Elder Oaks testifies before Senate Finance Committee

Thanks to Marc Bohn of Times & Seasons for alerting me to the fact that Elder Dallin H. Oaks spoke today before the U.S. Senate Committee on Finance. The topic of his address was tax incentives for charitable contributions, both to religious and non-religious private charitable organizations. Video of the hearing is available from the Senate Finance Committee website (Elder Oaks’ remarks begin at 62:00) and the text his remarks are embedded below.

Image courtesy of U.S. Senate Committee on Finance.

His address was entitled “Law and Becoming.” One thing I noticed about Elder Christofferson’s address was the wide variety of quotations he used, from a range of sources. For example, he quoted this from Pope John Paul II’s Encyclical Veritatis splendor about the laws of man and the laws of God:

Because there can be no freedom apart from or in opposition to the truth, the categorical — unyielding and uncompromising — defence of the absolutely essential demands of man’s personal dignity must be considered the way and the condition for the very existence of freedom.

This service is directed to every man, considered in the uniqueness and singularity of his being and existence: only by obedience to universal moral norms does man find full confirmation of his personal uniqueness and the possibility of authentic moral growth. For this very reason, this service is also directed to all mankind: it is not only for individuals but also for the community, for society as such. These norms in fact represent the unshakable foundation and solid guarantee of a just and peaceful human coexistence, and hence of genuine democracy, which can come into being and develop only on the basis of the equality of all its members, who possess common rights and duties. When it is a matter of the moral norms prohibiting intrinsic evil, there are no privileges or exceptions for anyone. It makes no difference whether one is the master of the world or the “poorest of the poor” on the face of the earth. Before the demands of morality we are all absolutely equal. [Emphasis in the original.]

In a similar vein, Elder Christofferson quoted a saying attributed to the Prophet Muhammad about the duty citizens have:

“Whoever amongst you sees an evil, he must change it with his hand; if he is  unable to do so, then with his tongue; and if he is unable to do so, then with his heart; and that is the weakest form of Faith”.

Throughout his speech, Elder Christofferson drew repeated comparisons between God’s laws and the laws of man. Interestingly, his position wasn’t that the laws of man were corrupt and forever inferior to the laws of God. He said that God delegates to His children the job of establishing and administering laws for the good of society. In his opinion, the laws of man often carry out divine principles such as protecting freedoms, defending the weak, ensuring the fruits of our labors, and diminishing violence. He asserted that, as a general principle, obediance to man’s laws provides freedoms to citizens. (Elder Christofferson did acknowledge, however, that not all laws come from God, and jokingly cited the tax code in its entirety as one such example. Since it’s currently tax season, this joke actually got some applause from the crowd.)

I thought his comments about law and agency were interesting. Since agency has such a central role in the Plan of Salvation, it is especially important the the laws we design and establish protect our agency. At the beginning of his address, Elder Christofferson recounted what we know of our premortal existence. He talked about how Lucifer wanted both the power of compulsion and the mantle of God. In demanding the power of God, Elder Christofferson thinks he was also seeking the power to establish law, which he would have used arbitrarily and for his own selfish purposes. It made me think about how that pattern of misuse of the rule of law is played out in many corrupt regimes, and that combating that sort of corruption is one of the duties of practitioners of the law.

Perhaps the topic most likely to generate discussion was Elder Christofferson’s remarks on how we should seek to enact and administer laws the emobody the same principles as God’s laws. He made the distinction between good laws and enforcing our values on others. He wasn’t advocating any sort of theocracy, but in rejecting legal realism and legal positivism, he did note that all laws have an inherent moral component. Elder Christofferson said something to the effect of, “We whose first loyalties are to God can advocate for laws that favor those principles or at least do not undermine it. This is not to say that we impose our values. By the same token, just because a group advocates based on deeply held moral values, it does not mean that they should be prohibited by other groups with different but equally deeply held beliefs.” I’m obviously paraphrasing, but it’s interesting thought that I’m looking forward to reading more of when his address is printed. The Church is getting pretty good about releasing speeches and talks pretty quickly, so hopefully we won’t have to wait until the next Clark Memorandum to review it.

I don’t normally read every single comment in a long thread, but this one is definitely worth reading. Here are some of the tidbits that I particularly agree with. If they seem obvious, well, they still deserve repeating, because plenty of kids are disregarding advice like this every year.

• LAT: ”Please do not pay full price for law school unless the school has a great loan repayment plan. Do not go to law school unless you want to be a lawyer[.]“
• Kellyim: “You don’t realize until you get there that while you’ve been the smarty-pants your whole life, so has everyone else you’re going to school with.”
• Tom: “People should forget the popular notion that having a law degree is a ticket to upper middle class comfort.”
• AHLDuke: “[I]f you really want to make the decision to become a lawyer a profitable one, after taking into account the loans and opportunity cost of lost income, the kind of job you will have to take will make it difficult to be the kind of parent that you want to be.”
• jimbob: “[T]he statistical odds of a law student going on to teach at a law school are so small that to go to law school for that purpose is not a good idea, even if you believe you’re brilliant[.]“
• Natalie B.: “[Y]ou should realize is that law school forces you to make plans for life after law school fairly soon. You essentially interview for your first job after law school at the beginning of the second year. If you don’t land a job for your 2L summer, you will have closed a lot of options.”

And finally, selfishly, my comment:

• I agree with what other people have said about student debt (it sucks), job prospects (even worse), and the actual practice of law (sometimes good, sometimes bad). I want to echo Natalie B.’s comment about how front-loaded law school can be. When I was in school a few years ago, 1L grades largely determined the position you got in between your 2L and 3L year, which in turn would usually determine your first employer. Just one C+ in a dinky writing class precluded me from even interviewing most of the firms I was interested in. Some of that may have changed since the economy tanked, now that employers are more skittish about committing to hiring so early in the process, but I think it’s still true much of the time.

  I also want to mention something that not many people have talked about: location. If you happen to know a city or region where you live, I strongly recommend applying to schools in that area. The practice of law is still quite provincial in some ways, and state bar admissions still operate to exclude outsiders. If you want to work in a certain market, your two main avenues are to go to a school in or near that market, or go to a top school with name recognition that will buy your way in. In my case, I attended a top 20 law school in the city where I wanted to live, which was the best of both worlds. But even then, I had a hard time convincing employers that I was really going to stay. It wasn’t until I clerked for a local judge that firms took me seriously. I think location is especially important if you are trying to get into a small or saturated market. For example, I hear that it’s tough to get a job in Utah or Colorado if you don’t go to one of the two law schools in each respective state.

  And just like everyone else says: do not go to law school unless you are really sure you want to practice law. If you’re not sure if you’d like it, try an internship in a legal field first. If you just want to make money, try being a banker. I actually love what I do and I love my firm, but it’s not for everyone.

The WIL Blog certainly isn’t the first time a part of the JRCLS launched a blog. For a while, the Student Chapters International Board ran a sporadic blog called The Thread that somewhat replaced a student chapter newsletter of the same name. It suffered from lack of content, however, and hasn’t been updated in more than a year.  The WIL Blog has already eclipsed The Thread in terms of content and polish, though I certainly wouldn’t mind seeing a revival of The Thread at some time in the future.

Bravo to the WIL Committee for creating some great new content.  I’m adding a link to the JRCLS Women in the Law Blog in the sidebar.

This time thought I would take a more personal approach to the question of whether law school is the right choice for a young LDS student.  Most of this information applies to anyone considering law school, but there are a few Mormon-specific practices that merit specific mention.  I want to look at the raw financial reality imposed by law school debt, and I’m going to use my own finances as an example.  Obviously, these figures vary from school to school and region to region, but I think individual numbers are instructive.

The bar graph below represents my total expenditures for one year, from November 1, 2009, to October 31, 2010.  I have excluded any specific dollar amounts, but you can see the general ratios of expenses fairly clearly.

My family spending for one year

Education is by far my family’s largest single expense. Specifically, student loan payments.  That means that 37% of our total spending goes toward paying for law school from several years ago.  By comparison, our combined expenses for rent, home, and utilities costs was only 25% of our expenditures.  The next largest category at 11% is Gifts and Donations, the majority of which is tithing and fast offerings.  Food is 9%, and auto/transportation costs are only 4%.  All of these numbers are a bit skewed because most of our healthcare costs are taken out of my paycheck pre-tax, and consequently don’t show up in these graphs. (I used Mint.com to aggregate and graph the data.) But it’s safe to say that my student loans are well over a third of our expenses.

I am one of the lucky ones.  I got a job after graduation, and I love what I do.  I have no complaints there.  And financially speaking, our situation is likely to only improve over time.  But the numbers don’t lie, and they’re pretty sobering.  Even after years of repayment, I still have six figures of debt.  We’re still not sure when we’ll be able to buy a home and start building some equity because I already have the functional equivalent of a mortgage, without a house to show for it.

Some of these financial pressures can have a larger impact on Mormon law students or young lawyers.  The practice of paying tithing can significantly reduce discretionary income for LDS families.  Tithing may be only 10%, but if a quarter or a third if your income is spent on student loans, tithing represents a much larger portion of your budget.  LDS students or young lawyers also frequently have higher child costs due to their tendency to have more children at a younger age than the average American.  And if an LDS family wants to maintain a single source of income so one parent can stay home with the kids, that can add additional strain.

These financial factors relate directly to quality of life issues.  Many law students feel pressured to take the highest paying job the can find so they can pay off their debt, even if that job is not where they want to live or not in a practice area they prefer.  Government jobs or small firm jobs, which offer high job satisfaction but tend to pay less, may not be an option for someone with very high student debt.  I took a job at a firm that paid a bit less than other firms in my region, because I liked the people and I liked the work.  But for other law grads in more expensive markets, that may not be an option.

When I interview students applying to law school, I often ask them if they are really sure they want to be lawyers.  Sometimes they are surprised by my question, but I think every student should think long and hard before going into a lot of debt for law school or similar educational expenses.  It isn’t that I don’t think education is worthwhile—it is.  But I also think the higher education bubble has reached absurd proportions, and a lot of professional degrees aren’t the guaranteed ticket to financial success people think they are (if that was every the case).  Law schools are frantically trying to hide their graduates’ unemployment numbers, but most reports seem to indicate that only about two-thirds of recent law school graduates have a permanent job, much less a lucrative one that would allow them to easily pay their loans back on time.

If you want to go to law school because you like legal work and think it’s interesting, then by all means, carry on.  But if you just don’t know what you want to do with your life and think law school sounds fun, think again.  Sometimes it’s not fun at all, and it may force you to work in a field or firm that you don’t enjoy, just to pay back your education costs.  If you are certain you want to attend law school, I definitely recommend taking tuition costs into consideration when you look at schools.  A diploma from a top-20 school doesn’t guarantee you a job anymore, so you may be better off going to a local state school.  And being a lawyer may not be that lucrative in the future.  The legal profession is undergoing some fairly radical changes right now in terms of hiring and billing practices, and salaries are frozen or falling.  If you’re in it for the money, I’d try being a banker before I went to law school.

If you disagree with my assessment or have other statistical/anecdotal evidence, I’d like to hear it.  But as long as students and lawyers are seriously thinking and talking about the financial realities of law school, I’m happy.

Also, if I haven’t demoralized enough prospective law students, check this video out.  It’s been making the rounds at firms and law schools, but it might do more good if it went viral among pre-law undergrads.

For more information about the conference streaming and the formats available, visit the Live Streaming page.

Fortunately, next year’s speaker meets virtually all criteria. The JRCLS just announced that Elder D. Todd Christofferson of the Quorum of the Twelve will be the speaker, and I’m looking forward to it.  While his title indicates his position in the LDS Church, Christofferson also had an impressive legal career.  He clerked for Judge John Sirica during the Watergate hearings, and later was associate general counsel for what was then NationsBank (now part of Bank of America).  I wouldn’t expect any earth-shaking statements—general authorities are always careful of what they say—but he is in a perfect position to talk about the intersection of Mormonism and American law.

Judge Vaughn Walker

I’m going to start out by making a pretty bold statement: Judge Vaughn Walker is a liar.  Judge Walker is the Chief Judge of the Northern District of California and the author of the recent Perry v. Schwarzenegger decision invalidating California Proposition 8.  And in that decision, he lied through his teeth.  When I say that, I’m not engaging in Monday morning quarterbacking  or judge-bashing.   Judge Vaughn was merely following the example of none other than the U.S. Supreme Court, which is perfectly understandable.  I might do the same in his shoes.  But it still remains that his assertion that Proposition 8 failed the rational basis test  is clearly false, and that he is employing Lawrence v. Texas-style intermediate scrutiny under another name.

Lawrence v. Texas was the 2003 Supreme Court case that struck down the Texas statute prohibiting sodomy.  The famous language from Lawrence is that morality alone is an insufficient state interest, which explicitly overturns the 1986 case Bowers v. Hardwick that arose from a similar anti-sodomy law in Georgia.  The majority opinion in Lawrence was written by Justice Kennedy, who purported to apply the rational basis test to the Due Process claims.  But it was immediately clear to all observers that the majority’s standard was something more than rational basis.  In order to survive a Due Process challenge under the rational basis standard, a court need only find some possible rational basis for the law, no matter whether the legislature actually had that basis in mind or whether the parties articulate that basis.   Justice Kennedy’s majority opinion imposed a much less lenient standard, one that will probably evolve as an intermediate standard between rational basis and strict scrutiny.  But the majority lied and called it rational basis, because the prevailing justices didn’t want to admit they were imposing a non-existent level of scrutiny.

Given the holding and the subject matter in Lawrence, it’s no surprise that Judge Walker relied on it heavily.  The level of generality is extremely broad, just as in Lawrence.  Judge Walker’s opinion pontificates about social acceptance and the emotional impacts of marriage, rather than a Bowers-style narrow focus on the legal status and its associated liberty interests.  To the amusement of many, Judge Walker even cited Justice Scalia’s dissent in Lawrence.   But most significantly, he declared that there was no rational basis to the enacted law (Proposition 8), just as the majority in Lawrence had done to the Texas sodomy law in 2003.  Could the State of California had a rational basis for limiting marriage to heterosexual couples?  Undoubtedly, and the intervening defendants in Perry v. Schwarzenneger submitted evidence to prove just that.  It appears that they didn’t do a very good job, but it still clearly passed the extremely permissive rational basis standard.  And yet Judge Walker cited that same standard for striking Prop 8 down.  Clearly, the “rational basis” test he imposed was that of Lawrence v. Texas, and is more properly considered to be some ill-defined intermediate level of scrutiny.  In short, Judge Walker lied.

Now, I should say I am making no judgment as to the proper outcome of the Perry case under any other claims, and that I don’t entirely blame Judge Vaughn Walker for hiding what he was doing.  The full blame lies with Justice Kennedy and the Lawrence majority.  Those sorts of decisions at the Supreme Court level cause significant confusion at the district court and circuit levels.  The silver lining may be that an appeal of Perry v. Schwarzenegger could give the Supreme Court a second chance to be honest about what it did in Lawrence.  But given the potential standing issues and pitfalls associated with an appeal, I’m not going to hold my breath.

Apparently I’m not the only one who feels that way, because Adam Laughton of Weightier Matters of the Law just posted a very readable summary of the opinion.  Adam’s excellent article is meant to be accessible for laypeople, but attorneys will find it valuable as well.  It’s much longer than the average blog post, but it’s a lot easier than reading the full 138-page opinion.  But if you really want to do that, I’ve embedded it below.

The Prop 8 (Perry) Decision for Laymen – Weightier Matters of the Law