Dallin Oaks at Harvard Law School
Late last month the LDS Newsroom posted the full text of an address Elder Dallin H. Oaks gave at Harvard Law School. I was looking forward to reading what Elder Oaks had to say, and was gratified that the Newsroom provided the full text rather than excerpts or sound bites. I was initially disappointed that Elder Oaks’ speech wasn’t more legally substantive, but then I realized that this is part of the annual Mormonism 101 lecture series, and legal analysis wasn’t the point. Elder Oaks did, however, use a legal metaphor I had never previously considered:
We are all familiar with official use of certified copies of legal documents like a death certificate or an honorable discharge from military duty. The official certificate allows such copies to be accepted as if they were originals. This practice is based on the fact that anyone who doubts the authenticity of the certified copy can verify its authenticity by going to the original. So it is with the prophetic revelations of prophets of God. They are the certifying authorities that their teachings or directions are from God. Anyone who doubts this—and all are invited to ask questions about what is true—can verify the authenticity and content of the message by checking it with the Ultimate Source, by personal revelation. As Joseph Smith taught, “We never can comprehend the things of God and of heaven, but by revelation” (citation omitted).
I never considered personal revelation to be anything like certified copies, but it’s not a bad way of explaining the principle to a bunch of lawyer-types. If you find yourself thinking about FRE 902(4) during a moment of prayer, Elder Oaks is to blame.
As a final note, I think Elder Oaks gets bonus points for making a Conan O’Brien reference and quoting Bill & Ted’s Excellent Adventure in a single talk. Bravo.
Image credit: Whitney Cutler, pursuant to fair use.
This is is partly a public service announcement and partly a bit of commentary. First off, I want to remind everyone that the 8th Annual J. Reuben Clark Law Society Broadcast is tomorrow night at 8:00 PM EST. This year’s speaker is well-known author Stephen R. Covey. For the past few years the Annual Broadcast has coincided with the JRCLS Conference, and the main address is beamed out to LDS stake centers and chapels equipped with satellite dishes. I have enjoyed the past addresses, and encourage you to attend.
However, I have something of a bone to pick with the selection of Stephen Covey as the keynote speaker. I see the JRCLS as an organization centered on the intersection of faith, particularly the Mormon faith, and the law. Most of the past JRCLS Broadcast speakers have embodied that purpose fairly well, such as last year’s excellent address by attorney and apostle Quentin L. Cook, or the 2006 address by LDS Church General Counsel, Elder Lance B. Wickman. Those speakers are uniquely qualified to speak to the relevant issues, challenges, and benefits of a legal practice with religious convictions.
At least one previous JRCLS Broadcast speaker deviated from this formula: former U.S. Supreme Court Justice Sandra Day O’Connor spoke at the 2008 broadcast. I suppose the logic is that her high stature in the legal field made her a good choice as keynote speaker. I agree whole-heartedly with that approach. As a conference organizer, how can you turn down the opportunity to have a former Supreme Court justice speak at your event? I think a speaker from the opposite side of the law/religion intersection would also be welcome. For example, if Mormon Church President Thomas S. Monson were to speak at a JRCLS broadcast, I would be interested to hear what he had to say even though he isn’t a lawyer because of his high stature in the religious arena.
My problem with the choice of Stephen Covey is that he is none of the above. He isn’t an attorney and can’t speak to aspects of legal practice with any epistemic authority. True, he is Mormon, but that doesn’t render him particularly qualified to speak to the faith-related issues faced by LDS attorneys. To put it succinctly, his Mormon-ness can’t trump his lack of legal-ness in my mind.
This isn’t to say that I expect Covey to be a poor speaker. To the contrary, I fully expect his remarks to be engaging and interesting. I actually have never read anything by Covey, nor have I heard him speak before, but the man is a professional speaker, and you don’t get in that position by boring crowds. But Covey’s selection as the keynote speaker implicitly chooses the Mormon over the legal, when I think the purpose of JRCLS is to blend the two.
I think I know why the conference organizers selected Stephen Covey. He was probably the highest-profile name they could get. But being a Mormon pop culture icon doesn’t qualify anyone to speak on any subject. The JRCLS Conference keynote address would scarcely be different from a business or YSA conference. I would rather hear from an actual JRCLS member, and they can’t all be that hard to schedule. There are three in the Quorum of the Twelve Apostles, dozens in the Quorums of the Seventy, dozens in the state and federal judiciaries, and hundreds of potential speakers in the U.S. and overseas that have interesting legal practices. It seems to me that this is a missed opportunity.
Image credit: NASA.
This bit of humor comes from a recent By Common Consent post about Utah State Sen. Ben McAdams, who went to Columbia Law. One of the comments in the thread by Cynthia L. made me laugh out loud:
[N]obody knows for sure when Columbia Law students lose their souls. Certainly, after they graduate, the soul is not present. But whether it is lost in 1L or “first trimester,” or in the second or third, there just hasn’t been definitive revelation on this point. Some older prophets believed it happened at the time of the first internship, or “quickening,” while some fundamentalists believe it happens the moment the acceptance letter and student unite.
Well said, Cynthia. Although many would argue that a similar process happens at most other top-tier law schools.
The LDS Newsroom Blog points to an article in the Samoa Observer about Loukinikini Atonio, the state solicitor in Vaiusu, Samoa. She states in the article that she obtained her law degree in part with help from the Perpetual Education Fund (PEF). This is an encouraging story, and it reminded me of another convergence between the law and the PEF.
Last April the LDS International Society held its 20th Annual Conference, and more recently the conference proceedings were published. Diane Card, lead international attorney at the PEF, was one of the main speakers. After explaining the basics of the PEF, Card talked about some of the legal challenges faced by the program in the various countries in which it operates. The PEF uses a variety of legal structures to administer the loans, depending on the banking laws of each country. Sometimes the program is administered by a separate entity within the country, sometime it is administered by the U.S.-based PEF, Inc., and sometimes the model is a hybrid of the two. Special care has to be taken to ensure that whatever legal structure used in each country doesn’t subject the PEF to the regulatory and capitalization requirements of traditional banks.
Card also indicated that, like most financial ventures, tax laws are a major consideration. Stamp taxes, incomes taxes, withholding taxes, and gift taxes are all part of the calculation, as are the associated reporting requirements.
Diane Card talked about quite a few other legal aspects of running the PEF internationally. It’s recommended reading for anyone interested in how the PEF works. The LDS International Society Conference publications are free to all LDSIS members; membership is free.
For better or for worse, California Proposition 8 is the story that keeps on giving. Prop. 8 opponents filed suit last year and issued two requests for production of documents seeking internal memos and documents related to campaign strategy and advertising. When the “Yes on 8″ campaign refused on First Amendment grounds, they sought an order to compel. In October of last year Northern District of California Chief Judge Vaughn Walker ordered the “Yes on 8″ campaign to turn over the documents. They promptly appealed and asked for the Ninth Circuit to overrule Chief Judge Walker or for an mandamus and protective order.
Ninth Circuit Judge Raymond Fisher
In the last days of December the Ninth Circuit Court of Appeals issued a mandamus preventing disclosure of the internal memos of the “Yes on 8″ campaign (PDF). Writing for the three-judge panel, Judge Raymond Fisher held that Prop. 8 proponents had shown a high likelihood of a chilling effect on political association and expression, and that opponents of the referendum had not shown the requisite need. Prop. 8 opponents petitioned for rehearing en banc, but earlier this week the Ninth Circuit denied their request.
All this comes on the eve of the Perry v. Swartzenegger non-jury trial, in which petitioners seek to invalidate Proposition 8 on constitutional grounds. Chief Judge Walker has ruled to allow the trial to be televised, and some have criticized him for turning the suit into a show trial.
I think the Ninth Circuit is right on this one: revealing private, internal memos would have a chilling effect on political expression. There is even a good argument that Prop. 8 supporters have already experienced that chilling effect, given the hostility towards proponents of the measure during and after the vote.
Image credit: Ninth Circuit Blog. Hat tip: Mormon-Chronicles.
I have heard quite a few urban legends both inside and outside the United States about U.S. Federal Agents posing as Mormon missionaries as part of their undercover operations. I frankly disbelieved all of these until I stumbled across this interview at The Nation Magazine. Juan Gonzalez interviewed UC Santa Barbara Law & Society professor Jacqueline Stevens about Immigration & Customs Enforcement (ICE) policies, and it turned up this tidbit:
JUAN GONZALEZ: What about the whole issue of how many of these people are picked up, the question of ICE agents impersonating, in some cases, Mormon missionaries, you write about, or insurance agents. Could you—how does that work?
JACQUELINE STEVENS: OK. So, one consequence of the detention operations and the removal operations moving away from these big workplace raids—that is something that the Obama administration has, you know, dedicated itself to—has been more surreptitious operations, and an increase in those. I mean, these have been going on under the Bush administration, as well, but there’s an impression that there’s been a shift to these more surreptitious operations for targeting people.
And among the operations that I encountered, and ICE calls these “ruse operations”—and just to be clear, under our law, ruse operations, for the most part, are legal. It is legal for, you know, federal agents to impersonate civilians for the purpose of tricking people who they suspect have arrest warrants and so forth in obtaining their custody.
It is not legal for federal agents to impersonate religious workers. And a spokesperson for the ACLU explained why, and I, you know, quote her in the article, but it’s a pretty obvious principle. If religious workers are suspected of being federal agents, then that makes it very difficult for them to fulfill their duties. If it’s part of the Mormon practice to proselytize and a community is suspecting Mormons of being federal agents, then they’ll be hostile to them. And that will, you know, constrict their ability to practice their religion. So that is one operation that ICE has been reported as doing.
The federal government’s response to this was really shocking to me. I sent them a question, and I said, “Is it consistent with ICE policy for ICE agents to impersonate religious workers?” And I would have expected a flat-out “no.” But instead, they explained exactly why and how it was consistent for ICE agents to impersonate religious workers.
JUAN GONZALEZ: And just to be clear, this would be a situation where supposed Mormon missionaries are knocking on doors trying to find out who lives in a particular house or not?
JACQUELINE STEVENS: Right. Well, it’s actually more targeted than that, typically. The ICE agents will suspect that a particular individual who has an outstanding warrant lives in a certain address and want to ascertain the time that that person will be there for purposes of effecting an arrest. And so, you know, they’ll go to any means necessary to try to obtain that information, including impersonating Mormon missionaries.
It appears, then, that this particular urban legend is true: federal agents have, on occasion, impersonated Mormon missionaries. And the ACLU finds itself the indirect protector of the LDS Church in arguing that impersonating Mormon missionaries violates the law. There’s probably a pretty good free exercise clause argument that impersonation schemes infringe on a denomination’s proselytization efforts. It certainly would make it more difficult for religious workers to fulfill their duties if their potential proselytes thought they were feds. And it appears that, in turning away from workplace raids, the Obama administration’s policies have expanded the sort of “ruse” operations such as impersonating Mormon missionaries. (Cue the conspiracy theories.)
Update: Over the weekend Kaimi Wenger of Times & Seasons picked up on this story too.
I procrastinated getting my CLE hours again this year, so earlier this week I attended a brutally boring CLE on recent and proposed ethics rules. One of the major emphases was access to justice and pro bono hours, which is likely a result of the new state bar association president’s opinions on the subject. We all know that we’re supposed to devote some of our time to providing legal services to unrepresented groups and individuals, but my state is trying to make that requirement more explicit.
I had something of a de ja vu moment last night when I happened to see some reports on the Bloggernacle that the LDS Church is adding an element to its currently three-fold mission. The new forth prong of the “purpose” of the Church, as it will now be known, is “to care for the poor and needy.” No one contests that helping people in need wasn’t already part of the Mormon Church’s activities—its humanitarian and philanthropic efforts are well-known—but this explicit language seems to reinforce the Mormon Church’s commitment. And just like my state bar association, this new language change and focus on people in need appears to be directly influenced by new President Thomas S. Monson, whose commitment to personal service is well-cataloged.
You might rightfully ask whether these new statements are more than just words on paper. After all, lawyers are always supposed to provide services to people in need, and an avowedly Christian denomination is always supposed to provide Christian service. But as a legal practitioner I have to believe that words have meaning. I think putting charitable service up front is a worthwhile change for any organization, and as religious historian Jan Shipps noted, this new focus will go farther to establish the Mormon Church as a Christian organization than any logo change or name clarification.
It is sort of an open secret that most attorneys don’t even come close to their suggested quota of pro bono hours, and the requirements are never enforceable. But to Christian believers, such service is not optional. At a time when the need seems to outpace the sources of aide, I think both statements are welcome and even necessary. This is one area in which the Church and Bar are in harmony.
Photo credit: Brian Tibbets.
Despite the down economy and big firm layoffs, college students are still beating down the doors of law schools in America. More people — 60,746 — took the most recent LSAT on September 26 than had ever taken the exam before. The number of LSAT takers has been on the rise since 2007, but this is the largest jump since 2001— nearly 20% over last year.
LSATs Administered 1988-2009
I won’t dig into the reasons for this increase too much. (If you are interested, this thorough post on Most Strongly Supported has a good discussion.) But for any person considering law school or a legal career, this is a good excuse to discuss the question of whether you really should go to law school.
There has been a flurry of articles and blawg posts lately about whether a legal education is really a good investment. Vanderbilt Law professor Herwig Schlunk wrote an entertainingly-titled article “Mamas Don’t Let Your Babies Grow Up To Be … Lawyers,” and Paul Caron of TaxProf Blog asserted that “Going to Law School Is Like Starting to Smoke.” There’s a healthy dose of humor and pessimism in both those pieces, but even the most optimistic observers have to recognize that the legal profession is undergoing a shift that is destroying many of the institutions that made it so lucrative. Aspiring lawyers must now realize that they might not have a job waiting for them when they graduate from law school. And law schools, particularly those in the top tier, have become more like big businesses than halls of learning. While the median income of lawyers increased by 25% from 1987 to 2002, the average law school debt increased 400% over that same period. In 2005, the average graduate of a private law school had $78,000 of debt from law school alone.
Young LDS students considering legal careers should carefully consider these sobering number, in light of Mormon Church advice on avoiding debt. I have heard many people within the Church say that borrowing money is okay for purchasing a home, obtaining an education, and sometimes to purchase a vehicle. But given the housing market collapse and the rising costs of a legal education, students should understand that neither a house nor an education is always a good investment.
While some parts of the country are still under-serviced, there are probably too many people getting into the practice of law. Last month Justice Antonin Scalia commented that he thought that America is “wasting some of our best minds” on lawyering, when other fields lack qualified applicants. After last September’s jump in LSAT takers, the ABA Journal took the unusual step of suggesting that applicants “consider the alternatives.“
My advice to people considering law school is the same that it has always been. If you are interested in the practice of law, then by all means, pursue it. But if you don’t know what to do with your life and you know lawyers can make a lot of money, I think it’s a bad decision. I also recommend that future law students find out for themselves whether they will like legal practice. Most law schools will let you sit in on first-year law school classes, and you can volunteer or do internships at legal offices to find out what the practice is really like. It is better to find out early on that you wouldn’t really like being a lawyer, and if you do like it, the experience will cement your decision.
Several news sources have reported on the Salt Lake City law passed on Tuesday night that explicitly prohibited employment and housing discrimination against gay, bisexual and transgendered persons. The law was apparently passed after the LDS Church announced its support for the measure. There is already talk about passing similar provisions in other cities in Utah, or extending the law state-wide.
Just as I like to see accommodation for religious beliefs in same-sex marriage legislation, I also like to see a recognition of the rights of all people that don’t interfere with religious beliefs. The AP article quoted Peter Sprigg of the Family Research Council as saying: “It’s disappointing and I’m fearful that it reflects in part a reaction to the attacks they came under after Proposition 8 — an effort to bend over backwards to exhibit tolerance toward homosexuals in some way.” I think Sprigg is likely right that this move was at least in part a reaction to the Prop. 8 fallout, but I don’t think this is an attempt to show tolerance. I see this as an attempt by the LDS Church to clarify its position on homosexuality. After all, there’s no doctrinal tenet in Mormonism that says that people not adhering to the Church’s teachings (such as living a homosexual lifestyle) should be subject to discrimination at work or at home.
The first line of the AP article about the Salt Lake law reads: “It looked like a stunning reversal: the same church that helped defeat gay marriage in California standing with gay-rights activists on an anti-discrimination law in its own backyard.” But it shouldn’t be surprising. Since the family plays a central role in Mormon theology, there certainly are gay rights issues that the Mormon Church opposes, such as same-sex marriage, adoption by same-sex couples, or perhaps school curricula. But asserting those positions need not take on the form of absolute opposition to all gay issues. LDS Church spokesperson Michael Otterson mentioned other issues that the Church does not oppose, such as equality in probate matters and hospitalization/medical care issues.
I think the cooperative approach should go both ways: while supporters of same-sex marriage disagree with religious groups on various issues, they can (and should) recognize the right of religious groups and individuals to believe and teach religious principles that may include opposition to homosexuality. For the past few years it has appeared that the gay rights movement and religious liberties were on a collision course, but cooperation like that in Salt Lake is a good reminder that the conflict is both unnecessary and avoidable.
Today the U.S. Supreme Court considered the question of whether minors convicted of crimes other than murder can serve life sentences without parole. In a lot of ways, this is a case that stems from the 2005 decision in Roper v. Simmons, which eliminated the death penalty for minors. On the day of the oral arguments for Roper, I happened to be at the Supreme Court to attend another case (U.S. v. Booker, which dealt with the unsexy topic of upward departure in the federal sentencing guidelines). I remember standing outside the Supreme Court building and talking with some of the other people in line about the Roper case, and we all agreed that we were glad we weren’t judged for the stupid things we had done in our teenage years.
The LDS Church has no official opinion or policy on appropriate sentencing for juveniles. Even in a topic such as capital punishment generally, the Church is avowedly neutral. But certain aspects of criminal law invoke concepts of mercy, justice, forgiveness, and redemption—ideas that are a central part of Mormon theology, as well as that of mainstream Christianity and other faiths. Different Mormons might reach different conclusions within the same religious and legal framework, but I think both are important considerations when we consider criminal sentencing, particularly for juvenile offenders.
I have thought about some of these issues before, a few years ago when I worked at a district attorney’s office prosecuting child sex offenders, and more recently in a post about capital punishment. On the one hand, young people can commit some pretty heinous offenses before the age of 18, and even supporters of today’s case acknowledge that some juvenile offenders should be locked up for a long time. And having dealt with child sex cases, I feel very strongly that some people need to be imprisoned in order to protect the general public. But my religious beliefs also lead me to believe that people can change, and that the sacrifice of Jesus Christ makes forgiveness possible. And without at least some rehabilitative aspect, imprisonment seems futile or counterproductive for most offenders. As many prison administrators can testify, the last person you want to deal with is someone who has no hope of getting out an no incentive to improve behavior. Where is the balance between the consequences that result of our exercise of agency, and the mercy and forgiveness made possible by the atonement of Christ?
Both Terrence Graham and Joe Sullivan, the plaintiffs before the Court, are model inmates and good candidates for release. Legal analysts say their life sentences were the result of an extreme combination of two Florida sentencing laws. In my mind, the case actually hinges on the interpretation of “cruel and unusual punishment” and principles of federalism, but the concepts of accountability and redemption linger in my mind.
Photo credit: Still Burning.
