Monday, December 29, 2008
The court noted: Based upon testimony by appellant's wife, a statement by the president of LDS that was publicized on the church's website, and testimony by appellant, the court found the LDS church not to be a Protestant faith and found that appellant had promoted the LDS faith to his sons.Ark. App. CA08-193 p. 4. The question of whether Mormons are Protestants is mildly interesting, but it's fairly clear cut. The Arkansas court didn't seem to have much trouble coming to its conclusion. It would be more interesting if the divorce decree had required the children to be brought up "in the Christian faith." Then you would have a U.S. court attempting to determine an issue about which there is significant disagreement among various denominations. What sources would a court consult in determining whether Mormonism is part of Christianity? Would a court consult the LDS.org website, like the Arkansas court did on the Protestant issue? Or would the court instead rely on other religious authority outside of the LDS Church? And is even proper for a court to determine such controversial issues?As much as I'd like to see the outcome of such a case, it probably isn't the sort of issue that a court should resolve. In the Arkansas case there really wasn't much of a dispute over whether Mormonism was Protestantism. But it still raises some significant constitutional questions.
On this topic UCLA Law Professor Eugene Volokh opined: I think there are substantial limits on the enforceability of such contracts. The church property cases held that courts generally can't make theological decisions, such as which claimant's views are closer to orthodox (with a small "o") Presbyterianism; and I think the logic extends also to the interpretation of contracts, wills, and trusts that call for such decisions. Nor can courts avoid this constitutional barrier by trying to figure out what the majority of members of a religion thinks (hard to do reliably, plus it assumes the conclusion of who constitutes "members of a religion," and it privileges majority denominations within a religious group over minority denominations). And courts usually can't avoid the constitutional barrier, I think, by asking what the parties intended the term to mean — the best test of a word's intent is usually the word itself, and that is the very thing that calls for theological decisionmaking.
Thursday, December 25, 2008
I'd be ungrateful if I didn't write a post to say how greatful I am for all the great things that I have in my life. Christmas is always a fun day to spend with family, friends and reflect on what's really important in life. On these days my mind drifts to the soldiers and missionaries spread out to the edges of the earth. It's because of those guys (and girls) that we get to enjoy days like today. "Thanks" and your sacrifice is not forgotten.
Wednesday, December 24, 2008
Monday, December 22, 2008
The facts are these: the Church of Jesus Christ of Latter-day Saints operated the nonprofit Deseret Gymnasium in Salt Lake City under its sub-organization, the Corporation of the Presiding Bishop (CPB). The CPB also had some management in Beehive Clothing, along with the Corporation of the President (COP), another entity within the Mormon Church. Several employees of Beehive Clothing and at least one employee of Deseret Gymnasium were terminated after failing or refusing to receive temple recommends. They brought suit against the CPB and the COP. Readers familiar with the organization of the Mormon Church will recognize that the CPB deals with many secular matters of church administration, such as property acquisition and the management of physical facilities (such as the Deseret Gymnasium). The gymnasium was open to the public and there was no evidence that the facility was used in religious services, or that physical exercise was part of the tenets of the Mormon faith. Beehive Clothing, in contrast, produces temple garments and temple clothing worn in LDS temple ceremonies.
Plaintiffs made several claims under federal and Utah State law, but the major issue was whether the plaintiffs' terminations violated Title VII of the Civil Rights Act of 1964. The CPB raised the defense that §702 of the Act, which provided an exemption for religious entities from the equal employment requirements of Title VII.
This title shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.The terminated employees argued that §702 violated the First Amendment's non-establishment of religion clause because it favored religious employers over similarly situated non-religious employers.
The District Court applied what is known as the Lemon test, after the Supreme Court case Lemon v. Kurtzman (which really was derived from the prior Supreme Court cases of U.S. v. O'Brien and Clark v. Community for Creative Non-Violence). The Lemon test essentially requires that any statute affecting religion meet the following three requirements:
- The statute must have a secular purpose.
- If it has a secular purpose, the statute's principle or primary effect must be one that neither inhibits nor promotes religion.
- Lastly, the statute must not foster an “excessive government entanglement with religion.”
The Utah District Court declined to rule on whether §702 was constitutional as applied to the employees of Beehive Clothing due to a lack of evidence in the record. But the court did rule that §702 was unconstitutional as applied to Plaintiff Arthur Frank Mayson, the terminated building engineer at Deseret Gymnasium. Finidng that there was no clear relationship between the primary function which Deseret performs and the religious beliefs and tenets of the Mormon Church or church administration," the Utah District Court granted summary judgment in favor of Plaintiff Mayson on his Title VII claim. The case was reopened to allow the federal government to intervene in support of Title VII, but the District Court again ruled in favor of Plaintiff Mayson. The CPB appealed.
By all accounts, the case we very well argued at the Supreme Court level, with Rex E. Lee representing the appellant Corporation of the Presiding Bishop. Lee had stepped down from his position as U.S. Solicitor General just two years earlier, so he was a well-known face at the Supreme Court. Numerous religious organizations submitted amicus briefs urging that the District Court ruling be overturned, while labor and employment groups did likewise in favor of affirmance.
In a unanimous ruling, the Supreme Court held that §702 of the Civil Rights Act of 1964 did not violate the First Amendment prohibition of the establishment of religion. The Court said:
A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to [have the primary effect of advancing religion] it must be fair to say that the government itself has advanced religion through its own activities and influence.As impertinent as it may seem, I think the Supreme Court was dead wrong in Amos. This may be a tribute to the persuasive powers of Rex Lee and amici, but more likely, the Court failed to correctly evaluate the potential infringement on religion. Under my analysis, there doesn't seem to be a free exercise basis for this exemption to Title VII, as applied to Plaintiff Mayson, because employing a building engineer who doesn't hold an LDS temple recommend would result in negligible interference with religion, if any. I can't think of a rational reason why a physical fitness facility should be exempted. Even the most liberal reading of the Word of Wisdom or statements by LDS Church leaders on exercise wouldn't support an assertion that the activities of a gymnasium were central to Mormon theology. The only reason for the Supreme Court's ruling in Corp. of Presiding Bishop v. Amos seems to be that without the preferential treatment, Title VII would violate the Free Exercise Clause. But if employing a non-believing or non-temple-worthy building engineer for a secular-use building doesn't inhibit the free exercise of religion, this ruling seems indefensible.
Obviously, I would agree with the Court if Plaintiff Mayson had managed the facilities of an LDS temple. I think it would be fair to say that requiring a temple recommend (and the accompanying lifestyle and beliefs) in order to gain entrance to an LDS temple is a core tenet of LDS theology, and that any interference with this practice would violate the Free Exercise Clause.
The case of the Beehive Clothing workers presents a somewhat closer case. The Utah District Court dodged the question for lack of evidence, but it opined that plaintiffs were entitled to discovery on the following issues:
(1) the manufacturing of garments prior to 1960 and any subsequent changes;I think the District Court was honing in on the issue of whether the employees of Beehive Clothing were involved in a religious activity. The production of clothing itself is not an inherently religious activity, of course. What might make the activity religious is the purpose for which the clothing is made. Also interesting is the fact that the plaintiffs terminated from Beehive Clothing were involved in the production process "before the garments were marked with certain religiously significant symbols," which could favor an interpretation that the activities were not religious. However, since the employees also produced clothing worn in Mormon temple ceremonies, there still is a decent argument that their activities were religious in nature.
(2) the distribution of garments prior to 1960 and any subsequent changes;
(3) the tax exempt status of Beehive;
(4) the past and current employees who were or are non-members of the Mormon Church;
(5) Beehive's contracts, both past and current, with private commercial enterprises for the production of garments; and
(6) current hiring practices of the defendants' garment and temple clothing manufacturing plants in Mexico and England.
The questions posed by the District Court would likely help settle the question of whether temple clothing and garment production is a religious activity. Today, LDS temple garments and clothing may only be purchased by temple recommend-holders, and I think the activities of Beehive Clothing should safely be considered as religious activities. But there once was a time (aluded to by the District Court) when Mormon garments were available to order from the Sears Roebuck catalog, and until relatively recently anyone could buy them from Mormon distribution centers. I would still probably favor a ruling that Beehive's activities were religious, if only for the aspect of temple clothing production, but it's a close call. We'll never know how the Supreme Court would have ruled on the issue because only Plaintiff Mayson's claims were granted and appealed, but given the Court's (in my opinion) faulty logic in Amos, perhaps it was better left undecided.
Sunday, December 21, 2008
A number of social networking sites hope they have lawyer appeal, including:
CasemakerX—A free social networking and research tool that allows law students to search primary federal and state law.
Facebook—The Hot Spot, it claims 90 million users. Though it began as a personal social network, its business application has grown.
LawLink—A no-cost lawyer-to-lawyer network with about 4,000 members, including the Santa Clara County (Calif.) Bar Association.
Legal OnRamp—an invitation-only site for some; in-house counsel can join without restriction, but law firm attorneys must be invited. The site stresses collaboration by sharing opinions, research, work product and other information. For such premium services as a “private ramp” accessible only to certain people and the ability to automate legal processes, members pay from $30,000-$100,000 per year.
LinkedIn—Boasted 25 million members as of July and claims 1 million new members join every month. For upgraded services, such as the ability to contact other members through the site, fees begin at $19.95 per month.
Martindale-Hubbell Connected—To launch in early 2009. Members will be able to determine whether the lawyers they’re researching are connected through their personal LinkedIn relationships. Membership will be free for attorneys who advertise in Martindale-Hubbell.
Merrill Lextranet 5.6—Merrill adds social networking. Membership is free to corporations using its case management programs. (Info only—must buy software and services to access )
MySpace—The Granddaddy, with more than 100 million members. Though some professionals use MySpace for business connections, many consider it youth-dominated and more of a personal site.
Saturday, December 20, 2008
Friday, December 19, 2008
CORPORATION OF the PRESIDING BISHOP OF the CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Defendant and Appellant.
2151 Michelson Avenue in Irvine, California (the Property). The 55 year ground lease governing the parties' relationship provides lessee with the right to construct and operate an office building at the previously unimproved Property for the term of the lease, whereupon the rights to use and possession of the Property (including all improvements made by the lessee) revert to lessor. In exchange, the lessee pays $88,165 in annual rent for the first 25 years of the lease (until June 1, 2002), plus a minimum annual rent of $88,165 for the remainder of the lease term. The rent is subject to upward adjustment in the 25th and 40th years of the lease, but such adjustment must be calculated under the hypothetical assumption that the lessee's improvements do not exist; in other words, the adjusted rent is what lessor could obtain (in 2002 and 2017) on the “open market” for a 55 year ground lease at the Property without any of the improvements actually constructed.
Michelson filed a declaratory relief action, claiming no upward adjustment in rent was justified as of June 1, 2002. CPB requested the court to find annual rent for 2002 to 2017 in the amount of $513,000. The court found in favor of Michelson after weighing the percipient and expert testimony introduced by the parties. The court found the lease did not call for the straightforward application of the sales comparison approach advanced by CPB (appraising the value of the land by using contemporary sales of comparable properties, then multiplying the appraised land value by a market rate of return for commercial leases to obtain the adjusted rent number). Instead, the court credited evidence submitted by Michelson's experts tending to establish the Orange County commercial real estate market in 2002 would not support a ground lease transaction as contemplated by the lease-thus, the Property could not get a higher rent on the “open market” with the same terms of the lease at issue. Because we agree with the court's interpretation of the lease, and because there is substantial evidence supporting the court's application of the rent adjustment provision to the facts in this case, we affirm.
Thursday, December 18, 2008
As Scott Sigman rattles off some of the online social networks he’s joined, it’s plain he’s a true believer.
“MySpace was really the first. It’s for the younger crowd, but it’s OK,” says the associate at Bochetto & Lentz in Philadelphia. “Friendster is pretty much dead in the water. LinkedIn and Facebook are the two most popular, and Facebook is unbelievable. It has many of my attorney colleagues and high school and undergraduate friends. It’s an amazing way to connect with people from my past.”
Sigman has joined just about every online social networking site he can find. “I have pretty much an identical profile, with the same photo and bio on all,” he says, referring to a snapshot that plays off his Philadelphia roots by featuring him in a business suit while sporting vibrant red boxing gloves, Rocky-style.
Sigman is constantly working the sites to build more contacts that he hopes will bring him new business.
“My LinkedIn connections are probably near 1,000,” he boasts, “and I have about 965 friends on Facebook.”
It’s paying off, according to Sigman. “I get numerous requests for representation through LinkedIn and Facebook—at least 20 e-mails a month between the two sites,” says the former Philadelphia assistant district attorney. “I bring in an average of three to five cases a month from those contacts, whether it’s a driving-under-the-influence criminal case, civil representation or someone asking for a referral.”
That adds up to $20,000-$100,000 in legal business generated through online networking each year. “That’s cases and referrals for work on an hourly basis,” says Sigman. “On contingent fee cases, it could be in the millions. It’s an unlimited number.”
Sigman is an outlier, as they say in the statistical world, in both his involvement with and enthusiastic endorsement of social networks. But the two ends of the continuum of opinion about social networking can be seen in the statistics he rattles off. Five- or six-figure payoffs ain’t hay, many lawyers would say. But take in the effort to keep up with 2,000 or so contacts, and your yearly harvest divides down to between $10 and $50 per contact, others might argue.
VARYING DEGREES OF ACCEPTANCE
The appeal of social networks is undeniable, but their business value—especially among law firms—is a matter of debate and, in certain ways, generational divide.
Are social networks worth it? How much time, effort and money must be spent to maximize their potential? And what is the reward? In the end, the answers vary depending on what you do online, how you do it and why.
According to the ABA’s annual Legal Technology Survey Report, only 15 percent of respondents say they’ve joined such a network.
“I have absolutely no interest in people I don’t know saying they want to be my friend,” jokes Gary Griffin, chief, General Law Bureau, Illinois Attorney General’s Office. “It’s not like I haven’t looked at these sites, but the fact that Kelly from Arkansas wants to be my friend —what do I care?”
In between Sigman and Griffin, there’s a middle ground of attorneys who’ve loaded their profiles onto at least one social networking site because doing so is generally free. For some, the network profile has drawn modest business.
“It’s generated about $5,000 worth of business to me, which on an annualized basis isn’t so much,” says Patrick Tracy, a solo patent attorney in Kensington, Md., of his memberships in LinkedIn and Facebook. “It’s another significant advertising opportunity, and it’s always there. But it’s not going to be a panacea for anybody.”
For others, uploading their profile is as far as they’ve gone. They’ve decided not to join as many sites as Sigman, nor have they spent the time he has in building connections. They offer up many reasons: Online social networking doesn’t generate business. It’s time-consuming. It’s confusing. It’s invasive. It’s not professional. It’s just for socializing among the younger crowd.
Many attorneys made the same arguments about e-mail and websites just 15 years ago. Technology experts say the naysayers are wrong again.
“The impact online networking sites are having on the legal world is only beginning to be felt,” says Robert Ambrogi, a solo attorney and technology writer in Rockport, Mass. “At this point, you’ll find a lot of the usual suspects on all the sites, but the sites haven’t come to the point of having widespread application. That time will come, however, because interest in them is growing.”
Denise Howell, a tech-savvy sole practitioner who specializes in intellectual property and technology law in Newport Beach, Calif., says social networks are important to the legal profession today, “yet not too many attorneys are participating in them. That’s a function of generational forces. People coming out of law school today are very steeped in this. As those people come up and begin managing the biggest law firms, you’ll see this communication become commonplace.”
For the uninitiated, let’s back up and define our terms: Online social networks are website communities that allow members to post profiles of themselves with the goal of meeting others with similar interests, whether it’s a niche legal practice or fly-fishing.
“It’s like a phone book,” says Ambrogi. “But you have unique control to build your profile, so it’s really powerful.”
The big names include MySpace, which many people consider to be youth-dominated and nonprofessional; Facebook, which has a mix of young and older, and personal and professional, members; LinkedIn, a business networking site; and the invitation-only Legal OnRamp, which bills itself as a site on which in-house counsel and law firm attorneys can share opinions, research, work product and other information.
Just launched is the ABA’s social and professional networking site, LegallyMinded, which allows not just lawyers but all legal professionals—including paralegals, law students and professors—to share information, create groups and connect with others with similar interests. (See “The ABA Gets Social.”)
STRENGTHS AND WEAKNESSES
Each site has benefits and drawbacks. “Facebook and MySpace are really 90 percent social,” says Suzanne Hawkins, former chief of practice excellence at the recently dissolved Heller Ehrman in New York City. “The benefit is that if your entire group of contacts is using these sites, you can socialize with them and their contacts. But they’re not really built for business networking.
Photo by Matt Carr
“For instance, in Facebook [sometimes] you have to be invited to be someone’s friend to see that person’s profile. If I wanted to use it to network, nobody could find me, which makes using it somewhat complicated.”
“If you’re looking for business networking,” continues Hawkins, “you may need to go to LinkedIn. It’s a very good and active site, and it can be very useful if you’re looking for a position, trying to find your contacts or researching companies you want to work with.
“And it’s not just for lawyers. You may have connections with a former college [acquaintance] who’s now the CEO, the chief financial officer or head of human resources at a company. That could be beneficial for networking, but also for developing business.”
But many lawyers question the utility of lawyer-to-lawyer sites, perhaps because none has yet to catch fire.
LawLink appears to be the strongest, with its 4,000 active members posting profiles and attorney employment positions. However, many parts of the site are outdated: The most recent post in a recent visit to the law marketing forum was added on Nov. 14, 2007. And there’s never been a post in the ethics forum. When contacted to ask about their membership in LawLink, several attorneys didn’t return e-mails or were no-shows for interviews.
Another issue is that many attorneys actively involved in online social networking have never heard of the lawyer-to-lawyer sites. “I’m not even familiar with them, and I’m pretty Internet-savvy,” says Jason Trumpler, a solo with offices in Texas and California who’s had success networking on MySpace, Facebook and LinkedIn.
One standout site, however, may be Legal OnRamp. Membership in Legal OnRamp is free to any in-house counsel. However, law firm attorneys can join only if invited by in-house counsel. Once in, basic networking is free, but members can pay for premium services such as a “private ramp” accessible only to members and the ability to automate legal processes. Those services range from $30,000 to $100,000 per year.
“Legal OnRamp seems to be the only one that’s viable at this point,” says Hawkins. “But it’s still a question mark. It’s not clear that the best lawyers are on that system. Will they have time to be adding content to the site, or will they be in the courtroom or doing deals?”
‘I’M IN. NOW WHAT?’
Many attorneys have had a two-step response to online social networking sites. First, they’ve decided they might as well load their profile because it’s free advertising. Then, when no fireworks have immediately illuminated the sky above them, they’ve wondered what all the fuss was about.
“I heard about LinkedIn and thought I’d give it a try because it can’t hurt,” says Michael D. Caccavo, a sole practitioner in Barre, Vt. “Then I thought, ‘I’m in. Now what do I do?’ ”
Caccavo has been a member of LinkedIn’s basic, no-cost service for more than a year. He’s joined a few groups (the estate-planning legal network, the New England legal network, the solo practitioners forum, solo marketing and Solosez friends), and he occasionally offers his expertise to LinkedIn’s “Answers” section, where members can pose questions and provide answers.
He hasn’t seen any tangible results, but he also isn’t disappointed. “I haven’t really advertised my LinkedIn presence too much, and I might have a better presence if I did,” Caccavo says. “But I’m not looking at it as a big marketing component. I’m experimenting a little to see where it goes.
“But so far, it has some value because I’m trying to develop more of a diverse set of connections, and it’s a diverse network. I also think, for professionals, it sets you apart as being more cutting-edge, particularly around this part of Vermont because a lot of people haven’t heard of it.”
Caccavo also joined Facebook in the summer after seeing extensive chatter on the ABA’s Solosez discussion group. “Facebook has been great for connecting with one of my kids who’s out in Oregon. I was able to see a picture of him fighting forest fires,” he says with a laugh. More seriously, he adds, “I don’t spend a lot of time on Facebook, and I don’t really know what I’m going to do with it.”
To get past that “now what?” feeling, lawyer-blogger Carolyn Elefant suggests starting small. “Pick one social network and focus on that instead of signing up for five or six and spreading yourself thin,” says the sole practitioner in Washington, D.C., and author of the e-book Social Networking for Lawyers: What, Why & How.
“Investigate a couple of sites and speak with colleagues to find which they’ve found to be the most useful,” Elefant says. “Join one and upload as much information as you can to make it a robust site. Then spend time looking around the site, doing searches, making contacts within the site and finding people who share similar interests. If you make a connection, the most useful thing to do is to take the conversation offline privately through phone or e-mail and get to know people on the sidelines.”
Before Thomas Rossmeissl joined Pillsbury Winthrop Shaw Pittman in Palo Alto, Calif., he was a trust attorney at a major West Coast bank. When the bank reorganized in January, Rossmeissl found himself out of a job.
“Because I had a fairly extensive network on LinkedIn that I could connect with immediately, I got another job fairly quickly,” he explains. “Whenever a change is made to the status of your profile, LinkedIn sends an e-mail to your network.”
That, Rossmeissl believes, is what made some legal recruiters get in touch. He was also able to send e-mails to all his connections on the network, which helped get the word out quickly that he was on a job hunt.
“Would I attribute getting my job so quickly directly to LinkedIn?” Rossmeissl asks. “Not 100 percent, but it helped to have that resource available.”
Griffin is still not sold. “Maybe it’s just an age thing, but I’d rely more on word of mouth because I think that while you open up more possibilities [with online networks], you also open up more dead ends,” he says. “It’s sort of like online dating. Do you want to go on more dates and have more dates fail, or do you want to narrow your search?”
Attorneys have benefited from information exchanges. “I’ve made a lot of connections with lawyers on Legal OnRamp who I probably never would have met any other way,” says David Cohen, director of legal affairs and risk management at the Major League Baseball Los Angeles Angels franchise in Anaheim, Calif. “I’ve also tapped into the expertise of others without generating a huge cost for my company.”
Specifically, when Cohen decided he wanted to test an alternative billing model to pay outside counsel handling general liability claims, he turned to Legal OnRamp. “I got into a discussion with a couple people, and they gave me tips for developing it and making sure it’s fair. Because of that, we’ve been able to develop a billing system with our [outside counsel] that works really well.”
STRENGTH FOR SOLOS
Many solos and small-firm attorneys say online networking has leveled the playing field between them and their big-firm counterparts.
Take Jonathan Davidoff, a former New York City solo who recently merged with two others to form Schwartz, Resnick & Davidoff in New York City. Davidoff is a member of both LinkedIn and Facebook. Though he praises LinkedIn for helping him reconnect with faces from his past, he’s getting more business because of Facebook’s instant-messaging feature, which isn’t available on LinkedIn. (IMs allow you to send a brief message that instantly appears on a friend’s computer screen and continue the discussion in real time.)
About 15 percent of Davidoff’s business comes from referrals from Facebook friends because of its instant-messaging feature. “The personal interaction of an IM adds a lot more to the domain than LinkedIn,” he says. “It’s also free.
“This is basically how it goes: I get an IM from a friend that says, ‘Hey Jonathan, how are you doing? I see you’re living in New York City now. What kind of law are you practicing?’ I tell him and later get another response: ‘I have a friend who has this situation and doesn’t want to spend a fortune on an attorney. Can you help?’ All of a sudden, that’s a $20,000 client.”
Though attorneys at large firms can also get those kinds of referrals, Davidoff says they’re more valuable for solos and smaller firms. “The truth is that big law firms don’t want their attorneys on Facebook because the business they’d get is minimal to none,” he says. “Big firms don’t want $15,000 matters. They want $150,000 matters. But for small firms, every client and every penny counts in today’s economy.”
Still, many attorneys get into online social networking with trepidation. Primary concerns include privacy, professionalism, increased spam and the time spent online.
Sometimes concerns about privacy and professionalism are related. “Your information is out there for the whole world to see, so you need to make sure you’re not afraid for others to see it,” says Sigman. “I’m very selective about what I put on these sites. I try to keep personal information out of my profiles, and that includes any photograph I’d consider unprofessional.
Stay away from pictures of you getting drunk at a bar.”
That also means being judicious about publicizing personal beliefs that could make the wrong first impression. “Be cautious about the groups you join because that will show up on your profile,” says Caccavo. “For that reason, I’ve stayed away from listing my political and religious preferences.”
“The conclusion I’ve reached is that you shouldn’t mix business with pleasure,” says Melody Kramer, a sole practitioner in San Diego who belongs to several online social networks. Kramer is not only careful about her profiles, but also about comments her friends post on them. “Remember that anything that’s accessible to the public, opposing counsel can access, too,” she says.
Others, however, don’t see a problem. “Some sites like Facebook and MySpace are less professional, but I don’t really have concerns,” says Elefant. “They’re self-regulating. Lawyers putting pictures of themselves in a bikini online isn’t very professional, but that’s happened even without social networking sites. There are always opportunities for lawyers to make themselves look ridiculous, and it’s not the tools but how you use them.”
Some attorneys complain that online social networks can be time-suckers. You sign on, and the next time you look up, your morning’s gone, and what do you have to show for it?
“You could spend days managing and upgrading these sites and responding to inquiries,” says Elefant. “Like everything else, you have to limit these activities to a certain time of day and a set number of hours so that you don’t get lost in them and get nothing done.”
Those aren’t just concerns for individual attorneys; they’re also potential headaches for large firms. “Law firms are concerned about online social networks as either a time-wasting vehicle or a way that information that the law firm would ordinarily hope to keep under wraps gets out into the world,” Howell says.
“I’ve heard stories about firms turning off Facebook access or having a policy against social networking, and I just laugh,” she says. “It’s the stupidest policy I could imagine if you want lawyers to develop as lawyers and as people who bring business into the firm. It’s like saying to generations past, ‘We’re not going to let you call your friends on the phone, go golfing with them or have cocktails after work.’
“Social networking has supplemented those kinds of real-world networks and made them something that’s persistent and always on. A cultural shift is under way, and law firms are behind the curve,” Howell adds. “Law firms are going to have to accept the fact that the distinction between personal and professional is blurred, and they’re going to have to accommodate that in a way that makes sense. The smart law firms will find a way to embrace this.”
Smart individual attorneys will, too, says Davidoff. “This isn’t just a temporary wave,” he says. “It’s a wave of today and tomorrow. It’s just like the telephone. There will be variations and improvements, but the telephone is here to stay, and so are these networking domains. These sites have the potential to be great.” by G.M. Filisko who is a lawyer and freelance journalist in Chicago.
Wednesday, December 17, 2008
Tuesday, December 16, 2008
Thomas Jefferson School of Law remains the first and only law school to offer graduate law degrees and certifications entirely online at an ABA accredited law school.
The student body adds an interdisciplinary element to the educational experience. Although individuals with law degrees make up roughly half of the student body, the other half is drawn from the fields of accounting, finance, economics and other business disciplines. The result is an educational environment that permits the students to learn as much from each other as they do from the instructors and the courses they teach. Eventually, each student will belong to a growing international network of alumni who work in the most influential law firms, financial institutions and government agencies throughout the world.
Initially created to culminate in an LL.M. in international tax, the online program has grown to meet a wide range of career objectives and needs represented by the individuals who seek the flexibility that only this online program can offer. Additionally, students who do not seek a traditional law degree can pursue a course of study that culminates in a certificate in one of six areas of specialization. Both degree candidates and non-degree students may seek "Certificates of Expertise" to make themselves more marketable in the job field. The Thomas Jefferson School of Law 's online LL.M. in international tax is $1000 per credit hour.
Because so much of LLM programs are lecture based a student could view these lectures from their laptop in a different part of the country. Online LLM's make a lot of sense and I can see more law school's offering them in the future but then again when a school is based in San Diego who wouldn't want to go to school there in person? It's not like it's in Ohio.
A controversial church plan received a preliminary blessing Wednesday from East Hempfield Township officials — but also a warning that final approval will require more work. The township planning commission voted 5-1 to recommend approval of a preliminary plan submitted by the Church of Jesus Christ of Latter-day Saints to build a 25,790-square-foot Church.
However, the commission rejected the church's request to endorse a final land development plan and demanded more detail before it comes back for consideration. The plan has already cleared hurdles with the zoning hearing board, obtaining a special exception for a church in a residential-1 zone. It still must go before supervisors for final approval.
Supervisors earlier this month considered — and abandoned — a motion to appeal the zoning board's decision. The vacant 10.22-acre tract is at the corner of Harrisburg Pike and Sylvan Lane. The plan includes 236 permanent parking spaces, 51 temporary spaces in a grassy overflow lot and a sanctuary with a seating capacity of 320.
Planning commission chairman Keith Falco urged architects to add sidewalks and a landscape buffer around the parking lot before the plan comes back for final approval. David Blackman, from township planning and development, said East Hempfield wants sidewalks along Sylvan Lane and Sunwood Lane as part of the initial construction. A sidewalk along Harrisburg Pike should be delayed until officials determine a "codified plan" for the busy corridor, he said.
That means traffic heading west to the Route 283 exchange would have to exit onto Sunwood Lane, drive east to Sylvan Lane and turn onto Harrisburg Pike at a traffic signal. Residents have said the plan puts a burden on their residential lane. They also worry that motorists might turn west onto Sunwood Lane and cut through the neighborhood. Supervisors have said the church must restrict right turns by church patrons, possibly by placing temporary barriers on the street.
"A lot of us would love to see full access out onto Harrisburg Pike," township planning director Mark Stivers said. "I think we agree that's the best place for it." However, he said, the township can't overrule PennDOT's decision.
Several residents said parking is inadequate for twice-annual church conferences, which church leaders have said could draw up to 900 people. Dan Crocker of 1004 Sunwood Lane said excess cars will park on the streets. And Edward Hunter of 1106 Sweetbriar Way said ordinances should require the church to provide 450 permanent parking spaces to handle the crowd.
But Falco said the issue will be addressed by a building code inspector during the final land development process. Karen Schmitz of 1110 Persimmon Drive argued the plan exceeds the 30 percent maximum lot coverage. The plan lists lot coverage at about 22 percent. Schmitz said the plan does not account for some drives, walks and impervious parking surfaces, which she said take coverage to closer to 35 percent. Blackman said he would look into the matter.
Several residents said church leaders are unwilling to meet with neighbors to address their concerns. But a church spokesman said later that efforts to meet with residents have been rebuffed. Falco urges both parties to get together and hammer out their differences.
Falco also said he wants the church to take another look at bringing traffic into the site from Harrisburg Pike. "There is a lot of cleanup that needs to be done," he said. "There are some items and details that need to be worked out." Planning commissioner Andrew Weaver voted against the motion. He said access issues should be resolved before a preliminary plan is approved.
There’s a new law office on 24th St. N.W. and M St., but you won’t find any partners roaming the halls. There aren’t any secretaries there either. The entire office, in fact, is only about 1,000 square feet.
It’s the newly opened D.C. location of Axiom, the law firm that started in New York seven years ago and touts itself as an innovative, less expensive alternative to traditional firms. Axiom, which employs 216 lawyers, doesn’t have a partnership, doesn’t use the billable hour, and its lawyers work from home or in the offices of clients. The new D.C. digs, like Axiom’s other offices in New York, San Francisco, Chicago, and London, serve largely as a hub for taking client calls that are then filtered out to the firm’s remote attorneys.
Will McKinnon, general manager in Washington, says he expects the office to be fully up and running by January. Presently, he and the office’s practice management head, Ben Lieber, are focused on recruiting. McKinnon says 26 lawyers have either joined or are in the final stages of accepting offers to start at Axiom. The office will have capabilities in transactional work, intellectual property, securities, and labor and employment. Axiom also hopes to get into government affairs and government contracts work in the District.
Lieber says the recruits are dominantly coming from large Washington and New York-based firms. “The household names,” he says, though he wouldn’t specify further. Lieber himself was once an associate at Covington & Burling, though he was most recently general counsel of the D.C. lobbying firm Carmen Group. Lawyers in Axiom’s other offices come from firms such as Latham & Watkins, Cravath, Swaine & Moore, and Skadden, Arps, Slate, Meagher & Flom. Lieber says Big Law attorneys are attracted to Axiom’s flexibility, since unlike at traditional firms, they get to choose their hours and client assignments.
They also escape the pressure of the billable hour, since Axiom bills clients by the week. McKinnon says Axiom’s rates break down to “one-half to one-third of the benchmark rate for big firms, which is generally $500 an hour.” Lieber says firmwide revenues will break $50 million this year, and that the average Axiom lawyer makes $210,000 a year.
It may be pulling talent from Big Law, but Axiom is a long way from becoming a serious competitor with traditional high-end firms. It operates a bit like a contract-attorney service, since Axiom lawyers are often assigned to work for months in the in-house legal departments of clients.
McKinnon and Lieber say the firm has not yet established clients in the D.C. area, but that it’s eyeing Fortune 1000 companies that operate here, and even federal government agencies. Axiom’s Web site lists companies such as Bank of America, NBC Universal, Sun Microsystems, and Yahoo as clients. by Marisa McQuilken on the BLT
Sunday, December 14, 2008
Job of the Week! How about a little LA Sun? (Actually whenever I'm there it's always so smoggy I can't tell if the sun is shinning).
Position: Trademark Associate
Location: Los Angeles, CA
Description: The LA office of an international law firm is seeking a junior to mid-level trademark associate. The attorney should have 3-5 years of transactional trademark law (prosecution/portfolio management) experience as well as experience drafting PTO action responses, handling TTAB opposition and cancellation proceedings, UDRP actions, license agreements and global trademark portfolios.
Saturday, December 13, 2008
A jury has found James Boughton guilty of killing Morgan W. Young and wounding Joshua Heidbrink, two Mormon missionaries shot nearly three years ago while proselytizing door-to-door in the city.
The jury returned the verdicts Friday night against James Boughton Jr., 22, after deliberating more than two days in Chesapeake Circuit Court.
Judge Randy Smith asked the jury to return Monday morning for the sentencing phase of the trial. The jury found Boughton guilty of first-degree murder, malicious wounding, attempted malicious wounding and three counts of use of a firearm. Boughton, faces the possibility of life in prison.
Boughton, in suit and tie, stood in court as the verdict was read, with no outward sign of emotion. He was 19, a recent graduate from Deep Creek High School, at the time of his arrest for the crime.
Young and Heidbrink were in the Deep Creek section of Chesapeake proselytizing the night of Jan. 2, 2006, as a violent neighborhood dispute was unfolding. A hooded gunman had attempted to shoot an Elkhart Street resident, Gregory Banks Jr., and was fleeing the area when he crossed paths with the missionaries.
The missionaries assured the approaching gunman that they hadn't seen anything, according to court testimony. The gunman, armed with a 9 mm gun, shot them both and fled. Young, 21, of Bountiful, Utah, died of a wound to the head. Heidbrink, then 19, from Greeley, Colo., managed to go for help at the nearby Charity House.
Commonwealth's Attorney Nancy Parr and Deputy Commonwealth's Attorney D.J. Hansen used DNA evidence and the testimony of a Chesapeake teen to link Boughton to the crime. The surviving victims, Heidbrink and Banks, were unable to identify the hooded gunman.
Boughton's defense attorney, Andrew Sacks, argued his client was at a friend's house in Camelot playing video games the night of the shootings. He produced several witnesses who supported the alibi. Sacks argued in court that the real shooter that night was Mario Felton, a 17-year-old who was feuding with Banks over $80 in drug money. Felton initially told police he was the one who fired the 9 mm weapon three times that night, but later told police he made the story up to cover for Boughton.
Accounting professors from across the country selected Brigham Young University’s graduate accounting program as best in the nation — unseating the University of Texas-Austin which had held the top spot for more than a decade.
Some 1,557 accounting educators weighed in to pick BYU as the No. 1 graduate accounting program in the 2008 survey administered by Public Accounting Report, an independent newsletter of the accounting profession.
BYU’s undergraduate accounting program ranked third, making it the 12th consecutive year that both the undergraduate and graduate programs have been ranked among the top three in the nation. Both programs were ranked No. 2 in 2007.
The rankings are based on a survey of accounting professors and department heads around the nation who were asked to name programs that produce students capable of attaining partner status in the future. “The largest voter turnout in the history of PAR’s Annual Survey of Accounting Professors yielded additional historic results on top of the highest professor participation level,” states the report.
The top five 2008 graduate accounting programs are BYU, the University of Illinois at Urbana–Champaign, the University of Texas–Austin, the University of Southern California and the University of Michigan. The top five undergraduate accounting programs are University of Texas–Austin, the University of Illinois at Urbana–Champaign, BYU, Notre Dame and the University of Southern California.
Friday, December 12, 2008
Jurors are expected to continue their deliberations today in the trial of James Boughton Jr., the Chesapeake man accused of shooting two Mormon missionaries nearly three years ago.
Jurors began deliberations Wednesday afternoon and spent much of the day Thursday deciding Boughton’s fate. The 22-year-old faces charges of first-degree murder, malicious wounding and three counts of use of a firearm.
Morgan W. Young and Joshua Heidbrink were shot the night of Jan. 2, 2006, while proselytizing in Deep Creek. Young died from a wound to the head. Heidbrink survived his injury.
Thursday, December 11, 2008
What’s to be done about the lingering questions concerning the arguably unlawful activities of the Bush administration? I refer, for example, to such issues as the use of torture, the creation of secret prisons, the secret detentions of American citizens, and the NSA surveillance program. These actions, and many others, pose serious, still unresolved, questions about the legality and constitutionality of the government’s conduct.
We cannot and should not shut our eyes to these questions. And we should not let ourselves be distracted from these questions by other pressing issues, such as the economic crisis facing the nation. If for no other reason than to set clearer ground rules for the future, we need a full public understanding of the decisions of the Bush administration. We need to know who made them, why they were made, why they were made in secret, whether they were justified, whether they were legal, and whether we can establish better decision making processes for the future.
We need to examine these decisions not so much to exact vengeance – or even justice, but to learn from our experience. This is an important distinction. It is certainly not unprecedented for public officials to be criminally prosecuted for unlawful conduct. One need only recall Teapot Dome and Watergate to recognize that such prosecutions are perfectly plausible.
But criminal prosecutions of the members of an outgoing administration brought by the members of an incoming administration of a different political party are a terribly awkward business. The risk of actual or apparent partisan abuse in such circumstances is very real, and the Obama administration is almost surely interested in looking forward, rather than getting bogged down in potentially ugly and divisive disputes about the past. Moreover, the danger of unjust prosecution is especially great in situations like these, where the governing law is generally uncertain, the legal issues are complex, and the defendants may have acted in good faith at a time of national crisis. And, of course, criminal prosecutions in these circumstances run the risk of inhibiting future government officials from acting decisively in future crises.
I do not mean to suggest that criminal prosecutions for clearly and unambiguously unlawful conduct are unwarranted. If those conditions are satisfied, criminal punishment is appropriate. But such prosecutions will not enable us to do what we now most need to do, which is to gain a full public understanding of what our elected representatives did over the past eight years so we can openly and intelligently decide how to deal with similar challenges in the future.
To achieve that goal, we cannot rely on criminal prosecutions. Nor can we rely on other legal actions to ferret out the truth. Thus far, civil suits challenging the legality of the government’s detention, surveillance, and interrogation policies have generally failed to expose much about these programs, in part because the courts have given excessive weight to the Bush administration’s aggressive assertions of executive privilege, the state secrets privilege, and other national security-based claims of immunity. Given the current makeup of the federal judiciary, this is unlikely to change anytime soon.
In any event, it is not the function of courts to serve as general investigating bodies. Courts can certainly rectify specific legal wrongs, but what we need at the moment is a systematic and comprehensive understanding of the decisions of the Bush administration, and that is beyond the competence of the judiciary.
The right entity to initiate this inquiry is Congress. This is so, in part, because most of the decisions that most need the light of day involved efforts of the Bush administration to circumvent Congress’s role in our constitutional system. The most problematic judgments of the Bush administration were instituted in secret in an effort to avoid public accountability and to evade the fundamental checks and balances of the American government. In a democratic society, such secret decision making is a direct affront to the separation of power and poses a threat to the very premise of self-governance.
The inquiry should not be conducted by Congress itself, however. Congressional investigations of the alleged abuses of the Bush administration would invite partisan grandstanding. What is needed, instead, is an independent commission, appointed jointly by Congress and the President, on the model of the 9/11 Commission.
A distinguished bipartisan commission, with broad investigative powers, could issue a useful report about what went right and what went wrong in the secret decision making processes of the past eight years. With the passage of time, we are now past the point where national security considerations would still necessitate much secrecy about such decisions, and to the extent such issues still exist, the commission should be able to address them, as they addressed similar issues in the 9/11 investigation.
The establishment of such a commission should be a high and immediate priority of both the next Congress and the new administration. The nation needs and deserves a credible, independent and bipartisan investigation that will enable both Congress and the President to take appropriate steps to avoid serious missteps in the future, and that will enable the American people to finally know what, exactly, was done in their name. by Geoffrey Stone of Chicago Law
Wednesday, December 10, 2008
The Bonneville County Sheriff's Office is investigating a vandalism to an LDS Church construction site. This is the third time vandals have struck at the Mormon Church building on East Iona Road since construction began. This time, someone turned on the valves to the buildings fire sprinkler system over the weekend. When crews showed up Monday morning, they found water running everywhere. Up to six inches of water was on the floor in the gym and all the sheet rock that was just installed was destroyed. Work had to be halted while the water cleared out, says foreman Ken Gorver.
Ken Grover: "Well, we couldn't do anything for a while because of the electrical inside. You didn't want to walk in the water and get shocked, it was that deep in there. Running out the doors, covered all the floors like a waterfall inside, running across the parking lot."
The sheriff's office believes it's juveniles committing the crimes but so far, they have not been able to identify who they are. Other vandalism crimes at the construction site include theft, spray painting and small fires inside the church.
Monday, December 8, 2008
4. U. of Chicago
The bottom five schools were:
1. Texas Wesleyan School of Law
5. Florida Coastal
I start finals today and they go for the next ten days. Because I'm going to be actually studying instead of blogging and acting like I'm studying I won't be able to update my blog as often as I usually do. I know many of you are going to worry about how your going to get by but don't worry I will still new articles when I can.
Sunday, December 7, 2008
Saturday, December 6, 2008
Friday, December 5, 2008
Boughton has been on trial in Chesapeake Circuit Court since early November for the first-degree murder of Morgan W. Young and the malicious wounding of Joshua Heidbrink, missionaries shot while proselytizing in Deep Creek. Boughton, a Camelot resident, also faces a charge of attempted malicious wounding.
The jury could begin deliberating Boughton's fate next week. Boughton's defense attorney, Andrew Sacks, expects to wrap up his case today.
On Thursday, Sacks called the defense's first three witnesses, including a 44-year-old inmate who told federal agents in 2006 that a jail inmate by the name of Marvin Basnight admitted to the shootings.
Nurney Hurdle Jr. said he once shared a cell with Basnight at the Chesapeake Correctional Center.
"He was speaking of the Mormon murder," Hurdle testified. "I guess his conscience was getting the best of him." by www.mormontimes.com
The proposal would change the average grade from a 3.2 to a 3.3, the National Law Journal reports.
Dean Robert Rasmussen of USC’s Gould School of Law told the NLJ that the proposal is based on an analysis of grades at two competitor schools. Law students’ grades are lower at Gould than at UCLA and Vanderbilt, yet their scores on the Law School Admissions Test are comparable, he said.
"It's seems pretty clear that they are giving out higher grades than we are," he said of the competitor schools. "This is just a small change to bring us in line with our peers."
The lower grades hurt students’ job prospects, according to the school’s list of “considerations prompting the proposal” posted on Above the Law. The school also says the quality of its students has improved, but the grading curve remains the same.
The new curve would apply only to first-year students at first, then to everyone. A vote on the proposal is scheduled for Dec. 11.
I think that the best thing for USC to do is to raise their average grades to an "A" and then their students will look much better when compared to students of other law schools.
Thursday, December 4, 2008
Once you have a linkedin account you can control how people view you. If you have a linkedin account search your name in Google by typing in your complete name in quatation marks. The quotation marks limits the search to just your full name. Often your linkedin account will be the first thing listed in Google. Because you create your own linkedin account you can prortray yourself in the best light. So, if you haven't created a linkedin account now is the time to do so.
Wednesday, December 3, 2008
D&C 134:4 reads: “We believe that religion is instituted of God; and that men are amenable to him, and to him only, for the exercise of it, unless their religious opinions prompt them to fringe upon the rights and liberties of others; but we do not believe that human law has a right to interfere in proscribing rules of worship to bind the consciences of men, nor dictate forms for public or private devotion; that the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul.”
What was the purpose with which this scripture was written? What was the intent of those that wrote it? Can we tell by looking to the “plain meaning” of the scripture?
These same questions often come up when judges are trying to interpret the laws written by our legislature. What should the judges do when applying the statutes the way it was written by the legislature would produce an absurd result? For example it used to be illegal to “draw blood in the streets” of England. This law was written and passed to outlaw sword fighting and other types of fighting in the street. However, during this same time doctors used to “bleed” people when they were sick. A doctor was arrested for administering to a patient who had passed out in the street because he was “drawing his blood”. The law clearly states that no blood could be drawn in the street but when applied to this situation it produced an unintended result.
To remedy these problems of statute interpretation three different theories of interpretation have developed to help judges interpret what was meant by a particular law. If we apply these three theories of interpretation to Doctrine and Covenants 134: 4 we come up with some interesting answers. The three traditional theories of statutory interpretation are: 1) “New Textualism” 2) “Intentionalism” and 3) “Purposivism”.
New Textualism- The interpreter follows the “plain meaning” of the statute’s text, unless the interpretation would lead to an absurd result. The “plain meaning” that the statute has in ordinary and common English usage in the context of the sentence & paragraph of the statute. It's an objective meaning of the text. New Textualists believe that the plain meaning gives us the most legitimate evidence of legislative intent as to how they wanted the statute interpreted.
New textualists follow several steps to find the meaning of a statute. I highlighted the rules of statutory interpretation in red and my analysis of D&C 134 in black print.
1. They look to the “plain meaning”, they will use the plain meaning of a statute unless it provides an absurd, ambiguous or vague result.
Does interpreting D&C 134:4 in a manner to support gay marriage produce an absurd result? Absurd results are defined as producing a result that is so absolutely crazy that none of the leaders of the Church at the time (August 1835) could possibly has intended it to produce such an interpretation. If the result is absurd they consult everything that the legislature did or said while writing and debating the statute.
2. After looking at these extrinsic materials they look to see if the meaning they gave the statute was intended. If absurd meaning was intended then the statute is Unconstitutional and must be struck down.
Not much time needs to be spend on the idea of whether or not the Mormon Church leadership of 1835 would have been in favor of supporting gay marriage. To interpret this scripture in such a way should be considered an absurd result.
3. If after looking to the extrinsic materials the statute did not intend to produce an absurd result then the interpreters are required fix the absurdity. They are to do the least damage to the statute but while still fixing it.
Under the rules of textualism when an absurd result was not intended the interpreter is to “fix” the statute in a way that would do the least “damage” to it. Meaning that it is OK to insert/remove a word(s) to change the interpretation into a non-absurd one. Verse four could be fixed by changing the words “never” (of the last two lines) to “not”. This simple change in reading could change the scripture to meaning that the Church does not support infringing on personal liberties “most of the time” instead of “ever” (as the way it now reads). It could then be argued that this is the way the scripture needs to be interpreted to avoid an absurd result.
4. If the text of the statute is ambiguous or vague
I don’t think that a textualist would consider this scripture to be vague or ambiguous because there are only two types of vagueness that they recognize.
A. The only acceptable types of vagueness are semantic and syntactic which are inherent.
1. Look to other parts of the statute where they used the same word or phrase.
2. How does the word or phrase fit into this or another statute?
3. If you pick that meaning will it duplicate or frustrate part of the statute? If it does then don’t pick that meaning.
4. Don’t interpret the meaning to frustrate other statutes.
Conclusion: I’ll leave it to you to decide if taking all the scriptures into consideration if interpreting D&C 134:4 as supporting gay marriage is an absurd interpretation.
The second major statutory interpretation theory is “Intentionalism”. Intentionalists attempt to interpret as statute in a way that best describes the intent of the Legislators that wrote it.
1. Intentionalists start by reading the entire text of the statute to find legislative intent. To assist them in doing this they use:
A. Dictionaries and the definitional sections of statutes to attempt to find the “plain meaning” of the words that the Legislators used.
B. They also look to other statutes to find Legislative intent.
C. Additionally they look to Canons of construction to find the Legislator’s intent.
Doctrine and Covenant 134:5 We believe that all men are bound to sustain and uphold the respective governments in which they reside, while protected in their inherent and inalienable rights by the laws of such governments; and that sedition and rebellion are unbecoming every citizen thus protected, and should be punished accordingly; and that all governments have a right to enact such laws as in their own judgments are best calculated to secure the public interest; at the same time, however, holding sacred the freedom of conscience.
The 12th Article of Faith states: We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law.
D&C 134 was “A declaration of belief regarding governments and laws in general, adopted by unanimous vote at a general assembly of the Church held at Kirtland, Ohio, August 17, 1835. The occasion was a meeting of Church leaders, brought together to consider the proposed contents of the first edition of the Doctrine and Covenants. At that time this declaration was given the following preamble: “That our belief with regard to earthly governments and laws in general may not be misinterpreted nor misunderstood, we have thought proper to present at the close of this volume our opinion concerning the same.”
2. They also look to extrinsic materials to find legislative intent.
A. They look to the Legislative History.
B. Historical Circumstances- What was going on in the country that provoked a statute on a certain subject?
What was going on within the Church at this time that would have prompted the Church’s leadership to have written this scripture?
I won’t spend the time to go into all of the legal proceedings that had taken place against Joseph Smith Jr., the Church, and other members of the Church but needless to say there was a constant barrage of legal charges brought against them, of which most were bogus. Because the government of the United States and the legal process was working against the Mormon Church and its members there was a strong belief that the government should not interfere or inhibit the religious practices of Americans. Therefore, it could be argued that the intent of this scripture was to protect religious worshipers from losing their rights but says nothing about protecting the rights of those who are not religious.
3. Look for specific intent in the extrinsic materials.
A. If you find specific intent and it’s on point with the intent you are trying to discover then you can stop here.
B. If there is no specific intent and the intent you do find is ambiguous or vague then continue to step four.
Because legalizing gay marriages was not a concern during the 1830’s we will not be able to find any specific intent from extrinsic materials as to how the Church’s leadership would have felt about it.
4. Imaginative Reconstruction- With this step you put yourself in the shoes of the legislators who wrote the statute in question and ask “how would they resolve this case if faced with it?”
A. If there is not sufficient evidence to imaginatively reconstruct how the interpreters would have reacted to a certain situation then you need to go on to the last step in intentionalism.
I will let you “imaginatively reconstruct” yourself in the shoes of the Church’s leadership of 1835 and decide for yourself how they would have felt about legalizing gay marriages.
5. Spurious Interpretation- The interpreter can give the statute a spurious interpretation only after looking in the extrinsic and intrinsic materials and finding nothing and imaginatively reconstructing an interpretation and not coming to any conclusions.
I don’t believe that you would need to use this step when analyzing D&C 134:4 from the intentionalist point of view because you would most likely come up with your answer in step four.
The third and final theory of legislative interpretation is “Purposivism”. Interpreters who follow the purpose approach choose the interpretation of a statute that best effectuates it in today’s society. Finding the problem to be remedied by a statute is what purposivists focus on.
1. Purposivists assume that every statute has a purpose.
Likewise it can be argued that every scripture has a purpose.
2. They look to find the problem to be remedied by the statute.
What problem was going to be solved by Doctrine and Covenants 134? In their own words they said: “That our belief with regard to earthly governments and laws in general may not be misinterpreted nor misunderstood, we have thought proper to present at the close of this volume our opinion concerning the same.”
3. They initially look to the text of the statute and look to find a purpose that has been expressly stated or can be inferred from the text.
An overarching purpose of this scripture could be the desire of the Church’s leadership to let the world know they believed in governments, supported governments, so long as they were not infringing up religious freedoms.
4. Next they look to the Legislative History to find the purpose.
Supra, for my arguments regarding the legislative history.
5. Then they look to the legal, social, political, and cultural context in which the statute was written.
Again Supra, for my comments on the social context of this era.
6. They then attribute a purpose to the statute.
Step three of this approach highlights a possible purpose to D&C 134.
7. Choose the interpretation that “best effectuates” the purpose of the statute.
Taking the totality of the circumstances together what interpretation of this scripture “best effectuates” the purpose with which the Church’s leadership wrote it? Was their purpose really to state their opposition to any law that would inhibit the freedoms of Americans? Would they have supported abortion laws? Gay Marriage? Use of narcotics? No speed limits? No seat belt laws?
The point of this exercise is to illustrate how difficult it can be to interpret old writings and apply them to situations they never could have imagined. Sometimes the “plain meaning” of a statute or scripture just isn’t that plain.