Clark Memorandum Spring 2022

clark memorandum

J. Reuben Clark Law School Brigham Young University Spring 2022

c o v e r a r t w o r k The Constitution (detail), Barry Faulkner, courtesy the National Archives

c o n t e n t s

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Dean’s Message D. Gordon Smith

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General Joseph Smith and His Candidacy for the Presidency of the United States Elder Dale G. Renlund and Ruth Lybbert Renlund

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L eadership Lessons from the Life of Dallin H. Oaks Richard E. Turley Jr.

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Flunking the Founding Judge Don R. Willett

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Seven Lessons from the Life of Rex Lee Judge Amul Thapar

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memoranda technology innovation leadership fellow in action

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unexpected opportunities

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D. Gordon Smith, p u b l i s h e r Lynnett Rands, e x e c u t i v e e d i t o r Amberly Page, e d i t o r Lena Harper Primosch, a s s o c i a t e e d i t o r David Eliason, a r t d i r e c t o r Bradley Slade, p h o t o g r a p h e r

The Clark Memorandum is published by the J. Reuben Clark Law School at Brigham Young University, the byu Law School Alumni Association, and the J. Reuben Clark Law Society. © 2022 by Brigham Young University. All rights reserved.

Send subscription inquiries to dbcoord@ law.byu.edu. To read a digital version, go to issuu.com/byulawpubs.

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A

D E A N ’S

MESSAGE

jo h n s n y d e r

s this issue came together, a strong theme emerged: the profound and far-reaching influence of effective leaders. It is a theme I have reflected on for some time. My predecessor, Dean James R. Rasband, coined the expression “law is a leadership degree.” His view is that leadership development is embedded in legal training, and there is much evidence in the world to support this view. As the late Professor Deborah L. Rhode of Stanford Law School has observed:

Although the legal profession accounts for less than 1% of the population, it has supplied a majority of American presidents and, in recent decades, almost half the members of Congress. Lawyers are also well represented at all levels of leadership as governors; state legislators; judges; prosecutors; general counsel; law firm managing partners; and heads of corporate, government, and nonprofit organizations. Even when they do not occupy top positions in their workplaces, lawyers lead teams, committees, task forces, and charitable initiatives.1 Dean Rasband may have understood these facts as confirmation of his view that “thinking like a lawyer is really a form of leadership training,”2 but what is so special about legal education? In an address to the entering class of 2013, Dean Rasband suggested some examples of the leadership lessons embedded in legal training. For example, law students learn standards of review, which guide appellate courts in deciding when and how much to defer to lower courts. According to Dean Rasband, applying the correct standard of review is a critical leadership skill: How do you feel when a leader, without knowledge of particular circumstances, overrules or criticizes your judgment? By contrast, how do you feel when a leader understands that your intimate knowledge of the facts entitles you to deference? Thinking like a lawyer is thinking about this sort of decision.3 Another example suggested by Dean Rasband is that precedent—the idea that like cases and similarly situated individuals should be treated alike—is a core principle of fairness and is not limited to the legal realm. Nevertheless, the central role of stare decisis in the common law ensures that precedents will be more limiting in legal reasoning than elsewhere. As a result, lawyers reflect more frequently and think more deeply about the idea of precedent than others. And, as Dean Rasband noted, “Considering past precedent and the possibility that your decision creates a precedent for future situations is also the trait of a leader.”4 The process of evaluating precedents is known as analogical reasoning. This “is the most familiar form of legal reasoning,” and “[i]t dominates the first year of law school.”5 An underappreciated feature of analogical reasoning is that it is a primary source of creative insights.

Joseph Priestley, an English chemist who also wrote about theology, philosophy, grammar, and politics, expressed the view that “analogy is our best guide in all philosophical investigations; and all discoveries, which were not made by mere accident, have been made by the help of it.”6 To the extent that leadership involves changing the status quo, therefore lawyers are trained from the first day of law school in one of the essential prerequisites of leadership.

Although we could multiply examples of the ways legal training facilitates leadership development, I agree with Rhode that we need to be more ambitious for legal education and to learn the best lessons we can from leadership scholars and practitioners.7 We should teach those lessons to law students. Motivated by this belief, over the past six years we have been experimenting with new courses and special projects related to leadership training, and this year we have begun working with the new byu Sorensen Center for Moral and Ethical Leadership to develop a cutting-edge leadership program at byu Law School.

Leadership is a source of meaning in our lives. Meaning is a sense of worth derived from helping others, and leadership is a form of service. Our goal is to teach our students to use their legal training to help the vulnerable and the forgotten and to be leaders by changing the status quo to improve the life of another. byu Law has a rich history of producing such leaders, and we are committed to continuing that work in intentional, innovative, and inspiring ways. notes 1

Deborah L. Rhode, “Leadership in Law,” Stanford Law Review 69, no. 6 (June 2017): 1605.

2

James R. Rasband, “In Praise of Thinking Like a Lawyer,” Clark Memorandum, Fall 2014, 6.

3

Id., 7.

4

Id., 7.

5

Cass R. Sunstein, “On Analogical Reasoning,” Harvard Law Review 106, no. 3 (Jan. 1993): 741.

6 Joseph Priestley, The History and Present State of Electricity, with Original Experiments (London: J. Dodsley, 1767), part III, section 1, 443–44; emphasis in original.

d. g o r d o n s m i t h

Dean, byu Law School

7 See Rhode, “Leadership in Law,” 1605: “It is a shameful irony that the occupation that produces the nation’s greatest share of leaders does so little to prepare them for that role.”

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How a Religious Leader Contributed to Strengthening American Democracy by

ELDER DALE G. RENLUND

Member of the Quorum of the Twelve Apostles, and

RUTH LYBBERT RENLUND

Senior Fellow at the byu International Center for Law and Religion Studies

his year’s annual review considers religion’s contribution to strengthening American democracy. Our remarks today are more narrowly centered, however, on Joseph Smith and how he, as a religious leader, contributed to strengthening American democracy.

We have relied heavily on the Joseph Smith Papers, including volume 14, which is being prepared for publication, and the excellent historical context provided by Church historians. We also thank Brandon Metcalf, an archivist and historian and manager of Executive Services in the Church History Department, for his editorial assistance.

This keynote address was given at the Religious Freedom Annual Review, hosted by the byu International Center for Law and Religion Studies on June 15, 2021.

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The history surrounding the founding of the United States is simultaneously inspiring and infuriating. From our present perspective, we can see both the promise of the lofty goals and the results of the omissions and compromises that were made in drafting the US Constitution. The freedoms promised to all were not available to all. The liberties claimed for all were not enforced for all. And the security promised to all was not protected for all.

Many have experienced these contradictions. Among them were Joseph Smith, the Prophet of the Restoration of The Church of Jesus Christ of Latter-day Saints, and early Church members.

Despite the guarantees in the US Constitution of “the free exercise [of religion], . . . the right . . . [to] peaceably . . . assemble, and [the right] to petition the Government for a redress of grievances,”1 the early Saints struggled to practice their religious beliefs without interference. The enumerated rights did not extend to their brand of religion.

Time after time, when Joseph Smith called on government officials to enforce enumerated constitutional rights for him and his fellow Saints, he was turned away. His interest in religious freedom was not theoretical; it was a repeatedly lived experience. He had been directed by heaven to restore the Church of Christ. Without the rights to freely exercise their religion, to peaceably assemble, and to petition the government for redress, Church members were prevented from physically gathering and establishing roots in a geographical location of their choosing due to repeated forced evacuations. Despite these challenges, the membership in the Church continued to increase.

From New York to Ohio and from Missouri to Illinois, persecution and unlawful arrests followed Joseph Smith and other Church leaders. In Missouri, Latter-day Saint adult men met the criteria to participate in the democratic process by voting. But several factors caused contention related to Saints voting in Missouri. Missourians felt threatened by the sheer number of Saints and their ability to control local elections. Another point of conflict was the opposing view on slavery. Anticipating that Latter-day Saint votes would skew toward antislavery, proslavery Missouri citizens suppressed the Saints’ votes. The Saints’ eventual expulsion from that state under the threat of several thousand members of the state militia left them homeless and friendless. When Joseph petitioned President Martin Van Buren for redress, the president infamously said, “[Y]our cause is just, but I can do nothing for you.”2 Once settled in Illinois, the Saints’ numbers grew to 25,000, and their votes were eagerly sought. Regional and national politics played a significant role in Joseph Smith’s life during August 1843. In preparation for the congressional election, the Whig candidate, Cyrus Walker, and the Democratic candidate, Joseph P. Hoge, spent considerable time electioneering in Nauvoo, hoping to secure the Latter-day Saint vote. Because Joseph Smith had previously pledged to vote for Walker, one of Joseph’s personal attorneys, most observers believed that Walker would easily win the election.

However, at the public meetings held two days before the election, Hyrum Smith announced that he had received a revelation indicating that the Saints should support Hoge, the Democratic candidate. At a public Sunday worship service held the next day, Joseph delivered a discourse in which he affirmed his personal pledge to vote for Walker but did not raise objections to Hyrum Smith’s revelation for the Saints. Joseph stated that he had never known Hyrum to lie.

Nauvoo residents overwhelmingly voted for Hoge, who carried the election in Illinois’s sixth congressional district. The Whigs blamed the Church for the loss, and the Democrats did not appreciate Joseph’s support of the Whig candidate. Joseph and the Church were bereft of political friends, and opponents took advantage of this situation.

A few months later, Joseph wrote to the five candidates for president of the United States, asking what each would do to help the Saints redress the legal wrongs they had suffered. Two did not respond. The other three said they would do nothing. With frustration mounting, leaders of the Church met and encouraged Joseph to run for the United States presidency.

On January 29, 1844, Joseph announced his candidacy in that year’s presidential election. His campaign was part of a larger effort to pursue legal avenues that might result in the protection of the Church and its members.

J O S E P H ’ S E L E C T I O N PA M P H L E T

Joseph was not anxious to enter the political arena, declaring in a letter to the editor of the Wasp, a weekly Nauvoo newspaper, after his announcement that his “feelings revolt at the idea of having any thing to do with politics.” He stated that he wished “to be let alone, that [he] may attend strictly to the spiritual welfare of the church.”3 Nonetheless, with the help of W. W. Phelps, Joseph Smith composed a 12-page pamphlet entitled General Smith’s Views of the Powers and Policy of the Government of the United States.4 Joseph’s Political Philosophy As was the custom of the day, the pamphlet began with a brief history of the United States that focused on the administrations of the country’s first 10 presidents. It included excerpts from the inaugural, annual, and farewell addresses of most of the presidents.

The statements selected were, of course, those that Joseph agreed with. We get a sense of his political philosophy by the portions of prior presidents’ addresses included in his own “address to the people.”

For example, the pamphlet contains this statement regarding George Washington: And one of the most noble fathers of our freedom and country’s glory: great in war, great in peace, great in the estimation of the world, and great in the hearts of his countrymen, the illustrious Washington, said in his first inaugural address to Congress: “ . . . [T]he foundations of our national policy will be laid in the pure and immutable principles of private morality; and the pre-eminence of free government be exemplified by all the attributes which can win the affections of its citizens, and command the respect of the world.”5 In equally laudable language, the pamphlet celebrated the terms of the first seven presidents—up through Andrew Jackson—but Joseph Smith had scathing things to say when it came to Martin Van Buren. Joseph claimed that the election of Van Buren was the precise moment when the nation began to decline. Joseph had been a vocal critic of Van Buren since meeting with him in Washington, DC, in 1839. During their meeting, Van Buren had refused to assist the Latter-day Saints in their efforts to obtain redress and reparations from the federal government for their expulsion from Missouri.

Not surprisingly, the pamphlet depicted Van Buren as unconcerned with maintaining the constitutional rights of the American people.

A sample from that section of the pamphlet illustrates how Joseph felt about President Van Buren: At the age, then, of sixty years our blooming Republic began to decline under the withering touch of Martin Van Buren! Disappointed ambition; thirst for power, pride, corruption, party spirit, faction, patronage; perquisites, fame, tangling alliances; priestcraft and spiritual wickedness in high places, struck hands, and reveled in midnight splendor.6 The remainder of the pamphlet consists of Joseph’s political platform framed as a plan to improve the government of the United States and the lives of its citizens. It included several proposals for reform, including constitutional, economic, and social measures. Specifically mentioned were minority rights, a national bank, the criminal justice system, the abolition of slavery, and territorial expansion. clar k

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Three Proposals for Reform Joseph believed that the Constitution was flawed because it did not compel the executive or legislative branches to use federal power to defend minority rights. He proposed that the president of the United States be constitutionally allowed to dispatch the army to suppress mobs in individual states without first receiving a request from a state’s governor to do so.

A sample from the section of the pamphlet on constitutional reform reads: Give every man his constitutional freedom, and the president full power to send an army to suppress mobs; and the states authority to repeal and impugn that relic of folly, which makes it necessary for the governor of a state to make the demand of the president for troops, in cases of invasion or rebellion. The governor himself may be a mobber and, instead of being punished, as he should be for murder and treason, he may destroy the very lives, rights, and property he should protect.7

JOSEPH advocated for

treating people with

DIGNITY and sincerely believed people were capable of learning and

CHANGING.

Joseph’s proposal would remove any real or perceived barriers to enforcing minority rights that were threatened by mobs, state militias, or government officials. The lack of such a provision in the Constitution is the reason that Van Buren gave for being unable to help the Saints.

Joseph’s proposals for economic reform centered on banking. He called for the establishment of a national bank, with branches in every state and territory and officers who would be elected by the American people and paid a modest per diem for their service. He stated that such a network of banks would ensure a dependable national currency and would ease financial difficulties caused by irregularities and frequent shortages of currency throughout the country.

A sample from that section of the pamphlet reads: For the accommodation of the people in every state and territory, let Congress shew their wisdom by granting a national bank, with branches in each state and territory, where the capital stock shall be held by the nation for the mother bank. . . . And the bills shall be par throughout the nation, which will mercifully cure that fatal disorder known in cities, as brokerage; and leave the people’s money in their own pockets.8 The Saints suffered terrible losses in the banking collapse in the 1830s. The Kirtland Safety Society Bank was caught up in this collapse when hundreds of banks failed. Allegations of corruption in the banks that served only the interests of wealthy speculators added to the urgency for reform.

The third plank of Joseph’s platform called for social reform and an overhaul of the criminal justice system in the United States. It called for a drastic decrease in the number of men and women incarcerated in prisons and penitentiaries. This suggests that Joseph viewed the system that sentenced men and women to prison as flawed and as administering justice unevenly based on the economic status of the accused.

A sample from that section of the pamphlet reads: Petition your state legislatures to pardon every convict in their several penitentiaries: blessing them as they go, and saying to them in the name of the Lord, go thy way and sin no more. Advise your legislators when they make laws for larceny, burglary or any felony, to make the penalty applicable to work upon roads, public works, or any place where the culprit can be taught more wisdom and more virtue; and become more enlightened. Rigor and seclusion will never do as much to reform the propensities of man, as reason and friendship. Murder only can claim confinement or death. Let the penitentiaries be turned into seminaries of learning, where intelligence, like the angels of heaven, would banish such fragments of barbarism: Imprisonment for debt is a meaner practice than the savage tolerates with all his ferocity.9 Joseph’s own experience of being arrested and jailed on various occasions must have given him a clear view of the unfairness inherent in the prison system. Joseph advocated

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for treating people with dignity and sincerely believed people were capable of learning and changing. He had little economic status in life, and his imprisonments deepened his compassion for others in his situation. He had sympathy, too, for those arrested according to the debtor laws of the day. His father was once arrested for a $14 debt, which is today a $400 debt. His writing suggests that he believed that the United States could and should be better.

A Call to End Slavery The last major piece of Joseph’s platform called for the end of slavery. The issue of slavery created a sharp divide in the United States both politically and economically. This issue permeated the discussion around the admission of additional states into the union and territorial expansion.

Joseph was clear about where he stood on the issue: Break off the shackles from the poor black man, and hire him to labor like other human beings; for “an hour of virtuous liberty on earth, is worth a whole eternity of bondage!” . . . [R]estore freedom!

[B]reak down slavery!10 Joseph’s call for the emancipation of all American slaves would be paid for from the sale of public lands by the federal government and by cutting the salaries of Congress.

Why would Joseph address the contentious issue of slavery as a presidential candidate? In many ways, slavery was the issue of the day, but for Joseph, it was also a matter of right versus wrong. He understood from restored doctrine that all in the human family are God’s spirit children. He believed in the dignity and equal rights of all humankind, and he was in sympathy with them, for their rights were trampled upon, just as his had been.

The pamphlet concludes with Joseph’s philosophy of good government and the promises he made as a potential president.

The following is an excerpt from Joseph’s “closing argument” to the people: In the United States the people are the government; and their united voice is the only sovereign that should rule; the only power that should be obeyed . . . : Wherefore, were I the president of the United States, by the voice of a virtuous people, I would honor the old paths of the venerated fathers of freedom: I would walk in the tracks of the illustrious patriots . . . : and when that people petitioned to abolish slavery in the slave states, I would use all honorable means to have their prayers granted: and give liberty to the captive. . . . [L]et us be one great family; and let there be universal peace.11 The pamphlet is signed: With the highest esteem,

I am a friend of virtue,

and of the people, Joseph Smith.12

T H E R E S U LT O F T H E E L E C T I O N

After the pamphlet was approved, Joseph arranged for the apostle John Taylor to print 1,500 copies in the Church’s printshop in Nauvoo. Joseph Smith mailed copies of the pamphlet to President John Tyler and the members of his cabinet, the nine justices of the Supreme Court, several senators and representatives in the United States Congress, the governor of each state, clar k

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the editors of prominent newspapers throughout the country, and others. In total, he mailed approximately 200 copies of the pamphlet. The remaining copies sold out a few months later, and a new edition was printed. The Church sent out hundreds of electioneering missionaries, who carried the pamphlets with them throughout the country.

General Smith’s Views was well received in Nauvoo and by Church members throughout the country. The Prophet, a Latter-day Saint newspaper published in New York City, not surprisingly endorsed General Joseph Smith for president and Sidney Rigdon as his running mate for vice president.

Responses from outside the Church were often negative. Hounded by mobs throughout the campaign, Joseph was ultimately killed by one while under state government protection— the first presidential candidate to be assassinated. His campaign was intended to muster sympathy for the Church’s cause and give the Saints an agreeable candidate in the election.

Instead, Joseph’s death ended the Saints’ political options. John Tyler was reelected president in late 1844.

JOSEPH’S CONTRIBUTIONS TO AMERICAN DEMOCRACY

Underlying Joseph’s thinking on

DEMOCRACY in the United States was his firmly held

BELIEF

that constitutional rights, freedom of religion, and universal freedom should be AVAILABLE TO ALL .

Despite the abbreviated campaign, what contributions did Joseph make to strengthening American democracy?

Joseph’s assassination demonstrated the point of his campaign, that democratic rights for people to practice their religion had been completely ignored, and it cost him his life.

Underlying Joseph’s thinking on democracy in the United States was his firmly held belief that constitutional rights, freedom of religion, and universal freedom should be available to all, including those in minority groups. His very approach to democracy is one that is still being debated and examined today.

Joseph viewed democratic rights through the lens of religious freedom. It was not that democratic rights emanated from religious freedom; rather, the abrogation of religious freedom was a marker for undemocratic government. He spoke and wrote on the subject repeatedly.

While a candidate for the US presidency, Joseph addressed the Council of Fifty, a group of Church and community leaders, in a meeting on April 11, 1844. Arguing that the agency God gave His children requires mortals also to grant and safeguard the freedom of religion, Joseph Smith declared: Nothing can reclaim the human mind from its ignorance, bigotry, superstition [and so forth] but those grand and sublime principles of equal rights and universal freedom to all men. . . . Hence in all governments or political transactions a man[’]s religious opinions should never be called in question. A man should be judged by the law independent of religious prejudice.13 Joseph was unique in his day for his insistence that not only should the Latter-day Saints’ religious rights be protected but that this protection should be extended to all. His position was not manufactured for his presidential run but was a long-held belief.

In 1840, well before his candidacy for president, Joseph wrote: [N]ow if they had been . . . Pagans; or in fine sir, if their religion was as false as hell, what right would men have to drive them from their homes, and their country, or to exterminate them, so long as their religion did not interfere with the civil rights of men, according to the laws of our country?

None at all.14 The city of Nauvoo was founded on the principle of religious tolerance and freedom. The Nauvoo Charter provided: Be it ordained by the City Council of the City of Nauvoo, That the Catholics, Presbyterians, Methodists, Baptists, Latter Day Saints, Quakers, Episcopalians, Universalists, Unitarians, [Muslims], and all other Religious Sects and denominations whatever, shall have free toleration, and equal privileges, in this City, and should any person be guilty of ridiculing and abusing, or otherwise

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depreciating another, in consequence of his religion, or of disturbing or interrupting, any religious meeting, within the limits of this City, he shall on conviction thereof before the Mayor, or Municipal Court, be considered a disturber of the public peace, and fined in any sum not exceeding five hundred dollars, or imprisoned not exceeding six months, or both, at the discretion of said Mayor or Court.15

notes 1

US Const. amend. I.

2 Martin Van Buren, as reported by Joseph Smith, February 6, 1840, in History, 1838–1856, volume

Joseph repeatedly reminded politicians that the promise of the Constitution required action to ensure religious freedom for the citizens it governs. He did what we are encouraged to do today to protect our democratic rights: participate, write to elected leaders, run for office, and speak up, among other things. Our history as a nation demonstrates that unless citizens demand that government protect democratic freedoms, these rights can be ignored or unequally applied, especially for minorities.

It is so interesting that the reforms Joseph advocated were so forward thinking. His proposal for banking reform was essentially enacted 20 years later. Regarding penal reform, as late as 1983, the Supreme Court affirmed that incarcerating indigent debtors was unconstitutional under the Fourteenth Amendment’s equal protection clause, an amendment to the Constitution that had not been considered in Joseph’s day. Further criminal justice reform remains pertinent today. Slavery was abolished 20 years after Joseph’s campaign, and it took a civil war. As a country, we are still debating how we achieve the promises of the United States Constitution for all.

Joseph supported the participation in the democratic process of those who might vote contrary to what even he would have wanted. He took a principled stand: anyone who qualifies, under law, to participate should be encouraged to vote, especially minorities—religious or other.

He wanted the democratic process to work for everyone! Then, as now, Latter-day Saints wanted the American democratic rights promised in the Constitution to be more than a myth.

As a leading evangelical theologian recently stated, the Latter-day Saints in the United States “just want a place at the American table.”16 Joseph’s run for the American presidency and his subsequent death highlight the need for the vigorous protection of democratic rights in the nation.

ELDER AND SISTER RENLUND’S TESTIMONIES

Sister Renlund: I am grateful for Joseph Smith for his prophetic role in restoring the Church of Jesus Christ to the earth. And I have a new appreciation for him as a champion of religious rights and democratic principles. His efforts on behalf of the Saints are inspiring! I am grateful for the rich legacy in this Church of promoting democratic freedom for all.

C-1 (22 November 1838–31 July 1842), 1016, Joseph Smith Papers, josephsmithpapers.org/paper -summary/ history-1 8 3 8 -1 8 56 -volume - c-1- 2 -november-1838-31-july-1842/188.

3 Joseph Smith, “To the Editor of The Wasp,” Wasp, Nauvoo, Illinois, January 28, 1843, 3; see Smith, “Letter to Editor, 23 January 1843,” 3, Joseph Smith Papers, josephsmithpapers.org/paper-summary /letter-to-editor-23-january-1843/1.

4 See Joseph Smith, General Smith’s Views of the Powers and Policy of the Government of the United States, circa January 26–February 7, 1844 (Nauvoo, Illinois: John Taylor, 1844), Joseph Smith Papers, josephsmithpapers.org/paper-summary /general-smiths-views-of-the-powers-and-policy -of-the-government-of-the-united-states-circa -26-january-7-february-1844.

5

Smith, General Smith’s Views, 4.

6 Smith, General Smith’s Views, 7; emphasis in original; spelling standardized.

7 Smith, General Smith’s Views, 10; spelling and punctuation standardized.

8 Smith, General Smith’s Views, 9–10; emphasis in original; spelling standardized.

9

Smith, General Smith’s Views, 9; emphasis in original.

10

Smith, General Smith’s Views, 9.

11

Smith, General Smith’s Views, 11–12.

12

Smith, General Smith’s Views, 12.

13 Joseph Smith, discourse, Nauvoo, Illinois, April 11, 1844; in Council of Fifty, “Record,” 119–20; emphasis added; spelling standardized. See Joseph Smith,

Elder Renlund: Joseph Smith did everything he could to establish the restored Church to the earth. This included him taking up the position of trying to fix the things that seemed broken to him. He was indeed God’s prophet on the earth at the time, and he led the Church and did the best he could. I am so grateful for the witness that I have that he was called of God by prophecy and that he saw what he said he saw that day in 1820—Heavenly Father and Jesus Christ. They commissioned him to restore this Church to the earth. I am grateful for him and for the legacy that he has brought. In the name of Jesus Christ, amen. art credits

“Discourse, 11 April 1844-B,” 119–20, Joseph Smith Papers, josephsmithpapers.org/paper-summary /discourse-11-april-1844-b/4.

14 Joseph Smith, “Communications: Copy of a Letter from J. Smith Jr. to Mr. Galland,” Times and Seasons 1, no. 4 (February 1840): 53; see “Letter to Isaac Galland, 22 March 1839,” 53, Joseph Smith Papers, josephsmithpapers.org/paper-summary/letter-to -isaac-galland-22-march-1839/3.

15 Nauvoo Charter, as reported by Joseph Smith,

Page 4

Illustration—the Print Collector/Heritage Images via Getty Images. Paper background—Getty Images.

Page 5

Sign from Joseph Smith’s office, courtesy The Church of Jesus Christ of Latter-day Saints.

March 1, 1841, in History, 1838–1856, vol. C-1

Page 6

Joseph Smith, Jr., artist unknown, courtesy The Church of Jesus Christ of Latter-day Saints.

(2 November 1838–31 July 1842), 1169, josephsmith

Page 7 Views of the Powers and Policy of the Government of the United States by General Joseph Smith, 1844, courtesy The Church of Jesus Christ of Latter-day Saints.

Page 8

Ambrotype of a painting by Sutcliffe Maudsley, courtesy The Church of Jesus Christ of Latter-day Saints.

Page 9

Print of a painting by John Hafen, courtesy The Church of Jesus Christ of Latter-day Saints.

Page 10 Print of a painting by John Hafen, courtesy The Church of Jesus Christ of Latter-day Saints.

papers.org/paper-summary/history-1838-1856 -volume-c-1-2-november-1838-31-july-1842/341.

16 Richard Mouw, quoted in “Lexington: In Praise of the Mormon Right,” United States, Economist 439, no. 9243 (May 1, 2021): 36.

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Leadership Lessons from the Life of Dallin H. Oaks Over the last century or so, several men with legal training have been called to be apostles in The Church of Jesus Christ of Latter-day Saints.

The J. Reuben Clark Law Society takes its name from one of these men. The Church’s current First Presidency includes another, President Dallin H. Oaks, whose biography I was privileged to write recently.

RICHARD E. TURLEY JR.

P O R T R A I T B Y R O B E R T T. B A R R E T T

President Oaks’s legal credentials are well known to this group. He graduated from Brigham Young University and went to the University of Chicago Law School on scholarship.

There he distinguished himself, graduating near the top of his class as editor-in-chief of the law review. He accepted a job with the largest law firm in Chicago before serving for a year as law clerk to Chief Justice Earl Warren of the United States Supreme Court. Declining the Chief ’s offer to stay another year, he returned to his Chicago firm, where the senior partners fast-tracked him for partnership.

He left the firm to teach at the University of Chicago Law School, where he became a full professor at the young age of thirty-two. He excelled as a teacher, and his scholarship catapulted him to national prominence. While just in his 30s, he became acting dean of the law school. While still in his 30s, he served as executive director of the American Bar Foundation, the research arm of the American Bar Association.

At age 38, he became president of Brigham Young University. Following a remarkable period of leadership there, he became a justice of the Utah Supreme Court while still in his 40s. During that time, his name appeared on published lists of potential United States Supreme Court appointees. A US deputy attorney general asked Dallin if he would consider an appointment to the US Court of Appeals for the District of Columbia, a stepping-stone to the nation’s highest court. Dallin declined and instead supported the appointment of his associate Antonin Scalia, who ascended to the United States Supreme Court in 1986.

In declining the DC Circuit post, Dallin relied on a spiritual impression he had received in the temple when considering whether he should serve on the Utah Supreme Court. He and his wife June had sat in the celestial room of the temple, praying quietly by themselves.

Richard E. Turley Jr., biographer of Dallin H. Oaks and former managing director of the Church History, Family History, Public Affairs, and Communication Departments of The Church of Jesus Christ of Latter-day Saints, delivered this keynote address at the J. Reuben Clark Law Society Leadership Conference on September 30, 2021, at Aspen Grove, near Provo, Utah.

In April 1984, while serving on the Utah Supreme Court, the spiritual promise was fulfilled. He received a phone call from President Gordon B. Hinckley of the First Presidency, who told Dallin he “was called to be a member of the Council of the Twelve.”2 “‘My life,’ Dallin replied, ‘is in the hands of the Lord, and my career is in the hands of His servants.’”3 Less than two years later, in December 1985, Elder Oaks cold-called me to go to lunch with him. He did not know me but relied on spiritual impressions he had received. By the end of the week, I had been asked to leave my legal practice to serve as managing director of the Church Historical Department, which he helped oversee.

At age 29, I became an associate of this great leader, and tonight I wish to recount a few lessons I have learned while working with him for three and half decades. In so doing, I will quote liberally from the biography.

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“As I finished,” Dallin recorded, “this thought flooded my mind, being repeated over and over: ‘Go to the court, and I will call you from there.’”

June “had confirming thoughts and expressed her willingness to make whatever sacrifices are necessary.”1

Dallin on the B.Y. High basketball team

ln the Lord’s Work, the Power Is Greater than the Obstacles

Early in his career, Dallin learned a key leadership principle from one of his greatest mentors: “In Chicago during much of law school,” he remembered, “I served as elders quorum group leader and in that capacity attended stake leadership meetings and came under the influence of stake president (and lawyer) John K. Edmunds.” Dallin found in President Edmunds a role model.

“This remarkable man had a profound influence on my spiritual growth,” Dallin wrote. “His example and words, which never failed to inspire and motivate me, had a uniquely powerful influence in helping me set my feet unwaveringly on the gospel path during the often-troubling years of graduate study.” President Edmunds taught him, “When you are involved in the work of the Lord, the obstacles before you are never as great as the power behind you.”4 This principle is like that taught by a prophet of God in 2 Kings 6:15–16, which recounts:

Dallin as US Supreme Court law clerk, 1957–58

And when the servant of the man of God [Elisha] was risen early, and gone forth, behold, an host compassed the city both with horses and chariots. And his servant said unto him, Alas, my master! how shall we do?

And he answered, Fear not: for they that be with us are more than they that be with them. [Emphasis added] Over his long period of service, President Oaks has fearlessly accepted whatever assignment he has been given, knowing that whatever obstacles he would face could be overcome with the Lord’s help if it was His will.

Do Not Overestimate Yourself; Learn from Others

As people gain success in their chosen field, they sometimes struggle with pride. Dallin, however, learned early on how important it was not to overestimate himself and instead to learn from those around him. As I explain in his biography: In March 1956, as Dallin was nearing the end of his second year of law school, he learned that the law review’s board of editors had selected him editor-in-chief for the next year. . . .

But his selection to “the top spot,” as he described it, came with a humbling warning. When the editor-in-chief he was replacing trained him in his new duties, he told Dallin that he was chosen to be editor-in-chief because of his leadership skills but wanted him to know “that I should not overestimate my qualifications to the extent of overruling” another more knowledgeable editor “in the areas where he was my superior.”

It was a good lesson, and Dallin took it to heart. He would come to be known as one who worked well with others and cultivated a spirit of cooperation among those with whom he labored.5

Learn to Live with Perpetual Burdens

In every service field, including the law, success invites opportunities that can impose a heavy burden on the recipient. One way to handle the problem is to try reducing the load. Dallin, however, learned how to live with the perpetual burdens that come with talented leadership. In law school, for example, he accepted the role of editor-in-chief even though he knew it might cost him his current position at the top of his law school class. After agreeing to the new responsibility, [h]is grades slipped, and a classmate without heavy responsibility on the law review squeaked past him for the top grade-point average in the graduating class. But Dallin was right behind him and received the added benefits of juggling what amounted to almost a full-time job on top of schoolwork.

“In addition to the great value of editorial work,” he wrote, law review leadership “forced you to learn how to do your schoolwork in less time than you would otherwise lavish upon it.” The skills

required to live with perpetually heavy work burdens were valuable ones that would serve him later in life.6

Faith Can Help You Accomplish the Impossible

Lawyers who join firms usually hope to be made partners, which often requires working extremely hard. Balancing the heavy work of law practice with a Church calling can require great faith, as it did in Dallin’s case:

In early 1961, [he] was invited to lunch by a man he admired greatly, Chicago Stake President John K. Edmunds, himself a practicing lawyer. Over lunch, President Edmunds called Dallin to serve a stake mission and to be a counselor in the stake mission presidency. [His wife] June’s earlier premonitions meant he shouldn’t have been surprised, but he was. “I told him,” Dallin wrote, that “I couldn’t have been any more surprised . . . if he had asked me to be the clar k

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Heavy Leadership Burdens May Be Preparation for Greater Work

Accepting heavy leadership burdens may be preparation for later service, as Dallin learned when he became a law professor:

In the spring of 1962, only six months after Dallin assumed his professorship at the University of Chicago, he found himself propelled into a prominent and difficult role when Dean Edward Levi of the law school became provost of the university. To help fill the vacancy created by Dean Levi’s new appointment, Dallin was named associate dean of the law school, with two assistant deans reporting to him. Although Dallin willingly assumed the role, he did not relish it and hoped it would be just a temporary assignment. “Now don’t make too much out of this,” he wrote family members. “I’m getting out of it as quickly as a successor is appointed.” Still, he couldn’t help feeling he was being prepared for leadership in this role he had not sought.

Almost immediately, the role placed a heavy burden on him. “I find this position is no joke or façade,” he exclaimed to family on May 6. “Edward Levi tells me he expects me to run things (as much as any dean can run a strong faculty, which isn’t much).” On May 25, Dallin added, “This associate dean business has been really boiling along this past two weeks. . . . And it’s bound to get worse before it gets better.

“Along with all the rest,” he reported, “I’ve been putting in a heavier than average missionary schedule: over fifty hours of proselyting each month for the past three months, in addition to about fifteen or twenty hours of mission administrative time.”8 He felt a prompting that his time as associate dean was training for some other work later in life, and it proved highly valuable when he became president of Brigham Young University and served in subsequent leadership roles.

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President Oaks and other byu administrators

[I learned] I could do more professionally in part of my time with [the Lord’s] help than in all of my time without it.

byu photo (2)

staff physician in a hospital. I told him I’d never turned down a Church job and that I wasn’t going to start now, but . . . did he know that he was calling a man to a position of leadership in missionary work who had never been on a mission?”

Yes, President Edmunds answered, both he and the stake mission president were aware of that, and both felt confident he was the person for the job. In extending the call, Dallin wrote, President Edmunds told him the calling “would require forty hours of proselyting per month, plus gospel study and other time— equivalent to at least three to four evenings per week.”

Since Dallin’s heavy load at the firm already kept him at work three or four evenings a week, the calling required a great exercise of faith. “I couldn’t see how I could accept this calling and still keep up with my law practice,” Dallin agonized. “Yet I could not say no to a calling that I knew to be from the Lord, especially when that calling came through a servant of the Lord who had wielded such a powerful influence in teaching me righteous principles. Gathering all my faith, I accepted the call.” . . . . . . Logically speaking, it did not seem possible for him to fulfill his Church calling and perform well at the law firm. But he came to recognize “the unusual— even miraculous—blessings that come to those who serve the Lord.”

After just two weeks of missionary service, he testified to his mother, “I am deriving great happiness from this work, and I know the Lord is blessing me to accomplish my legal work with greater efficiency so that I can give my full devotion to His service.” By the end of March, he reported to loved ones: “My missionary work continues at [a] fearful pace. . . . My whole day is upside down already, and my primary devotion is . . . to my missionary work, with law being secondary. Yet I’m getting my work done.”

“Though I was devoting less time to law firm work,” Dallin later reflected, “my advancement in the firm and my success in my work seemed to accelerate rather than decline.” . . . . . . “Feeling the Lord magnify me professionally as I sought to serve Him,” Dallin concluded, “solidified my commitment to serve the Lord first, knowing that I could do more professionally in part of my time with His help than in all of my time without it.”7

Rely On the Spirit

Great spiritual leaders often learn early in life about the importance of relying on the Spirit, even if doing so requires the exercise of great faith, a lesson Dallin learned while serving in a stake presidency in Chicago:

Learn from Good Mentors

Good leaders often have great mentors, and Dallin had several in the roles he occupied while still in the field of law:

For Dallin, his experience at the [American Bar Foundation], a transitional leadership and administrative experience, taught him principles he would carry with him the rest of his life. He learned the most important concepts from the foundation’s board chairman, Lewis F. Powell, a past “This service in the stake presidency,” he president of the American Bar Association who later became a justice of the U.S. Supreme Court. reflected, “was a period of great growth in faith, “I had never served on a board or worked under the direction of a board, so this was an entirely spirituality, and experience in Church admin- new experience,” Dallin wrote. “I could not have had a better teacher than Lewis Powell. He was istration . . . with all of its challenges in inter- an expert at defining the respective responsibilities of a board and a professional staff. He was also viewing, counseling, planning, speaking, and brilliant at analyzing how to present matters to a board to obtain fruitful discussions and clear leading. I learned a great deal from my fellow decisions to guide the staff.”10 workers and had many choice spiritual and social experiences.” . . .

Dallin would take what he learned from his mentors into subsequent leadership roles In preparing the many talks he had to and apply them effectively there. give, Dallin learned to pray and jot down the thoughts that came to mind. “This happened Be Profoundly Humble so many times,” he wrote, that “it became com- “Pride goeth before destruction, and an haughty spirit before a fall,” warns Proverbs 16:18. Dalmonplace, and I would not begin to prepare a lin took the humility he learned early in life with him as he accepted later leadership roles. The talk until I had this experience to direct me.” biography explains, for example, that when he became president of byu, Once the inspiration did not come before he left for a meeting where he was to speak. “I began [t]he fieldhouse erupted in applause as the faculty and students welcomed their new president my drive, feeling vulnerable, but trusting in the with a standing ovation. He represented a new generation, having been just a freshman at byu Lord,” he wrote. As he approached his destina- when Ernest Wilkinson began his service as school president. tion many miles from his home, the inspiration Dallin answered the warm welcome with expressions of pride in his alma mater. “I am awed by came: Speak about your experiences in Chi- the spiritual strength and intellectual potential of its student body,” he declared. “From personal cago’s criminal courts. experience, I know the superior quality of its faculty. All of you who share my feelings will under“I was surprised to receive this impres- stand why I have accepted the invitation to lead this great university, accepting it eagerly but with sion,” he recorded, “since I had always avoided feelings of profound humility.”11 building my talks around personal experiences, preferring a less personal doctrinal or practibyu president Oaks with Church president Spencer W. Kimball cal theme. I had never referred to these experiences in a public meeting, but now I had a strong impression that I could do so, and several examples came to mind.”

Trusting in the inspiration, he wove his personal experiences into a gospel-centered talk and mentioned seeing young shoplifters prosecuted. “Afterwards,” he wrote, “a mother thanked me tearfully for being the means of answering her prayer. She told me that their teenage boy had been involved in shoplifting and that they had not been able to communicate with him on the wrongfulness of this practice. On learning that I was to be the speaker that Sunday evening, she had prayed fervently that I would say something to help their son with this problem. The boy was in the meeting, and I had spoken directly on that subject. . . . I have no doubt whatever that the Lord had used me as His instrument to answer her prayers. I was grateful I had heard and heeded His prompting.”9 clar k

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Be Willing to Laugh at Yourself

The Oaks children had grown up with a prominent father—a distinguished lawyer and professor who served in the leadership of their stake.

While acknowledging that “Dad’s pretty important,” daughter Cheri said affectionately that, in their family, “he’s always been just Dad.” Dallin’s new role at byu catapulted him to even greater prominence than he’d had before, and the children had to adjust to not only a new place to live but a new way others saw them—as children of the president, a role they sometimes felt overshadowed their individuality. It got “a little old,” Cheri said. “You want to be liked for who you are and not who your dad is.”

Fourteen-year-old son Lloyd, for example, made a friend, and he was happy when the boy invited him to his house. But when the friend introduced him by saying, “Hey Mom, I’d like you to meet the president’s son,” Lloyd was crestfallen, telling a reporter who interviewed his family, “I thought he’d introduce me as Lloyd Oaks.”

Twelve-year-old Dallin D. told the same reporter, “I don’t tell anybody I’m related to him.”

The whole family laughed at these responses, and the elder Dallin repeated what an acquaintance told him about how Lloyd responded when asked if he was related to byu’s president. “Well,” Lloyd answered artfully, “his grandfather and my great-grandfather were the same man.”12

Elder Oaks at a byu event

Lloyd went on to become a lawyer and a judge, and his father retains his sense of humor to this day.

Lead by Example; Surround Yourself with Talented People

byu promptly announced it would not play, and President Oaks criticized conference officials for their money-driven decision.

“Because of our beliefs about the sacredness of “Absolutely extraordinary,” declared Academic Vice President Robert K. Thomas when describing the Sabbath, our athletic teams have never President Dallin Oaks’s effect on byu’s academic standards. “The high academic standards at competed on Sunday, and never will,” the this university are to a great degree attributed to President Oaks,” Thomas noted. “He set the tone president resolved. He expressed regret “that of the university.” During the Oaks administration, accreditation reports became overwhelmingly the ncaa [National Collegiate Athletic Assofavorable. ciation] is increasingly scheduling its competiPresident Oaks’s voice on academics carried weight because of his own sterling academic back- tion for championships on Sunday and that it ground and his continued writing, teaching, and service on national boards and in the community. is apparently willing to certify bowl games on But he was the first to recognize that the achievements of his administration resulted not just from Sunday,” thereby disqualifying “some teams his leadership but also from the loyal and excellent work of a multitude of fellow leaders, especially from competition because they adhere to a Robert K. Thomas and Ben E. Lewis. Their familiarity with the faculty and administrators who religious principle.” reported to them, their knowledge of the university, and their superior administration and counsel Resisting conformity to worldly ideals and to him were the most important contributors to his success as a new president coming from the to pressure for all universities to be the same outside.13 became a hallmark of the Oaks administration. In the fall of 1974, United States Vice Defend the Right, Even If It’s Unpopular President Nelson Rockefeller visited byu, subIt is easy to revel in success when it comes. But leadership is tested in the crucible, with the stituting for U.S. President Gerald Ford. The greatest leaders not hesitating to do what is right, even if it is unpopular: vice president read a message from President Ford that commended byu “for its high stanBut it was no laughing matter when leaders of the Western Athletic Conference in which byu dards of scholarship, morality, integrity, and played announced that they had agreed with the Fiesta Bowl and cbs Television to hold the football patriotism.” He declared, “As the nation’s bowl game on Christmas Sunday in 1977. With the Cougars likely contenders for the conference largest privately operated university prepares championship, the choice forced byu and its athletes to either violate their standards by playing for its centennial celebration, it perpetuates on the Sabbath or not participate in the championship game. an exemplary tradition.”

Great leaders lead by example and don’t hesitate to surround themselves with talented people, as Dallin did at byu:

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Good leaders don’t take themselves too seriously and generally have a sense of humor and humility that allow them to laugh at themselves:

These words of praise from the nation’s highest government officials, however, did not stop federal bureaucrats from trying to micromanage byu and force the private school into conforming as though it were a public institution. President Oaks spent a substantial portion of his administration using his legal and leadership skills to resist such pressures.14

Welcome Calls and Releases

co urt esy of richa rd e. tu rley j r. / the oa ks fa mily

Good leaders accept calls to leadership positions, receive releases graciously, and look forward to whatever life holds for them.

Dallin had suggested to Church leaders that byu rotate its presidents regularly, but his release came with little notice. Despite that, he responded with grace and hope for the future: When asked, “What causes you to ‘welcome’ the release?” Dallin answered, “Mostly because it is good for the university to have regular turnover in its top leadership. At the personal level, June and I have six children and five grandchildren. They haven’t seen a great deal of me during the last nine years. I look forward to having more time with them.” He was happy to be freed of thankless administrative tasks, too. “Finally,” he reflected, “I have missed having a private life.”

Asked what he would miss most, he said the people. “As I conclude my nine years of service as president of Brigham Young University on July 31, 1980,” he wrote to faculty, staff, and students, “I do so with a profound sense of gratitude for the extraordinary men and women of byu. . . . It has been a great honor and blessing to serve as president of Brigham Young University. Whatever I do in the rest of my life, I will always be proud of this place and these people.”15

our own feelings. . . . I am glad June is so candid in her reactions to my talks. She is my best and most helpful critic.”

In the early days of Dallin’s service as a General Authority, June noted the difference between his Church and non-Church talks. “I’m sure the Holy Ghost is present when he talks in a Church service—and it testifies to me the things he is saying are true,” she wrote in her journal. But she felt this was missing in “his secular talks.” She also felt that at times he tried to intellectualize his Church talks too much. “It seems to me,” she recorded in her journal a year after his call, that “he is trying to be so scriptural and doctrinal he has lost some of the ‘spirit.’ I am yearning for the same feelings I used to feel when he spoke in Chicago” during his Church service there.

He loved it that she would give him “straight-up, candid evaluations of his performance in any setting” and that no matter how incisive the criticisms, they “were always loving and constructive.”

He trusted her motives. “She wanted me to be better and better, and she helped me more than I can explain,” he wrote. Regardless of who else might hear or read what he had to say, she was, as he wrote in his 1982 journal, “my most critical and most valued audience.”

As Elder Oaks labored over one of his earliest general conference addresses, he read the draft to June, who told him it was boring. “I redid it to try to make it more interesting,” he wrote, “and she said it was a big improvement. She really helped me by this candid and constructive criticism.

I can count on her to tell me what she really thinks.”16 I know by observation that President Oaks does not give important addresses without seeking the input of people he trusts before and after speaking.

Prioritize Family

Extraordinary leaders are often extraordinarily busy, making it easy to slight family. President Oaks has been incredibly busy throughout his adult life but has made it a habit to prioritize family.

Oaks family, about 1966

Seek Candid Feedback

People who consider themselves the smartest person in the room generally do not make good leaders. Good leaders seek to tap the collective talents of those around them, which means seeking candid, constructive feedback, even if people seem hesitant to give it.

“It is hard for a General Authority to get an objective evaluation of his performance as a speaker,” Elder Oaks wrote. “We are left to trust clar k

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Focus Others Away from Self Toward the Savior

“A Christlike leader should teach the flock that they should always look toward the Master,” Elder Oaks instructed. “One who teaches this to the flock should never obscure their view by standing in the way, such as by seeking the limelight himself or by casting a shadow of selfinterest, self-promotion, or self-gratification.”20 Dallin and fellow justices of the Utah Supreme Court

As the father of six, grandfather of twenty-nine, and great-grandfather of more than sixty, Dallin H. Oaks loves the family. This has been one of the most frequent themes of his apostolic ministry. In his first year as an Apostle, he spoke at a fireside for parents on “parental leadership in the home.” “We cannot overstate the importance of parenthood and the family,” he said. “The basis of the government of God is the eternal family.” He affirmed “that the gospel plan originated in the council of an eternal family, it is implemented through our earthly families, and it has its destiny in our eternal families.” These principles were reflected in his family teachings, priorities, and practices.17

Be Flexible

Good leaders must set and enforce rules. But they also learn how to be flexible, depending on circumstances. President Oaks’s biography notes an example: At a leadership conference in Washington state, Elder Oaks encouraged leaders “to use the proper full name of persons they were submitting for a sustaining vote, forgoing nicknames such as ‘Butch.’”

Afterward, Elder Oaks’s son Lloyd, counselor in a local bishopric, came up and introduced his ward elders quorum president as “Butch.” “Embarrassed,” Elder Oaks recounted genially, “I asked ‘Butch’ whether that was his true name. In response, he provided his full name—which helped me understand why he went by ‘Butch.’” They had a good laugh together, and Elder Oaks resolved to be more careful in the future with his illustrations.18

Follow the Savior

The most important leadership qualities are those manifest by the Savior. As an apostle of the Lord Jesus Christ, President Oaks has sought to follow His example and to teach Christlike leadership qualities to others.

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Do What the Job Requires, Even If You’re Not Comfortable

Being a Christlike leader may be uncomfortable at times. “There is a strong tendency in most of us to spend our time and fulfill our responsibilities through activities in which we feel a sense of qualification and comfort,” he related. . . . “We must resist that tendency.

We should turn from that which is familiar and comfortable and work to do that which is required, spending our time and exerting our efforts to qualify ourselves for what we have been called to do. That is the way to have the spirit and power of our callings.”21 Be a Good Teacher

Good leaders are also good teachers. “The Savior was the supreme teacher,” Elder Oaks pointed out. One way He taught so effectively was by telling stories using easy-to-understand words. “He shared simple stories, parables, and real-life examples that made sense to those He taught. His simple language enabled Him to reach and hold hearers from every class and condition.”22 Lead by Example

“The Savior led by example,” Elder Oaks noted in his 2014 talk. “No single principle of leadership is more powerful in its effect on followers

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Love Those You Serve

In April 2014, Elder Oaks gave a powerful address on leadership at a training meeting of the General Authorities and Area Seventies. “Like the Savior, a Christlike leader will be full of love for those whom he has been called to serve,” Elder Oaks taught. “Love is the first principle of leadership. Its effect magnifies the effects of every other principle of leadership.

Leaders who love those that they lead enhance the impact of their leadership and the duration of their influence.”19

than a leader setting the right example, and Jesus did that. In the conclusion of His direct teachings on this continent He said, ‘Therefore, what manner of men ought ye to be? Verily I say unto you, even as I am.’ . . . Example pervades all principles.”23 Subordinate Your Interests to the Lord’s Work

President Oaks learned to put the Lord’s work above his own personal interests: His leadership was not about himself; it was about representing the Lord and being personally responsible for teaching God’s word in a clear way that would not be misunderstood.

To that end, he subordinated his own interests to knowing and understanding the Lord’s will.

President Eyring, his fellow counselor in the First Presidency, had watched him function since 1971, when both were called to serve as presidents of Church institutions of higher learning—President Oaks as president of Brigham Young University in Provo, and President Eyring as president of Ricks College, which later became byu–Idaho. A respect grew between the two men, and President Eyring came to view President Oaks not simply as an intellectual giant but also as a deeply spiritual man. “He would pray very, very hard and feel that he got revelation,” President Eyring recalled of their time together in Church education. “And of all the things that I thought he ought to be struggling with” as a university president, “that was the kind of thing he did.”

Not only that, but unlike some remarkably bright people President Eyring had known, President Oaks was wide open to suggestions from others, a characteristic Brother Eyring came to admire, especially as the two served together in the Quorum of the Twelve.

Elder Oaks would listen carefully to others, thoughtfully consider what they said, and change his mind if he felt their views were better than his.

Twice during their many years in the quorum together, Elder Eyring disagreed with Elder Oaks, who was his senior, and after the discussion, the quorum voted in favor of Elder Eyring’s position. Both times, he recalled, Elder Oaks approached him afterward and gently said, “Thank you very much. You helped me see it.”

“He would not remember probably,” President Eyring said in 2019 after they had been

serving nearly two years together in the First Presidency. “It’s probably just natural to him.

But to me it was just stunning because I like to win arguments. Most people do. But it was never an argument with him. It’s a different kind of thing. He didn’t have to win an argument. He’d try to find the truth.” And it wasn’t just when they were in the Twelve together.

“He’s that way now,” President Eyring said.24

notes 1 Richard E. Turley Jr., In the Hands of the Lord: The Life of Dallin H. Oaks (Salt Lake City, Utah: Deseret Book, 2021), 157.

2

Turley, In the Hands of the Lord, 174.

3

Turley, 174.

Choose Jesus Christ First

4

Turley, 50.

The leadership principles that have guided President Oaks’s life could be summed up in the phrase “Choose Jesus Christ first.”

5

Turley, 51.

6

Turley, 55.

7

Turley, 77–80.

Speaking at an October 2018 general conference leadership session, President Oaks quoted an English clergyman who said, “If you have not chosen the kingdom of God first, it will in the end make no difference what you have chosen instead,” revising the saying to read, “If you have not chosen Jesus Christ first, it will in the end make no difference what you have chosen instead.” With all the other responsibilities he took on as a member of the First Presidency, President Oaks never forgot that he was an Apostle, a special witness of the name of Christ in all the world, and he repeatedly brought people back to the fundamental principle of faith in the Lord Jesus Christ.

With all the thorny issues that modern life threw at him and the Church, President Oaks always fell back on the Savior and His love for humanity. Over and over again, he told listeners, “In my persistent prayerful ponderings, I have never found a better, shorter answer to our many questions than a thorough knowledge and total faith in the love of our Heavenly Father and His plan of salvation for the blessing of all of His children. The central truth of that plan is the Atonement of His Only Begotten Son, our Savior, Jesus Christ. If we trust in the Lord and trust in His plan, we will have the strength to resist persuasive imitations and temptations to abandon our quest for eternal life, which is the greatest of all the gifts of God (see D&C 14:7).”25

8

Turley, 86–87.

9

Turley, 93–94.

10 Turley, 118; quoting Dallin H. Oaks, “The Beginning and the End of a Lawyer,” Clark Memorandum (Spring 2005): 10.

11 Turley, 123–24; quoting Dallin H. Oaks, in “Chicago Law Professor Named byu President,” Church News, May 8, 1971.

12 Turley, 124–26; quoting the Oaks family, in Giles H. Florence Jr., “Oaks Home Has Informal Atmosphere,” byu Today, Feb. 1973, 12.

13 Turley, 134; quoting Robert K. Thomas, in “Oaks Years Called ‘Extraordinary,’” Universe, July 31, 1980.

14 Turley, 140–41; quoting Nelson Rockefeller, in “Rockefeller’s byu Speech Advocates International Economic Cooperation,” Salt Lake Tribune, Oct. 3, 1974.

15 Turley, 155; quoting Dallin H. Oaks, in “And Parting Words of the President,” byu Today, Aug. 1980, 7; and “President Tells byu Friends ‘Thanks,’” Y News, July 28, 1980.

16

Turley, 222–23; emphasis in original.

17 Turley, 247; quoting Dallin H. Oaks, “Parental Leadership in the Family,” Ensign, June 1985, 7.

18

Turley, 279–80.

19 Turley, 326; quoting Dallin H. Oaks, in leadership training meeting for General Authorities, April 2014.

20 Turley, 326; quoting Oaks, leadership training meeting.

21 Turley, 326–27; quoting Oaks, leadership training meeting.

22 Turley, 327; quoting Oaks, leadership training meeting.

23 Turley, 327; quoting Oaks, leadership training meet-

I add my witness to that of President Dallin H. Oaks, this great man with whom I have had the privilege to associate for more than 35 years, and commend to you the leadership lessons of his life, in the name of Jesus Christ, amen.

ing, and 3 Nephi 27:27.

24

Turley, 352–53.

25 Turley, 370–71; quoting Dallin H. Oaks, in eightstake Hispanic devotional, Illinois Chicago Area; also Dallin H. Oaks, in devotional with Russell M. Nelson, State Farm Stadium, Phoenix, Arizona.

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These remarks were delivered at the Jurist-in-Residence Lecture on October 21, 2021, in Provo, Utah.

Similar remarks were originally given at the Cato Institute’s Constitution Day symposium on September 17, 2020. photograph by bradley slade

c i v i c i l l i t e r a c y a n d t h e r u l e o f l aw

Judge Don R. Willett united state s c ourt of appeal s for the fif th circuit

he past year and a half has been a pretty wild ride, and I say that as a former rodeo cowboy. The most normal part has been Tiger King. But we look for silver linings where we can. And the turmoil has perhaps sharpened our focus on first principles. According to the 2021 Constitution Day Civics Survey, which just came out a month ago, 56 percent of American adults can now name all three branches of government. In 2019, that number was in the 30s (which was the all-time high).1 But truth be told, our nation still has an abysmal civic IQ. We inhabit an age of miracles and wonders, with access to mankind’s accumulated knowledge at our fingertips. Yet it’s also an age of staggering civic illiteracy. Our civic temperature may be high, but our civic knowledge is not. There is much to indict. But through commendable events like this one, perhaps we can move from indicting to informing—and, better still, inspiring and invigorating.

Doctor’s Orders

Two hundred thirty-four years ago, a throng of Philadelphians waited outside Independence Hall. And like most Philly crowds, it was tense. Our infant nation was floundering. The United States was anything but united. The Articles of Confederation had created a loose “league of friendship,” but the former colonies had yet to coalesce into a country. For four months, delegates to the Constitutional Convention huddled in behind closed doors and windows, curtains drawn, sweltering. And those outside were wary of those inside.

Presiding was the “venerated Virginian veteran,”2 George Washington—the indispensable man. No Washington, no republic. But Benjamin Franklin was the nation’s renaissance man. His achievements in science, diplomacy, and letters were unrivaled. Franklin was the first embodiment of the American dream. He was a penniless runaway. He became a protean polymath. He was the most illustrious figure in early America, and he truly was “the incarnation of the true American character.”3 On the convention’s final day, Franklin delivered the last great speech of his life, urging adoption of the new Constitution “with all its faults.”4 And Franklin found plenty of faults. He wanted federal judges to be elected, for example. But Franklin, at 81 years old, the oldest delegate and the most renowned American in the world, flexed his considerable diplomatic skills and implored his fellow delegates to “doubt a little of his own infallibility.”5 And it worked. There was unity, if not unanimity. And as James Madison scribbled in his notes—rather understatedly, if you ask me—“[t]he members then proceeded to sign the instrument.”6 We all know what happened next. As a triumphant Franklin exited Independence Hall, he was approached by Mrs. Powel, who blurted out, “Well Doctor, what have we got, a republic or a monarchy?”

Franklin delivered his now famous, sharp-witted rejoinder: “A republic, if you can keep it.”7 Franklin’s zinger was heartening—“a republic”—no more imperialism, no more royal absolutism! But it was also frightening—“if you can keep it”—because it suggested that the survival of freedom was going to depend on people, not merely on parchment.

The duty of preserving our rich civic inheritance falls on us. This is a job for everyday Americans, like Mrs. Powel, who posed a question for the ages, one that echoes today— “What have we got?” This republic is ours. Ours to keep. And ours to lose.

Franklin was not the first to recognize whose job it is to build an enduring nation. Eleven years earlier, on the same politically sacred spot, the Declaration of Independence—our Fast-forward to Constitution Day 2021: original birth announcement, the greatest breakup letter of all time—proclaimed that we wanted government, as Abraham Lincoln put it four score and 12 f 20 percent of American adults still cannot name a single branch of government. seven years later, “of the people, by the people, for 13 17 percent cannot name one right guaranteed by the First Amendment. f the people.”8 f Only 19 percent of adults can pass a rudimentary, basic bedrock, fundamental quiz This uniquely American theory of governabout our founding.14 ment9 was a radical experiment; it was the first time in history that a nation came into being asserting the inborn, individual natural rights and equality of every human being.10 And, again, these paltry percentages are Listen to this word choice from the Declaration: all-time record highs.

In my judgment, many Americans don’t f “We hold these truths to be self-evident.” know the how of our republic because they f Governments “deriv[e] their just powers from the consent of the governed.” don’t know the why of our republic. Margaret f When government becomes destructive, “it is the Right of the People” to change course.

Thatcher once noted that Europe, unlike the f And when abuses and usurpations lead to despotism, “it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

United States, is “the product of history and The Founders made clear pre-Constitution that the people wield supreme sovereignty not of philosophy.” America is sui generis, over their government—to lay its foundation, to structure its powers, all according to what she said, because it was “built upon an idea— seems “to them” most likely to secure their safety and happiness.11 This power of the people the idea of liberty.”15 She was echoing Winis a truth that provides great comfort—and grave discomfort. ston Churchill, who called the Declaration a

“A republic,

Facts Are Stubborn Things

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18 f Most Americans now say they do not trust any branch of government.

19 f American national pride is at an all-time low.

20 f Only 46 percent of high school and college students say they are patriotic.

if you can keep it.” benjamin franklin “great title deed,” praising “the love of liberty and justice on which the American nation was founded.”16 Madison agreed. The European vision, he said, was “charters of liberty . . . granted by power,” as opposed to the American vision: “charters of power granted by liberty.”17 Our founders, imperfect yet inspired, aimed for something transcendent: not to enshrine a process—democracy—but to enshrine a promise—liberty. Individual freedom. The essential condition of human flourishing.

Our founders gambled big, and they hit the trifecta: f They had hindsight: They knew the history of kings and dictators, so they insisted on a government of laws and not of men. f They had insight: They knew that government exists to “ensure the blessings of liberty,” that liberty is not provided by government but preexists government, and that liberty is our natural birthright, not a gift from politicians. f And they had foresight: They knew that to safeguard liberty, government must be structured to control its power.

Knowing that a bunch of guys dumped tea into Boston Harbor means nothing if we don’t know why they dumped it, which was, of course, as the Beastie Boys taught us, because “you gotta fight for your right” to pour tea!

The father of the country would be dismayed. Washington made clear in his first inaugural address that this is on us: “[T]he preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are . . . staked[] on the experiment entrusted to the hands of the American people.”21 And frankly, Washington was pessimistic, confiding to another delegate, “I do not expect the Constitution to last for more than 20 years.”22 Thankfully, he was wrong.

Some nations number their years by millennia.23 America is approaching its semiquincentennial: 250 years. And God willing, this nation has a long life left. But how can we be expectant about our future if we are ignorant about our past?

It’s a short trip from ignorance of our founding ideals to erasure of them. When he was 28 years old, Abraham Lincoln spoke of this “legacy bequeathed us,” how we are “the legal inheritors of these fundamental blessings.”24 And he warned of how danger would spring from within “the increasing disregard for law” from what he called “this mobocratic spirit.” The founding generation had died, and Lincoln was worried about lawlessness and the perpetuation of our institutions. The antidote, he said, was “the attachment of the People.” Attachment includes “a reverence for the constitution and laws.”25 But civic illiteracy—obliviousness to the what and the why of America—accelerates detachment. Because if we don’t know our history, warts and all, we can never understand our history. We’ll have nothing to hold onto, nothing to ground us as a nation.

Several months ago, a government committee in the District of Columbia identified what they called “various persons of concern” and urged that numerous landmarks be “removed, relocated, or contextualized.”26 Among them was George Washington—the guy the city is named after. The San Francisco School Board recently voted to remove Abraham Lincoln’s name from a school. John Marshall Law School got a new name.

The Aspirational Declaration: Our Golden Apple

Amid today’s pandemic is something endemic: a deep misunderstanding of American selfgovernment, and not just about the Constitution. Our confusion also runs to our true founding document: the Declaration of Independence.

Thomas Jefferson called the Declaration “an expression of the [A]merican mind.”27 Lincoln called the promise of the Declaration an “apple of gold” framed by the silver frame of the Constitution.28 Lincoln explained that “[t]he picture” frame “was made, not to conceal, or destroy the apple, but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.”29 The Constitution exists to serve the Declaration’s promise of “[l]iberty to all.”30 The Constitution provides the tools to build a government that secures the rights proclaimed in the Declaration.

The Declaration was high treason. It was a literal indictment of the Crown, in painstaking detail, that married disobedience with eloquence. Legend has it that one delegate, who was afflicted with a palsy, said as he signed, “My hand trembles, but my heart does not!”31 Every spring, there’s a Colonial Day at my kids’ school. And I put on an itchy costume, unroll a scroll, and recite the Declaration of Independence accompanied by tiny fifth-grade voices. My daughter recently memorized and recited the entire thing beside me.

The first two paragraphs are vacuum packed.32 There was no beating around the bush. No hemming or hawing or throat clearing. The Declaration is declarative. This was the Festivus of 1776, the airing of grievances, and the Founders dialed it up to 11.

The second sentence is the most famous—“We hold these truths to be self-evident . . .”

This line does a lot of heavy lifting. It declares: (1) these rights belong to us as individuals; clar k

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(2) they are fixed, innate, our natural birthright, unrelinquishable, unwaivable, unsurrenderable; and (3) they are God-given, so they may not be taken by man.

Next is where Jefferson drops the mic—or the quill—the ultimate end of government is to secure these preexisting inborn rights. Boom.

As Professor Randy Barnett famously put it, “[F]irst come rights and then comes government.”33 The Declaration unveiled this uniquely “American theory of government,”34 and its bottom line is clear: government exists to protect our individual, unalienable rights—rights that are ours by virtue of our very humanity.

But as the founding generation passed away, so too did the Declaration’s uniting principle. In 1838, long before he was president, Lincoln fretted about the “mobocratic spirit,” the “wild and furious passions” that he feared would destroy “the strongest bulwark of any Government, . . . the attachment of the People.”35 Lincoln warned that when the people lose sight of that which binds us together—the ideal of liberty enshrined in the Declaration—“this Government cannot last.”36 Again, Lincoln was just 28 when he warned of America being torn asunder from within. Fort Sumter was still 23 years away.

It is undeniable that at the founding, ideals collided with the reality of America’s original sin of slavery. One-third of the Declaration’s signers were slave owners.37 We were flawed and stained at the start. America is imperfect, as all human things are.

Even so, the Declaration’s underlying ideals are timeless. Lincoln would not abandon them even to avoid civil war. At Independence Hall, just before he was inaugurated, Lincoln described equal liberty as a gift “not alone to the people of this country, but, I hope, to the world, for all future time.”38 The Declaration was a linchpin argument for abolitionists, and the Supreme Court feebly tried to explain it away in Dred Scott.

My favorite piece of art in my chambers is an oil painting of Frederick Douglass.

In his iconic speech “What to the Slave Is the Fourth of July?,” Douglass noted that the promises of liberty and equality in the Declaration are eternal, even if America broke those promises. There was a jarring disconnect between the commendable words of the Declaration and the condemnable deeds of those who adopted it.

But those founding ideals still laid the foundation for righting wrongs, including the “new birth of freedom” wrought by our second founding and the Civil War amendments that belong at the center of America’s constitutional story.

The quest to live up to America’s ideals is never ending; it requires constant striving. Even the aspirational Fourteenth Amendment failed to fulfill its promise during its first 75 years.39 But the central idea of the Declaration—that “all men are created equal”—set in motion an inexorable march.

Martin Luther King Jr., perhaps the most renowned protestor in our nation’s history, called on his fellow citizens not to tear down America’s heritage but to live up to it.40 After his own March on Washington, Dr. King demanded not that our founding documents be changed to fit new ideals but that our government change to fit the enduring ideals of our founding documents, which he called “a promissory note to which every American was to fall heir.”41 Perfection is elusive in this life. But bit by bit, amendment by amendment, we are drawing nearer to the first enumerated purpose of the Preamble: formation of that “more perfect Union.”

The Architectural Constitution: Our Silver Frame

So far I’ve focused on the Declaration, our golden apple, which lies at the heart of the American project. But it is preserved through its silver frame, the Constitution. The Declaration is aspirational; the Constitution is architectural. The Declaration declared the purpose of government: to secure our God-given rights. The Constitution erected an ingenious structure to achieve that purpose.

The Framers were not tinkerers. They didn’t fiddle around the edges. They didn’t pledge their lives, fortunes, and sacred honors for incremental change. They upended things. Madisonian architecture infused with Newtonian genius—three coequal branches of government

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locked in synchronous orbit by competing interests. “Ambition . . . counteract[ing] ambition,” as Madison put it.42 A radical structure that divided power to control power.

And the most extraordinary element? These three rival branches derive power from three unrivaled words, supersized on the page for all the world to see: “We the People.” Not “We the Government,” “We the Judges,” or “We the Subjects.” In an era of kings and sultans, this was a script-flipping heresy. Nothing was more radical than the idea that sovereignty resides not in government but in the governed.

Popular sovereignty is a duty, not a mere theory. Shortly after the Constitution was signed, Jefferson wrote from Paris, “[W]herever the people are well informed they can be trusted with their own government.”43 But how can we give informed say-so if we lack informed know-how? We the People are meant to be watchdogs, not lapdogs. Franklin’s warning “if you can keep it” presumes “if you can understand it”—that everyday Americans will be well-informed and thus wield their sovereignty smartly.

But again, We the People’s civic illiteracy is staggering: f 71 percent of Americans can’t identify the Constitution as the supreme law of the land. f 63 percent can’t name one of their state’s US senators.

44 f 62 percent can’t identify the governor of their state.

f H eck, 10 percent of American college graduates think Judith Sheindlin

(aka “Judge Judy”) sits on the Supreme Court.45

“[W]herever the people are well informed they can be trusted with their own government.” thomas jefferson

Madison warned of this expressly: “A popular Government, without popular information . . . is but a Prologue to a Farce or a Tragedy; or, perhaps both.”46 Get this: most of America’s elite universities no longer require history majors to take a single course in US history.47 But there is a ray of hope: naturalized Americans. These are people who have risked everything to help write the next chapter of the American story. When it comes to the US citizenship exam, there are one hundred possible questions—fundamental bedrock questions—about the structure of America and how the Constitution allocates governing power.

Do you know what percentage of immigrants pass the civics test their first try? Ninety percent.48 When it comes to this exam, “immigrants, we get the job done.”49 The same exam was given to some American high school seniors. The passage rate was 5 percent.50 The generation with the greatest access to information is also the least informed.

An informed citizenry is indispensable to self-government. But even that is no guarantee of good government. Beyond education, you need engagement. Franklin said “if you can keep it” because he knew the secret sauce: an engaged citizenry.

American patriotism is anchored in that Tocquevillian vision of proactive citizens, sleeves rolled up, who take charge of their own economic, social, and political happiness.51 American citizenship is not a spectator sport. Justice Louis Brandeis put it well: “[T]he only title in our democracy superior to that of president is the title of citizen.”52 Our constitution is an exquisite charter of freedom, but freedom requires patriots, not passersby. It demands fierce defenders, not feeble bystanders.

Take Lincoln. In 1858 he was “a financially insecure, failing politician,”53 but the Supreme Court’s Dred Scott decision galvanized Lincoln. That June, he delivered his “House Divided” speech. It was poetic and prophetic. Lincoln lost that election, but it was that legal analysis of a judicial decision that catapulted him to Mount Rushmore. Lincoln was no mere bystander. His civic participation educated voters, who liked what they heard and sent that “failing politician” to the White House two short years later. clar k

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Putting the C in Constitution

Civic engagement can ripple across centuries. Let me tell you about a tenacious Texan with a Mensa-level civics IQ. In 1982, Gregory Watson was a 19-year-old sophomore at the University of Texas at Austin.

He wrote a research paper for a government class, arguing that one of James Madison’s proposed constitutional amendments was still eligible for ratification.54 The dormant proposal would’ve barred Congress from giving itself a midterm pay raise; there would have to be an election before the pay raise could kick in. It was part of the batch of amendments that eventually became the Bill of Rights.

The teaching assistant was thoroughly unimpressed. She awarded Watson a big fat C. So Watson, fueled by righteous indignation, spent the next 10 years lobbying state capitols from sea to shining sea until, in 1992, the Twenty-Seventh Amendment was finally ratified—203 years after it was first proposed.

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Gregory Watson got a bad grade. So he amended the Constitution, almost singlehandedly. All it took was aptitude and attitude. The cherry on top came in 2017, 25 years after ratification, when the university officially changed his grade. The official form states, “In light of the student’s heroic efforts to prove the professor . . . wrong . . . , Mr. Watson deserves A+.”55

From Flunking to Dunking

In 2019 the federal judiciary convened its first-ever national civics conference.

the constitution, ba rry faul kner , courtesy the nation al archives

Hundreds of Article III judges, including three Supreme Court Justices, joined with law school deans, bar leaders, and others from Maine to Guam to discuss how the judiciary could help boost civics literacy.

A month later, Chief Justice John Roberts wrote in his Year-End Report on the Federal Judiciary, “Each generation has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people, but the tools to understand and improve it.”56 The Chief Justice was echoing Justice Sandra Day O’Connor,

who has devoted her post-court life to civics education: “Knowledge about our government isn’t handed down through the gene pool.”57 And she was echoing President Ronald Reagan, who warned, “Freedom is never more than one generation away from extinction.”58 We didn’t pass it to our children in the bloodstream.

They’re right. This isn’t something hardwired into our dna as Americans. The habits of citizenship must be taught and learned anew by each generation,59 just as you would teach and learn math or grammar or a foreign language.

And schoolchildren are often center stage in transforming our nation. Take Linda Brown, the schoolgirl at the center of Brown v. Board of Education. When the Supreme Court rejected racial segregation, it stressed the importance of education as a crucible for good citizenship.

But it won’t be easy. A recent study examined the mission and vision statements of America’s one hundred largest school districts.60 The study asked, “What exactly is our purpose?” I always thought the chief purpose of education was to prepare the next generation for clar k

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thoughtful, capable self-government. To know math, yes, but to also know how to take the measure of leaders. To know history, yes, but to also know what it means to be an American— to cherish our stunning political heritage and its vision of liberty and equality and justice for all. To help children be not just college ready or career ready but civic ready.

As Jefferson put it, “[I]f a nation expects to be ignorant & free, . . . it expects what never was & never will be.”61 Education has to underscore, not undermine, our common civic identity. It must instill in children a respect for American self-government and the tools to achieve it. But in the mission and vision statements of the one hundred largest school districts in America, the word America, the word American, the word citizen, and the word citizenship appeared exactly zero times. Schools, however, shouldn’t bear the full burden. Judges play a role too. As Chief Justice Roberts put it, “Civic education, like all education, is a continuing enterprise and conversation,” and judges “are necessarily engaged in civics education.”62 We explain our reasoning in written opinions, lead naturalization ceremonies, and oversee moot courts and mock trials. The Administrative Office of the US Courts has developed terrific online resources for judges, teachers, attorneys, and parents.

Lawyers are uniquely equipped to help. The public spiritedness of lawyers has always been a defining feature of America. Indeed, lawyers have played major roles in some of our most triumphant chapters:

7 James McHenry, 3 The Records of the Federal Convention of 1787, 85 (Max Farrand ed., 1911) (punctuation added), bit.ly/2So0ll3.

8 Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), loc.gov/exhibits/gettysburg-address/exhibition -items.html#obj3.

9 See Randy E. Barnett, The Declaration of Independence and the American Theory of Government: “First Come Rights, and Then Comes Government,” 42 Harv.

J. L. & Pub. Pol’y 23, 25 (2019).

10 See Ronald Reagan, What July Fourth Means to Me, Parade, June 28, 1981 (“[The Fourth of July] commemorates the only true philosophical revolution in all history. Oh, there have been revolutions before and since ours. But those revolutions simply exchanged one set of rules for another. Ours was a revolution that changed the very concept of government.”).

11

See Barnett, supra note 9, at 26–27.

12 Americans’ Civics Knowledge Increases During a StressFilled Year, supra note 1.

f f f f

63 2 5 of 56 signers of the Declaration of Independence were lawyers, a t least 33 of 55 delegates to the Constitutional Convention were lawyers,64 65 2 2 of 39 signers of the Constitution were lawyers, and 66 m ore than half our nation’s presidents were lawyers.

13

Id.

14 News Release, National Survey Finds Just 1 in 3 Americans Would Pass Citizenship Test, Woodrow Wilson Nat’l F’ship Found. (Oct. 3, 2018), woodrow .org/news/national-survey-finds-just-1-in-3 -americans-would-pass-citizenship-test.

15 Margaret Thatcher, Speech at Hoover Inst. Lunch

The legal profession, as Justice Brandeis put it, affords “unusual opportunities for usefulness [that are] probably unequalled. There is a call upon the legal profession to do a great work for this country.”67 Lawyers are vital community connectors and civic switchboards.

The calling of lawyers to public spiritedness endures.

We made a recent trip to Disney World. My wife and children were mortified in the Hall of Presidents when I yelled, “Woo-hoo!” for animatronic Calvin Coolidge. But Silent Cal understood the ineffable genius of what had happened 234 years ago: “To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”68 A republic comes with responsibility. Self-government is not self-perpetuating. It’s tough sledding, and each generation must take its turn. This raucous republic belongs to us all, and its preservation is up to us all. Franklin told Mrs. Powel, “[I]f you can keep it.” A quarter of a millennium later, with every tool laid at our feet, there is no longer a question of capability; there is only a question of culpability. America boasts the oldest written national constitution on earth. What an extravagant blessing. But preserving that inheritance requires a culture that prizes liberty and public-spirited virtue. For now, We the People are—and through God’s grace will remain—the world’s oldest constitutional republic. If we can keep it.

(Mar. 8, 1991), margaretthatcher.org/document /108264.

16 Richard M. Langworth, Churchill on July 4, 1918, Richard M. Langworth (July 4, 2015), (quoting Winston S. Churchill, Speech at Liberty Day Meeting, Central Hall, Westminster (July 4, 1918), in Robert Rhodes James, 3 Winston S. Churchill: His Complete Speeches 1897–1963, at 2613–16 (1974)), richardlangworth.com/july-4th.

17 James Madison, Charters, Nat’l Gazette (Jan. 18, 1792), founders.archives.gov/documents /Madison/01-14-02-0172.

18 David Byler, Nobody Can Predict This Election. Here’s Why, Wash. Post, Sept. 3, 2020, wapo.st/2Sncvuu.

19 Megan Brenan, U.S. National Pride Falls to Record Low, Gallup, June 15, 2020, news.gallup.com /poll/312644/national-pride-falls-record-low.aspx (42 percent “extremely” and 21 percent “very”

notes

3 “The Inauguration of the Franklin Statue,” N.Y. Times, Sept. 19, 1856, at1.

proud to be an American).

20 Spencer Brown, Youth Patriotism Index Shows High

1 Americans’ Civics Knowledge Increases During a Stress-

4 Benjamin Franklin, Final Speech at the Consti-

School Students More Patriotic Than College Peers,

Filled Year, Annenberg Pub. Pol’y Ctr.: Annen-

tutional Convention (Sept. 17, 1787), in James

Young America’s Found., July 1, 2020, yaf.org

berg Civics Knowledge Surv. (Sept. 14, 2021),

Madison, 2 The Records of the Federal Con-

annenbergpublicpolicycenter.org/2021-annenberg

vention of 1787, 642–43 (Max Farrand ed., 1911),

-constitution-day-civics-survey.

2 Lin-Manuel Miranda, Right Hand Man, on Hamilton, at 1:27 (Atlantic Recording Co. 2015).

30

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bit.ly/2QInsq9.

/news/youth-patriotism-index-shows-high-school -students-more-patriotic-than-college-peers.

21 George Washington, First Inaugural Address

5

Id.

(Apr. 30, 1789), founders.archives.gov/documents

6

Madison, supra note 4, at 648, bit.ly/3dRg0kp.

/Washington/05-02-02-0130-0003.

22 Herbert Mitgang, New Light on 1787 and Wash-

40 See Martin Luther King Jr., I Have a Dream, Speech

ington’s Doubts, N.Y. Times, July 4, 1987, nyti

Delivered at the Lincoln Memorial, Washing-

.ms/3egD112.

ton, DC (Aug. 28, 1963), transcribed at history.com

23 Frederick Douglass, What to the Slave Is the Fourth

-july (“Seventy-six years, though a good old age for

25

Fed. Judiciary 4 (Dec. 31, 2019), supremecourt

-speech.

41

See id.

.gov/publicinfo/year-end/2019year-endreport.pdf.

57 Sandra Day O’Connor, Speech at Games for Change

42 The Federalist No. 51 (James Madison), guides.loc

a man, is but a mere speck in the life of a nation.”).

24 Abraham Lincoln, The Perpetuation of Our Politi-

56 John G. Roberts Jr., 2019 Year-End Rep. on the

/topics/civil-rights-movement/i-have-a-dream

of July? (July 5, 1852), teachingamericanhistory.org /document/what-to-the-slave-is-the-fourth-of

/CREC-2017-05-24/pdf/CREC-2017-05-24-pt1 -PgE709.pdf.

5th Annual Festival (June 4, 2008) quoted in Seth

.gov/federalist-papers/text-51-60.

Schiesel, Former Justice Promotes Web-Based Civics

43 Letter from Thomas Jefferson to Richard Price (Jan.

cal Institutions, Address before the Young Men’s

8, 1789), founders.archives.gov/documents/Jefferson

Lyceum of Springfield (Jan. 27, 1838), in 6 J. Abra-

/01-14-02-0196.

Lessons, N.Y. Times, June 9, 2008, at 7.

58 Ronald Reagan, Remarks at the Annual Convention of Kiwanis International (July 6, 1987), reagan

ham Lincoln Ass’n 6 (1984), quod.lib.umich

44 Michael F. Ford, Civic Illiteracy: A Threat to the Amer-

.edu/j/jala/2629860.0006.103?view=text;rgn=main.

ican Dream, Xavier Univ.: Ctr. for the Study of

59 Franklin urged us to focus on young people, as

Id.

the Am. Dream, Apr. 26, 2012, xuamericandream

“general virtue is more probably to be expected

.blogspot.com/2012/04/civic-illiteracy-threat-to

and obtained from the education of youth, than

-american.html.

from the exhortation of adult persons” since “bad

26 DC Facilities & Commemorative Expressions Working Grp., DC Faces: Working Group

foundation.org/media/128817/kiwanis.pdf.

Report 21 (Aug. 2020), mayor.dc.gov/sites/default

45 Am. Council of Trs. & Alumni, A Crisis in Civic

habits and vices of the mind, . . . like diseases of

/files/dc/sites/mayormb/page_content/attachments

Education 5 (Jan. 2016), goacta.org/wp-content

the body, [are] more easily prevented than cured.”

/DC%20FACES%20Executive%20Summary _r10sm.pdf.

/uploads/ee/download/A_Crisis_in_Civic_Education

Letter from Benjamin Franklin to Samuel Johnson

.pdf.

(Aug. 23, 1750), founders.archives.gov/documents

27 Letter from Thomas Jefferson to Henry Lee (May 8,

46 Letter from James Madison to W. T. Barry (Aug. 4,

1825), founders.archives.gov/documents/Jefferson

182 2), loc.gov/resource/mjm.20_0155_0159

/98-01-02-5212.

/Franklin/01-04-02-0009.

60 Robert Pondiscio and Kate Stringer, On Constitu-

/?sp=1&st=text.

tion Day, in Search of the Public Mission of Schools,

28 Abraham Lincoln, Fragment on the Constitution and

47 A m. Council of Trs. & Alumni, No U.S. His-

Union (Jan. 1, 1861), teachingamericanhistory.org

tory?: How College History Depart-

fordhaminstitute.org/national/commentary

/document/fragment-on-the-constitution-and-union.

ments Leave the United States Out of the

/constitution-day-search-public-mission-schools.

29

Major 2 (July 2016), goacta.org/wp-content

Id.

30 Allen C. Guelzo, Apple of Gold in a Picture of Sil-

Thomas B. Fordham Inst., Sept. 16, 2015,

61 Letter from Thomas Jefferson to Charles Yancey

/uploads/2016/07/no-us-history.pdf.

(Jan. 6, 1816), founders.archives.gov/documents

ver: The Constitution and Liberty, in The Lincoln

48 Applicant Performance on the Naturalization Test—

Enigma: The Changing Faces of an American

June 2020, U.S. C’ship & Immigr. Servs., uscis.gov

62

/archive/applicant-performance-on-the-naturalization

63 Nick Robinson, The Decline of the Lawyer-Politician,

Icon 86, 87 (2001).

31 See, e.g., Denise Kiernan & Joseph D’Agnese,

-test-june-2020 (last updated Aug. 25, 2020).

Roberts, supra note 56, at 2, 4.

65 Buff. L. Rev. 657, 669 (2017).

Signing Their Lives Away: The Fame and Mis-

49

fortune of the Men Who Signed the Decla-

50 James Marshall Crotty, Less Than 5% of Arizona

stitutionFacts.com, constitutionfacts.com

Students Can Pass State’s Super Simple Civics Exam.

/us-constitution-amendments/fascinating-facts

ration of Independence 52 (2009).

Miranda, Yorktown, supra note 2, at 0:18.

/Jefferson/03-09-02-0209.

64 Fascinating Facts About the U.S. Constitution, Con-

32 See Randy E. Barnett, What the Declaration of

Can You?, Forbes, Jan. 16, 2015, forbes.com/sites

Independence Said and Meant, Wash. Post:

/jamesmarshallcrotty/2015/01/16/less-than-5-of

65 Signers of the Constitution: Biographical Sketches, Nat’l

The Volokh Conspiracy, July 4, 2017, wapo

-arizona-students-can-pass-states-super-simple

Park Serv., July 29, 2004, nps.gov/parkhistory

.st/3h5mteb.

-civics-exam-can-you.

33 Randy E. Barnett, Our Republican Constitu-

51 See Alexis de Tocqueville, Democracy in

tion: Securing the Liberty and Sovereignty

America 225 (Harvey C. Mansfield & Debra Win-

of We the People 41 (2016).

throp trans., 2000) (1835).

/online_books/constitution/bio.htm.

66 Robinson, supra, note 64, at 667.

67 Louis D. Brandeis, The Opportunity in the Law, in 5 The Professions 185, 194 (Melville Weston Fuller

34

Barnett, supra note 9, at 24.

35

Lincoln, supra note 24.

ment, and Related Matters, Ctr. for Civic Educ.,

36

Id.

civiced.org/quotations-about-democracy (last vis-

House (Dec. 12, 1924), coolidgefoundation.org

ited Nov. 9, 2021).

/quote/quotations-c.

37 Yohuru Williams, Why Thomas Jefferson’s AntiSlavery Passage Was Removed from the Declaration of

53 See Graduation 2020, 39 Duke L. Mag. 1, 14 (2020)

Independence, History Channel, June 29, 2020,

(quoting Walter Dellinger, Speech Delivered to

history.com/news/declaration-of-independence -deleted-anti-slavery-clause-jefferson.

38

52 Quotations About Democracy, Politics and Govern-

(last visited Nov. 9, 2021).

Abraham Lincoln, supra note 28.

Duke Law School’s 2020 Graduates (May 9, 2020)).

54 See Matt Largey, The Bad Grade That Changed the U.S. Constitution, NPR, May 5, 2017, n.pr/33erzg6.

39 See Ernest A. Young, Dying Constitutionalism and

55 Ken Herman, 35 years later, A+ for Austinite Who

the Fourteenth Amendment, 102 Marq. L. Rev. 949,

Got Constitution Amended?, Austin Am.-States-

949 (2019).

man, Sept. 25, 2018, govinfo.gov/content/pkg

ed., 1911).

68 Calvin Coolidge, Speech, Dinner at the White

editor’s note: These notes have been modified for the Clark Memorandum. For expanded references, see Don R. Willett, Flunking the Founding: Civic Illiteracy and the Rule of Law, Cato Sup. Ct. Rev. 13 (2020–21), cato.org/sites/cato.org/files/2021-09/supreme-court -review-2020-2021-1.pdf.

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JUDGE

AMUL THAPAR Court of Appeals for the Sixth Circuit

M

I want to thank you for having me. It is a real honor to follow Justices Thomas and Barrett, but it made me consider why a school with such a great Latter-day Saint tradition would have a bunch of Catholics address its students. I know we both like having a lot of kids, but that can’t be the answer.

And it can’t be Catholics’ love for coffee and beer. I had to wonder, so I asked what Founders Day was about. That is where I found my answer.

Until I asked, I didn’t realize that the byu Law School was founded and started in a Catholic elementary school. We bring you back to your roots! I get it!

For this speech, I wanted to focus on a man I admire a lot—your founder, Rex Lee. In studying the life of Rex Lee, I have learned many things, and I wish to share seven critical lessons.

As an aside, I will call him Dean Lee, because at the Law School you all knew him as Dean Lee. Most of us outside the Law School, who are not as fortunate as you, called him General Lee. Here are the seven lessons.

R T R A

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United States

1

Why was Dean Lee so successful at everything he did? That had to do with his work ethic. Almost anyone who comes to law school—and, from what I hear, everyone who comes to byu is smart. If everyone is smart, what separates the great from the good? Work ethic.

Dean Lee finished first in his undergraduate class and first in his law school class, not to mention serving as student body president in the undergraduate school.

Years later when he became president of byu, he continued to argue cases at the Supreme Court, arguing nine in full. What is truly remarkable about Dean Lee, however, is that he never let anything stand in his way. When he was in the hospital fighting cancer, he continued to prepare for his Supreme Court argument, refusing to feel sorry for himself. Throughout his career, his incredible work ethic set him apart and made him the role model he is for all of us today.

Rex Lee with President Gordon B. Hinckley at byu commencement

2

Make excellence a habit in everything you do.

Dean Lee understood that how you do anything is how you do everything. It has been said, “We are what we repeatedly do. Excellence, then, is not an act but a habit.”1 Dean Lee lived his life this way. For example, not only did he prepare for an argument while in the hospital, he went to the Supreme Court shortly afterward and delivered his argument from a stool. Justice O’Connor described his excellent argument as both moving and effective.

A friend of mine, Tom Griffith, former judge on the US Court of Appeals for the DC Circuit, tells a story about when he was a young lawyer working in Washington, DC. Then General Lee offered to take him to the Supreme Court to hear an argument. Petitioner’s counsel got up. He was intelligent, used big words, made complex arguments, and was nuanced. Then young Tom Griffith heard General Lee stand up and make an argument in simple terms. Tom left thinking that the general had no chance. How can the case be so complex and the lawyer for the petitioner understand all the complexities and then General Lee get up and argue in simple terms? Well, General Lee won. And Tom learned an important lesson: it takes an excellent advocate to spend the time to understand the craft well enough to argue in simple terms.

Dean Lee always asked, “Why use a 3-dollar word when you can use a 10-cent word?” I love this saying. It is something I have taken to heart in my time on the bench. I try to avoid legalese, and I wish advocates would as well. When my law clerks get to chambers—no offense to all the law professors here—I tell them that law school spent three years teaching them how to think and talk like a lawyer, but I am going to teach them how to think and talk like a human being again. And if they bring Black’s Law Dictionary in, I make them take it out.

Judge Griffith wasn’t alone in his admiration for Dean Lee. At a meeting of all 50 state attorneys general at the Supreme Court, Justice David Souter was asked how advocacy at the High Court had changed in recent times. Justice Souter paused. His answer is long, but it is well worth quoting in full.

Well, I can tell you that the biggest change by far is that Rex Lee is gone. Rex Lee was the best Solicitor General this nation has ever had, and he is the best lawyer this Justice ever heard plead a case in this Court. Rex Lee was born to argue tough cases of immense importance to this nation. He set new standards of excellence for generations of lawyers and justices. No one thing has happened to change the nature of advocacy of this Court which has had as much impact as the loss of that one player.2 This is high praise from anyone, but especially coming from the characteristically understated Justice Souter.

Dean Lee’s drive for excellence extended beyond the classroom. When he picked up running, he decided he would run the Boston Marathon, and he did so in under three and a half hours. After I learned that, I quit running. There is no way I can ever accomplish that, and anyone who has run a marathon knows how hard that is.

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john snyde r

Have an unparalleled work ethic.

Demand greatness from yourself, but know that achieving it means many failures.

3

When you strive to make excellence a habit, you will inevitably fail—even Rex Lee lost cases at the Supreme Court. But how you react to failure is what will define you.

As we know, Dean Lee never gave up, no matter the setback. So what separates the winners and the losers in life? Winners dust themselves off and get back at it. Losers let their failures define who they are.

Sports teach us this lesson. You know what someone who succeeds 3 out of every 10 times in baseball is called? A Hall of Famer. Which basketball player H E S E T N E W S TA N DA R D S O F missed 9,000 shots, lost 300 games, and was trusted to take the game-winning shot 26 times in his career and missed? Michael Jordan.

I myself have failed many times. I want to talk about one specific failure I E XC E L L E N C E F O R G E N E R AT I O N S have had. When I was a young assistant United States attorney, I applied to be a magistrate judge in the Southern District of Ohio. Magistrate judges are chosen OF LAWYERS AND JUSTICES. on merit. I was rejected. The failure to achieve my dream of becoming a judge stung. But God tests us all for a reason. I would not be where I am today without that failure. If I had gotten that job, I might not be here speaking to you tonight.

One final point about failure. When Rex Lee became solicitor general, he beat out another man we know and admire, Antonin Scalia. Justice Scalia counted that as one of his greatest failures, but Scalia pointed out that he would not have become a Justice if he had been solicitor general. I think the country should be grateful we got them both. And we should all remember that our failures don’t define who we are.

Always do what is right, no matter the consequences.

4

byu p hoto

In pursuit of success, it may be tempting to cut corners, and plenty of people do. Resist that temptation.

Rex Lee did. After all, he understood that we are a country of laws, not men. When he was criticized for not adhering to all the positions the White House wanted him to take, he remarked, “I’m the solicitor general, not the pamphleteer general.”3 We need more people in government like that.

Most believe that this resolve cost him a seat on the Supreme Court, but he was neither going to sacrifice his integrity nor the country’s laws for personal gain. He understood that it is who we are and not what we are that ultimately defines us.

This address was given at the byu Law Founders Day event on August 24, 2021.

Rex Lee with byu administrators clar k

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5

Be kind to people.

Rex and Janet Lee 36

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byu p hoto

When as solicitor general he was getting ready to argue the SIMPLE ACTS OF KINDNESS now-famous case United States v. Leon, General Lee heard of a distressed, young associate solicitor general who had just OFTEN COST US VERY LITTLE been assigned a Supreme Court case that he had to argue the day before General Lee had to argue Leon. General Lee dropped what he B U T G O A L O N G W AY. was doing to help that young associate out. Less than 24 hours before his own argument, he sat at counsel table with that young associate and watched as Samuel Alito argued to the Supreme Court. Justice Alito has always remarked how grateful he is for that simple act of kindness, which put him at ease in an otherwise difficult moment.

I have felt that type of kindness firsthand. When I was a sixth grader, my parents had me switch schools. For a young child, this is a difficult thing to do. I was awkward. I wore glasses. I had a cheesy moustache. There I was at this new school. For the first three weeks, I remember distinctly that I sat by myself at lunch and ate alone. I was kind of shy. I was miserable. And then something incredible happened. The most popular kid in the school decided to come and have lunch with me for a few days in a row. He probably doesn’t remember doing it, but I will never forget it. It didn’t cost the person who became my best friend, Andy Westmeyer, anything to sit at lunch with a transfer like me, but in many ways this simple act of kindness changed my life.

They say that during your lifetime you will meet 10,000 people. Make it your goal to change some of their lives. Pick a number and set a goal. And be kind to the rest.

Part of kindness is listening to people who think differently or come from different backgrounds. Don’t shut them out because of who they are. Rather, invite them in. Today I had the privilege of having a personal tour guide, Judge Ryan Nelson, at Temple Square. It was quite a treat for me. I quickly realized that the sister missionaries I met there exhibited this natural kindness. They always smiled at us. They asked if they could help us.

They were remarkable young women. I left with the best feeling in the world. Look at what their simple act of kindness did to a hardened Catholic like me. It even made me take the Book of Mormon with me, and I am going to start reading it. Ultimately, just remember that simple acts of kindness often cost us very little but go a long way.

6

Have fun in life and have a sense of humor.

Life, after all, is short. Dean Lee was a man who argued 59 cases before the Supreme Court and was solicitor general of the United States, founding dean of the byu Law School at 36 years old, and president of this university. Clearly he was a serious and impressive man. Yet one of my favorite stories is that when he went to the amusement park with his family, he made sure to embarrass his kids by running to the first roller coaster car and then yelling, “Yippee!” before going down hills. I treasure that because I too take pride in embarrassing my kids.

When he was trying to win over his then girlfriend, Janet, he was head over heels in love with her, but she did not necessarily reciprocate. So he decided he would serenade her on his ukulele singing “Hard Hearted Hannah.” Her heart softened and she married him. His sense of humor even got him a wife!

Even when things were bad, he kept his sense of humor. When he was really sick, he quipped to people who he could tell felt sorry for him, “I will have you know that there are five illnesses I don’t have.” His love of humor and constant good spirits can teach us all not to take ourselves too seriously.

In the end, there are so many things to admire about your founding dean that I could be up here for hours. From his life we can draw a lot of lessons. I have spoken of only a few. My suggestion is for all of us to do the following: There is a famous author who sold millions of books. When asked how he continued to write great books, he said that he would always write the last chapter first so that he knew what he was striving for. We all knew what Rex Lee stood for. We should ask ourselves, What will we stand for? Write the last chapter of your life first so that you know your goal. What do you want this world to remember about you? Then follow the lessons we have all learned from Rex Lee in writing the chapters that get you there: 1 Have an unparalleled work ethic.

2 Make excellence a habit in everything 3

4

5 6 7

you do.

Demand greatness from yourself, but know that achieving it means many failures. Get back up. How you react to failure will define you.

Always do what is right, no matter the consequences. When the last chapter is actually written, you will be glad you did.

Be kind to people. There is no cost.

Have fun in life and have a sense of humor. Life is too short not to.

And maybe most important, appreciate what God has given you.

None of us can be Rex Lee, but we can strive to be half the man that he was. We will live a better life for doing so. Thank you, and God bless you.

jo hn snyder

notes

Rex Lee and Reese Hansen (left)

1 Will Durant, The Story of Philosophy: The Lives and Opinions of the Greater Philosophers (New York: Simon and Schuster, 1926), chapter 2, section 7, paragraph 4.

7

Appreciate what God has given you.

Stop and take time to appreciate what you have. Love your family. Cherish your community. Treasure your faith. These are the cornerstones of a rich life. Dean Lee knew this and spoke about it often. Indeed, Dean Lee spoke about appreciating God’s gifts more eloquently than me. In a speech to the Law School student body, which I encourage you to listen to, he talked about how we fail to appreciate things until they are taken away.4 Hopefully, if the last year and a half has taught us anything, it has taught us to appreciate the simple things in life more than we ever did before—like being together today. Remember to appreciate what you have, because God has given all of us a lot.

2 David Souter, quoted by Jan Graham in her address to the J. Reuben Clark Law School, Feb. 28, 1998; also quoted in “In Memory of Rex E. Lee (1937– 1996),” byu Law Review 2003, no. 1 (2003): 1.

3 Rex. E. Lee, in an interview with Lincoln Caplan, June 11, 1985; cited in Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law (New York: Alfred A. Knopf, 1987), 107.

4 See Rex E. Lee, “Where Much Is Given: Some Thoughts on Appreciation,” byu devotional address, September 12, 1989.

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Vance Everett and Gary Buckway

I

n the early days of byu Law, doing research meant pulling books from the shelves of the law library, taking notes required pen and paper, and submitting papers involved using the Law School’s in-house copy center.

The technology landscape of legal education and the legal profession has seen enormous change in the nearly 50 years that have followed, and innovations in technology continue to increase in speed and scope.

For byu Law, innovation is not just a reality; it’s a priority.

Dean D. Gordon Smith has said, “I want byu to be known as, if not the most innovative law school in the country, then one of the most innovative law schools in the country.”

For over four decades, a team of information and technology experts has helped ensure that byu Law keeps pace with innovations that impact the law school experience. We spoke to two veterans of that team about how technology at the Law School has changed during their tenure.

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Four Decades of Technology Innovation at BYU Law B Y R A C H E L E DWA R D S

From Mainframes to PCs In 1981 the Law School acquired its first large-scale mainframe computer: the vax 11/750.

At the time, Vance Everett was completing a year-long programming project on what would later be known as Capsoft, a legal document automation software developed by byu Law professors Larry Farmer and Stanley Neeleman.

Everett, who eventually became systems manager at byu Law, had recently graduated with a bachelor’s degree from byu’s computer science program and

was recruited to manage the vax system.

According to Everett, the vax (short for virtual address extension) was a superminicomputer, with less memory than today’s average cell phone. “It wasn’t a lot of storage for an entire law school,” says Everett. “The vax had terminals which were placed at strategic places such as secretary offices, faculty offices, and the library. That’s how computing was done,” he said. “In the early days my focus was on managing the vax and verifying that backups were done properly.

I would constantly be checking

that the system was up and running and meeting the needs of the Law School.”

In 1991 the Law School replaced the vax with a PC network running NetWare, a Novell operating system. Gary Buckway, then the Law School’s systems librarian, who had earned a master’s degree in information systems from byu, assisted Everett with the transition.

Buckway recalls the handson work required in implementing the first PC network. “The vax used phone lines that had been installed by byu,” he says.

“When it came time to install the

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PC network, Vance and I were up in the ceilings pulling cables.

We had our own equipment, so when we needed to do any kind of modification or move things around, it was up to us. I ran cables through all the different floors of the building. Moving from the vax to the PC network was the first big challenge we faced.”

An essential aspect of Buckway’s job in the beginning was training users on new equipment. “Over time,” he says, “we moved from floppy drives to hard drives to a server. Each system required a different way of thinking, and our job was to help everyone make the change to the new system.”

Everett adds, “Back in those days the hardware was extremely expensive, and we couldn’t buy enough for everyone. It had to be parceled out to those who had the greatest need. As technology prices dropped, we were able to do more. Eventually we installed servers, put PCs and Macs in different offices, and created a network.”

Creating Open Dialogue One constant Everett and Buckway have found through the years of ever-changing technology is the importance of effective communication. “A lot of technology professionals don’t prioritize communication,” says Everett. “They prefer to sit in a back room and program, saying, ‘We know what everybody needs. We’re just going to do it and make everybody use it.’ Gary and I have always been the opposite. We love to stop by offices that are open and ask whether there are any technology concerns and, if so, find out what we can do to resolve them.”

Another way Everett and Buckway have sought to maintain an open dialogue about technology is through the Computer Committee. “We created the committee as a focus group that included four or five faculty members and an assistant dean,” says Everett.

“Over the years we’ve held regular ‘brown-bag’ lunches to discuss the technology-related requirements and concerns of the faculty.” These discussions have been a crucial way for the technology department to keep tabs on the Law School’s needs.

Moving In-House By the late 1990s, the Law School decided to transition to new record-keeping systems.

“The systems used by byu’s main campus worked well for undergraduates but not as well for graduate programs,” Everett says. “It became necessary for us to develop our own student record, admissions, and career services systems, so we went into the business of designing things.”

At that time, byu Law hired a new systems librarian, David Armond, enabling Buckway to focus on the Law School’s network. Eventually he would be named the byu Law IT manager.

“Originally, most of the technology positions were run through the library, but now they operate separately,” Buckway says.

“Anything that relates to scanning or digitizing documents for their collections and the main card catalog is handled by the systems librarian. Our team oversees the computers and servers used by faculty and staff.”

Designing an in-house system for the Law School was a game changer for the

technology department. “I could sleep at night because we didn’t have to worry about outside things we had no control over,” Everett says. With the changes, it became easier to manage the administrative data of the Law School. Everett explains, “Over the years, we have developed a system specifically tailored to help students, faculty, and staff get their jobs done. We want to do anything we can to make processes easier and more efficient and to help our community accomplish its goals. That’s what it’s all about.”

A class recording system architected by the IT team also simplified processes for students and faculty. “Since the early days of the Law School, we have recorded classes—with professors’ permission,” says Everett.

“It makes it very easy for students to be able to go back and listen to the course material.” Initially, classes were recorded using cassette tapes, which were copied by the media services department and made available to students for $1 per cassette.

“When we realized we could record using computers, we did that and made the recordings available to students on the server. These are the kinds of things we learned to develop in house to help the students.”

A Culture of Innovation byu Law’s IT team, along with members of the larger byu Law community, has anticipated the changing needs of the Law School and helped create a culture that supports innovative technology solutions. “Many years ago, we invested in Polycom (a large videoconferencing manufacturer) and made several of our courses Polycom capable,” Everett says.

Everett credits Larry Farmer with having the “tremendous foresight” to introduce the Law School to Zoom several years before it became a mainstream tool. “When covid-19 hit, we were very Zoom friendly because we’d been using the technology for years,” he says.

“All we had to do was help faculty get used to the idea that they could teach their classes via Zoom. We purchased a lot of cameras, but we already had the software in place.” A supportive faculty and deanery facilitated a quick transition.

“Our team was present at the Law School full-time during the covid-19 shutdown,” Buckway says. “We needed to ensure that all the classrooms were set up for virtual instruction, and as the faculty got more comfortable using Zoom from home, we were here to provide support and manage any problems. Our students were able to move right along with their coursework.”

Both Everett and Buckway retired in 2021 after a combined tenure of 76 years at byu Law School, passing the torch to a new team of technology specialists—including David Pratt, a systems architect, and Israel Silva, a full stack developer— who will pick up where Everett and Buckway left off. Through the decades of change since they joined byu Law, Everett and Buckway have been integral to keeping the Law School on the forefront of advancing technologies. “It’s like being a carpenter,” Everett says. “In order to build things, you need to have tools. Our tools are technology skills.”

Buckway adds, “Over the years, we have learned how to do new things—how to adapt.

That’s the nature of the job.” clar k

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Making Meaningful Change Now

A Leadership Fellow in Action B Y R A C H E L E DWA R D S

B

eing a leader means having a vision and working with others in pursuit of that vision to achieve a great result,” says Brooke Gledhill Wood, a 3L at byu Law. Wood was selected as one of six leadership fellows for the 2021–22 school year and serves as president of byu Women in Law (wil). These opportunities have helped her to “strengthen the muscle of leadership,” she says, and have affirmed that law school was the right path for her to take.

“A law degree is a leadership degree, a platform for making meaningful change in the community,” Wood says. “My legal education is preparing me to recognize and analyze problems and to develop solutions to those problems in order to help other people. That’s why I came to law school.”

Leading Out as a Fellow The Leadership Fellowship is one component of byu Law’s Inspiring Leadership Initiative, a program launched in 2019 under the direction of Dean D. Gordon Smith. “Law students are graduating into an increasingly complex and unpredictable world,” Smith says. “The purpose of the initiative is to equip students with the insights that will inform their work and their lives after law school.”

Each year, a select number of students are designated as leadership fellows and given the 40

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opportunity to be mentored by byu Law’s Council of Inspiring Leaders, a donor group that supports leadership initiatives at the Law School, including the Annual Law and Leadership Conference, the Leadership Study Tour, and the Leadership Fellowship. “The goal is to challenge students to think critically about leadership and to develop their own ideas about ethical leadership as members of the legal profession,” Smith says.

For Wood, being selected as a leadership fellow has validated her desire to use her legal education to effect social change.

“I came to law school with the hope that I could gain a set of skills that would enable me to add value to an organization that is making positive change,” she says. “I’m very mission driven.

I’m less concerned about what type of work I’m doing for an organization and more interested in what the organization is achieving as a whole. As long as I feel motivated about the impact an organization is seeking, I feel ready to get on board.”

As a first-generation college graduate and soon to be the first attorney in her family, Wood says that the leadership fellowship has been an incredible boost to her confidence.

“I’m connecting with so many people from across the state and country who are interested in causes I care about,” she says. “It’s amazing to be aligned with these individuals and to step into a role where I’m not

only learning from them but can contribute something as well.”

Applying Her Law Skills In September 2021, Wood put the skills she is developing as a law student and a leadership fellow into action when she became involved with a Utah nonprofit known as the Policy Project, an organization focused on advancing healthy, long-term policy at a local and national level. “I saw an Instagram post from the group about one of their focus issues, the Utah Period Project, which is a campaign aimed at promoting menstrual equity in the state of Utah by—among other things—repealing the tampon tax and increasing access to period products in Utah’s public and charter schools,” says Wood. “I felt this might be a great Utah issue that a group of future women lawyers could get involved in.”

Wood contacted the founder, Emily Bell McCormick, inviting her to speak at a wil event at the Law School. She subsequently began attending weekly meetings with McCormick and the other founders of the Policy Project. Wood volunteered to help the organization with their founding documents and application for 501(c)(3) status and later received an official invitation to join the board. Since that time, she has become actively involved in all aspects of the Utah Period Project.

“When it comes to period poverty and menstrual equity issues in Utah, many people are unaware that any problem exists,” Wood says. But the statistics tell a different story.

According to the Utah Period Project’s website, 46 percent of women in poverty have chosen between purchasing a meal or purchasing period products, and 25 percent of teenage girls can’t afford to purchase menstrual products.

School-age girls are at the highest risk for mis- or undermanaged menstruation as almost all begin their periods before they are able to legally work (90 percent menstruate by age 13), and they rarely have control over family finances or the ability to drive to a store to purchase period products. Lack of access to period products leads to missed school, health risks, lower confidence, shame, embarrassment, and missing out on myriad beneficial programs thoughtfully put in place for students. [“The Period Project,” the Policy Project, accessed December 13, 2021, thepolicy project.org/theperiodproject.]

In addition to working to advance legislation that would repeal the tax on period products in Utah (adding them to a category of products deemed medically necessary, which currently includes Rogaine, Band-Aids, Viagra, and Advil), the group is campaigning for the Utah Legislature to

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Brooke Gledhill Wood increase access to free, safe, and good-quality menstrual products in female and allgender bathrooms in public and charter schools throughout the state.

“This is an issue that is fixable but that we are just not paying attention to. That’s why I’m so excited to be involved,” says Wood. She says this “smart, ground-up approach” to fixing problems in Utah is exactly the type of work she wants to be doing. “We are a scrappy organization, essentially a group of five or six women getting together each week with a startup mentality, asking, ‘What skills do you have to offer, and what do you have time for this week?’”

Wood is in a business organization lab at byu Law this semester, learning about bylaws and articles of incorporation— information she has used to inform her work with the Policy Project. “I’m definitely learning on my feet, but it’s been nice to see that what I’m learning is so helpful and applicable,” she says.

Bringing Awareness to the Issue On November 11, 2021, the Policy Project hosted a symposium in Salt Lake City, Utah, in an effort to spread awareness about period poverty and to create a broad coalition of support among nonprofit leaders and policy influencers from across

the state. Speakers included Diana Nelson, global advocacy director for Days for Girls; Jennifer Weiss-Wolf from the nyu Center for Justice and author of Periods Gone Public; and Susan Madsen, founder of the Utah Women & Leadership Project. Wood helped organize and also spoke at the conference, sharing information she learned while researching period poverty for her 3L substantive writing paper.

“This issue transcends age, race, and socioeconomic status in a way that few issues do because it’s connected to biology,” Madsen says. “Historically, periods and menstruation have been taboo subjects, but as the stigma lessens, each state is deciding how to handle menstrual equity issues. Utah was one of the first territories to allow women to vote and the first to elect a female state senator. It is our heritage to lead out on these issues and to pass these laws that benefit women.”

In addition to increasing community awareness around period poverty in the state, the Policy Project board is working with Representative Karianne Lisonbee on a bill that proposes adding period products to Utah’s ongoing school budget, which already covers toilet paper and paper towels in school bathrooms.

“We have had multiple meetings with distributors and have researched the best supply options. We want to have answers to all the potential questions and to mark the path of least resistance by the time this bill gets introduced,” Wood says. “We recognize that there needs to be an educational component during the rollout, and we are working to mitigate any misuse of the product. We don’t

want girls to feel that they need to stockpile products. We want them to understand that these are always available.”

The initiative has garnered enthusiastic support from Utah’s business community, including private sponsorships from the Larry H. & Gail Miller Family Foundation and the Andrus Family Foundation, which have donated funds to cover the costs of purchasing dispensers for period products in all public and charter schools.

Wood says that while life as a 3L can be hectic, she has no regrets about her decision to become involved in the Utah Period Project. “There is a heartbreaking element to this story.

There are so many women and girls who struggle with this issue, with access to period products and management strategies that allow them to be truly productive in their lives,” she says.

“On the flipside, it is such an empowering issue because it is solvable. It is an issue where you can make a big impact in a short amount of time.”

Wood is certain that her time at byu Law and the opportunity she has had to serve as a leadership fellow and assist with the Policy Project are helping prepare her for whatever the future brings. “There is something about the way we are trained in law school that helps us to understand the bigger picture, to see the holes and to come up with solutions to fix those problems,” says Wood. “It’s easy to be aware of many issues, but for me, leadership means stepping up and taking ownership of part of a problem and putting your skill set to work solving it.

I’m very grateful for the donors who have made the leadership fellowship possible. It’s been an exciting opportunity.” clar k

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Unexpected Opportunities

Stories from three byu Law alumni whose careers have unfolded in unplanned and unexpected ways.

Winding Path, Bright Future

nicole thomas durrant, ’00

The year 2000 was a banner year for me. I graduated from byu Law School, passed the bar, bought my first suit, and got married. I was working for a small firm in Salt Lake City, and the job felt like a golden opportunity. I was doing work that I liked—erisa litigation for healthcare and disability plans— and the hours were reasonable.

I made close connections with my colleagues, and I had a mentor who guided me with attention and care. I even managed to work through two pregnancies and the baby years.

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All seemed to be going according to plan—until the wheels slowly started coming off. My two sons were diagnosed with a rare, chronic illness. I found out I was pregnant with my third child. We bought a fixer-upper house. And my husband started working longer hours with his job. It was all too much. My stress levels were sky high, and my family was not doing well. My husband was very supportive of my continuing to work, but in the end, I decided to leave my job and focus on our family.

In certain ways, leaving my job was the best choice. I was able to lower my stress, help my kids get the medical care they needed, and be there when the tile guy showed up. But it bothered me that I wasn’t practicing law. I stopped telling people I was an attorney.

When my occupation did come up—often at school pickup when I was in yesterday’s yoga pants, a Hogwarts T-shirt, and flip flops—I could see people’s confusion. They would always ask with concern why I didn’t go back to work. It was one of the questions I asked myself often.

Was I a feminist sellout?

Why had I worked so hard

just to sit at home and make cookies for my kids? Couldn’t I hire a nanny, “lean in,” and have it all? But with high childcare costs, numerous medical visits, a newly discovered radon problem in the basement, and complicated insurance claims, the answer was no. So I took on odd jobs: I worked yard duty at my kids’ school, I taught English to adults, and I worked as a librarian. And I took writing classes at our local community college. I kept reminding myself that Sandra Day O’Connor took five years off to raise her sons, and look where she ended up.

Years later, when my children were older and in better health and when my husband’s job was in a good place, I tried to relaunch my career. I bought a new suit and rehearsed what to say about the lost years on my résumé. I was hired by a small firm to practice immigration law part-time. I was excited. A month later, I received a call that my son had been in a boating accident and had suffered a serious concussion. His recovery was long, involving various therapies, doctor visits, and medications.

I quit my new job and homeschooled him for a year.

Miraculously, my son made a full recovery, and once again I found myself searching for a job. I was hired as a legal intern for Al Otro Lado, a nonprofit organization that helps asylum seekers at the Mexican border near San Diego. As a legal intern, I have learned the complicated tangles of asylum law and have been able to offer real help to refugees. I am incredibly grateful to have a new chance to do work that is so meaningful to me.

Even though I have been an attorney for more than 20 years, my résumé is riddled with holes. Yet despite my setbacks, I am trying to approach my new beginnings in life with humility.

For many years, I felt like I was weak for quitting my job to take care of my family. But after recently reconnecting with old law school friends, I have found I am not alone in taking a different career path than the one I imagined in 2000. Along the twists and turns, I have been able to use my skills to help my family and the people in my community. I am trying to give myself grace and to acknowledge that I did the best I could. I don’t know how my legal career will unfold, but I do know my future is bright.

Bottom 50 Percent

by jennifer fuentes langi, ’09

I never wanted to go to law school or become a lawyer. I had other plans. When the Columbine High School massacre happened during my senior year of high school, I couldn’t fathom how two boys could get to that point without anybody noticing how deeply troubled they were. As a teenager, I had struggled for a year after moving to Utah to adjust to the culture, and I missed my friends in Mexico, but it never crossed my mind to do something like those boys did at Columbine. Suddenly, I felt I had found my passion—I would work with youth, particularly young men, and prevent senseless violence in the process.

The summer before my senior year at byu, I got a job with Lightning Peak, a diversion program within Utah’s Division of Juvenile Justice Services. I helped supervise a dozen teenage girls who were spending the summer building buck-and-pole fences to work off their court-ordered community service. In the evenings, the other supervisors and I ran group activities on female empowerment and other topics designed to help the girls course correct and be all they could be.

But the girls I worked with didn’t seem to care about the empowerment the program was offering them. They saw no problem with their life choices, other than their punishment interfering with their summer plans. Looking back now, those girls saw right through us, and if I could go back and do it over again, I would spend more time listening and less time teaching.

I failed to connect with any of them. Except for Amy.* Amy had been through a lot.

She had been prostituted out

HALF FULL

among the members of a local gang. To gain more street credibility, she had given herself a lisp to come across like English wasn’t her native language. But she was also charming, kind, polite, and such a hard worker— pretty much a younger version of the persona I worked so hard to project. I was eager to pour all of my future-social-worker self into helping her. Then she ran away from the program, hours after I thought I was finally getting through to her, and part of me broke. I suddenly found myself facing senior year with the awful realization that social work involves helping people who don’t want to be helped. My results-oriented, people-pleasing self couldn’t handle it.

My brother Alex Fuentes, ’06, was at byu Law at the time and suggested that I speak to the assistant dean of admissions, Carl Hernandez. I visited with Dean Hernandez and shared my woes. I wasn’t built for these micro-level interac-

tions, but I still wanted to help make people’s lives better. Dean Hernandez shared a vision of what a law degree could do to make my dream happen and offered me resources for an lsat prep course. I took the lsat in December of 2005, and by February of 2006, I had been admitted to byu Law. The first semester of law school was brutal. The semester would have been difficult regardless, but I was also the student president of byu Living Legends that year. This position involved a 20-hour weekly dancing and leadership commitment and several performance tours throughout the semester. I doggedly worked to meet all my commitments, but when grades came out, mine fell below that 3.3 curve we all know well. I read the soul-crushing phrase: “You are officially in the bottom 50 percent of the class.” I had never struggled with school before. Being above average was just a given in my life. That phrase destroyed me. I marched

over to the office of Dean Hernandez, the man responsible for my pain, and told him I was dropping out.

Dean Hernandez seemed surprised, but I realize now I was not the first nor the last student to show up at his office with that announcement. He shared something with me that day that changed my life. He told me that my grades would absolutely matter for many opportunities, such as paid positions my first summer of law school or certain job offers after graduation.

Outside of that, he said, what would matter—and what would make me a good lawyer—was if I was a people person and a problem solver. Those were the keys to success.

Dean Hernandez’s counsel kept me in law school. Later, his words and my husband’s encouragement led me to sign up for the bar exam again after failing it the first time. Their belief in me enabled me to apply for an immigration attorney position in Dallas, Texas, in 2015, six years after graduating from law school, when I realized it was time I used my degree to be the advocate I knew I was all along. Their confidence in me helped me start my own firm in October 2020 after covid-19 forced my old firm to close my department.

Even now, when my insecurities bubble up and my imposter syndrome whispers that a half-Mexican half–Lumbee Indian, first-generation college graduate has no right to have a thriving immigration law practice with 10 employees and 140,000 TikTok followers in its second year, Dean Hernandez’s words calm. I am a people person and a problem solver—and that makes me a lawyer. *Name has been changed. clar k

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Leveling Up

Law school was both a marathon and a sprint, requiring long stretches of mental endurance and short, intense periods of mental strain. It taught me to level up in the short term and hold on for the long ride in between. I went to law school with a vision of starting an estate-planning firm that would specialize in charitable gift planning. I spent one summer in law school doing estate planning and another summer working in philanthropy. But estate planning, it turned out, was not nearly the creative, dynamic catalyst for communitychanging philanthropy that I had imagined it would be. After graduation, I happily took a fundraising job. Those skills have been invaluable to me since I graduated, though I haven’t applied them in the ways that I expected to.

A year after graduating from byu Law, I met my future husband, Sam, who had just graduated from pastry school and was working as a pastry chef at a ski resort in Park City, Utah. While we were dating, Sam made the offhand remark that he wanted “boys and girls and a bakery.” I had always wanted a big family. Boys, girls, and a bakery sounded like a great plan!

Sam and I were married in 2009, and by 2017 we had two girls and two boys and had purchased a well-established bakery. We thought all our dreams had come true.

But over the next four years, despite our earnest prayers, the support of family and friends, and our Herculean efforts at home and at work, everything that could go wrong did go wrong. People never asked us, 44

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“How are you?” Instead, friends and strangers alike would go straight to “Are you okay?”— based, I assume, on our haggard faces and bloodshot eyes.

Then, in March 2020, shelter-in-place orders were issued in response to covid-19.

Over the next three months, we laid off 11 of our 14 employees, closed our retail store, and lost my mom to a sudden noncovid infection. Those were truly dark days.

Our response to these difficult circumstances required skills I had developed in law school and have cultivated since: creative problem solving, confidence, flexibility, decisiveness, and stamina. We decided to transform our bakery’s most popular cookie, an iced shortbread, into an at-home cookie-decorating kit unlike anything on the market. Our new business, Color My Cookie, was born. We pre-iced the outlines of the cookie shapes in black and white, like a coloring book page, turning each cookie into a creative canvas. We developed a line of edible watercolors and created a cookie to be the paint palette. Our first sales were to loyal customers of our

retail shop who were eager to support a struggling family business, especially one that sold a product that would occupy their children during the early days of work-from-home life.

Starting a business from scratch left no room for doubt or uncertainty. Everything I had learned with our storefront bakery had to be applied to the problems at hand. It was an opportunity to prove that those early years of intense learning, both in law school and afterward, had not been in vain. I addressed every challenge with a confidence I had lacked with our first bakery.

Nevertheless, by the time we were building Color My Cookie, Sam and I were both exhausted from the previous four years of trying to make our storefront bakery work. We were tired, financially strained, and nervous about our business revamp. The nights and the days ran together during the early days of Color My Cookie. Sam was salvaging and rebranding the wholesale division of the bakery we had essentially lost. All four of our children were under 10 and were home from school full-time.

What we were building required

our minds to be nimble and for us to move from one task to another, switching gears almost constantly.

Sam and I were both keenly aware that there was no time to waste. We could not spend a lot of time gathering data or identifying the best of all possible options. We had to make quick decisions, armed with the best information we could gather and the confirmation we sought through prayer. I truly believe we have been inspired as we have laid the groundwork for the businesses we built.

Despite these challenges, we leveled up and pressed forward with an eye to the future. In the nearly two years since we started Color My Cookie, we have grown our staff to more than 20 people, shipped tens of thousands of cookie kits to all 50 states and Puerto Rico, and been featured by Food Network, the Today show, Good Morning America, and more than 100 other digital and print media outlets.

My life is a lot different than I had envisioned in my first year of law school, but it is a sweet life I treasure, and one made possible by skills I honed at byu Law.

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by nancy kennedy major, ’07

clark memorandum j. reuben clark law school j. reuben clark law society brigham young university provo, ut | 84602-8000

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