming, and I can’t remember degree the nature of his punish- “Yes, Your Honor, I did come J. Reuben Clark Jr. He was a whether his wife knew or not. ment. . . . I stared ahead and was to speak to this court on behalf classmate of mine in law school. Nonetheless, on the date he struck essentially dumb and of the man you have just sen- He was a great man, and I was was to be arraigned, his wife numb in my feelings as the quick tenced.” With that he looked always impressed with him when and I appeared in court at the conviction and sentencing took over at my friend, Bob, and as I we were students together. I same time. . . . place. As Robert walked from mentioned his name, I noticed believe he is one of the presiding The first defendants were his position in front of the bench that the clerk slowly passed officers of your church. In view called to appear, one after and sat down as he had been back onto the top of the desk in of my great feelings for him, and another. They pleaded; the judge instructed, I felt frozen to where the view of the judge the same my knowledge of the great influ- decided on whether to convict I was sitting, speechless and record he had had. ence of the Mormon Church, or acquit and the extent of sen- overcome with remorse. As I sat “Well,” said the judge, “what and the obvious influence it has tences and fines. He finally called staring, I felt I had failed him. would you like to say?” had on this man, and his prom- the name of my friend, Robert. I suppose if I had sat there long I swallowed rather hard a ise, I will suspend the sentence.” As he did, he was handed the enough and pondered every- couple of times; I noticed that With that he brought down his large document that represented thing, I would have wondered Bob looked at me. Up to this gavel again and said, “Sentence this man’s record with the law if the Lord had failed me; I had time he had been sitting with his suspended. You may go.” enforcement agencies through- come into the room with great head down. I said, “Your Honor, With that Robert arose. out the state of California. faith, having done all I could on I am a bishop in The Church of The bailiff handed him the bas- As Robert stood before the my own to find my way there, Jesus Christ of Latter-day Saints, ket with his personal belongings. judge, the judge spent several to arrange my time, to pray dili- and since I’ve know him he has His wife and I walked forward minutes eyeing page after page gently and hope for the chance been a faithful member. Since to meet him as he walked of the record confronting him. to say something in his behalf. the day of his baptism, he has through the gate, and the three He finally looked up at Robert But the deed was done; the man never touched one drop of alco- of us, arm in arm, walked out and simply said, “Are you guilty was convicted. hol, smoked one cigarette, or of the courtroom with tears or not guilty of driving with- At that point the court drunk one cup of coffee because streaming down our faces. out a license?” Robert said, “I clerk handed the judge the next he promised he would not do It was undoubtedly one of am guilty, Your Honor.” The record for the next person to be these things if he could be bap- the most beautiful examples that judge was obviously upset and called up. There was a moment tized. He has accepted the call I have ever experienced of the aggravated, almost moderately or two delay in calling the next to be a Scoutmaster, and he is a truth that if a man will walk as enraged, at the record before defendant. The judge seemed good Scoutmaster. The boys of far as he can walk, do all that he him and at the idea that this man to be perusing his record. I his troop love him, and we need can do, pursue his responsibili- would drive under those condi- said nothing. I did not raise my him, and he has promised me he ties to the full degree of which tions and that he had had little or hand, nor did I move my head or will continue to be that kind of he is capable, pray while he is no imprisonment for all of these body. I had no particular expres- a man. I thought that perhaps doing it, and then put his faith offenses. So, after a few blister- sion on my face. All of a sudden, before you sentenced him, you in the Lord, in the hour and the ing words of observation and without any visible reason, the might like to know these things.” moment of need, our Father in chastisement, he brought down judge raised his head, peered There was a pause. I am Heaven will step forth and help his gavel as he said, “One year in directly across that courtroom sure that it could only have been fight his battles. The great name, the county jail.” into my eyes, and said to me in a few seconds. It seemed like the personal influence, and the He directed Bob to step a loud voice, “Sir, do you have a long while to me. The judge great reputation of President over to the jury box, which was something that you want to say turned to Bob as he sat across J. Reuben Clark Jr., combined empty—there being no jury to this court?” the room in the jury box and with the faithfulness of a mem- that day—so he could empty his With that there was silence. said to him, “Is what this man ber who had done as he had pockets into the little basket that In a rather shocked condition said true?” Bob raised his eyes promised he would in the waters was provided and then sit there I finally said, “Yes!” For him to to the judge and said, “Yes, of baptism and a bishop who, until he would be taken in the make this statement to me when Your Honor. It’s all true.” Then though totally inadequate, had sheriff’s bus to the county jail. I had made no sign or signal was the judge asked, “Will you done what he could—all this I had come with the purpose a most amazing circumstance. ever break your promise to this combined to change the course of testifying in his behalf. I had I was then more overcome than man?” And Bob said, “No, Your of history in the life of one man.

clark memorandum 33 Reese Hansen, former dean of the Law School and current president of the Association of American Law Schools, and James L. Ferrell, Yale Law School graduate, managing director of The Arbinger Institute, and author of The Peacegiver, were the main speakers at the J. Reuben Clark Law Society Leadership Conference held at Aspen Grove on October 1–2, 2009. The following excerpts are taken from their talks.

J. Reuben Clark Law Society Leadership Conference ...... r e e s e h a n s e n excellence among lawyers who . . . yea, some were ignorant because because you have had that supported the Law School of their poverty, and others did opportunity, you have a solemn On the Formation of and who were guided by the receive great learning because of their duty. Your education obligates J. Reuben Clark Law Society example of President J. Reuben riches. [3 Nephi 6:10–12] you to use your skills in helping It was in the fall of 1988, 21 Clark. It was hoped that such and healing and community years ago, when J. Reuben an organization would be I think that scripture says building, and heaven knows we Clark Law Society was beneficial to both. I think it is so much about what we see need it everywhere. formally organized. I was fair to say that it has proven to now in our society about the associate dean of the Law be beneficial to both. opportunity for education, the Bridging the Divide School, and Bruce Hafen chances for learning. You have You may feel that your was the dean. The idea that Responsibility to Give Service been blessed with learning. “Mormonness” makes you so sparked its creation came in a This passage of scripture has The graduates of our Law different from others that you’ll conversation Bruce had with held special attention for me: School and members of the never be able to fit in and make Ralph Hardy. Even then a well- Law Society have had great a place in the organization. known member of the Church There began to be some disputings opportunities and chances for These feelings produce two practicing law in Washington, among the people; and some were learning. Because of this, you common consequences that I d.c., Ralph said that because lifted up unto pride and boastings are in a position that others have observed. he was known in the profession because of their exceedingly great only dream of. Less than 4/10 One is studious avoidance as a Mormon and because byu riches, yea, even unto great of 1 percent of the people in of any identification with the Law School had become widely persecutions; the United States are lawyers. Church. This, of course, is known as the “Mormon Law For there were many merchants I know there is talk about too hopeless because you can’t School,” his reputation in the in the land, and also many lawyers, many lawyers, but let me tell possibly keep it secret. The profession reflected on the Law and many officers. you, if you are not a lawyer and fact of the matter is that we are School and the Law School’s And the people began to be want to become a lawyer, you a bit different, and it shows reflected on his. He said that distinguished by ranks, according will find that it’s not so easy. up in ways that others will whether we liked it or not, we to their riches and their chances for Your opportunity for education notice. So studious avoidance were hooked at the hip. So out learning; . . . enables you to practice law of identification is not the way I of that conversation grew the and have privileges and access recommend going. idea to organize a special kind Underlined in my scriptures is to power that only the tiniest The other thing I’ve seen of professional organization the phrase “and their chances for fraction of people in our country happen is a strong assertion of that promoted professional learning.” There is more: even dare to dream about. And your personal moral code in

34 clark memorandum the group. I think that’s unwise with incivility, beginning with the purpose of the law: it brings under the law: that every mouth and ineffective. There will be complying with rules. They us to Christ just like the fiery may be stopped, and all the opportunities in the course govern outward actions; but serpents brought the people to world may become guilty before of your service where basic thinking that that alone solves the type of Christ. The people God.” Under the law we all principles come up, and you will the problem of civility is a needed to look outside of become guilty before God; no have opportunity to make your mistake. It might be a good themselves to be saved. one’s better, no one’s worse on point. But browbeating people step, but there’s something That’s what the law does. that score. We all count the with your private moral code deeper that needs to happen By being bitten by the law, by same. I can’t really elevate is not effective and won’t get than outward actions—whether being bitten by our brokenness myself if I realize that I’m just as you very far. You’re going to be we’re in a courtroom or whether under the law, it forces us to condemned as another. When involved and sometimes you’re we’re at home with our family something beyond ourselves; the people of King Benjamin going to get your way in these members—that will go to the it forces us to Him. How does really deeply saw the truth, groups and sometimes you’re root of the problem. it do this? Let’s look at the they saw themselves as less than not going to get your way. So So if we have this scriptures: “For whosoever shall the dust of the earth. It’s no what are you going to do when distinction of seeing people keep the whole law, and yet good for us to be saying, “Yes, you don’t get your way? Well, as people who either count offend in one point, he is guilty but I’m a better speck of dust you can resign and go home to like I count or not, we have an of all” (James 2:10). Can that be than you are.” Romans 3:20, 23

Bradley Slade Slade Bradley your office and your work and uncivil attitude, an uncivil way true? Adam and Eve committed reads: “Therefore by the deeds do the things you do, or you of being, even a violent way of how many transgressions in the of the law there shall no flesh can tough it out and work with being. We are moving away Garden of Eden? One. And as be justified in his sight: for by it over time and have a positive from the fundamental truth that a result they became separated the law is the knowledge of experience. In my experience, all people really count the same. from God. What would have sin. . . . For all have sinned, and it’s better to stay and to work happened if they had committed come short of the glory of God.” than it is to flee out of some The Scriptures and Civility two or 20 transgressions, would Then Romans 3:27, on the disappointment. There is something very they have been more separated? issue of civility, says, “Where is interesting in the way that the No, separated is separated. We boasting then? It is excluded.” j a m e s l . f e r r e l l law of the gospel is set up that are separated from God, and we If we really understand the law, speaks right to the heart of this have a tremendous need, which and we realize that it brings us On Attitude and Civility issue. So I’m going to take a is one of the great purposes of to Christ, then we realize that One’s attitude can be looked look at the law as it’s conceived the law, to bring us to the Savior. boasting is excluded except in at as a way of being. Let me in the gospel and see the cure for Back in Jesus’ day there Him. If that’s the case, it’s pretty suggest that there are two ways the lack of civility. were people who misunder- hard to be uncivil to someone of being. One way is seeing When the children of Israel stood that basic point and felt else when boasting is excluded; other people counting in the were in the desert, there was a that they were better than other we’re in this together. I’m no way that we count. For instance, plague of fiery serpents whose people because they were better better than my wife, I’m not I see my wife, and she counts bites were lethal. The Lord told keepers of the law. They’d better than my child, I’m no like I count; her ideas count Moses to make an image of a missed the whole point of the better than my neighbor who like my ideas count. I ought fiery serpent—a brass serpent— law, which was to bring us all to struggles with xyz sins that to consider them equally; I and put it up on a pole. All who our knees and help us all realize perhaps I don’t struggle with; I’ve ought to ponder them equally. would look at the brass serpent our insufficiency, so we not got my own struggles, and they When we see someone that would live. Now, we read in only keep the laws that we separate me just as much as yours way—counting as we count— the scriptures that the brass covenant to keep, but we realize do. Paul then says this in Romans then we’re seeing that person serpent was in similitude of we need more, we need Him, 3:28, 31: “Therefore we conclude as a person. But we don’t see the Savior. But I ask myself this and we fall at His feet, so we that a man is justified by faith everyone in this light. Then we question: “If the brass serpent can be changed. without the deeds of the law. . . . say, “He almost counts like I is in similitude of the Savior, Let’s look at Romans 5:20 Do we then make void the law count; or she counts more than what is the fiery serpent in where Paul says, “Moreover the through faith?” And his answer: I do.” In that case, they don’t similitude of?” I’d like to submit law entered, that the offence “God forbid: yea, we establish really count the same at all. to you that the fiery serpent is might abound.” Now why the law.” In other words, no, this Now, on the issue of in the similitude of the law in would that be the case? Why is doesn’t mean that the law doesn’t civility: If I have only uncivil the gospel. How? Well, think it that somehow it’s good if the matter; it’s the law that brings us words and uncivil actions about it. The fiery serpents, offense abounds? Romans 3:19 to Christ. But it will only bring toward my fellow beings, I what did they do? They brought tells us: “Now we know that us to Christ if we realize that have uncivil views of them. the people to Christ because what things soever the law we’re all broken, and that I’m no There are good ideas for dealing they wanted to be saved. That’s saith, it saith to them who are better than anyone else.

clark memorandum 35 ean James Rasband the state of Utah in litigation (2) recently announced challenging the 2000 census. Dtwo new appoint- Lee joined byu Law School in Slade Bradley ments to byu Law School pro- 1997. Before coming to byu he fessorships. Thomas R. Lee is clerked for Judge J. Harvie now the Rex J. and Maureen E. Wilkinson III, u.s. Court of Rawlinson Professor of Law, Appeals for the Fourth Circuit and Brett G. Scharffs is the in 1991–92 and for Justice Francis R. Kirkham Professor Clarence Thomas, United States of Law. “I congratulate both Supreme Court, 1994–95. Professor Lee and Professor Professor Scharffs is the asso- Scharffs and express apprecia- ciate director of the International tion for their many contribu- Center for Law and Religion tions to the Law School,” Studies. His scholarly interests thomas r. lee brett g. scharffs Rasband said. include law and religion, corpo-

...... Professor Lee uses his rate law, international business expertise in trademark law as a law, and philosophy of law. New Professorships member of the International Professor Scharffs clerked for the Trademark Association and as a Honorable David B. Sentelle on member of the editorial board of the u.s. Court of Appeals, d.c. at Law School The Trademark Reporter. He has Circuit, and he worked as a legal argued trademark infringement assistant to the Honorable cases in federal district courts George H. Aldrich at the Iran- and appellate courts throughout u.s. Claims Tribunal in The the country. Professor Lee was Hague. Before teaching at byu, the associate dean for Faculty Scharffs worked as an attorney and Curriculum at byu Law for the New York law firm School for the 2008–09 school Sullivan & Cromwell. Before year. He teaches courses in intel- coming to byu Law School, he lectual property law and civil taught at Yale University and procedure while serving on the The George Washington Advisory Committee to the University Law School. He is Utah Supreme Court on the currently serving as a program Utah Rules of Civil Procedure. chair of the Law and Religion He has published numerous law section of the American review articles and represented Association of Law Schools.

onneville International president and ceo Bruce BReese was chosen as Bruce Reese Named Radio Radio Ink’s Radio Executive of the Year on December 1, 2009. Long known and respected Executive of the Year for his industry leadership, Reese has been with Bonneville Committee, he played a key Under Reese’s leadership, since 1984 and rose to his role in the selection of new nab Bonneville, with 31 radio stations, current post in 1996. He has president/ceo Gordon Smith. has solidified a reputation for chaired both the nab Radio Reese has also served on strong community service and (1) Board and the nab Joint Board the boards of the Associated involvement. As a community and helped establish the nab Press and the rab and currently leader himself, Reese is active on fastroad program designed chairs the nabef board, while the board of the United Way of Salt to help develop new technol- Bonneville is the charter spon- Lake City, with the byu Alumni ogy for broadcasters. As a sor of nabef’s Celebration of Association, and on the board of

member of the nab Executive Service to America Awards. Intermountain Healthcare. Photography Williams Matthew of Courtesy

36 clark memorandum michael goldsmith

1 9 5 1 – 2 0 0 9

ichael Goldsmith, In a personal essay published in A nationally recognized asset forfeiture, and electronic byu Law School Newsweek entitled “Batting for expert in the Racketeer surveillance and previously Mprofessor since 1985, the Cure,” Goldsmith called on Influenced and Corrupt served as vice chair of the aba died from respiratory failure due major league baseball to make Organizations Act (rico), Criminal Justice Section, rico to amyotrophic lateral sclerosis July 4, 2009, als–Lou Gehrig’s Goldsmith taught classes in Committee. In 1994, President (als) on November 1, 2009. Day. That essay was read by evidence, criminal procedure, Clinton appointed Goldsmith He was 58 years old and was an Bud Selig, the commissioner trial advocacy, and complex to the u.s. Sentencing advocate for als fund-raising the of baseball, who implemented criminal investigations. He Commission. From 1996 to last two years of his life. Goldsmith’s idea. On that day won the Best Professor of the 1997, Goldsmith served as the Goldsmith was diagnosed every major league baseball Year award six times and taught commission’s vice chair. with als, also known as Lou park in which a game was being his final class in the spring of Dean James R. Rasband of Gehrig’s disease, in September played held on-field ceremonies 2009. A former assistant United byu Law School said, “I have 2006. While attending a commemorating Lou Gehrig’s States attorney as well as great admiration for Michael, Baltimore Orioles fantasy base- famous speech and raising counsel to the New York State not only for the way in which he ball camp, he realized that July funds for research. Goldsmith Organized Crime Task Force, continued to work so diligently 2, 2009, would mark the 70th himself threw out the first pitch Goldsmith offered students and successfully to benefit others anniversary of Lou Gehrig’s fare- in Yankee Stadium after a com- personal insights in his classes. with als but also for his lasting well speech at Yankee Stadium. memorative ceremony. He wrote extensively on rico, contributions to the Law School......

Michael Goldsmith with daughter, Jillian. (4) All Smiles Photography Photography Smiles All

clark memorandum 37 in 2006. He moved to Keleher & McLeod pa Nancy Van Slooten has been appointed has been listed as one of the “Most Influential as of counsel. He has since become a share- international chair of J. Reuben Clark Law People in Security, 2009” in the December holder with the firm, practicing in general civil Society. Her family just moved to Draper, Utah, edition of Security magazine. Class Notes litigation. Of note, he recently filed a large after living in Atlanta, Georgia, for 13 years. She class action in federal district court on behalf and her husband, John, have six children. class of 1988 of Navajo employees of the Bureau of Indian Kirk Wickman serves as chief administrative David Harmer was the Republican nominee E-mail your professional news to Affairs alleging discrimination. officer of Angelo, Gordon & Co., one of the for the u.s. House of Representatives from Annette W. Jarvis, a partner at the firm of world’s largest hedge funds. Kirk is based in California’s 10th congressional district in a [email protected]. Dorsey & Whitney llp, has been named the New York City. He previously served as general November 2009 special election. In a district cochair of the firm’s Finance and Restructuring counsel of Morgan Stanley’s Global Wealth that President Obama carried by a 32-point Department. Management business, Skandia’s u.s. insurance margin (65 percent to 33 percent), David far the spring issue of the clark Jay Douglas Pimentel is vice president and business, and Aetna’s financial services outperformed expectations, raising $838,000 memorandum publishes news of the associate general counsel for TriNet. He oversees business (now part of ing). Kirk previously and holding his opponent, the sitting lieutenant employment law, operations, legal compliance, was a partner of Kirkland & Ellis in Chicago governor, to only 53 percent of the vote. graduates of j. reuben clark law and contracts as they relate to TriNet and its and New York. Kirk and his wife, Sheryle, live Lisa Broderick Thornton has returned to work school. due to space constraints, it is vendors and customers. Jay is the author of in nyc during the week and return home to after spending years raising five children. She several legal articles in the area of corporate and Connecticut on weekends. is now a partner in Christensen Thornton pllc not always possible to publish employment law, and he has led information in Salt Lake City. Because Lisa has a daughter class of 1984 every submission for the class notes. workshops and Webinars in the areas of with Prader-Willi Syndrome, she is especially employment law, policies, and procedures. He J. Kevin West is the editor of the Idaho passionate about helping families with special currently serves in the legal affairs council of the Employment Law Letter. He was selected to needs. Her firm also handles appellate work, class of 1976 National Association of Professional Employer be included in the 2009 edition of The Best civil litigation, and divorce actions. Danny L. Ferguson has opened Ferguson Organizations (napeo). Lawyers of America in the category of Law pllc in Boca Raton, Florida. The firm will Dennis Richardson traveled to Fuhou, China, health care law. class of 1989 focus primarily on community association and as part of the 2009 Oregon Legislative Trade Donald Walker is now a mediator with the class of 1985 condominium matters. Delegation to China. He has served as an Antidiscrimination and Labor Division of David V. Sanderson died on October 13, 2009, Oregon state representative since 2007. Dennis Sears, senior law librarian at byu the Utah Labor Commission. He mediates from cancer. He worked at various Phoenix law Mark Stringer serves as director of health care Law School’s Howard W. Hunter Library, has employment discrimination, housing firms, most recently DeConcini, McDonald, services and contract compliance officer for been named council chair of the American discrimination, and wage claims. All four of his Yetwin & Lacy. TruHearing, Inc., a Utah company in the health- Association of Law Libraries. He previously children are still at home: Josh is 27 and doing Jeffrey Young has been recognized by 5280 and care industry with 1,400 offices nationwide. He was chair of aall’s Foreign, Comparative, and as well as can be expected, given his paraplegia. ColoradoBiz magazines as one of the top 6 percent is also executive producer for Antares Research International Law Special Interest Section. class of 1990 of wealth managers in the Denver area, a “Five and Development, a film and literary company Christopher L. Wight has been recognized by Star Best in Client Satisfaction Wealth Manager.” out of Lake Geneva, Wisconsin. He recently Utah Business magazine as a member of the Melinda C. Hibbert serves as Layton High married Esther Sutherland Smith. “2010 Utah Legal Elite” in the practice area of School’s pta president in Utah. A stay-at-home class of 1977 intellectual property. He is a veteran of the mom for the past 15 years for her four children, class of 1980 R. Bruce Johnson was appointed chair of the biopharmaceutical industry. An alumnus of she recently reactivated her Utah Bar license to Utah Tax Commission. He has served as a tax M. Gay Taylor-Jones retired in June 2009 Brinks Hofer Gilson & Lione, where he began help with some local projects. commissioner since 1998. after spending 25 years with the Utah Office his professional career as an associate attorney John Swallow is now a chief deputy in the Randy Olsen has served 26 years for the state of Legislative Research and General Counsel. from 1985 to 1988, Christopher subsequently Utah attorney general’s office. He oversees of Alaska’s Department of Law (five years She served as general counsel for the Utah served for 14 years as a leader in the intellectual all the civil litigation for Attorney General criminal prosecution, then miscellaneous civil, legislature for 23 of those years. Gay now has property departments of two internationally Mark Shurtleff. including 15 years of tort defense). In 2003 he more time for her new family; having married a recognized biopharmaceutical companies. He Dan R. Waite, a partner with Lewis & Roca llp was appointed superior court judge. He and the widower, Stan Jones, she now has six married returned to Brinks in 2006. in its Las Vegas office, was named 2009 Pro former Jerri Jeffries (bs Nursing, 1972) are the children and 20 grandchildren. Bono Attorney of the Year by the Legal Aid parents of eight children. class of 1986 Center of Southern Nevada. class of 1981 Fred Voros, formerly chief of the Criminal Calvin Collins is now president of esco’s Weidong Wang has been appointed by wsp Appeals Division of the Utah Attorney General’s George Mark Albright, president of and an engineered-products group. He has served as Holdings Ltd., a pipe manufacturer in China, as Office, has been appointed and confirmed to attorney at Albright, Stoddard, Warnick & the engineering and manufacturing firm’s vice an independent director of the company. He is the Utah Court of Appeals. Albright, and his wife, Karyn, are presiding over president, general counsel, and secretary. also a partner at DeHeng Law in China. the Washington dc South Mission. They recently Keith N. Hamilton’s book Eleventh-Hour class of 1978 class of 1991 had all 10 lds members of the u.s. House and Laborer: Thoughts and Reflections of One David P. Hirschi has recently formed the new Senate speak at their mission conference. Black Member of The Church of Jesus Christ Marylyn Branson Massey Halligan has worked firm of Hirschi Steele & Baer pllc, located in Mark plans on returning to his Las Vegas law of Latter-day Saints is coming out in the at the u.s. Department of Justice’s Civil Division Salt Lake City. Dave was formerly a member firm upon completion of this assignment. spring of 2010 (for purchasing information in Washington, D.C., since graduation. As a of Hirschi Christensen pllc, which he helped Drew Quinn reports that her late mother- see www.keithnhamilton.com). Keith recently document management specialist, she provided form in 2002. The new firm concentrates its in-law, Alice Badger Quinn, has seven direct finished his second term of service on the discovery and trial support for classified practice in the areas of real property law, descendants and three in-laws who have either Utah Board of Pardons and Parole. stealth aircraft cases. Then, seven years ago, land-use planning, corporate law and finance, graduated from or are currently enrolled at David Palmer now serves as a family judge she accepted the position of project manager business organizations, title insurance defense, J. Reuben Clark Law School: Drew’s husband, on the Maricopa County Superior Court. His for the Civil Division Records Management and commercial litigation. He also serves as the Anthony Quinn ’80, Alice Jardine ’77, Rodney prior work was as Maricopa County Court Program. Marylyn oversees the staff who current chair of the Utah Land Use Institute and Jarvis ’85, Stephen Q. Wood ’05, Rachel Wood Commissioner from 2004 to 2009. create and maintain active case files, as well as a member of the executive committee of the ’08, Jason Jardine ’04, and Analise Quinn ’11. as a storage facility where thousands of closed Business Section of the Utah State Bar. Drew Quinn ’81, Annette Jarvis ’79, and Brad class of 1987 cases are processed for transfer to the Federal Armand Duane Johansen, partner, Johansen Jardine ’78 are the spouses. Mike Dang serves as director of commercial Records Center. Thackeray Commercial Real Estate, Salt Lake real estate for Kamehameha Schools, the class of 1982 class of 1992 City, has been called as a mission president. largest private landowner in the state of Hawaii. David Carlson is a patent attorney and partner His work includes land planning; entitlements; Dave Berndt started a new position in January class of 1979 in a successful practice. His son-in-law, Dave for-sale, income, and mixed-use property 2010 as legal counsel and director of human John Casperson has been in the Seattle area Conlee, is now attending byu Law School and development and redevelopment; affordable resources at Boston Medical Center working for 25 years after five years in Alaska. He and training to also be a patent attorney. David has housing; and transit-oriented development. with the physicians organization. his wife, Connie, have 15 children, including six just been awarded the Silver Beaver for many Jim F. Lundberg was elected to the Mapleton Keith Cope joined the firm of Berg & Associates adopted from Ethiopia. They have lived on an years of active service in the Boy Scouts of City Council. He works as associate general after working for several years as a deputy island in Puget Sound for the past 20 years and America. counsel for Novell in Provo. district attorney with Shasta County, California. have homeschooled all of their children. Two James Layton, Missouri solicitor general, has Robert L. Maxwell received byu’s Karl G. Kevin Laurence, a partner at Stoel Rives have served missions for the lds Church and two been elected to be a member of the American Maeser Professional Faculty Excellence Award. llp, coauthored a treatise titled “Patent are out now. John has a finance and commercial Academy of Appellate Lawyers. He is currently chair of the Metadata and Reexamination and Reissue Practice,” from practice, with an emphasis on maritime law and Special Collection Cataloging Department at which he teaches a multiday course for the a niche specialty in fishing rights. class of 1983 byu’s Harold B. Lee Library. Patent Resources Group twice a year in Florida Jeffrey A. Dahl practiced 27 years with Lamb, Warren Gubler was elected to the city council John E. McClurg, vice president, cso, and California. He and his wife, Patrice, have Metzgar, Lines & Dahl pa, which was dissolved in Visalia, California. Honeywell’s Global Security Organization, five children and reside in Bountiful, Utah.

38 clark memorandum class of 1993 class of 1999 James P. Neel was tenured and recently Daniel Carr has moved to Houston and D. Chris Albright, a partner at the Las Vegas, Sarah Leeper was recently elected as a partner promoted to consul in the Foreign Service. accepted a position as an attorney with Nevada, law firm of Albright, Stoddard, Warnick with the law firm Manatt, Phelps & Phillips llp. Currently serving in Shanghai, China, Jim ExxonMobil Global Services, negotiating & Albright, received the 2009 Judge Sally Loehrer She works in the San Francisco office, where and his wife, Jaimee Macanas Neel (also ’02), procurement contracts. Pro Bono Service Award from the Legal Aid her practice focuses on representing water, are a tandem Foreign Service couple. Both Russell W. Hall III opened the law office of Center of Southern Nevada for outstanding pro energy, and telecommunications companies were awarded Meritorious Honor Awards Russell W. Hall III in Myrtle Beach, South bono services rendered in a civil case. The award in matters before the California Public Utilities by the State Department in 2008. Jim and Carolina, in 2009. His primary focus is adoption stemmed from his work on behalf of indigent Commission, fcc, and ferc. Sarah is married Jaimee are looking forward to learning law, and he blogs about adoption law at www. clients who had been defrauded in a real estate to Steven Egli, and they reside in Mill Valley, Arabic this year for their next assignment southcarolinaadoptionlaw.com. He and his scam, for whom he was able to obtain a substantial California. to the u.s. Embassy in Cairo, Egypt. They wife, Marie, are expecting their sixth child on punitive damages judgment after a bench trial. Cherice Siebert first practiced law as a are enjoying exploring the world with April 1, 2010. deputy prosecuting attorney for the city their son, Jimmy. Lorianne Updike Toler stepped down as class of 1994 and county of Honolulu. Her husband, Dan, Paul H. Tsosie has been appointed chief of president of the Constitutional Sources Project Laura H. Cabanilla left prosecuting with the works for the u.s. State Department; for staff to Assistant Secretary of Indian Affairs in February 2009 to prepare for further graduate Utah County Attorney’s Office about eight years the last seven years they have lived in Larry EchoHawk, a former byu law professor. studies in England, where she began reading ago and joined the firm of Esplin | Weight in Swaziland, Lesotho, and Peru. In June she Paul joined the Interior Department from constitutional legal history at Oxford University Provo. She was recently elected as a citywide is moving to Dhaka, Bangladesh. In between his law practice with Calvin Hatch (’02), in October 2009. She and her husband, Lance, member of the Provo City Council and serves as learning new languages, navigating new Tsosie & Hatch, in West Jordan, Utah. currently reside in London. a lieutenant colonel in the Army Reserve. Her cultural experiences, and keeping up with Daniel H. Walker has been named assistant class of 2003 triplets, who were three when she started law four children, Cherice has volunteered as secretary of the Ensign Group, a parent school, and her youngest child are all grown up. chair of the American International School Edward L. Carter received the byu Class of organization for various health care companies. Sam Oramas, of La Puente, California, is now of Lesotho and served on the policy com- 1949 Young Faculty Award. He recently post- He has served as the deputy general counsel of vice principal at Nogales High School. His prior mittee of the Franklin D. Roosevelt ed a coauthored study on gender and u.s. Ensign Facility Services and as associate general position was assistant principal at Laguna Hills International School in Lima, Peru. Supreme Court oral argument results on counsel for securities since 2007. High School. the Social Science Research Network (ssrn). class of 2000 In November 2009 he was awarded an llm class of 2006 class of 1995 Leslie Gallacher has been promoted to (with distinction) in intellectual property Matthew W. Cannon was honored by Southern Craig Aramaki is now the chief digital officer senior director of international development from the University of Edinburgh School of Utah University with a retired No. 9 football at McCann Erickson’s advertising office in Salt at XanGo. In her new position, Gallacher Law in Scotland. He is an assistant professor jersey. He is a member of the litigation section Lake City. Before this he was president of digital will be responsible for the development, of communications at byu. at Ray, Quinney, & Nebeker. services at Euro rscg Edge in Portland, Oregon. implementation, and execution of XanGo’s M. Todd Hales was promoted to partner at Julio Carranza has been appointed a founding Shawn T. Farris was recently invited by the international expansion strategy, including McDermott Will & Emery. He practices in board member of the Martinez Foundation. The dean of the Nanjing School of Law in the new product launches in all of XanGo’s the area of intellectual property, media, and Foundation awards undergraduate scholarships People’s Republic of China to be a guest lecturer international markets. technology. to students of color from Washington State. in the spring of 2010. He will give lectures on Christy Myers Smith, Phoenix’s jrcls chair- Evan Robbins has closed his law practice and Betsy Haws is currently working pro bono topics of American jurisprudence. elect, has been appointed deputy general accepted a faculty position at Metropolitan with a team of lawyers on the habeas cases of Kristin Gerdy is now an alto in the Mormon counsel to Arizona’s governor. Previously, State College of Denver, teaching criminal several Guantanamo Bay detainees. She is an Tabernacle Choir. she was assistant general counsel for SunCor justice. associate at Snell & Wilmer. Victor Guzman and his family were featured Development Company. Jonathon Tichy was recently named a Brandon S. Kinsey, after three years as an in a 9/11 tribute on Mormon Messages at shareholder at Prince Yeates and appointed associate at Byrne, Benesch & Villarreal pc, class of 2001 the following link: http://www.youtube.com/ as honorary consul of the Czech Republic formed the law firm of Garcia, Hengl, Kinsey & watch?v=mkWc_EKLs4E Jeffery R. Atkin was elected partner at Foley & in Salt Lake City. Following graduation he Villarreal plc in Yuma, Arizona, in April 2009. David Hardy is running unopposed for the post Lardner llp. Jeff is in the Los Angeles office and successfully organized and implemented He focuses his practice on business litigation. of general jurisdiction judge in Washoe County, specializes in renewable energy law. a legal and governmental affairs strategy to He and his wife, Jessica, have two children. Nevada, where he has served the past five years Jon D. Hill is leaving his law firm (Thelen) to obtain official recognition for the lds Church class of 2007 as a family court judge. He is also working on join Farella Braun & Martel as an associate in in Slovakia. In October 2006 the Church became a PhD at the National Judicial College with San Francisco, California. only the 17th government-recognized church Nancy Kennedy married Samuel Maas Major his dissertation topic on Nevada’s territorial in that country. Jonathon has also published on August 29, 2009, in Salt Lake City. class of 2002 supreme court. a variety of articles on religious freedom issues Ellie Khabazian recently opened a solo Thomas L. Low has been appointed to serve in Steven Brown died on August 11, 2009. He was in the Vienna Law School’s Austrian Journal of litigation practice in Newport Beach, California. Provo as a Utah Fourth District judge. He had an attorney at Dempsey, Roberts & Smith in Law and Religion and in treatises published You can reach her at [email protected]. been the Wasatch County attorney since 2003. Las Vegas. by the Institute for Church-State Affairs and Robin K. Lunt started work as the new assistant David G. Turcotte is vice president of Vista de Ray Jones has recently returned to Snell the Slovakian National Library. general counsel for the National Association Sirena, a company developing condominiums & Wilmer’s Las Vegas office. Previously, of Regulatory Utility Commissioners in class of 2004 in Costa Rica. Ray was in-house counsel for kb Homes in Washington, d.c. Kristin VanOrman has been selected to its Southwestern Division. Drawing on his Jerry Salcido of Baker & McKenzie llp in Ben Updike passed the Arizona Bar in 2008 serve as a Utah state chair for the Council on experience as a missionary in Mexico, Ray Palo Alto, California, represented the and began working for the state of Arizona at Litigation Management. authored a pamphlet titled “You Don’t Have California Homeschool Network in submitting the Department of Revenue in the transaction to Pretend: A Spanish Primer for Lawyers,” an amicus brief jointly filed by California’s privilege tax appeals section. He handles sales class of 1997 which is designed to assist the Las Vegas three largest homeschool organizations— tax protests through negotiation and hearings. Kirsten Hall McNelly is a shareholder with legal community in meeting the needs California Homeschool Network, Homeschool He lives in Mesa, Arizona, with his wife, Anne, the Lansing-based firm of Foster, Swift, Collins of the Spanish-speaking population. Association of California, and Christian and their two-year-old son, Will. & Smith pc. She focuses her practice on family Gustavo Lamanna has been practicing Home Educators Association of California— class of 2008 law, environmental litigation, and medical municipal redevelopment and affordable in the case Jonathan L. v. Superior Court, malpractice defense. housing law in Los Angeles at the firm of Kane, 165 Cal. App. 4th 1074 (2008). The court Cherie N. Felos was elected to the Attleboro James Swink was chosen by the Cache County Ballmer & Berkman since 2005. The firm was agreed to rehear its February 2008 deci- City Council in Massachusetts in November. Council to be the new Cache County attorney. started by the late Eugene Jacobs, one of the sion that essentially made homeschooling She serves as chair of the council’s ordinance patriarchs of community redevelopment law illegal in California. On rehearing, the court committee and as a member of the personnel class of 1998 in California and a J. Reuben Clark Law School reversed its previous decision, adopted and public safety committees. Nathan Benson is the new lead systems professor. Gustavo also volunteers his time most of the reasoning of the homeschool class of 2009 administrator for the Center for High teaching bar review with the Pro Bono Bar organizations’ brief, ruled that California Performance Computing at Utah State Review, started by the late u.s. district judge statutory law permits parents to home- Matthew Baker received first prize in theaba - University. Robert Takasugi. After completing the l.a. school their children, and suggested that sponsored Smith-Babcock-Williams Writing Brett L. Mortensen is now a partner at Stoel Marathon in 2004, Gustavo has continued any government interference with parents’ Competition for a paper he wrote in Professor Rives in Salt Lake City, where his main work with half marathons. right to homeschool their children must John Fee’s Land Use Planning class. His paper is in complex business litigation. He recently Ryan Marshall of Brinks Hofer Gilson & survive a strict scrutiny constitutional analysis. was published in the winter 2009 edition of The copresented a seminar titled “Preventing Theft Lione, one of the largest intellectual property The case received international attention. Urban Lawyer, an aba publication. of Your Intellectual Property.” law firms in the United States, has been Nicholas U. Frandsen has joined Parsons class of 2005 Brett L. Tolman became a shareholder at Ray, recognized by Utah Business magazine as Behle & Latimer’s Salt Lake City office. Quinney & Nebeker after serving as u.s. attorney a “2010 Utah Legal Elite” in the practice Robert Avery and Hutch Fale started their own He concentrates his practice on general for the District of Utah from 2006 to 2009. area of intellectual property. law firm in Utah County. commercial litigation.

clark memorandum 39 life in the law

stories and lives: Learning Morality from Example

The following excerpt is taken from Harry J. Haldeman’s article “There Is a Law,” on page 32 of this issue of the Clark Memorandum. He relates the true story of a convert to the Church who was sentenced to one year in jail for past drunk driving convictions but was then defended by a bishop who testified of the man’s repentance. The story concludes with another testimony—that of the judge—and the ripple effect of an exemplary life in the law.

The judge said, “One of the finest men I have ever known was a man named J. Reuben Clark Jr. He was a classmate of mine in law school. He was a great man, and I was always impressed with him when we were students together. I believe he is one of the presiding officers of your church. In view of my great feelings for him, and my knowledge of the great influence of the Mormon Church, and the obvious influence it has had on this man, and his promise, I will suspend the sentence.” With that he brought down his gavel again and said, “Sentence suspended. You may go.” With that, Robert arose. . . . His wife and I walked forward to meet him as he walked through the gate, and the three of us, arm in arm, walked out of the courtroom with tears streaming down our faces. . . . The great name, the personal influence, and the great reputation of President J. Reuben Clark Jr., combined with the faithfulness of a member who had done as he had promised he would in the waters of baptism and a bishop who, though totally inadequate, had done what he could—all this combined to change the course of history in the life of one man. Second Volume of Life in the Law Now Available Eight years after the publication of Life in the Law: Answering God’s Interrogatories, a second compilation of mem- orable articles and addresses is complete and available for purchase. Life in the Law: Service & Integrity features the thoughts of law professionals including Thomas B. Griffith, Sandra Day O’Connor, Kevin J Worthen, W. Cole Durham Jr., and Larry EchoHawk. The words of Church leaders such as Gordon B. Hinckley, James E. Faust, and Neal A. Maxwell also inspire.

j. reuben clark dvd

The Legacy of J. Reuben Clark takes the viewer from Clark’s earliest childhood days in the farmlands of Grantsville, Utah, through his law school education at Columbia University and his years of government and Church service. The Hardcover ($20) and paperback ($12) versions of Life in the Law: Service 35-minute dvd ($14.95) may & Integrity, as well as Life in the Law: Answering God’s Interrogatories, are be ordered online at available for purchase online at http://www.jrcls.org/publications/order.php, www.jreubenclark.org at the byu Bookstore, or in the Law School Accounting Office. or by calling Student prices are $16 and $10. 1-800-963-8061.

The Clark Memorandum welcomes the submission of short essays and anecdotes from its readers. Send your short article (750 words or less) for “Life in the Law” to [email protected]. P000795 | 8.5M | 4/10 | 09-400 Clark Memorandum J. Reuben Clark Law Society J. Reuben Clark Law School Brigham Young University