CMá Clark Memorandum

J. Reuben Clark Law SchoolBrigham YoungUniversityFall | 1996

Reflections on

The Bramble Bush

c o n t e n t s

Cover Illustration

by Rob Blackard

1996

2A Brief Tribute to

Dean H. Reese Hansen

8Perception verses Reality

Frederick Mark Gedicks

29Portraits

C. Douglas Floyd

Marguerite Driessen

Lovisa Lyman

28Encountering China:

An Interview with Doug

and Corene Parker

Scott W. Cameron

4Reenter the

Realm of Feelings

Elder Dallin H. Oaks

24Making a Difference

Judge Norman H.

Jackson18It Was Twenty Years

Ago Today: The Charter

Class Looks Back

Jonathan Brett Kalstrom

36Memoranda

Judicial Clerkships:

The Next Generation

Vicki Heubner

The Clark Memorandum

is published by the J. Reuben

Clark Law Society and the

J. Reuben Clark Law School,

Brigham Young University.

© Copyright 1996 by

Brigham Young University.

All Rights Reserved.

H. Reese Hansen, Dean

Scott W. Cameron, Editor

Charles D. Cranney, Associate Editor

Joyce Janetski, Issue Editor

Linda Sullivan, Art Director

John Snyder, Photographer

á

2 Clark Memorandum

Deans of u.s. law schools generally don’t last long—too often, the job of raising money gets to them. Not H. Reese Hansen. Well

into his seventh year as dean of the J. Reuben Clark Law School, he has survived the pace of a three-year, $11 million fund-raising

campaign, which would have downed a lesser dean. 1 In a profession with an average term expectancy of two years, Dean Hansen’s

service is worthy of note. When asked if he intends to slow down, the dean smiles and indicates that he has just regained the stride

that a decade ago he reserved for the St. George Marathon. Besides, he adds, it would be a shame to lose his recently acquired famil-

iarity with every time zone in the continental u.s. The dean, lest he be accused of being in it for the frequent flyer miles, can point

to the Law School’s uncut video footage of him braving a seat-securing adventure on a local airline. 1 The completion of the

Howard W. Hunter Law Library marks a high point of Dean Hansen’s tenure. Although it will not be formally dedicated until

March 1997, the library is fully operational—much to the delight of 467 byu law students. While the students, faculty, and staff are

A B R I E F T R I B U T E T O D E A N H . R E E S E H A N S E N

3Clark Memorandum

impressed with the new facility, Dean Hansen knows firsthand how grateful the byu Law School community should be to the Board

of Trustees as well as the members of the J. Reuben Clark Law Society and Law School alumni and friends. As a member of more

than two dozen sabbatical accreditation teams for the American Bar Association, Dean Hansen has seen other law schools in sig-

nificant detail. As a member of the Accreditation Committee of the American Association of Law Schools, he has the unusual

opportunity to closely examine the operation and status of nearly half of all law schools in the United States each year. These oppor-

tunities have given the dean a deep understanding of the favorable circumstances under which the faculty teaches and the students

learn at the byu Law School. 1 Though there is gratitude to share with many, before we forget the Herculean effort it has taken to

get this project completed, the Clark Memorandum wishes to pay a brief tribute to Dean Hansen, without whose efforts the build-

ing might not have been constructed at all or—perish the thought—might still be under construction. —Clark Memorandum

E L D E R D a l l i n H . O a k s·

I l l u s t r a t i o n s b y R o b B l a c k a r d

R E E N T E R T H E R E A L M O F E E L I N G S

S I O N . I T S E E M S H A R D T O B E L I E V E T H A T I T H A S

B E E N 2 0 Y E A R S S I N C E T H E F I R S T G R A D U A T I O N ,

W H I C H O C C U R R E D J U S T A F E W M O N T H S A F T E R

T H E M I D P O I N T O F M Y S E R V I C E A S P R E S I D E N T O F

B R I G H A M Y O U N G U N I V E R S I T Y . A T T H A T T I M E ,

this Law School was a struggling infant.Now it is a mature and highly respectedadult in the congregation of legal educa-tion.

I believe you will understand my desireto increase the personal warmth of thisoccasion by stirring the coals of nostalgia.It was 23 years ago this August when agroup of hopeful Church authorities, edu-cators, and students gathered for the cere-mony opening this law school. PresidentMarion G. Romney of the First Presidencypresided. President Ezra Taft Benson of theQuorum of the Twelve, CommissionerNeal A. Maxwell of the Church EducationalSystem, byu President Emeritus Ernest L.Wilkinson, Dean Rex E. Lee, about eightinitial members of the faculty, and 156 mem-bers of the charter class were also present.

For historical purposes, I quote frommy remarks on that occasion:

We are frequently asked why BrighamYoung University is establishing a law schoolat this time. We have all heard reasons sug-gested, and many of us have contributed afew. Some of these suggestions are speculative,some reasoned, and some have the ring ofauthority. But the most important fact to benoted on this subject is that the trustees ofBrigham Young University, whom we sustainas inspired leaders, have decided thatBrigham Young University should have a lawschool at this time. I have received a confir-mation of the divine wisdom of that decision,and I am quite content with that. The specialmission of this law school and its graduateswill unfold in time. [Addresses at theCeremony Opening the J. Reuben ClarkLaw School, byu, August 27, 1973, pp. 4–5]

After 20 years, we have fewer doubtsabout the special mission of the LawSchool. Nevertheless, we are keenly aware

that this special mission is still unfoldingand that each new graduating class addsits own illumination toward understand-ing and its own momentum towardachieving that mission.

So much for nostalgia. Now to thebusiness at hand.

I have a whole file full of trite expres-sions tailored to a graduation. You willbe glad to know that I left that fileuntouched in my preparation and willtry to leave its contents unaccessed inmy recollection. I wish, instead, to speakcandidly to these law graduates aboutone important aspect of their transitionfrom law studies to the professional peri-od that follows.

I enrolled in law school 42 years agothis fall. (Forty-two years! It seems I justcan’t stay away from nostalgia!) At thattime, I had the good fortune to have myintroductory law class from ProfessorKarl N. Llewellyn, then one of America’sbest known and most highly honoredlaw teachers. He had all of his beginningstudents read his book, The Bramble Bush(New York: Oceana Publications, 1951).Much of this small book was in-comprehensible to entering law students,but as our experience deepened, we cameto see that most of it was valuable. Onthe first reading of The Bramble Bush, theonly thing I thought I understood wasthis poem that appeared facing the titlepage.

There was a man in our townand he was wondrous wise:

he jumped into a bramble bushand scratched out both his eyes—

and when he saw that he was blind,with all his might and main

he jumped into another oneand scratched them in again.

6 Clark Memorandum

F E E L V E R Y P R I V I L E G E D T O B E W I T H Y O U O N T H I S O C C A -

This address was

given at the

J. Reuben Clark

Law School

Convocation,

April 26, 1996.

i

For Professor Llewellyn, the study oflaw was the first bramble bush, a painfulexperience that would gouge out the nor-mal eyes of the student. But his bookoffered hope. Those who persisted in theirreading found this passage on pages105–106:

So, gentlemen, the prospect: the thicket ofthorns. The subtleties of the case method to dis-entangle. . . . Details, unnumbered, shifting,sharp, disordered, unchartable, jagged. And allof this that goes on in class but an excuse tostart you on a wilderness of other matters thatyou need. The thicket presses in, the greathooked spikes rip clothes and hide and eyes.High sun, no path, no light, thirst and thethorns.—I fear there is no cure. No cure for lawbut more law. No vision save at the cost ofplunging deeper. But men do say that if youstand these thousand vicious gaffs, if you fightthrough to the next bush, the gashing therebrings sight.

By now, your three years of law studyhave given you what Llewellyn called “thegashing” of that second bramble bush,which has brought you your legal vision.At least that is the conventional wisdomand the expectation of those who presideover the teaching of the law in the lawschools and in the law firms and agencyapprenticeships for which most of you arenow destined.

We all know that graduation is a time oftransition from formal education to thefurther learning and compensated employ-ment for which you have been prepared.But graduation marks another transition,too. It is of this other transition that I wishto speak, because what I have to say youmay not hear from those who will tutoryou in your further education in the law.

You need another kind of tutoring—we might even say another kind of goug-ing—to restore some of the vision youlost in the legal introduction Llewellyncalled the first bramble bush. You needsome special efforts because the loss ofthis kind of vision was not restored inyour legal studies.

In the study of the law, you havebecome proficient in learning and rea-soning from rules and in determiningfacts. The vision necessary for this kind

of learning and skill is necessary to makeyou serviceable in your profession. But inthe process, you may have been desensi-tized or at least have become neglectful ofanother dimension of life—the realm offeelings. You should now reenter thatrealm. Hence the title of these remarks:“Reenter the Realm of Feelings.”

The law doesn’t do much with feelings.A feeling is rarely actionable or evenadmissible. Yet, even in the realm of thelaw, feelings are often more importantthan facts or rules. Lawyers who fail to getreintroduced to the realm of feelings arenot likely to succeed in the practice of law.More important, they are almost certain tofail in the fundamentals of life that aremore important than law or anything else.

If you think I have overstated thatpoint, tell me what fact or rule motivatedyou married graduates in your choice ofthe companion who is more dear to youthan anything else. I judge that in makingthat choice you proceeded on feelings. Ifyou reflect on the most important deci-sions you have made in your life, you willprobably conclude that most of them,though preceded by a careful study of thefacts and the rules, were most immediate-ly motivated by feelings.

Take account of your feelings at thismoment. You feel relieved to be graduat-ing. You feel grateful to your parents andto your spouse, and yes, to your teachersand to the Law School. You feel apprehen-sive but determined about what liesahead. All of those feelings are under-

standable and appropriate, and all of themshould be acted upon.

There will be other feelings. In themonths and years ahead, feelings ofresponsibility should stir you to action.Feelings of inadequacy should press youto careful preparation.

There will be other occasions whenyou need to be guided by your feelings. Ifyou cultivate the sensitive spiritual recep-tor that we all have and are intended touse, a feeling of doubt or foreboding willwarn you away from ethical or moral pit-falls. If you stray from the prescribedpath, a feeling of guilt will move you torepentance. I hope you never neglect yourspiritual life to the point that you sufferthe result mentioned in the scriptures thatdescribe persons who were “past feeling”the “still small voice” (1 Nephi 17:45).

But there is more. Feelings of love andconcern should cause you to give neededattention to those you love. You shouldalways be ready to act upon a generous oreven an extrarational impulse when you“feel that it is right” (d&c 9:8). Finally, feel-ings of reverence and love for the Lordwill discipline your thoughts and actionsin ways necessary to qualify you for thepromised blessings of heaven.

In these and countless other ways, yourfeelings will guide you if you will allow it.

On this day when a ceremony certifiesyour mastery of facts and rules, it is appro-priate for an older friend to remind somecertified masters of facts and rules thatthey are now emerging from the exclusivesovereignty of those important profession-al factors and reentering a realm wherethey must also be accountable to their feel-ings and the feelings of others.

I hope that you will make a good transi-tion from law school to the world of work.Since this is of even greater importance, Ipray that you will also make a good transi-

tion from the artificial environment oflegal studies into the realm where feel-ings are controlling in much that is vital.I invoke the blessings of heaven uponyou in that essential transition and inall that is to follow.

Elder Dallin H. Oaks is a member of theCouncil of the Twelve of The Church of

Jesus Christ of Latter-day Saints.

7Clark Memorandum

9Clark Memorandum

Perception

Reality

versus by Frederick Mark Gedicks

Photo Illustrations by Brad Slade

In the late 1970s, there drifted into legal scholarship some philosophical

ideas grouped under the term “postmodernism.” Always on the lookout for

something new and trendy, legal scholarship quickly found a place for

these ideas, and they now inhabit a well-established (if slightly disrep-

utable) wing of the legal academy. To the delight of some and dismay of

many, postmodernism has had significant impact on legal scholarship, par-

ticularly in jurisprudence, constitutional theory, and legal interpretation.1

P O S T M O D E R N I S M , I N T E R P R E T A T I O N , A N D T R U T H I N R E L I G I O N A N D L A W

Postmodernism is not well understoodwithin the legal academy, even by some ofits proponents. Because postmodernismquestions traditional concepts of law andtruth, conservatives—especially religiousconservatives—tend to dismiss it asnihilistic, relativistic, or just plain crazy,while those on the political left too oftenembrace postmodernism with naiveenthusiasm, believing they have found theintellectual key to life.

Given postmodernism’s contemporaryinfluence, it is important for us as lawyersand Latter-day Saints to understand its

claims and the potential impact ofthose claims on our political com-mitments and religious beliefs.Whether one believes (as I do) thatthere is something important we canlearn from postmodernism, orwhether one is unequivocablyopposed to it, we must still have aclear idea of what we’re talkingabout. Unfortunately, a full accountof the many philosophical approachesthat pass under the name of postmod-ernism is impossible in a short essay.So I will focus on two aspects ofpostmodernism that I think are par-ticularly important to Latter-daySaint lawyers: (1) epistemology, orhow postmodernists approach theproblem of how we know what wesay we know, and (2) interpretation,or how postmodernists approach the

problem of what a text means. I will firstoutline postmodern epistemology andinterpretation and their relation to mod-ernism and follow that with some specificexamples of how these aspects of postmod-ernism have influenced legal scholarshipthese last 20 years. I will close by consider-ing what Latter-day Saints might learnfrom postmodernism.

Modernism

As the “post” in postmodernism suggests,it can be defined by contrast to somethingcalled “modernism.” Separating intellectualor chronological periods is always some-what arbitrary, but modernist thoughtwould date roughly from the beginning ofthe Enlightenment in the mid-17th centuryuntil the mid-20th century.

Modernism assumes that the observeris separated from the object of observa-tion. Modernism considers the humansubject as if it were in a mental box, “inhere,” so to speak, while the world pro-ceeds along its course outside the box“out there.” (This view is usually attrib-uted to Descartes, although there is somequestion whether Descartes himself actu-ally conceived of the world this way.)“Knowledge” for the modernist consistsin a mental picture or symbol “inside thebox” that accurately represents the world“outside the box.” For example, analyticphilosophy, the most sophisticated vari-ant of modernism, assumes that the worldcan be accurately represented linguistical-ly—that is, that language is adequate tocapture the essential nature of the world“outside the box.” Another variant ofmodernism is the “correspondence theoryof truth.” This theory defines a true ideaas one that corresponds to how the worldreally is, and additionally maintains thatthis correspondence between mind andworld can be decisively demonstratedthrough human reason and empiricalinvestigation.2

Until recently, the quintessential mod-ernist discipline was natural science. Byperforming experiments that carefullycontrol the variables, science confirmshypotheses about the world. Hypothesesthat cannot be disproved or “falsified” areassumed to represent essential attributesof the world, the “way it really is.” In thepopular mind, science has long beenthought to be “objective”—that is, it isthought to reveal the reality of the worldneutrally, without coloring or shadingthat reality with the subjective attributesor biases of a human investigator.3

This view of science grew out of theEnlightenment. The notion that onemight uncover reality neutrally and objec-tively was intensely liberating in contrastto the medieval church’s insistence that aproposition had to be consistent with thechurch’s theology to be counted as true,regardless of rational or empirical proofs.For example, in medieval times it was the-ologically unthinkable that the earthmight rotate around the sun, regardless ofthe strength and number of Galileo’s con-firmations.4 Galileo was only one of many

10 Clark Memorandum

GIVEN POSTMODERNISM’S CONTEMPORARY

INFLUENCE, IT IS IMPORTANT FOR US AS

LAWYERS AND LATTER-DAY SAINTS TO

UNDERSTAND ITS CLAIMS AND THE POTEN-

TIAL IMPACT OF THOSE CLAIMS ON OUR

POLITICAL COMMITMENTS AND RELIGIOUS

BELIEFS. WHETHER ONE BELIEVES (AS I DO)

THAT THERE IS SOMETHING IMPORTANT WE

CAN LEARN FROM POSTMODERNISM, OR

WHETHER ONE IS UNEQUIVOCABLY OPPOSED

TO IT, WE MUST STILL HAVE A CLEAR IDEA

OF WHAT WE’RE TALKING ABOUT.

medieval scientists who ran afoul of thechurch while investigating the world. Inthe end, the church lost its battles withscience, unable to maintain the validityof its geocentric theology in the face ofscientific demonstrations that this theol-ogy did not reflect reality. By the middleof the 19th century, natural science hadreplaced theology as the “prestige dis-course” of the time—that is, the intellec-tual discipline that revealed truth andreality.

Installing science as the principalmeans of discovering reality had implica-tions for the so-called “human sci-ences”—law, literature, and theology.The human sciences investigate themeaning of human texts like laws, poet-ry, and scripture. A correct understand-ing of these texts had long been thoughtto be a matter of judgment and taste, ofan aesthetic sense that could not bereplicated by objective method or proce-dure.5 By the 19th century, however,Kant’s Critique of Judgment was under-stood to have established the subjectivi-ty of aesthetics. Thereafter, judgmentand taste were considered more reflec-tions of the interpreter’s personality andcharacter than independent means ofevaluating the text being interpreted;they could tell us much about the inter-preter, but little about the text. If judg-ment and taste—the basis of knowledgein the human sciences—were mostlyfunctions of the interpreter’s personalcharacter without a scientific or other“objective” dimension, then the scholar-ship of the human sciences could notcount as real knowledge. PhilosopherJean Grondin argues that Kant’s placingjudgment into a subjective realm deniedany cognitive value to the human sci-ences: “Whatever did not measure up tothe standards of the objective andmethodical natural sciences was there-after considered merely ‘subjective’ and‘aesthetic’—that is, excommunicatedfrom the realm of hard knowledge.”6

The epistemological success of thenatural sciences combined with Kant’ssubjectification of judgment led those inthe human sciences to attempt to developa “science of interpretation”—an “objec-tive” approach to interpretation in the

human sciences that would put them onthe same epistemological footing as thenatural sciences. If one could only uncov-er the “laws of interpretation,” it wasthought, then these laws would yieldobjectively valid interpretations, enablingthe human sciences to be sources of truthand knowledge equally as valid as the nat-ural sciences.

In sum, modernist epistemologyassumed that the way the world “reallyis” could be accurately and reliably repre-sented. Similarly, modernist interpreta-tion held that the true meaning of a textcould be demonstrated with certainty.These are assumptions that postmod-ernism places in question.

Postmodernism

It is difficult to pinpoint postmod-ernism’s origin in the work of a singlephilosopher. The work of most philoso-phers in the continental tradition, fromKant and Hegel in the late 18th centurythrough Husserl in the early 20th centu-ry, has contributed to postmodernism.7

There are even postmodern readings ofAristotle and Augustine, among otherclassical philosophers. A good startingpoint for postmodern philosophy, how-ever, is the work of Martin Heidegger,particularly Being and Time, which waspublished in 1927 but was not widelyread outside Germany until after WorldWar II. Heidegger questioned the validityof the Cartesian box, the subject “inside”who represents the objective world “out-side.” Heidegger asserted that there isnever a time when subjects are unin-volved in the world, that it is never pos-sible to investigate the world withoutsimultaneously influencing it and beinginfluenced by it. Instead, Heideggerdescribed humans as having been“thrown” into a particular situation inthe world—always being in relationshipswith things before our investigations ofthose things—placing in question ourability to see the world “as it really is.”8

Ironically, some of Heidegger’s argu-ments in Being and Time were consistentwith contemporaneous developments inthe natural sciences. For example,Werner Heisenberg’s uncertainty princi-

ple states, among other things, thatwhether a subatomic particle exhibitsthe character of a particle or a wavedepends on whether one is measuringits mass or its momentum. If one mea-sures the location of an electron, itexhibits the characteristics of a particle.If one measures how the electron ismoving, however, it exhibits the charac-teristics of a wave.9 How can an elec-tron be both particle and wave? Evenmore perplexing, why should the char-acteristics displayed by an electron varyaccording to what the scientist isattempting to measure? Heisenberghimself believed that how the worldappears to us depends on what we wantto know about it: “Natural science doesnot simply describe and explain nature;it is part of the interplay betweennature and ourselves; it describesnature as exposed to our method ofquestioning.”10

Hans-Georg Gadamer, a student ofHeidegger’s, extended Heidegger’s gen-eral insights to interpretation in thehuman sciences. In Truth and Method,published in German in 1960 and trans-lated into English in 1975, Gadamermade a clean break with the 19th-centu-ry search for objective certainty in inter-pretation by arguing that there is nosuch thing as an “objective” meaningthat resides in a text independent of anact of interpretation. An interpreteralways brings his or her concerns andbiases to the text being interpreted, andinterpretive meaning is produced by theinteraction of these concerns and biaseswith the text. Gadamer argued that it isnot possible for an unengaged subjectneutrally to extract from a text a pristineobjective meaning:

A person who is trying to understand a textis always projecting. He projects a meaningfor the text as a whole as soon as some ini-tial meaning emerges in the text. Again, theinitial meaning emerges only because he isreading the text with particular expecta-tions in regard to a certain meaning.Working out this fore-projection, which isconstantly revised in terms of what emergesas he penetrates into the meaning, is under-standing what is there.11

11Clark Memorandum

Postmodernism and thePublic/Private Distinction

Liberal political theory—which, incidental-ly, is subscribed to by Republicans as wellas Democrats—depends on a division ofhuman life into mutually exclusive publicand private spheres.12 Among other things,liberal theory provides that government canproperly regulate public matters but notprivate ones. In contemporary life, privatelife is usually protected by individual rights;government regulation is permissible if itdoes not cross the boundary marked byindividual rights into private life.

Conceptually, the boundary betweenthe public and private spheres tracks theCartesian division of the world into sub-jects and objects. In private life, individualshave what might be called “subjective free-dom”: If they do not harm others, they arefree to do whatever they please for any rea-son (or for no reason) without having tojustify their conduct to the government orto other people. In public life, on the otherhand, government and individuals are oblig-ed to serve the collective “public interest”rather than the idiosyncratic tastes and

preferences of a particular person. Unlikechoices in private life, choices in publiclife must be justified objectively—that

is, empirically or rationally.For liberal theory, the

threat posed by activities inprivate life is that they willspill over into public life,subverting its institutionsand actors to a set of idio-syncratic values. Public lifeis equally threatening, how-

ever; whenever public lifeencroaches upon private life, it

infringes upon individual liberty.The purpose of government is topreserve the objectivity of publiclife from the subjectivity of pri-vate life, while nonetheless ensur-ing that there remains sufficient

private space for the contin-ued pursuit of subjective

values outside the pub-lic sphere. The stateaccomplishes this byremaining ideologi-

cally neutral—that is, by refusing to opposeor endorse values in private life, and actingin public life only on objective facts ratherthan subjective beliefs. If individual valuesare merely a function of individual tastesor preferences that cannot be measured orexplained, as liberal theory maintains, thenno single set of values can be objectivelyshown to be better than any other set, andgovernment must remain neutral withrespect to all sets of values. It follows thatthe most uncontroversial kinds of govern-ment actions in a liberal democracy arethose perceived to be based on objectivefacts, and the most problematic actionsthose based on subjective values.

A key task of liberal political theory isto police the boundary between publicand private life by distinguishing subjectsfrom objects—that is, values from factsand desires from reasons. Beliefs or valuesthat reside in private life are suspect as abasis for government action unless theycan be plausibly recharacterized as factsor reasons. Only if a belief is confirmedby widely held experience or scientificinvestigation, or by reasoning that is con-sistent with such experience or investiga-tion, does it qualify as knowledge onwhich government legitimately can act.

This account of liberal political theoryhelps to explain why religious belief andpractice are so controversial when manifestin politics and other areas of public life.Religious belief and practice are forced intoprivate life by the way the public and theprivate are defined in contemporaryAmerican society. Particularly in conserva-tive religions like the Latter-day Saint faith,reason and empiricism are ultimately sub-ordinated to authority, tradition, and faithas ways of knowing. By its nature then,religion cannot satisfy the objective teststhat would give it proper public status.

Keeping religion and religious beliefconfined to private life enables liberalpolitical theory to marginalize religionwithout having to eliminate it. For exam-ple, Marx argued that we can emancipateourselves politically from religion by “ban-ishing it from the sphere of public law tothat of private law.”13 Explaining the forceof this point, Elizabeth Mensch and thelate Alan Freeman, two prominent post-modernists in the American legal academy,

12 Clark Memorandum

13Clark Memorandum

observed that by confining religion to pri-vate life, rather than abolishing it outright,government reduces religion to “a privatewhim, an expression of purely subjectiveindividualized values.”14 As such, religionand religious belief need not and cannot beconsidered by those who act in public life.

Liberal political theory purports totreat religion and religious belief neutral-ly—as subjective value preferences restrict-ed to private life like all such preferences,rather than as objective knowledge properto public life. However, this position canbe genuinely neutral only if the boundarydrawn between the private world of sub-jective preference and the public world ofobjective fact accurately represents theworld. As I have explained, postmod-ernism casts serious doubt on the proposi-tion that things in the world can beobjectively categorized as “public” or “pri-vate.” The public or private character ofany activity depends not only on apparent-ly “objective” attributes of the world butalso on the classifier’s subjective percep-tion of these attributes; most activities canbe plausibly characterized as both publicand private. Postmodernism thus enablescriticism of the confinement of religion toprivate life as not being the natural orinevitable result of the objective reality ofthe world, but merely a particular experi-ence of the world filtered through thepremises of liberal political theory.

Postmodernism andOriginalist InterpretiveMethods

Critiques of “originalism”—the view thatthe Constitution should be interpreted asit was understood when it was drafted andratified—are by now well known.15 Most ofthem center on the impossibility of dis-covering the framers’ intent—for example,the minutes of the ConstitutionalConvention and the legislative historiesgenerated by the Congresses that passedamendments are often obscure, unreliable,or nonexistent; the framers themselveswere often uncertain or conflicted aboutwhat they meant to accomplish withrespect to certain constitutional provi-

sions; and so on. Other critiques focus onthe self-contradictory nature of originalistclaims—for example, the framers them-selves may not have intended that theConstitution be construed according totheir intentions, and certain constitutionaltexts like the Fifth, Ninth, and FourteenthAmendments may reflect the framers’intention to extend constitutionalprotection to rights not enumeratedin the Constitution or otherwisecontemplated by the framers.

Postmodern criticism of original-ism is deeper than either of thesearguments. Even if comprehensivelegislative history exists, so that thereis no question what the framers werethinking, and even if this legislativehistory presents a complete andcoherent expression of the framers’intent not to protect unenumeratedrights, postmodernism holds that wecannot understand these materials asthey were understood by the framers. Thatis, we cannot ignore the effects of the histo-ry that interposes itself between them andus. No matter how hard we try, we willnever understand the Constitution as it wasunderstood in a preindustrial, agrarian soci-ety that presupposed a common religiousmorality, yet nevertheless enslaved AfricanAmericans, dispossessed Native Americansof their homelands, and imposed civil dis-abilities on other racial, ethnic, and reli-gious minorities as well as women. We canonly understand the Constitution as thepeople we have become—a post-industrial,technologically advanced, egalitarian soci-ety that is religiously and morally frag-mented to the extent that government islargely prevented from acting on mostmoral bases. In short, when we interpretthe Constitution, we cannot isolate our-selves and our experiences of contempo-rary life inside the Cartesian box, any morethan we can ignore the various interpreta-tions of the Constitution that have beenpassed on to us in the last two centuries.There is no question that originalism yieldsanswers to questions about the meaning ofthe Constitution, but the claim that theseanswers are “objective”—free of the biasesand motivations of contemporary inter-preters—is rendered deeply problematic bypostmodernism.

ELIZABETH MENSCH AND THE LATE ALAN

FREEMAN, TWO PROMINENT POSTMOD-

ERNISTS IN THE AMERICAN LEGAL ACADEMY,

OBSERVED THAT BY CONFINING RELIGION TO

PRIVATE LIFE, RATHER THAN ABOLISHING IT

OUTRIGHT, GOVERNMENT REDUCES RELIGION

TO “A PRIVATE WHIM, AN EXPRESSION OF

PURELY SUBJECTIVE INDIVIDUALIZED VALUES.”

This suggests another postmoderninsight about legal interpretation: that con-stitutional language is always ambiguousand thus susceptible to more than oneplausible interpretation. Critics of post-modernism often deride this claim, and itis admittedly oversold by many postmod-

ernists. A better way of putting thepoint is that the ambiguity of consti-tutional language increases in directproportion to what is at stake ininterpretation—the higher the stakes,the more likely the presence of ambi-guity, and vice versa. For example,critics of postmodern interpretationoften point to Article II, §1, clause 5of the Constitution, which restrictsthe Presidency to “natural bornCitizen[s]” having “attained to theAge of thirty-five years,” as an exam-ple of constitutional language that isnot in the least ambiguous. Ofcourse, there is currently no shortageof candidates over 35, and there is noone under age 35 who is trying to runfor president; the language appears

clear and unambiguous because there isno current need to interpret the languageas meaning anything different from whatit is currently understood to mean.

Suppose, however, that as the fulfill-ment of every 1960s hippy’s dream, a viruswere to strike the United States killingevery person over the age of 30.16 Nowthere is something at stake in interpretingthis provision, because if the provisiontruly means what it appears to mean, thereis no one eligible to be president. My sug-gestion here is that this previously unam-biguous language would immediatelybecome less clear, because there is now astrong motivation for a different interpreta-tion than that of the so-called “plain mean-ing,” a motivation that didn’t exist before.

Consider another, less fanciful situa-tion. For almost two centuries, the phrase“natural born Citizen” was generallyunderstood to mean “born in the UnitedStates.” In the early 1960s, however,George Romney ran for president.Romney had been born to u.s. citizensresiding in the Mormon Colonies inMexico; such persons are usually held tohave dual citizenship in both the countryof their parentage and the country of

their birth until they make a choice atadulthood. A few political pundits raisedthe question whether Romney was consti-tutionally qualified to be president, sincehe was born outside the United States.Now is it so clear what this provisionmeans? So long as no one born outsidethe United States ran for president, therewas no ambiguity in this clause becausenothing was at stake, but when a citizenborn outside the United States sought thepresidency, then the stakes were raisedand ambiguity immediately appeared.(The consensus, incidentally, was thatRomney was qualified; the meaning of theclause was refined to mean “citizen bybirth,” as opposed to “citizen by virtue ofbirth within the geographical confines ofthe United States.”)17

Political conservatives are suspicious ofpostmodernism because it places in ques-tion the rule of law—that is, the belief thatliberal democracies are governed by theforce of impersonal law and not by the willof a king or other tyrant. Robert Bork, forexample, argues that only an interpretivemethodology like originalism can preservethe rule of law by excluding the value pref-erences of the judge from the task of legalinterpretation.18 Postmodernism argues,however, that the interpretation of law isunavoidably connected to the attributesand situation of the interpreter—that is,that it is not possible to uncover an “objec-tive legal meaning,” but only legal meaningthat is the result of a complex interactionof textual object and interpreting subject.As postmodernists might predict, original-ist judges regularly abandon originalismwhen it leads to results that contradicttheir personal views about political theory.Chief Justice Rehnquist, for example, haswritten a majority opinion upholding anunderstanding of presidential power in for-eign affairs far broader than that envi-sioned by the framers, based on historicaldevelopments occurring long after thefounding era.19 Similarly, Justice Scaliafound that the free exercise clause preclud-ed judicial exemptions because of the evilsof judicial balancing, without a single refer-ence to the framers’ views on the matter.20

Postmodernism helps us to see that consti-tutional and other kinds of legal interpreta-tion are not neutral and objective processes

14 Clark Memorandum

IF ONE INSISTS ON AN EXPLANATION OF THE

ORIGIN OF HUMAN BEINGS AND THE UNI-

VERSE THAT IS COMPOSED ONLY OF TESTABLE

HYPOTHESES, THEN SOMETHING LIKE EVO-

LUTION IS THE INEVITABLE RESULT.

“GODLESS EVOLUTION” IS AN ACCURATE

DESCRIPTION, NOT BECAUSE SCIENTISTS

ARE CONSPIRATORIAL ATHEISTS, BUT

BECAUSE THE SCIENTIFIC REQUIREMENTS OF

RATIONALISM AND EMPIRICISM LEAVE

LITTLE ROOM FOR GOD TO DO ANYTHING.

of discovery, but rather political processeslaced with the biases and ideologies ofjudges on both the political left and thepolitical right.

Postmodernism and the Gospel

One occasionally finds Latter-day Saintswho talk about postmodernism as if itwere the embodiment of the gospel. Thisis silly. Much more commonly (especiallyat byu), one finds Latter-day Saints talkingabout conservative Republicanism or someother political ideology as if it were theembodiment of the gospel. I think this isjust as silly. More than silly, both attitudesindicate a fundamental misperception ofwhat the gospel is. The gospel does notdepend for its validity on any human ide-ology nor is it an ideology itself. Thegospel stands on its own as the revelationof God to his children; it doesn’t need tobe propped up by human argument, andthere is some danger in doing so.

This doesn’t mean that there isn’tmuch to learn from human ideologies; tothe contrary, the world has much to teachus. I think this is the meaning of the scrip-tural counsel that we look for wisdom“out of the best books,” and that we “seeklearning, even by study and also byfaith.”21 It is worthwhile to study humanideologies because of the broadened per-spective and insight they might enable usto bring to our understanding of thegospel. Even Marx got a few thingsright—a broken clock tells the right timetwice a day—and these things are worthlearning. So when I discuss what post-modernism might teach us about thegospel, I do not mean to suggest that itreplace or substitute for the gospel, thatwe somehow “postmodernize” the gospel,but only that postmodernism can illumi-nate some aspects of the gospel in waysthat modernism doesn’t, thereby deepen-ing our understanding of our faith.

For example, postmodernism highlightsthe extent to which Latter-day Saints, likemost conservative believers, have allowedmodernist assumptions to dictate theirunderstanding of their religious beliefs.

Take the so-called conflict between cre-ationism and evolution, creationism beingthe creation of the world and its firsthuman inhabitants by the divine andmiraculous intervention of God, whereasevolution is such creation by the randominteraction of wholly natural forces. Theconflict usually centers on which side “hasit right” about how the earth was “really”created, the evolutionists or the creation-ists. Both sides regularly trade accusationsabout bad science, usually mixed in withnot-so-subtle insinuations of bad faith ininterpreting the data. Why is the conflictframed in this way? Why should we carewhat evolutionists or creationists think?

The answer is that creationists havebought into the assumption that scienceaccurately represents the world “as it real-ly is” (or, at least, “as it really was creat-ed”). Evolution, therefore, is perceived bycreationists to be an objective explanationof how the world and its inhabitants cameto be. Given this assumption, the logicalcreationist response is to attack the quali-ty of evolutionary science so as to divestit of its credibility as knowledge.

My own view is that evolution is prettygood science, and creationism hardly sci-ence at all.22 But I hasten to add that thisdoes not mean that evolution is an accu-rate account of the creation—and creation-ism inaccurate; one has to remember how“science” is defined. Science seeks touncover the reality of the world by ratio-nally and empirically testing hypotheses.This means that a hypothesis that is nei-ther rationally nor empirically testable—say, “God created Adam and Eve throughsupernatural forces”—is scientifically use-less, because there is no way to falsify it. Ifone insists on an explanation of the originof human beings and the universe that iscomposed only of testable hypotheses,then something like evolution is theinevitable result. “Godless evolution” is anaccurate description, not because scientistsare conspiratorial atheists, but because thescientific requirements of rationalism andempiricism leave little room for God to doanything. Creationism can’t be science,because it depends on a hypothesis—theexistence of God and his miraculous inter-vention in the world—which is neitherrationally nor empirically falsifiable. This

doesn’t mean that creationism isn’t true,only that it isn’t scientific—that is, rationaland empirical.

Postmodernism helps us to see that cre-ationism and evolution are alternativeaccounts of the same data. There is no wayto prove that the data “really” support oneand not the other. Because we live in apost-Enlightenment world in which sci-ence has long been the prestige discourse,however, we unthinkingly step into thetrap of assuming that evolution is fact, andtherefore threatening to creationist beliefs.

Much of the conflict between religionand secular knowledge derives from thehabitual association of objectivity withtruth. On modernist premises, the truthof something depends upon its beingobjectively demonstrable. This is whatmakes scientific method so powerful; itpurports to free scientific investigationfrom the biases of the investigator. Fromthis assumed dependence of truth onobjectivity it follows that any propositionwhose validity derives from a subjective,nonmethodological judgment cannotcount as knowledge, but only belief.Hence many Latter-day Saints desire tobolster the secular credibility of our faithby “proving” the truth through the objec-tivist conventions of secular knowledge.Ironically, this may lead to loss of faithwhen such proofs are found to be impos-sible or, worse, to lead to conclusions thatcontradict Latter-day Saint beliefs.

Because postmodernism rejects the pos-sibility of objective truth, it is often reject-ed in turn by Latter-day Saints and otherreligious conservative believers as nihilistic(that is, claiming that there is no truth) orrelativistic (that is, claiming that what istrue depends only on one’s individual per-spective). To deny objectivity, however, isnot to deny truth. The world undeniablyexists in a certain way no matter how orwhat we think of it; the most fervent com-mitment to postmodernism will not pre-vent someone who jumps off a 20-storybuilding from falling to her death. But toacknowledge that the world has certainattributes that are independent of humanthought is not to concede that secularmethodologies necessarily give us an accu-rate or reliable view of these attributes.After all, humans have known for millen-

15Clark Memorandum

WHEN I DISCUSS WHAT POSTMODERNISM MIGHT TEACH US ABOUT THE GOSPEL, I DO NOT MEAN TO SUGGEST THAT IT REPLACE OR

SUBSTITUTE FOR THE GOSPEL, THAT WE SOMEHOW “POSTMODERNIZE” THE GOSPEL, BUT ONLY THAT POSTMODERNISM CAN ILLUMI-

NATE SOME ASPECTS OF THE GOSPEL IN WAYS THAT MODERNISM DOESN’T, THEREBY DEEPENING OUR UNDERSTANDING OF OUR FAITH.

nia that things fall “down” rather than“up,” but accounts of what this means andwhy this occurs have been legion.

Latter-day Saints claim that all humanbeings are the spiritual children of aHeavenly Father, that through the atone-ment his Son Jesus Christ saved us fromdeath and redeemed us from sin, and thatthe gospel of Jesus Christ was restored tothe earth through the prophetic missionof Joseph Smith and continued by succes-sors also endowed with a prophetic call-ing. Secular knowledge about these claimsis worth pursuing because it can illumi-nate our understanding of them (and it isundeniably satisfying when secularknowledge points in the same direction asour spiritual beliefs). Ultimately, however,we believe the claims of the gospel—indeed, we know their truth—because wehave received the testimony of the HolyGhost that they are true, a testimonywhose reality and validity are nonethelessneither rationally nor empirically demon-strable. Were it otherwise, we would notneed faith, because the truth of all thingscould be indisputably laid out before us.

“Not everything in reality,” wroteProtestant theologian Paul Tillich, “can begrasped by the language which is mostadequate for the mathematical sciences.”23

Instead, we must hope for things whoseoutline we only dimly perceive, which wenonetheless know are real.24 To the extentthat postmodernism reminds us that thetruth of the gospel does not depend onthe proofs of secular knowledge, and mayeven contradict them, it is truly somethingworth knowing.

notes

1. For a survey of the influences of postmodern phi-

losophy on legal scholarship, see Mark V. Tushnet,

Critical Legal Studies: A Political History, 100 Yale L.J.

1515 (1991).

2. The metaphor of the mental box is Martin

Heidegger’s. See Metaphysical Foundations of

Logic 160–61 (Michael Heim trans. 1984) (1928). For a

general description and extended criticism of mod-

ernism, see Richard Rorty, Philosophy and the

Mirror of Nature (1979).

The correspondence theory is considerably more

sophisticated than may appear from the shorthand

description in the text. For defenses of the theory,

see Paul K. Moser, Knowledge and Evidence 13–46

(1989); William P. Alston, Yes, Virginia, There Is a Real

World, 52 Proc. Am. Phil. Ass’n 779 (1979).

3. This view is no longer considered tenable by most

contemporary philosophers of science. See, e.g.,

Robert P. Crease, The Play of Nature: Experimen-

tation as Performance (1993); Thomas Kuhn, The

Structure of Scientific Revolutions (2d ed. 1970).

4. For an account of the deep hold that geocentric

cosmology had on the medieval world, see C.S.

Lewis, The Discarded Image (1967).

5. See generally Hans-Georg Gadamer, Truth and

Method 3–42, 94–100 (2d rev. ed., trans. Joel

Weinsheimer & Donald G. Marshall 1993) (describing

truth and knowledge in the human sciences as hav-

ing been traditionally thought to depend on culture,

communal sense, judgment, and taste). See also David

Hoy, Interpreting the Law: Hermeneutical and

Poststructuralist Perspectives, 58 S. Cal. L. Rev. 136, 144

(1985) (“Understanding [written texts] includes some

nonpropositional content that is more properly

described as an ability than as a rule.”).

6. Jean Grondin, Introduction to Philosophical

Hermeneutics 109–10 (Joel Weinsheimer trans. 1995).

7. For an accessible summary of the continental

philosophical tradition, see Robert C. Solomon,

Continental Philosophy since 1750: The Rise and

Fall of the Self (1988).

8. See Martin Heidegger, Being and Time ¶ 13 at

86–90, ¶¶ 31–32 at 184–95 (John Macquarrie & Edward

Robinson trans. 1962) (1927).

9. Paul Davies, God and the New Physics 102–03

(1983).

10. Werner Heisenberg, Physics and Philosophy 81

(1962) (emphasis in original). See also id. at 35

(“[A]sking the right question is frequently more than

halfway to the solution of the problem.”). I am

indebted to Trinyan Paulsen for this quotation.

11. Gadamer, supra note 5, at 267.

For a summary of the complete argument of Truth

and Method, see Grondin, supra note 6, ch. VI. For

modernist criticisms of Truth and Method, see E.D.

Hirsch, Jr., Validity in Interpretation 245–64 (1967);

Emilio Betti, Hermeneutics as the general methodology of

the Geisteswissenschaften [Human Sciences] (Joseph

Bleicher trans. 1980) (1962) in Joseph Bleicher,

Contemporary Hermeneutics: Hermeneutics as

Method, Philosophy and Critique 51, 76–84 (1980).

12. This section is drawn from Frederick Mark

Gedicks, The Rhetoric of Church and State: A

Critical Analysis of Religion Clause Jurispru-

dence 29–32 (1995).

13. Karl Marx, On the Jewish Question in 3 Karl

Marx & Frederick Engels, Collected Works 146,

155 (1975) (emphasis in original).

14. Alan Freeman & Elizabeth Mensch, The Public/

Private Distinction in American Law and Life, 36 Buff.

L. Rev. 237, 241 (1987).

15. See, e.g., John Hart Ely, Democracy and

Distrust: A Theory of Judicial Review 11–41 (1980);

Paul Brest, The Misconceived Quest for the Original

Understanding, 60 B.U.L. Rev. 204 (1980). For an orig-

inalist rebuttal to these critiques, see Richard S. Kay,

Adherence to the Original Intentions in Constitutional

Adjudication: Three Objections and Responses, 82 Nw.

U.L. Rev. 226 (1988).

16. This hypothetical is from Anthony D’Amato,

Aspects of Deconstruction: the “Easy Case” of the Under-

aged President, 84 Nw. U.L. Rev. 250 (1989).

17. For general discussions of Romney’s citizenship

and its potential impact on his constitutional eligi-

bility to be president, see Romney Declares He Is in

’68 Race; Predicts Victory, N.Y. Times, Nov. 11, 1967, at

1 col. 1, 62 col. 1; Romney—Republican Hope for ’68?,

U.S. News & World Rep., Sept 5, 1966, at 54, 55, 57.

18. Robert Bork, The Tempting of America (1990).

19. See Dames & Moore v. Regan, 453 u.s. 654 (1981)

(opinion for the Court by Rehnquist, J.). See also

Lawrence B. Solum, Originalism as Transformative

Politics, 63 Tulane L. Rev. 1599, 1624–25 (1989) (argu-

ing that Justice Rehnquist’s dissenting opinion in

Nevada v. Hall, 440 u.s. 410, 432–43 (1979) is method-

ologically identical to Justice Douglas’s notoriously

nonoriginalist opinion in Griswold v. Connecticut,

381 u.s. 479 (1965)).

20. See Employment Div. v. Smith, 494 u.s. 872 (1990).

21. d&c 88:118; accord d&c 90:15; d&c 109:7,14.

22. For a neo-Darwinist review of creationist argu-

ments, see Stephen Jay Gould, The Confusion over

Evolution, N.Y. Rev. (Nov. 19, 1992), at 47. For cre-

ationist critiques of neo-Darwinism, see Phillip E.

Johnson, Darwin on Trial (2d ed. 1993); Gerald R.

Schroeder, Genesis and the Big Bang: The

Discovery of Harmony between Science and the

Bible (1990).

23. Paul Tillich, Theology of Culture 54 (Robert

C. Kimball ed. 2d ed. 1978).

24. Compare 1 Cor. 13:12 (“For now we see through a

glass, darkly; but then face to face: now I know in

part; but then shall I know even as also I am

known.”); Heb. 11:1 (“Now faith is the substance of

things hoped for, the evidence of things not seen.”).

Frederick Mark Gedicks is a professor of law at

Brigham Young University. This essay is based on a

lecture given to the first-year professional seminar at

the Law School on April 9, 1996. The author

acknowledges criticisms and comments by Jim

Faulconer and Trinyan Paulsen.

17Clark Memorandum

IT WAS TWENTY YEARS AGO TODAYTHE CHARTER CLASS

It seems like yesterday when the charter class graduated from the J. Reuben

Clark Law School. But 20 years have slipped by since those students donned

their caps and gowns, then put into practice what they’d learned from the

prestigious faculty the school had assembled from across the country. In the

following profiles, we follow the careers and heartfelt memories of several of

these extraordinary graduates of the school’s early days. They fondly recall

the converted elementary school that housed

the Law School its first two years and the close

friendships they developed. They also remi-

nisce about such faculty members as Bruce Hafen, Dale Whitman, and

founding dean Rex Lee, whose closeness to students, remarkable recruiting

skills, and infectious vision were so crucial in establishing the Law School.

LOOKS BACKb y J o n a t h a n B r e t t K a l s t r o m

Po r t r a i t s , J o h n S n y d e r · H a n d s , B r a d S l a d e

Lew Cramer wanted to be alawyer from a young age: he likedwords, enjoyed trying to resolvedisputes, and later completed anEnglish degree at byu. Now, asvice president of governmentrelations for u.s. West, Inc., inWashington, d.c., he uses thoselegal skills every day, becausemuch of his work resides in tele-phone regulations. “Law skills areabsolutely critical to what I dotoday,” says Cramer, noting vari-ous contracts perched on hisdesk. He has worked for u.s. Westsince 1989 in a role he finds enjoy-able. “We’re bringing telephonesto parts of the world that havenever seen them,” he says.

Lew W. Cramer

u.s. West currently conducts businessin 20 overseas countries, installing localtelephone networks and serving as localoperator. Among his duties, Cramer isinvolved in negotiations to open up thetelecommunications market in such coun-tries as India, Poland, the Czech Republic,and Russia. “I spend a lot of my timeworking on Russia, which doesn’t have awhole lot of phones,” he says. u.s. West isthe largest Western phone company inRussia, where it is established in 10 differ-

ent regions. One project he devotes muchtime to is setting up wireless communica-tions in that country.

Before joining u.s. West, Cramerworked in government, starting in 1984,when he was named a WhiteHouse Fellow, following ahighly competitive, nonpoliti-cal merit selection process. Inthat role, he worked directlyfor five cabinet officers.

“Following that, I decided Iwanted to stay in govern-ment,” explains Cramer, whothen served in various posts inthe u.s. Commerce Department from 1986to 1989, including director general of theu.s. and Foreign Commercial Service andassistant secretary of commerce. As direc-

tor general, Cramer direct-ed a commercial staff ofabout 1,200 people at u.s.Embassies around theworld, helping the UnitedStates to improve itsexport performance. Hetraveled extensively in aposition that enabled himto use his proficiency inGerman and his legal,organizational, and politi-cal skills. Serving as assis-tant secretary of commercesimultaneously, Cramerhad a dual role and wouldbe involved in matters suchas negotiations with Japanon telecommunicationsregulations. Before work-ing in government, Cramerwas a partner with the Los

Angeles law firm of Argue, Pearson,Harbison and Myers, working in interna-tional, corporate, and tax matters.

“I think we all have wonderful mem-ories of the close friendships and cama-raderie we had among the charter class,”says Cramer, who recalls that instead ofstudy carrels in the old law schoolbuilding, tables were divided into four,with tape running down the middle, atwhich the students studied. “There weresome wonderful friendships developedbecause we didn’t have the privacy of astudy carrel.”

Rex Lee was fun, approachable, full ofenthusiasm, and dynamic,” Cramer says.“He made it exciting to look forward tobeing a lawyer—you figured every daywas going to be like being with Rex Lee—

which, of course, it wasn’t,because there was only oneRex Lee.” Lee was extremelyclose to the students, acknowl-edges Cramer, who served as ateaching assistant to Lee andas editor-in-chief of BrighamYoung University Journal ofLegal Studies. For instance, atthe end of the first semester,

he remembers, Lee invited the law stu-dents over to his house one evening to gothrough issues in preparation for finals.“It was wonderful.”

He also recalls that in his first year,Assistant Dean Bruce Hafen talked aboutthe lawyer’s role as a healer of society.That speech made a big impression onCramer, whose mother was a nurse andbrother is a doctor. “The whole goal oftrying to heal society,” he notes, “wasbrought home to us, and Bruce oftenreminded us of that.”

R. Bruce Duffield’s desire topractice law gelled in highschool, in part because he foundenjoyment and fulfillment inspeech, debate, and English. “Itseemed like attorneys were in aposition somewhat like thedirector of a play, where theycould bring this cast together,choreograph the movements ofthe production, and have thislittle moment on stage directingother actors and presentingthemselves in a competitive the-atrical setting,” he says.

One of Duffield’s relativeswas an attorney who had a cer-tain persona that impressedhim. Duffield’s internship withthe administrative assistant tou.s. Supreme Court ChiefJustice Warren Burger duringthe summer of 1973, before heentered law school, also had aprofound impact on him. “Itgave me the vision of the

20 Clark Memorandum

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majesty of the law, and what a great pro-fession [it is] to be in,” Duffield says. Italso was an exciting time: he had anoffice in the Supreme Court, watchedthe high court deliver itsopinions, and had occasionsto meet with the justices.Sometimes he’d stroll acrossthe street from the SupremeCourt to listen to theWatergate hearings.

Today, Duffield is a triallawyer with the law firm ofLord, Bissell & Brook inChicago, where he has prac-ticed law since graduation. He representsa wide variety of industrial manufactur-ers from England, Germany, Japan, theUnited States, and Sweden, defendingthem against products liability actions. Itis an interesting practice area for him,because each case that comes alonginvolves a new product. “Each [producthas] its own little body of learning that itcarries with it, and I like that a lot,” hesays.

The practice area blending manufac-turing and products liability evolved forDuffield. After his second year of lawschool, he worked as a summer associateat Lord, Bissell & Brook, whose programinvolved rotating second-year law stu-dents through different areas of the law.Duffield spent time working in real estate,corporate tax, and insurance law. “But

R.Bruce Duff ie ld

then I did the medical mal-practice defense rotationand a products liabilityrotation, and I lovedthem,” he says. WhenDuffield graduated andreturned to the law firm,he again went through arotation period, but healways gravitated towardlitigation and trial work.

Duffield became in-volved with the J. ReubenClark Law School after hisfour-month internship atthe u.s.. Supreme Court,when he returned to byu tofinish his undergraduate

degree in English that fall semester. Butthat plan was not to happen until later. Hewent to the Law School, which had not yetopened its doors, to see if he could get a

library or clerical job to supporthimself through his last semesterof undergraduate work. After dis-cussing his background, it wassuggested that he meet withDean Rex Lee.

He was ushered into Lee’soffice, and Lee said, “We’ll giveyou a job, if you’ll come toschool here next year, after yougraduate and get your English

degree,” Duffield recalls. But he declinedthe offer, saying that he wanted to returnto the east coast, where he’d just beenworking, and attend school there. “Well,Rex was a very charismatic, dynamic per-son, and he began to describe the schoolto me, and the faculty that they hadpulled together from around the country,and the quality of the students they hadamassed for that first class,” he says.“Those facts, plus just his dynamicpersonality, helped me see the vision ofthis school that Rex had, and it wasinfectious.”

Lee then offered him a deal that hecouldn’t refuse: “If you could start lawschool now, right now, and then finishyour English degree between your firstand second years of law school, wouldyou join this charter class?” Classes at the

Law School were going to start in threedays, and Duffield was already registeredto complete his English degree. After dis-cussing it with various people, he decidedto enroll. “It was a completely unexpect-ed, spontaneous move that has changedmy whole life in a profound way,”Duffield says, “because Rex Lee thenbecame a very dear mentor. “

“I tell people that my prima-ry function in life is to keep theworld safe for the mortgageinterest deduction,” says LindaGoold, tax counsel and lobbyistfor the National Association ofRealtors in Washington, d.c.,the largest trade association inthe world, with about 725,000members. “Investment in realestate, and the property rightsthat go with it, are a primaryvalue in American life.”

Since graduating with thecharter class, Goold has spent20 years working in tax policyand representing the interests of

various clients and organizations inCongress. She first worked for a seniormember of the u.s. Senate FinanceCommittee, Senator Hansen, ofWyoming. “While I worked for him, Iworked on the two major tax bills of the’70s,” says Goold, who left the Hill in1979 after Hansen retired, and went towork for the international accountingfirm of Arthur Anderson, in Washington,d.c. There, Goold worked with the firm’ssenior tax partner, and they began devel-oping a legislative practice for the firm’sclients all over the world to representtheir interests in various tax bills. Shejoined the National Association ofRealtors in 1988.

Goold was raised in Washington, d.c.,and did not intend to stay in the Westafter law school. “I came back toWashington because I knew that if therewas any place in America where therewould be opportunities for women in themid-’70s, it would be in Washington.In fact, that’s the way it played out,”Goold says. “I never would have chosentax, but the opportunity came my way,and I took it and ran, and it’s been

21Clark Memorandum

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wonderful.” In her career, Goold has vis-ited the White House for bill signings andhas met numerous dignitaries and power-ful figures, including President Clinton.

Part of what Goold finds fascinatingabout her work is the intrigue of thelegislative process and the great demandit places upon her for creative strategy.

“The other thingthat is remarkable,having built a careeron tax policy, is howmany forms thesame idea can takeyear after year andhow many versionsof the same ideas—some good andsome bad—show up.

You never throw away any files if youwork in the legislative arena,” saysGoold, who joined the charter class aftera talk with Rex Lee.

During a 1973 summer vacation toUtah, she visited Lee, who’d beenGoold’s Sunday School teacher duringher senior year in high school. “Rex andI had stayed in touch because he was avery important person in my life. Hehad such a strong, positive influence onme when I was in high school.” Gooldalso wanted Lee to write a recommenda-tion for her, because she’d taken the lsatand planned on applying to several east-coast law schools, then attend one of

Linda Goold

them a year from thattime. However, at onepoint Lee asked if she’dlike to start law school inthree weeks.

“I said, ‘Are you say-ing that I can come tobyu, without applyingor making any arrange-ments?’” she recalls. “Hesaid, ‘Yes, that’s what I’mtelling you.’” Goold thentold Lee that she’d callher father to discuss itand that she’d come backthe next day. “Rex wassomeone I trusted com-pletely, and when he gave

me the opportunity to come, I said, ‘I’llcome,’” Goold says. “It was because ofmy complete confidence in him as a per-son with the most exciting intellect I hadever encountered.”

Bruce Reese enjoys his work. “Thebroadcasting industry is fun: everyday there’s something new andexhilarating facing you,” saysReese, president of BonnevilleInternational Corporation in SaltLake City, Utah. “It’s an op-portunity to make a difference andto influence people for the better.”

In 1984 Reese be-came the first insidecounsel at Bonneville,owned by The Churchof Jesus Christ ofLatter-day Saints andamong the 10 lar-gest radio broadcast-

ing companies in America.He was general counsel ofBonneville until 1991, whenhe moved into managementand became executive vicepresident of the companythat owns 20 radio stationsin the major u.s. markets ofAmerica, as well as kslTelevision in Salt Lake City.In June 1996, he was namedpresident of Bonneville.

Reese started out his career with theantitrust division at the Justice Department, inWashington, d.c., in a position Rex Lee helpedhim obtain. In fact, after taking a class Leetaught, Reese decided that he wanted to bean antitrust lawyer. “It seemed to me it wassort of like constitutional law and econom-ics combined,” says Reese, who decided inhigh school he wanted to become a lawyer.He later practiced antitrust law at firms inWashington, d.c., and Denver.

Among Reese’s law school memories isthe small scale of the old law school build-ing—previously theSt. Francis of AssisiElementary School—which housed theLaw School beforeconstruction on itsnew building wascompleted in 1975. Herecalls the long tableswhere students set upcamp and studied.The school, situated a few blocks fromcampus, had several small classrooms,study rooms, and a lecture hall, which wasthe old gymnasium. The back of the gym-nasium, with its nine-inch-square floortiles, housed the law library stacks. “It wasvery intimate—there wasn’t much room tohide in the building,” Reese reminisces.“We got to know each other very well.”

Bruce Reese

22 Clark Memorandum

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Before the Law School opened, herecalls being part of a group that went tovisit Rex Lee about attending the newschool. Lee sat with his feet propped up ata green metal desk in his office at the ele-mentary school. “When we walked out, hehad convinced all of us to go to byu. Leewas a remarkable recruiter,” Reese recalls.“And he didn’t sell us a bill of goods. Hetold us the truth and still made it soundjust as exciting as possible.” Reese has neverregretted the decision: “It was a great expe-rience.”

Brent Romney didn’t plan onbeing a prosecutor. In fact, aftertaking Professor Dale Whitman’scourse on real property duringhis first year of law school, hethought he might enter that field,because Whitman had made thesubject sound so interesting. Sobetween his second and thirdyears of law school, Romneyarranged interviews for summerclerkships with several civil firmsin Orange County. As an after-thought, Romney contactedOretta Sears, a prominentOrange County deputy districtattorney. He had met Searsthrough her husband, Don Sears,who served as chair of the faculty

council at California State University atFullerton when Romney served as its stu-dent body president.

Romney interviewed with Oretta Searsand a month later received a summer joboffer from her—as well as from two lawfirms. “I decided I would rathertry out as a summer law clerk atthe district attorney’s office,because she made it sound soexciting,” Romney says. Withintwo to three weeks at the districtattorney’s office, he recalls, “Itwas so clear to me that this fitmy strengths as a person and as alawyer that I decided this is whatI wanted to do.” At summer’send, he returned to law school and upongraduation immediately went back to theOrange County district attorney’s office,where he’s been working ever since. In anoffice employing more than 200 attorneys,

it is one of the largest district attorneyoffices in the nation, and Romney is oneof four assistant district attorneys workingunder the district attorney and the chiefassistant.

Romney started as a misdemeanordeputy and from about 1979 to 1986 wasa felony prosecutor, at times prosecutinghomicides. From thatpoint, he served as a super-visor in the homicide unit,until being promoted to anassistant district attorney in1990. On occasion, he stillgets into the courtroom.“I’m in the courtroom rightnow on a big felony trial,but the more you get intomanagement, the less youhave a chance to get intocourt,” he says.

In his position, Rom-ney supervises misde-meanor prosecutions aswell as felonies filed in themunicipal courts. He isalso assigned to handlepersonnel matters relatingto attorneys: he heads uphiring, rotations, promotions, and disci-pline and trains new attorneys so theycan eventually move into felony prosecu-tion. “We want them to cut their teethon misdemeanor jury trials,” Romneysays.

He enjoys great job satisfaction as aprosecutor, expressing that the professionis more than making a living—it is tryingto make society, in a small way, a better

place to live. “That may soundcorny, but I think that’s thecommon thread that mostprosecutors have,” he says.

Romney recalls devel-oping close relationships withhis law school classmates,many of which friendshipshave continued. For example,when he graduated, one of histwo best law school friends,

Kim Purbaugh, joined the prosecutor’soffice in Riverside, California. “So for thelast 20-odd years, he and I have basicallyrisen through the ranks, and we’re stillclose friends,” he says. Among Romney’s

memories of his law school days is the oldlaw school building. He recalls the gymna-sium, where the large-section classes wereheld and where the original organ pipes forthe Tabernacle Choir were stored under thestage.

When considering law schools, Rom-ney attended a meeting conducted by

Brent Romney

Bruce Hafen the winter before byuopened its law school. “He shared withme that the university and the Churchwere 100 per cent committed to makingthe byu Law School one of the outstand-ing law schools in the country, and thatthey were committed to gaining provi-sional accreditation, but it would take alittle bit of faith on the part of the first-year incoming students,” Romney says.“That was one of the great challenges ofthe first-year students: they had to takethat little bit of a leap of faith. And[Hafen] was so impressive, so candid,and so open and honest about it, that Ithought, ‘If people like him are commit-ting themselves, I’m willing to commitmyself.’”

Jonathan Kalstrom is a freelance writerfrom Minneapolis, Minnesota, who special-izes in writing for law school alumni publi-cations.

23Clark Memorandum

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b y J u d g e N o r m a n H . J a c k s o n

n his national best-seller, Megatrends 2000, John

Naisbitt (a native Utahn) wrote, “The great uni-

fying theme at the conclusion of the 20th centu-

ry is the triumph of the individual.” He went on

to say: · It is an individual who creates a work

of art, embraces a political philosophy, bets a life

savings on a new business, inspires a colleague or

family member to succeed, emigrates to a new

country, has a transcendent spiritual experience. It

is an individual who changes him or herself first

before attempting to change society. Individuals

today can leverage change far more effectively than

most institutions. · The 1990s are characterized

by a new respect for the individual as the founda-

tion of society and the basic unit of change. [ p. 322 ]

M a k i n g a D i f f e r e n c ei

26 Clark Memorandum

Select ion of Judges

On a recent trip to Las Vegas, it wasobvious that a judicial election was infull swing. Posters on many street cor-ners touted the names and displayedthe faces of justices of the peace andother judges, including the chief justiceof the Nevada Supreme Court. Localnewspapers carried election year allega-tions that the chief justice had misusedhis court telephone by charging to hisstate account numerous long distancephone calls to members of his family. A

conflict-of-interest claim relating to a case inlitigation was also leveled against him.

These political-type aspersions againstthe presiding judge of our profession inNevada made me grateful for some lawyersin Utah. Twenty years ago those lawyers ini-tiated legislation to take judicial selectionout of the political arena. They pushed the“Missouri Plan” through the Utah legisla-ture. Although the plan allowed a selectedand appointed judge to be challenged by anattorney at the next general election, thatvestige of politics was soon eliminated infavor of the current judicial selection andretention system. Further, those who haveobserved the Utah judiciary for more than ageneration agree that the quality of judgeshas improved under this system.

1

With 31 of one hundred Utah judgesstanding for retention election this year, ourlegal system would suffer considerable turbu-lence under the former political process.Under the present system there will hardlybe a ripple. Today, we are reaping the bene-fits of action initiated by a few lawyers twodecades ago. Indeed, they made a difference.Sponsor some legislation!

Public Members / Bar Committees

We continue to have institutional and per-sonal calls to reform our legal system. Suchcries plead for more public involvement inthe legal system. A number of years ago alawyer on the bar’s long-range planning com-mittee suggested that one way to improvepublic confidence in the system would be tohave public members serve on bar commit-tees other than the disciplinary screeningcommittee. A three-lawyer subcom-mittee was appointed to study thematter. As often happens, the lawyerwho suggested the idea was one ofthe three. After a thorough cross-county survey and evaluation, theyprevailed upon the bar commissionto pursue the idea.

A recent check indicates that thebar has 24 standing committees, 50percent of which have public mem-bers. Of the total 36 public mem-bers, two are committee chairs. Overtime, the public members who haveserved will number many times thecurrent 36. I believe I would be safe in con-cluding that their involvement has beenmutually beneficial to the bar and to thepublic. Indeed, the bar now has manyinformed nonlawyer public spokespersons.

Yes, one lawyer made a difference. Join abar committee!

Interest on Lawyer Trust Accounts

About 10 years ago, a couple of lawyers real-ized that banks were getting the benefit ofearnings of funds in clients’ trust accounts.They wondered what would happen if thoseearnings were utilized to advance the adminis-tration of justice and for other worthwhilelaw-related public programs. They went towork with the i.r.s., the Utah Supreme Court,and the Utah Bankers’ Association and creat-

However, Naisbitt points out that this new empowerment of the

individual is coupled with the doctrine of individual responsibil-

ity, that is, each individual is responsible for everything he or

she does. He says: · This is not an “every man for himself” type

of individualism, gratifying one’s desires for their own sake and to

hell with everyone else. It is an ethical philosophy that elevates the

individual to the global level; we all are responsible for preserving the

environment, preventing nuclear warfare, eliminating poverty.

Individualism, however, does recognize that individual energy mat-

ters. [ p. 323 ] · I would like to share with you four examples

that show that the energy of each lawyer matters and can make

a difference in our profession, our society, and our world. I hope

that you will expend your personal energy to make a difference.

2

27Clark Memorandum

ed the Utah Interest on LawyerTrust Accounts (i.o.l.t.a.) pro-gram. The Utah Bar Foundation,which had been created in 1969,became the recipient of thosefunds. In 20 years, it had built a$40,000 fund, and its annualgrants consisted of the $3,000 to$4,000 interest earned.

Today, the perpetual endow-ment fund totals more than $700,000. In 1996the Foundation awarded some $285,600 ingrants as follows:

·$197,700 for legal services for the poor·$35,000 for law-related education·$46,000 to improve the administration of

justice·$6,900 for law student scholarships and ethics awards at byu and the University of Utah

Indeed, a couple of lawyers made a differ-ence, a difference of about one-third of a mil-lion dollars a year. Raise some money!

American Inns of Cour t

I have often said that the Inns movement isthe single most positive development in ourprofession during the 20th century. The Inns’watchwords are professionalism, ethics, civili-ty, and advocacy. Though some readers maybe aware of the beginning and developmentof the Inns’ movement, let me take a momentto reflect on its history.

Although Chief Justice Burger providedthe idea for the Inns, the first movers werelawyers whose roots are found in St. Johns,Arizona; the Uinta Basin; and SanpeteCounty, Utah. The pilot program was entrust-ed to one of them, Judge A. ShermanChristensen. The first Inn was organized atbyu on February 2, 1980. The rest, as they say,is history. Today, there are about 20,000 mem-bers in 270 Inns in more than 40 states and theDistrict of Columbia.

A recent edition of The Bencher, the Inns’national newsletter, gives the reasons fororganization of the Inns’ movement:

The American legal profession is in great dis-tress today. We are all too well aware of the nega-tive public perception of our profession. Theburgeoning lawsuits against lawyers coming outof the financial institutions’ debacle—suits againstsome of America’s finest law firms—are only the

latest evidence that there is something seriouslywrong. The growing number of books, articles,and biting jokes are evidence enough that societyhas a growing dislike of what it sees in the legalprofession. The American Inns of Court wereborn and have grown (in an attempt) to meet thischallenge.

Sherman L. Cohn, president of theAmerican Inns of Court Foundation, paid trib-ute to Judge Christensen’s individual effort lastfall. Cohn wrote:

Without this extraordinary man, without hisvision of what the legal profession should and canbe, along with his dedication to our profession asan essential pillar of what makes America great,we know that the American Inns of Court wouldhave been stillborn.

As the Inns multiplied in number andmembership, some members felt it was timeto adopt a governing code or set of rules.They were opposed by others whorecognized the genius of lettingmembers proceed on principles ofsimplicity, creativity, and flexibility.A meeting was scheduled at thenational convention to debate theissue. A large group assembled. Thechair let each person in the circlestate his argument, whether pro orcon. Then the chair turned to JudgeChristensen and asked, “What doyou think about this issue? Pleaseshare your thoughts with us.” JudgeChristensen responded with a simple ques-tion: “Oh, I don’t know, how do you catch asunbeam?”

His question shed instant and infinite lightupon the issue. A vote was taken, and theproposal was defeated. And, like a sunbeam,the Inns were set free to grow and develop,rather than being imprisoned by a set of rigidrules. Join or start an Inn of Court!

3

4Each individual lawyer can make a difference in our profes-

sion, our society, and our world. Remember, out of small things

great works are accomplished.

Judge Norman H. Jackson is an original member and still sits on the Utah Court of

Appeals. He is also a senior lecturer at the J. Reuben Clark Law School. This article

includes remarks delivered at a meeting of American Inn of Court I and expanded in

a lecture to the Law School’s professional responsibility class on April 11, 1996.

by scott w. cameron

When most people retire, theymove to Sun City and buy a golfcart. Not Doug Parker. Instead,he and his wife, Corene, acceptedan invitation to spend a yearteaching English to postgraduatemedical doctors at ShandongMedical University in Jinan, acity of about four million and the

capital of Shandong Province, People’sRepublic of China. Instead of “late Postumand oranges” on the condominium patiooff the ninth green, it was rice and garlicgreens cooked on a two-burner hot platein the bathroom of a 300-square-footapartment. Rather than tanning by thepool, it was teaching in classrooms wherethe students and the teachers kept theirparkas on throughout the winter to keepwarm in unheated buildings with brokenwindows.

But it is too easy to commence adescription of the Parkers in China likethis. If you really want to know their expe-rience, you have to listen and suspend judg-ment, or else you will get only a superficialreport. Over the course of a month, I hadto express my interest several times beforethey would speak to me about this price-less year of discovery and service. Corenesaid it was hard to discuss at first, because itwas like two separate worlds: being homewas one reality, but being in China was adifferent reality. Returning home fromChina was a more difficult cultural adjust-ment for them than was going.

Near the end of their stay in China,Doug wrote in a letter to his children:“We did not come to China as a means of

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filling our conversation with others whenwe return. Our encounter with new stu-dents, friends, and colleagues, whom wehave come to love, is one that cannot befully conveyed. It is enough if we carryour experiences to the grave, unrecounted.Our experience here has been one forexperience’s sake.”

This was not a casual nine-month stay.It was intense, immediate, and personal—not distant, quiet, and reflective. Dougand Corene had decided before they leftthat they would not compare China to theUnited States. Doug maintains, “The for-eigner cannot avoid seeing everythingcomparatively, which only conveys to himor her what the country ‘is not,’ not whatthe country ‘is.’ The Chinese do not seetheir country as a comparative phenome-non. Whatever the water temperature, thetoilet facilities, the wattage of the lightbulbs, the disposition of the garbage, it istheir uncompared reality—the only realitythey know, their existential realm, their

skin and bones.” The Parkers wished tosee and experience China as the Chinesesee and experience their own culture, andthey vowed to avoid making adverse com-parisons. It was the process of sheddingthe skin of the foreigner that broughtthem so much joy.

Each of them taught speaking, listen-ing, reading, and writing to four sectionsof students. Corene had two postgraduatemaster’s classes, a PhD section, and a sec-tion of staff doctors; Doug had three post-graduate classes and one first-year medicalschool class. Each class had about 48 stu-dents and each class period lasted betweentwo and three solid hours. In addition theParkers sponsored extra, unassigned free-talk sessions with their students, whichconsisted of walks around the campus ormeetings at the central garden. Free talkcould be on any subject (except religionand politics, which the government pro-hibited) and crowds would gather aroundto hear Doug or Corene speaking English

C H I N AAn Interview with Doug and Corene Parker

29Clark Memorandum

to their students. Some members of thepublic would join in the conversations.The Parkers fielded tough questions from“Why are there so many guns in theUnited States?” to “Why does the UnitedStates have such a big problem with homo-sexuality [and] with racial prejudice?” and“What do you think of the O. J. Simpsonverdict?” They were expected to be expertson all subjects.

Early on, Doug and Corene became closefriends with their class monitors—one ortwo students in each class, usually commu-nist party members, assigned by the univer-sity to report on the content of classdiscussions and writing assignments as wellas to be of assistance. They were also theones who planned class parties and din-ners. Those monitors quickly became Dougand Corene’s dear friends.

At the beginning of the year, theParkers told their students, “If we are justyour teachers, then we will have failed,we want to be your friends.” This conceptwas somewhat foreign to the students. Tohave an American as an English teacherwas a great honor, and the Parkers werelike celebrities. At first the classes werehard, because the students would freeze ifcalled upon. To respond incorrectlywould be a source of considerable embar-rassment to these practicing physicians.To get them to speak in class (their par-ticipation in free-talk sessions came mucheasier), Doug and Corene had to discovermethods for leading them into the con-versation with short answers from whichthe students gained confidence to moveon to more extensive participation. Whenthey gave written assignments, theParkers tried to have them returned bythe next class period. With about 200pupils each, they found that the logisticsof learning names and reading papers foreach student was a considerable challenge.So that their classroom teaching would bedirected to individuals as friends and notas impersonal members of a class group,Doug and Corene took pictures of eachstudent—all 400—and mounted them onseparate four-by-six cards, with accompa-nying data concerning age, medical spe-cialty, years of practice, hometown,occupation of spouse, and age of child.They constantly sought to relate names

to faces and to call upon students byname. A few students chose Englishnames for use in class. A few of the moreinteresting names were Door, Fairy, andGlad.

The People’s Republic of China hasmade a formal commitment to teachEnglish as China’s second language in itsmiddle schools, high schools, colleges, anduniversities. English is recognized as indis-pensable to China’s progress, development,and growing world leadership. The doctorsin the Parkers’ classes were intense stu-dents. To catch up and stay abreast of west-ern medical science, they recognized theneed to be able to read the New EnglandJournal of Medicine and the many otherjournals published in English around theworld and the need to publish and share inEnglish their own research contribu-tions to medical science. Their tradi-tional Chinese characters (over 20,000of them) are a written barrier to shar-ing with the world. Their drive tomaster English caused the students tobring a high level of enthusiasm, inter-est, and excitement to class. Theyreported that of all their postgraduatecourses, English was the most diffi-cult.

Living conditions in China werechallenging and interesting, but ade-quate. Doug and Corene had onlytwo hours of hot water a day, from8:00 p.m. to 10:00 p.m. Often theywould keep their breakfast and lunchdishes in the bathtub to be washedwhen hot water was available. Somenights they were so exhausted from theirday’s teaching that they wondered if theycould delay going to bed until after thedishes had been done and they had takena hot bath, particularly during the coldmonths of the winter. At 10:30 p.m. allwater, both hot and cold, would be offuntil 6:00 a.m. But both Doug and Coreneagreed, “These were small inconveniencescompared to the joys of associating withsuch lovely people, who were so anxiousfor us to have a good experience and tolove and to enjoy China, which we mostsurely did.”

Frequently, ideas for teaching Englishwould come in the middle of the night,and Doug would awake to find Corene

preparing for the next day’s class. Theywere thrilled when new ideas wouldcome that would stimulate their studentsto read, to write, and to think. Theirassigned readings were eclectic: from Lee’ssurrender to Grant at Appomattox toMartin Luther King’s “I Have a Dream”speech, from Freud’s theory of dreams toextracts dealing with Hitler and MeinKampf. From these readings, writingassignments would be drawn on topicssuch as “An Individual’s MoralResponsibility for Participation in theImmoral Acts of His Government” and“My Views Concerning the Existence ofan Afterlife.” The Parkers bonded withtheir students spiritually, emotionally,and intellectually. Their students weren’tused to expressing emotion, but at the

end of the year they thanked Doug andCorene with deep feelings for teachingthem how to think as well as how to read,write, and speak in English.

The Parkers joined in the life of thecommunity, frequently attending classparties with their students, ballroomdancing with the senior citizens Saturdaymornings in the park, and wandering andshopping in the many street markets.They did not see a single gun while inChina and never felt any fear for theirsafety. Without hesitation they joined thecrowded buses and used the plentifultaxis to traverse the city. They often rodetheir bicycles or walked to explore newplaces. Because of traffic congestion—

The Parkers with students at a free-talk session in the park.

30 Clark Memorandum

streets were shared by pedestrians, don-key-drawn carts, buses, bicycles, taxis, andcars—bicycle riding was a real adventure.“Everyone rides slowly,” they explained,“and the movement is like the ever-flowingripples of a river.” When asked if theywanted to own a car someday, the doctorsall said they had no desire for cars, as therewas no place to park them and no moreroom on the overcrowded roads. Heartsurgeons, neurosurgeons, and obstetriciansalike rode bicycles to do their surgery anddeliver babies.

In addition to their assigned teachingresponsibilities, the Parkers frequentlyreceived pro bono requests for their ser-vices, which they generously accepted.During the winter term, both of themspoke on a weekly basis to students in thenursing college. Corene undertook editingservices on several lengthy papers writtenin English by Chinese medical professorsthat were accepted for publication inwestern journals, subject to corrections ofawkward or inaccurate English usage.

Doug’s background as a lawyer and lawprofessor soon became known, and hewas invited to lecture to a class of practic-ing Chinese lawyers who were studyingEnglish at a neighboring university. Hisfriendship with the lawyers extendedbeyond the classroom, and they wouldvisit him in his apartment for additionaldiscussion sessions.

In addition to the treasured friend-ships, the experience as colleagues was arich one for the Parkers. In another letterto his children, Doug shared his feelings:

As intense as our experiences with othershave been, even more intense has been ourexperience with each other, as husband andwife, as sharing colleagues, as best friends,attempting to understand together the inex-plicable revelation we are having of the feel-ings and thinking of Chinese people whohave opened their feelings and thoughts to us.I have experienced competent, effective col-leagues before, but never have I experiencedand observed a colleague who prepares and

teaches with the earnestness, intensity, andlove as does Corene. I can’t express to you myadmiration for her. I have never seen a per-son so anxious to do well, so anxious to helpothers. She does not live for compliments, shedoes not serve for credit, she does not seekrecognition, and so it is even more my privi-lege to say she is a teacher par excellence. Weoften tried different approaches in our class-rooms and sometimes used different materi-als, but both of us were intent on the samegoal: lifting and helping our wonderful, ded-icated students. Together we had daily, fer-vent prayers that we would be equal to theirneed and desire to learn, and have sharedour love for our students and the privilegeand inspiration it was to work with them.We know what is meant when reference ismade to “tears of joy.”

One frequently hears that the encounterwith the Far East can be a significant, eventraumatic, event for a westerner. Dougand Corene had this experience. Dougdescribed the encounter well:

Everything we have known and in which wehave had faith has been examined from anew vantage point. We have looked at ourlife’s beliefs from a new hilltop, surroundedby new friends who possess and share none ofthe assumptions that serve as the startingpremises and starting foundations for proofand evidence for matters for which we havetaken proof and evidence for granted, as self-evident. Our hopes, expectations, and convic-tions stand more deeply held by us based on afaith that we see and understand as faith,held, I believe, as God intended when he sentus to earth and wiped our memories clean.

It is difficult to return from a life ofsuch intense single focus to the fragment-ed life of the materially overindulgedwestern city and 20th-century Americanconvenience. However, the Parkers havemissed their children and grandchildren,and their return has been as sweet as theirexperience. It takes time to process suchan experience, but Doug and Corene canspeak of China with an evangelical fervorthat would be enough to convince someof us to scrap the golf cart and headstraight to that 300-square-foot apartmentin Shandong.

Above: Having borrowed the costume from a colleague at a different university,Doug Parker delights his class with a special appearance during the holidays.Below: A surprised reaction to a first glimpse of Saint Nick.

Douglas Floyd served as articles editor for

the Stanford Law Review, received the Order

of the Coif, graduated second in his Stanford

Law School class, clerked for Supreme Court

Chief Justice Warren E. Burger for two

terms, made partner at a prestigious San Francisco firm after only four years, is a mem-

ber of the American Law Institute, and has won the Professor of the Year Award at the

byu Law School five times, among other achievements and honors. Yet he still seems

partial to a small plaque standing on his desk. The memento features a photograph of

seven of his students and the words: “Presented to C. Douglas Floyd in Appreciation for

Five Great Semesters. The Perverse Minority.” It was Floyd who christened the group

“perverse” for enduring so many of his classes, However, the seven—William Calhoun,

31Clark Memorandum

David Cherrington, Christine Clark,Deborah Dunn, Gregori Pesci, PaulWerner, and Fred Williams—insist theywould have gladly endured even more.Says Floyd’s close friend, colleague, andjogging partner Doug Parker, “They tookevery class he taught. If he had taught thelaw of beehives, they would have takenit.” Parker emphasizes that the seven were“top-notch students.”

In the estimation of both students andcolleagues, Floyd is a top-notch teacherwho perennially tackles non-user-friendlycourses like civil procedure, federalcourts, and antitrust. Of civil procedureParker says, “Unlike a tort, no one hasever experienced a rule of procedure.Students have no frame of reference torelate to. It deals with the behavior of anattorney in conducting a trial.” Yet Floydsucceeds in “making theory and doctrine

a reality rather than just rules and abstrac-tions. Making that connection,” Parkerconcludes, “takes an excellent teacher.”This ability to discuss abstractions in an“applied sense” still stands out in his stu-dents’ minds. Says one of the “perverse,”Fred Williams, “I’ll be writing a brief or amotion and suddenly realize I’m applyingFloydian analysis.” Those days, whichoccur frequently, “are the best I have inlegal practice.” Debbie Dunn, another ofthe seven, agrees: “Even though I don’twork in any of the areas he taught, analyti-cal skills I learned from him carry overinto any substantive area of law.”

But the first semester with Floyd incivil procedure did not bode well for

Williams, who says: “His use of Socraticquestioning was intense. I thought, ‘Thisguy’s going to be impossible. I won’t sur-vive a semester.’” Paul Werner’s sister,who had taken Floyd’s civil procedureclass years before, warned Paul, “For thefirst three weeks you think it is the worstclass you’ve ever taken, but by the end ofthe semester you will consider Floyd oneof the greatest men and best professorsyou’ve ever had.” Pesci hastens to explain,“He wasn’t mean, and he never tried tomake students feel badly. He knew hissubject so well and was so bright that youwere in awe.” Concurs Paul, “It was thefear you have when you go into courtbefore a great judge.”

All agree with David Cherrington,another of the seven, when he says, “Ispent as much time studying for civil pro-cedure as for all my other classes thatyear combined.” On the other hand, headds, “I learned as much in that class as inall my other classes combined.” SaysWerner, “Professor Floyd’s commitmentto law and teaching was contagious.”

Surprisingly, considering his teachingskills and broad knowledge, Floyd’s teach-ing career is what he terms “something ofan accident.” He originally intended to bea mathematician. Undoubtedly the factthat his first job in young manhood waslaw-related influenced his eventual change

P O R T R A I T S

MILD -MANNERED

C. Douglas Floyd

b y L o v i s a L y m a n

of direction. His father was an abstractorof land titles in Kansas. In the days beforecomputerized searches, verifying a title toensure ownership and the lack of any lienswas a tedious process. Abstractors spenthours in courthouses examining instru-ments and tracing the entire chain of title,then summarizing or abstracting the data.An attorney examined the completedsearch. In Kansas the searches generally

led back to a patent land grant. Duringhigh school, college, and his first year oflaw school, Douglas worked summers forhis father and ultimately became certifiedas an abstractor himself. Fortunately,before graduating from mit with a mathe-matics major, he decided that the world oftheoretical mathematics wasn’t for him. Ashe explains, “A lot of the math out therewas too abstract for me.” Instead, he optedfor Stanford Law School.

When he graduated in 1967, theVietnam War was well under way. Heknew his days as a civilian were num-

bered, because in his hometown, NessCity, Kansas (near Dodge City), the localdraft board knew everyone personally. Hedecided to volunteer for the Navy JudgeAdvocate General’s Corps. Competitionwas keen; many, like Doug, hoped to usetheir legal talents while in the military.Ultimately, he was assured that uponcompletion of the bar he would be wel-comed by the Corps. While he prepared

for the exam, he worked for Pillsbury,Madison & Sutro, a large San Franciscofirm.

Another important event occurredthat year: he married his wife, BarbaraBeach. They had met during his final yearof law school while she was completing amaster’s in special education at SanFrancisco State, leading to a career inteaching the visually disabled. Barbara’sfamily was from Berkeley.

In December of 1967 the Floyds loadedtheir old Pontiac (inside and on top) withall their worldly possessions and headed

32 Clark Memorandum

cross-country to Newport, Rhode Island,for officers’ training. “I still have frostbitebumps on my ears,” confides Floyd of thecoldest winter he had ever experienced. InRochester, New York, the pipes broke inthe couple’s hotel, and ice crystals formedin their car’s oil. “They were thawing carswith blowtorches,” he recalls.

Upon completing his training, he wasassigned to the jag office in Washington,d.c. That office supervised the Navy mili-tary criminal system, including theMarine Corps, and was responsible forformulating policy, appellate review ofcriminal cases from Vietnam and else-where, and unusual naval offenses, such ashazarding a ship. Besides high profilecases, the office dealt with many issuesrelated to the scope of military authorityand the right of free speech as militarypersonnel protested the war.

After three years in the jag, Dougreceived a clerkship with Chief JusticeWarren Burger. He served during twoterms, a memorable experience and a highpoint in his career. Notable cases at thattime included the Pentagon Papers case andWisconsin v. Yoder, dealing with religiousfree exercise.

In 1972, after four and a half years ind.c., the Floyds returned to the Bay Area,where Doug rejoined Pillsbury, Madison& Sutro. “The firm was an excellent placeto practice law,” he observes, “with a full-scale litigation and business practice.”Drawing on his naval and clerkship expe-riences, Doug specialized in appellate liti-gation, arguing numerous cases in federaland state appellate courts. Antitrust wasanother major area of his expertise.

The Floyds’ two children were bornafter they returned to California—Ches in1975 and Emily in 1977. Ches is now asenior majoring in English and art at theUniversity of Virginia, and Emily is asophomore studying biology and per-forming arts at Smith College.

In 1980 Doug discussed the possibilityof teaching for a year with FrancisKirkham, a member of the board of visi-tors in the early days of the byu LawSchool and senior partner at Floyd’s firm.Kirkham was a man Doug respected high-ly and over the years had become a closefriend and mentor. A Utah boy, Kirkham

33Clark Memorandum

had distinguished himself in many ways,including clerkships at the Supreme Courtunder Justices Sutherland and Hughes.Kirkham helped to arrange a one-yearappointment. “Barbara and I enjoyed it somuch we stayed,” says Floyd of that expe-rience. He concludes that it was his rela-tionships with students and faculty thatmade the year so congenial.

Some law students never get past thedemanding Floyd of their first year.Others, who don’t have him for civil pro-cedure, may simply discount him as thequiet man he seems to be. “He’s an under-valued asset,” attests Williams. “He’s a lotlike Clark Kent until you get to know

him. Then you see him as one of thefinest professionals and finest professorsyou’ve ever had.” Parker agrees: “He’s nota flamboyant person. He’s always soft-spoken, but when he does speak, he does-n’t dissipate a lot of conversational energyon unimportant thought.”

It is in their second- and third-yearcourses that students get to know the realDouglas Floyd. Says Williams: “He taughtthe lessons we needed to learn as ‘firstyears.’ During his second- and third-yearclasses, he treated us as equals as we infor-mally discussed the appointed topics.” Hehastens to add that “the material is stillrigorous, but Professor Floyd is muchmore approachable.” Both Pesci andWerner comment on Floyd’s good humor.Dunn describes Floyd as “intellectuallyentertaining and personable. He isn’t thereto show the world how much he knowsand how little we know.” Cherrington cor-roborates: “Some people that bright makeyou feel little around them. Mr. Floydalways makes you feel better about your-self and that you have worth.” He goes on:“Each class was a delightful exchange ifyou were prepared. He has such a masteryof the areas he teaches that he knows eachcase down to individual sentences. He

would often say, ‘Which sentence catchesthe flavor of this point of law?’”

When Pesci and Werner were secondyears, they recall that Professor Floydoffered a dinner at the Public InterestAuction. Dinners with other professorswent for $20 and $30, but bidding wentcrazy for the meal with Floyd. Several ofthe “Perverse Minority” vied for theopportunity, but it finally went to anotherstudent for $350. In class the next day, Paultold Floyd, “We tried to get your billablehour, but that was as high as anyonewould go.” Floyd pondered what he couldpossibly do to deserve that much money.In reality Floyd’s good word is worth a

great deal in the profession. He hashelped many students find jobs and clerk-ships through his contacts and colleagues.Never self-aggrandizing and the last topoint out his accomplishments, Floyd isnevertheless widely known and respected.

Floyd is particularly interested that hismost promising students have the oppor-tunity to know what he knows, as he toldone student: “You’re going to be workingfor the next 40 or 50 years of your life.This is your last opportunity to roam inthe fields of the law.” Greg Pesci tells howhe signed up for Floyd’s federal courtscourse but got cold feet. Everyone in theclass was on law review or in the top 10percent of the class, and Greg wasn’t surehe could compete. He didn’t go the firstday of class and fully intended to dropthe course, until he ran into Floyd in thehall and was invited into his office. Gregexcused his plans with, “I’m not one ofthe anointed.” He remembers Floyd’s reas-surance, “You’ll do just fine.” His wordsgave Pesci the confidence he needed totake not only that class but three more.Says Paul Werner, who remembers theincident, “Mr. Floyd treated all his stu-dents the same. If he knew who was inthe top 10 percent, he didn’t show it.”

Such expressions of caring and reassur-ance are typical of Floyd. “It was a greatprivilege to have him say, ‘I want you inmy class,’” says Cherrington.

Between 1980 and 1985 Doug taughtfull-time. Then from 1985 to 1991 he taughtan occasional course while practicing lawand living in Berkeley. In 1991 he returnedto full-time teaching, commuting to Utahto allow his children to finish high schoolin California, where they were offered “abroader exposure to different ways oflooking at things.”

Glad to be back to teaching full-time,Floyd views “teaching as more satisfyingthan practice in a number of ways,”

though practice and teaching have beenmutually beneficial over the years. “Inteaching you can focus on your self-directed interests rather than on the needsof clients. You can take a neutral, dispas-sionate approach,” he says. Floyd is activein publishing law review articles, and thisyear his new treatise, Private AntitrustActions, was published by Little Brown.

Two years ago, the Floyds moved backto Utah. The couple still maintain theirhome in Berkeley, where they live in thesummer to keep up with family and enjoythe advantages of metropolitan life.Meanwhile, their Utah home at Sundanceis ideal for many of their family interests,including hiking, skiing, and snowshoeing.Though Doug doesn’t accompany them (“Iprefer a softer bed”) his children bringfriends for an annual Uinta backpackingtrip. He and Barbara prefer day hikes.

No one could be more pleased with hisdecision to make Utah and the byu LawSchool his permanent home than the“Perverse Minority.” Cherrington sums upfor the rest, “No one is a better friend tothe students than Professor Floyd. He isdemanding and at the same time reward-ing: a tremendous role model of a scholarand an academic.”

“For the f i rst three weeks you think i t is the worst class you’ve ever taken, but by the end of the semester

you wil l consider Floyd one of the greatest men and best professors you’ve ever had.”

34 Clark Memorandum

To her surprise, Marguerite managed tograduate in eight semesters. (She jokes, “Iwas still single, but they didn’t give mytuition back.”) Her plan to go to lawschool had influenced her decision as afreshman to change her major from mathto political science. “I knew with thatmajor I’d have to finish law school orstarve.” Though law school was already inher plans, she had been so occupied withgraduating that she hadn’t had time to takethe lsat and send out applications. Shetaught high school the next year while shetook care of those tasks.

She freely admits she was on the dweebend of the scale at Stanford, serving as anassociate managing editor of the StanfordLaw Review and doing moot court her firstyear. On the low end of her dweeb contin-uum was a gospel choir she cofoundedwith five other students. (The choir laterexpanded to eight.) It started with twogirls singing in the vestibule; a guy joinedthem, and so on. The group performed atthe first-year talent show. They enjoyedpracticing so much that they continued tomeet, and the law school continued to findoccasions for them to perform. Their finalperformance was at graduation. Theychose nonsectarian hymns “low on theJesus meter,” since one of the memberswas Jewish. Marguerite sang soprano. The

choir kept her sane while she worked hardat moot court and law review.

Another sanity preserver was the musi-cal produced at Stanford almost everyspring. Using any familiar tunes, studentssubstituted lyrics relating to the lawschool experience. Most of Stanford’s 450students, plus many law school personnel,got involved in directing, acting, dancing,playing in the band, making scenery andcostumes, and applauding the perfor-mance. Because they were in the “cooldown stage,” with jobs ready and waitingfor them, the third-year class alwaysorganized the annual show, but lowerclassmen were welcome to participate, andMarguerite did. When she was a third-yearherself, she not only produced the showbut was the star. Fittingly, it was a take-offon the Wizard of Oz.

Remember how Dorothy in the Wizard of Oz

gets whisked away from her simple life in

Kansas by a tornado and plopped down in a

strange place? That, until recently, was

Marguerite Cephas Driessen’s life story. But

unlike Dorothy, Marguerite, the daughter of an army officer, also began her life in an alien

place—Wurzburg, Bavaria, in West Germany. “I was born in a country that no longer

exists,” she quips. At 11 months she experienced her first move. For the next 15 years, she

lived in only two houses for more than a year as her father, a colonel in army intelligence,

followed orders. “Everyone should have to move every year,” she insists. “I didn’t notice it

at the time, but when I was in high school and when I taught high school I witnessed

some definite advantages to my frequent adjustments.” Marguerite feels she was

OZ AGAIN?

Marguerite Driessen

more mature socially than students whohad lived their whole lives in one or twoareas. Peer pressure—the kind that says,“Do this, and I’ll be your friend forever”—had no impact. “Since I knew I was onlygoing to be there a year or so, I wasn’teasy to coerce with that strategy.”

She and her four siblings learned to beadaptable. When she returned to Ger-many to live from ages 10 to 13, she adjust-ed very well to the different country andlanguage. It was a little harder when theywere later transferred to the southernUnited States, which “seemed more for-eign than Germany.”

Over the years, she learned to be selec-tive of her friends. “You don’t want towaste time on poor friendships.” Sheforged lasting friendships because sheknew from experience what to look for.

But though she learned how to beattached to people, she had to learn notto be attached to things. “I had a weightallowance and knew I would soon have togive away anything superfluous to staywithin it.”

She admits there was a downside tomoving, however: “I never know where tosay I’m from. I feel like I’m a citizen ofanywhere and everywhere.”

When it came time for college, theworld had literally been her campus.Without knowing that motto gracesBYU’s entrance, she started to investigatethe school. It wasn’t the obvious choice,since she wasn’t lds at the time, and herhome in Dale City, Virginia, was far away.Nevertheless, byu appealed to 16-year-old

Marguerite and one of her girlfriends.They had both been labeled “goodygoodies” in every school they hadattended, and knowing the reputation ofbyu, they concluded they would fit inbetter and less conspicuously there thanat any other school. They were a bit putoff by the part of the application thatrequired an interview with a bishop oran ecclesiastical leader. Neither had aclergyman she felt particularly attachedto, but Marguerite remembered that aboy in her Spanish class had mentionedhis father was a Mormon bishop. Theylocated that ward’s executive secretary

and made appointments. After theirinterviews, the bishop suggested theymight try attending a meeting. Theywould have done so long before had themeeting times been posted, one ofMarguerite’s pet peeves: “Lots of passers-by would feel more welcome and lessintimidated if the Church would dothat.” Provided with the needed informa-tion, the girls gladly went. A family inthe ward invited them to dinner after themeetings and did the same the nextweek—this time the missionaries wereinvited as well. Before she and her friendleft for Provo the following year, theywere both baptized. “My folks werehappy I was going to a Mormon school,”she says. So pleased, in fact, that laterthey sent her younger sister to byu aswell.

She also dreams of star t ing the annual J. Reuben Clark Law School musical.

35Clark Memorandum

That year she had to make anextremely hard decision: where to work.She chose Beveridge & Diamond, a d.c.environmental law firm. When she hadbeen there two years, the United StatesSentencing Commission contacted her.They were particularly interested inMarguerite because they were revampingenvironmental guidelines. She welcomedthe chance to move on to a job where shecould be influencing policy rather thanjust responding to it. Balancing the needs

of the environment against the needs of adeveloping society, Marguerite foundherself working primarily in the area ofcivil litigation in which various responsi-ble parties were fighting over their rela-tive levels of culpability. This basicallytranslated into a battle over money.Though she realized that this type of bat-tle may be very important to some, shecould also see that it would not be a per-sonally fulfilling career choice for herself.The Sentencing Commission drafts the

federal sentencing guidelines, instructingcourts on the sentencing ranges that applyfor violations of federal criminal laws.Marguerite felt that helping to developcriminal justice policy on sentencingwould have more meaning in the universethan divvying percentages points of super-fund liability. Plus, the hours were shorter.She was glad to make the move.

In d.c. she was active in the single adultward. For her, single did not equate withmiserable, though some of the other

women in the ward felt that way. She sawwomen who were simply waiting to getmarried, eschewing further schooling, tak-ing low-paying jobs so they wouldn’t bebetter employed or educated than theirpotential spouses, and then growing bitteras their lives proceeded to go nowhere.Marguerite made a conscious decision notto let that happen to her. She never felt, assome did, “When all else fails, lower yourstandards.” Even as she neared 30, she couldstill say under her breath about particularly

unsuitable suitors, “If you were the lastman on earth, I might consider havingyour children, but I’m not that far gone.”Even so, she was invariably surprised whenlds men told her they were intimidated byher and afraid to ask her out.

It was on an outing in 1993 that shefirst met James (Jamie) Driessen. Jamie,who two years earlier had joined theChurch after calling an 800 number to geta Book of Mormon, was a single custodialparent. That summer while his daughter,Amanda, was visiting grandparents inWisconsin, Jamie decided to attendMarguerite’s singles’ ward. At first hedidn’t seriously consider Marguerite as apotential spouse, but whenever he heardher teach or speak, he thought, “I’d like todate someone like her.” Finally he askedhimself, “Why not her?” Marguerite hadreservations as well. After all, Jamie hadonly been an enlisted man in the army.Was he worthy of the colonel’s daughter?And he had not yet completed his engi-neering degree. He made a commitmentto do so, however, and with her father’sblessing, they were married in January1994, and she moved again—to his home inMaryland, 55 miles from d.c. and a four-hour round-trip commute to work.

Michael Goldsmith, a current memberof the byu Law School faculty, who wasappointed to the Sentencing Commissionin 1994, knew that the Law School wassearching for new faculty and askedMarguerite if she had considered teachinglaw. At that point in her life, the summerof 1995, such a change was particularlyappealing because the Driessen’s newbaby, Samuel James, had joined the familyin January of that year. She contacted byuLaw School, and the rest is history.

Marguerite can now walk to work inless than 10 minutes. She rejoices in thefact that Utah has “no grand scheme ofproblems” and is a place where she canconfidently raise her step-daughter Aman-da and son Sam. With that in mind, Jamieis designing their home, so at least onemore move looms in the future.

Marguerite teaches criminal law, evi-dence, and a sentencing seminar. She alsodreams of starting the annual J. ReubenClark Law School musical. Dorothy to thelast.

36 Clark Memorandum

M E M O R A N D A

hen I was younger, I looked forward to my family’s weekly ritual of

watching Star Trek.1 The characters were so exciting and the plots so

intriguing that I was disappointed when this series ended. I later learned that

Star Trek: The Next Generation was being produced and would be aired. I was

sure this new series would never equal the original Star Trek. Who could be as

exciting as Captain James T. Kirk or add as much color to a cast of characters as

Scotty? Moreover, I was sure that Star

Trek: The Next Generation was simply

going to be a cheap reproduction of the original, perhaps repeating the same

plots without any original thought and, therefore, spoiling my memories of the

Star Trek series. However, after watching a few episodes of Star Trek: The Next

Generation, I noted that the new series was equally intriguing. I quickly decided

that despite the different characters and plots, both shows were very entertain-

ing in their own way. Similarly, I often find myself becoming

JU

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T H E N E X T G E N E R A T I O N

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R O B E R T N E U B E C K E RI L L U S T R A T I O N S B Y

After graduating in April1997, Elizabeth Clark willmove to California, where shewill clerk for Judge J. CliffordWallace of the United StatesCourt of Appeals, Ninth Cir-cuit. Elizabeth moved fromthe Washington, d.c., area toattend byu for her undergrad-uate and legal studies. She hasparticularly enjoyed the man-ner in which byu combinesspiritual and secular training.

As an undergraduate, Eliz-abeth double majored in Rus-sian and comparative literature.Her language and writingskills have been beneficialduring law school. Because ofher excellent writing, organi-zational, and leadership skills,she was elected editor-in-chief of the byu Law Review.

Additionally, Elizabeth usedher language skills during herfirst summer clerkship whenshe worked in the CzechRepublic and again during theLaw School’s International

Church and State Symposium.This past summer, she workedat Holme, Roberts & Owen,where she was able to assistwith international law issues.

Elizabeth decided to applyfor her clerkship after speakingwith Professor James Rasband,who had previously clerked forJudge Wallace, and with otherfaculty members. She was alsointerested in working for JudgeWallace because of his involve-ment with international judi-cial administration. Elizabeth islooking forward to “workingwith an outstanding jurist.”Through her clerkship experi-ences, she hopes to gain a bet-ter understanding of thejudicial process, serve others,and better understand the law.

Upon completion of herclerkship, Elizabeth would liketo pursue a career in public ser-vice and eventually teach law.

Tanya Cluff, a 1996 Law Schoolgraduate, is currently workingas a judicial law clerk for JudgeNorman H. Jackson of theUtah Court of Appeals. Aftercompleting her current clerk-ship, she will continue to workin the court system as a lawclerk for Judge Michael R.Murphy of the United StatesCourt of Appeals, Tenth Circuit.

A Utah native, Tanyareceived her Bachelor of Artsin English from the Universityof Utah. She received her JurisDoctor this past April and willreceive her master’s degree inEnglish from byu in 1997.While in law school, she show-cased her writing abilities as aneditor of the byu Law Review.

When asked why she pur-sued a judicial clerkship, Tanyareplied, “I was encouraged toapply for a judicial clerkship by

37Clark Memorandum

captivated as I hear reminiscences about the “great

ones,” previous Law School graduates or J. Reuben

Clark Law Society members who worked as judi-

cial law clerks and have now established prominent

and satisfying legal careers. I am always struck by

the brilliance and intelligence of these previous law

clerks. I am also impressed by their tenacity and

ability to showcase the Law School as an outstand-

ing academic institution and develop its national

reputation. Because of their accomplishments, one

must wonder whether the current or “next genera-

tion” of graduates will be able to continue this tra-

dition of excellence. Like Star Trek: The

Next Generation, there is a new cast of characters

preparing in the wings to enter the stage. All new

graduates offer their gifts and talents to the

legal profession in their own unique

manner. After observing and associ-

ating with the Law School’s cur-

rent students for one year, I can

affirmatively state that the “next

generation” measures up to

past graduates and will con-

tinue to establish byu’s solid

reputation among the judiciary

through their performances.

Anyone who becomes

acquainted with these students rec-

ognizes their potential and ability to contribute

to the legal community. Let’s take a “sneak peak”

at these new characters as they prepare to enter

the world stage.

E L I Z A B E T H C L A R K

TA N Y A C L U F F

many people, includingProfessor Frederick M.Gedicks, other Law School fac-ulty members, and JudgeJackson’s former law clerks.”Listening to these peopledescribe their own clerkshipexperiences and the benefits ofa clerkship interested her in thiscareer option. She also notedthat the support of her profes-sors was essential to receivingher job offers. Besides provid-ing career advice, the facultywrote strong letters of recom-mendation on her behalf.

Tanya is particularly excitedabout the opportunity to per-form two judicial clerkships attwo different court levels. Sheexplained, “A clerkship pro-vides valuable insight into theinner workings of the courtand the judicial decision-mak-ing process. My clerkships willgive me an opportunity to fur-ther develop my analytical,research, and legal writing skills.”

Upon completion of bothclerkships, Tanya will pursue a

nontraditional career whereshe can continue to use herwriting skills. Although shehas not chosen a specificemployer for whom to work,she is confident that her judi-cial clerkship experiences willprovide her with the knowl-edge and skills to pursue manydifferent career paths.

Tom Isaacson, a December 1996graduate, will begin workingfor Judge J. Thomas Greene of the United States DistrictCourt, District of Utah, inJanuary 1997. During his firstyear of law school, Tom decid-ed to pursue a judicial extern-ship. He received not only oneexternship offer but two, oneof which was with JudgeGreene, who he enjoyed work-ing with so much that he laterapplied for a judicial clerkship.

Tom described his extern-ship as “a very rewarding workexperience.” He is looking for-ward to meeting the challengesof a judicial clerkship—research-ing complex legal issues andassisting Judge Greene to writehis opinions.

Since Tom has an electricalengineering degree from theUniversity of Utah and hasbeen very active in the LawSchool’s moot court program,2

his career goal is to work as apatent attorney and a patent lit-igator. He feels that this oppor-tunity to observe successful andunsuccessful courtroom tech-niques and to review excellentand fair pleadings will help himbecome a better lawyer.

After spending approximately20 years living and working asa cattle hand in rural Utah,Jay Jorgensen will begin his

legal career in NewJersey. An April 1997

graduate, he willwork next fall forJudge Samuel A.Alito, Jr., of theUnited StatesCourt of Appeals,

Third Circuit.During law

school, Jay has par-ticipated in various

activities, including the byuLaw Review, first- and second-year trial advocacy competi-tions, and the Federalist Societyfor Law & Public Studies.

This past summer, Jayworked in the Washington, d.c.,office of Kirkland & Ellis,where he had the opportunityto become acquainted with for-mer Solicitor General KennethW. Starr. General Starr wouldoccasionally spend time withKirkland & Ellis’ law clerks

discussing his litigation back-ground. This experience con-firmed Jay’s desire to seek alitigation and appellate practiceafter his clerkship. He said thathe pursued his judicial clerk-ship because it “seemed like anatural way to continue build-ing on the litigation and appel-late skills taught in law school.”

After reading several ThirdCircuit opinions, Jay becameparticularly interested in work-ing for Judge Alito. “I wasimpressed by several opinions[Judge Alito] authored, andseveral professors and practi-tioners recommended I applyto him,” he said. Jay credits hissuccess in obtaining his judicialclerkship to the Law School’sfaculty and to many membersof the J. Reuben Clark LawSociety who encouraged himto apply for a judicial clerk-ship, shared information aboutparticular judges, advised himabout application procedures,and recommended him toJudge Alito.

After moving across the coun-try several times, Michael(Mike) Lee will remain inUtah at least one more year. A 1997 graduate, Mike willbegin a judicial clerkship forJudge Dee V. Benson of theUnited States District Court,District of Utah, next fall.

Mike’s interest in the lawbegan early in life; he said thathis family’s dinner conversa-tions often focused on consti-tutional law issues.

Additionally, he watchedhis father, Rex E. Lee, arguemany cases before the SupremeCourt. Moreover, as a politicalscience major at byu, Mikeresearched and debated consti-tutional law issues, particularly

38 Clark Memorandum

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to the support of the LawSchool faculty.9 In particular,Professors Larry EchoHawkand Cole Durham wrote excep-tional letters of recommendationfor her, and Professor Durhamwent out of his way to speakwith Judge Anderson and convince him that Joi would be an asset to his chambers.Although Joi will miss the LawSchool, she is looking forwardto this new experience and thebeginning of her legal career.

Upon the completion of herclerkship, she would like towork in a law firm or pursueher interest in juvenile law andeventually teach. “Combining[her] love for the law and [her]love of teaching would be theultimate” job for her, she said.

Matthew Richards is a manwho knows what he wants.Matt decided early in lawschool that he wanted to workas a judicial law clerk in SaltLake City. After he graduatesin April, he will work forJustice I. Daniel Stewart of theUtah Supreme Court.

Matt enjoys writing, whichis one reason he pursued ajudicial clerkship.10 He uses hiswriting ability as a member ofthe managing board of the byuLaw Review and while work-ing with Professor RichardWilkins.11 “Professor Wilkinswas very supportive of my de-cision to seek a judicial clerk-ship. [He] encouraged me toapply for a judicial clerkship,gave me advice about specificjudges, and gave me an out-standing recommendation,”Matt said. He also assertedthat other faculty and mem-bers of the J. Reuben ClarkLaw Society were equallysupportive.

that many interesting casesand legal issues arise in thatarea, and he already has manyfriends currently living there.Since Jim wants to pursue alitigation career after his clerk-ship, he felt that a federal trialcourt clerkship in Los Angeleswould be very exciting.Additionally, he explained thathe was interested in workingfor Judge Hauk because he isknown as a brilliant jurist withseveral years of experience onthe federal bench.

Ever since she can remember,Joi Gardner Pearson wanted tobe an attorney. Joi does notknow where this desire camefrom since she was notacquainted with any lawyers.She says that she has alwaysenjoyed defending causes, andlaw school appeared to be aperfect match.7 After graduat-ing in April, she will have theopportunity to watch otherspresent oral argument and toimprove her appellate tech-niques as she works for JudgeStephen H. Anderson of theUnited States Court ofAppeals, Tenth Circuit.

Joi said that she has thor-oughly enjoyed her law schoolexperience and the opportuni-ty to participate in variousprograms. A member of themanaging board of the byuLaw Review,8 she is a teachingassistant for legal writing anda tutor for criminal law. Shesaid, “I was pleasantly sur-prised by the lack of competi-tiveness among my classmatesand the opportunity I’ve hadto make many friendships.This will be the first gradua-tion that is really a bit sad.”

She credits her success inobtaining a judicial clerkship

the last 60 years of SupremeCourt jurisprudence regardingthe Tenth Amendment’s commerce clause. He remainsinterested in constitutional law and is a member of theFederalist Society for Law &Public Studies.3

After completing his clerk-ship, Mike would like to workin a firm as a litigator. He feelsthat nothing can prepare himas well for a litigation career ascan a clerkship with JudgeBenson. Mike was particularlyinterested in working forJudge Benson because of theopportunity he would have tohear the judge’s opinion regard-ing different trial techniquesand litigation strategies. Hehopes to acquire some ofJudge Benson’s skills andknowledge.

The latest 1997 graduate toreceive a clerkship is JamesMoss. Jim targeted his clerk-ship search on the Los Angelesarea and received an offer fromJudge A. Andrew Hauk of theUnited States District Court,Central District of California.

After completing his first year of law school, Jimexterned for Judge Davis at theUtah District Court, FourthJudicial District. This positiveexperience was a factor in Jim’sdecision to apply for a judicialclerkship. He also receivedadvice about judicial clerkshipsand was encouraged to applyfor one by Law School facultyand J. Reuben Clark LawSociety members.4

Since Jim grew up inOrem, Utah, and attended byufor both his undergraduateand legal education,5 I askedhim why he chose to relocateto Los Angeles.6 He explained

39Clark Memorandum

J A M E S M O S S

JO I GA R D N E R PE A R S O N

MAT T H E W RI C H A R D S

Upon completion of hisclerkship, Matt wants to workas a trial attorney for a lawfirm in Salt Lake City. Thispast summer he worked withKirton & McConkie in itsmedical malpractice defense

department. Heis very interested in tort lawand would particularly enjoydefending medical malpracticeclients again. In addition torefining his writing and advo-cacy skills, Matt feels that he“will gain a greater under-standing of Utah law.”

David Todd is beginning hislegal career by combining hisprior educational and workexperiences with his interest in law.12 A 1997 graduate, hewill begin clerking for JudgeRandall R. Rader of the UnitedStates Court of Appeals,Federal Circuit, next fall.

David’s decision to attendlaw school was greatly influ-enced by his uncle, a patentattorney in Chicago. AlthoughDavid may have known thathe was going to attend lawschool, he was not always

certain whether he shouldpursue a judicial clerkship.Initially he wondered if aclerkship would only delaythe beginning of his career.However, after much thought,he “realized that a judicialclerkship would not be adelay, but a ‘jump-started

beginning’” to what is sure tobe an exciting legal career.

Fall 1995—the sametime David began con-sidering a judicialclerkship—he wasrequired to write acase note as his lawreview assignment.13

As he wrote, hebecame much more

interested in patent lawand became more aware

of “the significance of theFederal Circuit in that area.”

He decided that a clerkship onthe Federal Circuit would beexcellent preparation for acareer in patent law and wouldopen the door to eventuallyteaching patent law.

David’s law review casenote also played a significantrole during his interview withJudge Rader. As a writing sam-ple, he excerpted a draft of hisnote, a discussion of a recenten banc Federal Circuit case.He and the judge discussedthe case at length during theinterview. Additionally, heattributes the Law School fac-ulty with his success in obtain-ing his clerkship. Both DeanReese Hansen and AssociateDean Scott Cameron champi-oned him to Judge Rader, andDavid feels that their recom-mendations were a significantfactor in the judge’s decision.

Notes

1. I must immediately and emphati-

cally state that I am not a “Trekie.”

Watching the Star Trek series was a

time for me to release and unwind

and to bond with my predominantly

male family. Although I continue to

enjoy viewing Star Trek, I now only

watch it occasionally. I have never

attended a Star Trek convention,

worn a Star Trek Halloween cos-

tume, or memorized individual

episodes. Finally, I did not enjoy

many of the Star Trek movies.

2. Tom won the Best Oralist Award

during the first-year moot court com-

petition and the Best Brief Award

during the Law School’s National

Moot Court Team demonstration

and was appointed to the Board of

Advocates to coach traveling moot

court teams.

3. In addition to participating in stu-

dent organizations, Mike is also one

of the first byu law students to

simultaneously participate in two co-

curricular programs. He is a member

of the Law School’s National Moot

Court Team, won the Best Oralist

Award during the Law School’s

National Team demonstration, and

was a semifinalist at a national First

Amendment moot court competi-

tion. Beginning this fall he will join

the byu Law Review and will retain

his membership on the Law School’s

National Moot Court Team.

4. In particular, Sterling Brennan,

who previously clerked for Judge

Hauk, advised Jim on application

procedures and interviewing strate-

gies. Brennan graduated from the

Law School in 1986 and is active in

the Orange County Chapter of the J.

Reuben Clark Law Society.

5. As an undergraduate, Jim majored

in political science and minored in

philosophy. As a law student, he has

contributed to the Law School by

participating on the byu Law Review.

6. I was raised in South Bay and

Orange County and think that

southern California is one of the

best places to live. However, I real-

ize my opinion is biased and not

shared by everyone.

7. Joi explained that she began debat-

ing at a very early age. When she was

five or six someone told her, “Anyone

who loves to argue and debate that

much ought to be a lawyer!”

8. Joi will publish “Make It, Market

It, and You May Have to Pay for It:

An Evaluation of Gun Manufac-

turer Liability for Uniquely

Dangerous Guns in Light of In re.

101 California Street” in a forthcom-

ing edition of the byu Law Review.

9. She also takes some credit due to

her dart throwing abilities. During

her visit to Judge Anderson’s cham-

bers, Joi was challenged by the judge

to a game of darts. After a brief les-

son from one of Judge Anderson’s

law clerks, Joi threw her first dart

into the wood paneling of Judge

Anderson’s library. On her second

attempt, Judge Anderson tutored

her himself. She did much better the

second time, making a bull’s-eye.

She guesses that second attempt

helped her get the job.

10. As an undergraduate, Matt

attended byu, where he majored

in English with an emphasis on

composition.

11. Matt’s comment, “Utah’s Medical

No-Fault Proposal: A Problem

Fraught. Rejection of the Current

Tort System,” was published in the

1996 edition of the byu Law Review

at page 103. He has also coauthored

two articles with Professor Richard

Wilkins: “The Supreme Court Voting

Behavior: 1994 Term” and “The

Supreme Court Voting Behavior:

1995 Term,” u.c. Hastings Law Review.

12. David received his mechanical

engineering degree from byu in 1994.

He also worked as an engineering

consultant, software development

research assistant, and computer

programmer before attending law

school.

13. David is currently a member of

the managing board of the byu Law

Review. His case note was “How

Modern Treatment of 35 u.s.c. §§

112(6) Has Caused Confusion: Hilton

Davis v. Warner-Jenkinson and the

Right to a Jury on the Issue of Patent

Infringement Under the ‘Equitable’

Doctrine of Equivalents,” byu Law

Review 141.

40 Clark Memorandum

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