Tuesday, March 31, 2009

Legal highlights of LDS General Conference

This weekend is the LDS Annual General Conference, and there will be various events for just about everyone to participate in. The J. Reuben Clark Law Society is hosting a reception in between the morning and afternoon sessions of conference on Saturday, April 4, in the Joseph Smith Memorial Building. All JRCLS members are invited to attend, and you can register here.

If you aren't a JRCLS member or can't attend, you can still see some exciting legal events throughout the weekend on the sidewalks surrounding Temple Square. Every year dozens of protesters turn out to condemn Mormons as they attend the conference, so you'll have a front row seat to the clash of prescient legal issues like free speech, property law, defamation, and separation of church and state.

However, if you're like most of us, you won't be anywhere near Salt Lake City this weekend. I'll be watching General Conference online, and maybe on TV if I can find it on satellite somewhere. The Mormon blogging scene (sometimes known as the "Bloggernacle," a term I dislike) always goes into overdrive over Conference Weekend. Some of the well-known Mormon blogs like Times & Seasons and By Common Consent usually carry open comment threads for communal live-blogging. They've been pretty entertaining in years past, so check them out.

As far as the actual conference itself, the lawyer-types can look forward to addresses by Elders Dallin Oaks, Todd Christopherson, and Quentin Cook. Their addresses are always interesting to me because of the occasional use of legal language or metaphors that add an additional subtext. And if you've ever seen a transcript of one of Elder Oaks' talks, you know that they almost resemble law journal articles, complete with Roman numeral headings and extensive footnotes. One of the highlights of this conference will inevitably be the announcement of a new Mormon Apostle to replace Joseph B. Wirthlin who died late last year. Last time there were vacancies in the Quorum of the Twelve they were replaced by two attorneys. That probably won't happen again, however. Some might say that there aren't any good attorneys left.

Photo credit: Geoff Belknap

Thursday, March 26, 2009

Utah governor vetoes video game bill

Various tech blogs are reporting that Utah Governor Jon Huntsman has vetoed a bill that purported to impose harsh penalties on retailers that sold M-rated video games to underage buyers. Among other penalties, the bill would have provided for seller liability in a civil suit. However, as critics of the bill have pointed out all through the legislative process, the proposed provision had a gaping loophole that would have allowed retailers to opt out of the ratings system altogether. In addition to ineffective problems, the bill likely would not have passed constitutional muster because the language was so imprecise and was not content-neutral. That was the reason cited by Governor Huntsman when he vetoed the bill yesterday. In his accompanying letter (PDF), Huntsman specifically stated his opinion that the bill violated the Dormant Commerce Clause and/or the First Amendment.

The video game bill, HB353, had very broad support in both the Utah House and Senate, so there is still a chance of a legislative override. However, I hope that isn't the case. Legislation like this is often popular in conservative jurisdictions like Utah, but there's no point in passing an unconstitutional law that won't accomplish anything. Additionally, this bill has a strange pedigree, as it was purportedly drafted by Jack Thompson, a controversial disbarred Florida lawyer who has campaigned in several states for laws against video games.

Wednesday, March 25, 2009

President Monson on Twitter. Or not.

As some of you may have noticed, we recently started using a Twitter account to let people know when we post new stuff or when new events come up. There is apparently a small but growing segment of LDS Twitter users, and we thought it might be useful to some people. There are a few Mormon-themed organizations that have Twitter accounts, one of which is the LDS news site Mormon Times.
This morning the Mormon Times Twitter account tweeted (what a stupid verb!) about a user who had set up an account purporting to be President Thomas S. Monson, current leader of the Church of Jesus Christ of Latter-day Saints. This account was set up yesterday, but it's not a new idea: I checked around and found a couple different Monson impersonators on Twitter, though the others don't seem to be taking the act as far. After only a day the new Monson impersonator has over 150 followers, but not everyone is fooled. One user even pointed out that the Faux Monson misspelled his wife's name.

Like everything else online, use of Twitter is governed by the Terms of Service, which include and Impersonation Policy. Interestingly, the Impersonation Policy makes specific provision for parody Twitter accounts, apparently recognizing the limitations imposed by cases such as Campbell v. Acuff-Rose Music, the landmark copyright case against 2 Live Crew's parody version of "Pretty Woman." The Twitter Impersonation Policy pages states:
The standard for defining parody is, "would a reasonable person be aware that it's a joke." An account may be guilty of impersonation if it confuses or misleads others—accounts with the clear INTENT to confuse or mislead will be permanently suspended.
Under this standard, I think it's pretty clear that Faux Monson is violating the Twitter Terms of service. The account currently has nothing ironic or joking about it -- the user is acting as if he or she were Thomas Monson, claiming to be the official account. The page also carries a photograph of the real Thomas Monson and links to an LDS Church website about him.

The impersonation may also violate federal law under the Computer Fraud and Abuse Act (CFAA). Specifically, the impersonation may violate 18 U.S.C. § 1030(a)(2), which is an extremely broad provision that bars intentional unauthorized access or exceeding of access of any computer. Here, since the use violates the Twitter Terms of Service, it is potentially unauthorized (or exceeds authorization). This provision is has been held to apply to all computers connected to the Internet, including server-side systems. Even more dramatic, CFAA provides for significant damages or up to 10 years jail time, sometimes without even showing any evidence of harm caused by the violation.

Before you get all riled up, I don't anticipate a lawsuit. That would be a waste of time and resources, and the LDS Church wouldn't even bother. Some of the fake Monson Twitter accounts have been around for nearly a year, and I'm sure other social networking sites have similar impersonators. However, there is some danger of misunderstanding or miscommunication. The Office of the First Presidency could always keep tabs on the impostors, and request that they be terminated by the service provider if things get out of hand. Or better yet, perhaps people should not be quite so gullible and link up with false accounts.

Earlier this month Sander wrote about the LDS Church's increased online presence, and how positive it can be. But the Faux Monson is an example of the potential down-sides of Internet involvement. A false Twitter account is relatively inconsequential, but I can imagine more serious scenarios. I think the benefits outweigh the occasional annoyances, but Church representatives will have to be aware that more issues like this will appear in the future.

Tuesday, March 24, 2009

Are Pre Law Students Making a Big Mistake?

As the Wall Street Journal reported this past week law school applications were up 2% this past year despite the fact that thousands of lawyers have been laid off since the down turn in the economy began. William Henderson, a professor at Indiana University's Maurer School of Law said "law school is not as safe a bet as it once was". Henderson, who specializes in the economics of the legal profession additionally "there are few law schools that can guarantee law students that they'll find a high paying corporate job, is it really worth going $120,000 or $140,000 more into debt?" Henderson among many others raise a good question, does it make sense to forgo three years worth of income and accumulate six figures worth of debt?

However, if receiving a law degree isn't a ticket to the good life then what is? Business schools continue to raise their tuition and yet MBA graduates also are struggling to find work. The government has even announced that they're looking to lay off 140,000 postal workers! I guess we could all become Am Way distributors......

Monday, March 23, 2009

Does the Mormon Church have a position on Internet filtering?

Over the weekend I ran across an article, awkwardly entitled "Mormons demand ICANN plugs net smut hole." Curious, I clicked on the link, but I almost closed it again when I saw that the article was from The Register. Fortunately, I kept reading and found some interesting tidbits. The article talked about how ICANN, the non-profit organization that controls much of the structure of the Internet, has received a petition (PDF) from a group called CyberSafety Constituency. The organization hopes to be accepted as the newest constituency recognized by ICANN, with the purpose of representing the interests of "families, children, consumers, victims of cybercrime, religions, and cultures." This is mostly a policy issue, but as is often the case, it is hard to separate law from policy. I realized that ICANN policies are not technically laws -- they might even be illegal, since ICANN was not created to make policy decisions -- but inasmuch as it controls the architecture of the Internet, ICANN's word is law.

Kevin Murphy, the author of the article, doesn't do a particularly good job explaining the situation. He apparently concludes that this is a Mormon initiative becuase the proposal is being led by Ralph Yarro III, a well known (and sometimes controversial) Internet and technology figure who is CEO of the Utah-based SCO Group, Inc. The proposal was authored by Cheryl Preston, attorney for CP80, a Utah-based group that proposes "zoning" online adult content to certain ports. Murphy further points out that many of the commenters in the public comment phase have cited their location as Utah. And as he points out, Utah is 58% Mormon. Boom! It must be a Mormon initiative. (Murphy also throws in a superfluous jab against the Mormon church, citing a recent study (PDF) that found that Utah led the nation in online adult content consumption.)

Kevin Murphy did not mention that Cheryl Preston, the CyberSafety Constituency petitioner, is also a BYU law professor. I think this is probably the strongest argument that this ICANN petition is Mormon-supported, although it still isn't dispositive -- individual Mormons are active in a broad array of organizations or causes. To my knowledge, the LDS Church has never taken a position on how the Internet should be governed, or what architecture mechanisms should be used. Even if the Mormon Church supported some sort of protocol that facilitated content filtering, it isn't clear what level of filtering it would advocate. One the one hand, the Church generally opposes pornography, but it also has vested interest in maintaining strong First Amendment rights for its own free exercise of religion. I don't believe there is an official Mormon position on how that balance should be maintained.

For my part, I am reluctant to alter current architecture in the way CP80 proposes. I can see the value in adopting mechanisms that would make it easier for parents to control the content or security threats exposed to their children. But all of these proposals run up against a definitional problem. Even if a functional filtering process is put into place, who decides what content belongs in what "channel"? It's a problem reminiscent of Justice Potter Stewart's famous concurrence in Jacobellis v. Ohio, calling it "trying to define what may be indefinable." I also have some reservations about the proposed CyberSafety Constituency's purpose and scope, because the purpose cited in the petition is colossally broad and potentially contradictory. But the bottom line is that this initiative is not supported by the Mormon Church. Not all Mormons would support it, and most Mormons have probably never heard of any of the proposed constituency or its supporting organizations.

Friday, March 20, 2009

Recommended Reading: The Importance of the Right Question

The speaker materials from the last J. Reuben Clark Law Society Conference are now available online. When I spoke with people who attended, I heard the most buzz about an address by Harvard Business Professor Clayton Christensen entitled, "The Importance of the Right Question." Professor Christensen argues:
Unfortunately, too many of us are so eager to debate and get on with the right answer and the solution, that we often forget even to think about whether the right question has been asked. Lawyers pride themselves on their ability to ask penetrating questions, but I honestly think that the only people who are worse than lawyers at asking the right questions are business managers; and that the only people who are worse than managers at asking the right questions are Mormons.
The rest of the address gives examples of business and church leaders who ask the right questions.  One of the legal examples he cited was the question of separation of church and state. A Chinese colleague of Professor Christensen pointed out to him how vital religion was in American democracy:

[A]s religion loses its power over the lives of Americans, we are living on momentum.  It is a momentum that was established by vibrant religions, and then became a part of our culture.  Today there are many people in America who are not religious, who still voluntarily obey the law, follow through on their contracts and respect other people’s rights and property.  This is because certain religious teachings have become embedded in our culture.  But culture is not a stalwart protector of democracy’s enabling values.  When people stop going to their churches, or if our churches lose their power over our culture, our system will not sustain itself.  What other institutions will teach these values to Americans with the power required to guide their daily behavior?

The debate on the extent to which religious expression can be allowed in public life has been vigorous, and religion is monotonically losing ground. Whether it is the Ten Commandments etched into the stone of state and court houses, nativity scenes in public squares, the ability of school choirs to sing religious songs or having prayers at public school graduation exercises, religion increasingly is being pushed out of public view and public discourse. We have let the enemies of religion frame this debate incorrectly. Somehow the advocates of separation of church and state can’t understand what my Chinese friend saw so clearly – that the religious institutions whose role on the public stage they hope to minimize are in fact among the fundamental enablers of the civil liberties that we all now enjoy.

It's worth reading the whole thing. You can view the talk here or download it here.

Wednesday, March 18, 2009

BYU Law alumna recounts Supreme Court case

Last month we mentioned the Supreme Court's holding in Pleasant Grove, Utah v. Summum , in which a unanimous Court held that a 10 Commandments Monument in a public park was government speech. On the same day we talked about the case Tina Petersen, the city attorney for Pleasant Grove, spoke to a group of BYU Law School students about the case. Petersen, a 1995 BYU Law alumna, discussed her thought process when she first learned of the lawsuit in 2003:

When Peterson first became aware of the case, she began her research by asking herself and the city council an important question.

“Did we establish the monument for a religious purpose—to promote a certain religion?”

The answer, she found, was that they had not.

Then, Peterson began asking other important questions. “Do we move the monument? Do we keep it there? What are the financial ramifications for the city to defend the lawsuit at this time?”

I think it's interesting to hear from a Supreme Court litigant about the infancy of the case. The strategic and practical considerations faced by a small city government are also important; money and workload demands prevent quite a few cases from being litigated or appealed. Eventually the City of Pleasant Grove was joined by dozens of large and powerful amici, but there was no guarantee of any outside support.

Ms. Petersen's remarks also underscore a frightening but fantastic reality for young attorneys -- you can be a part of enormously important cases, transactions, or legislation. Young lawyers in government service or public interest organizations may not make the big bucks, but they often get the big cases. That's how an attorney just a few years out of law school working in a small city can end up working on a Supreme Court case.

Monday, March 16, 2009

Thoughts from the JRCLS Broadcast

Hopefully many of you got to watch the J. Reuben Clark Law Society Annual Broadcast that was last Friday. Elder Quentin L. Cook of the Quorum of the Twelve Apostles was this year's speaker. Elder Cook is a relatively recent Apostle, sustained about a year and a half ago, so I wasn't really familiar with him or his personality before listening to the broadcast. I thought his remarks, which ranged over several topics, were thoughtful and quite relevant. I guess I wouldn't expect anything less from successful former Bay Area attorney.

My first impressions of the broadcast were completely sidetracks. First of all, they really need to work on the sound in the Small Theater of the Conference Center. The mike was way too hot, picking up every footstep on stage. Secondly, does every event associated with the Mormon Church require a musical number? The music itself was fine, but would have rather done without it. My final irrelevant (and irreverent) thought was about Cynthia Lange, the former JRCLS Chair of the Community Service and Outreach Committee. When she started her introduction I thought, "Oh no, even female attorneys can succumb to the dreaded 'Relief Society voice.'" I don't hear that tone anywhere else outside of church functions, and I find it not a little creepy.

On a more relevant note, I found some of the topics Elder Quentin Cook discussed quite interesting. For example, he referenced two recent articles in Forbes Magazine and the New York Times that criticized the legal profession's use of the billable hour. Apparently great minds think alike: We referenced the same Times article last month when we talked about the stresses LDS attorneys face while working under the billable hour.

Elder Cook discussed the U.S. Constitution, mentioning how both J. Reuben Clark and Dallin Oaks have expressed the opinion that the document was inspired. Elder Cook was careful to point out that not every word of the Constitution is inspired (the 3/5 Compromise of Art. I § 2 comes to mind), but he mentioned two key provisions that he felt were inspired by God. The first was the concept of "the Pursuit of Happiness," and how this extended well beyond the right to property. Elder Cook was careful to mention that more money doesn't necessarily mean more happiness, a mindset to which attorneys often subscribe. The same is true for prestige and position: Elder Cook said something to the effect of, "The respect for credentials can virtually become idols."

Elder Cook also opined that the protections afforded to religious practice in the Constitution were also inspired by God. He mentioned incidents in the early history of the Mormon Church when those protections weren't always recognized, and how they are still absolutely necessary today. I wholeheartedly agree -- we have touched on this topic a few times in the past.

The final thing I remember Elder Cook talking about was the duty LDS attorneys have to represent the Church. I think this can be done both directly and indirectly. Elder Cook specifically mentioned the use of interactive media, like blogging, which is near and dear to our hearts. Obviously, no one on this blog speaks for the Mormon Church or its positions, but the idea is to explore the convergence of legal issues and the Mormon faith.

However, my personal opinion is that the indirect representation of the Church is the most important. For example, there was a prominent attorney in the city where I live that everyone knew was a member of the Church. The local legal community recognized his faith as well as the fact that he was a good lawyer. Even today, many years after he moved to another city, his good example still reflects positively on the Church and other LDS attorneys here.

The JRCLS usually publishes the transcripts of broadcast addresses, so expect to see Elder Quentin Cook's remarks on the JRCLS website at some point. This summary is by no means exhaustive, so if any of you remember other topics or have other thoughts, feel free to chime in.

Supreme Court Vacancy?

Justice Ruth Bader Ginsburg has hinted at a possible vacancy "soon" at the US Supreme Court, without indicating who would be leaving.

Speaking Friday at New England Law Boston's annual "Law Day," Ginsburg told students that the nine justices only take pictures together when a new member joins the high court.

Ginsburg, who turns 76 on Sunday, declined to elaborate on her comments. She underwent surgery for pancreatic cancer in early February but has returned to the bench. Despite speculation that she might leave the court, Ginsburg has on several occasions expressed her intention to remain on the court for several more years.

Only the second woman to serve on the Supreme Court, she is one of five justices who are over 70 years old. Justice John Paul Stevens, the most liberal of the justices, is the oldest at 88. He turns 89 next month. Stevens, Ginsburg or fellow liberal justice David Souter, 69, have been expected possibly to retire soon, so it is likely that the whoever Obama replaces will be a liberal and so the overall balance of the court will remain the same.

Friday, March 13, 2009

J. Reuben Clark Law Society Broadcast tonight

Here's a reminder that the 2009 J. Reuben Clark Law Society Annual Broadcast is tonight at 8:00 PM EDT (rebroadcast at 9:30 PM EDT for the western time zones) . The speaker will be Elder Quentin L. Cook of the Quorum of the Twelve Apostles, who had a successful career as a corporate attorney prior to his call to full-time church service.

Many local attorney and student JRCLS chapters have organized events around the broadcast this evening; check the full listing of scheduled events to find one in your area.

The Church on YouTube

While not legal news, strictly speaking, it's worth noting that the Church has started in recent months at least three YouTube channels, all of which are geared towards a general audience:

Mormon Messages and LDS Public Affairs, which consists of news and comments of a general nature; and, Mormon New Era Messages, which, like the magazine of the same name, emphasizes moral and spiritual teachings to a younger demographic.

These sites, coupled with media.lds.org (emphasis on issue-oriented news and comment), mormon.org (basic doctrinal information geared to non-members), and the original site at lds.org, can all be used to help answer questions about the Church, and in some cases, to address criticisms directed at the Church or its members regarding positions taken on contemporary or moral issues. --SJR

Tuesday, March 10, 2009

Uproar in Connecticut

The Mirror of Justice blog reports that the last week's controversial Connecticut legislation aimed at the Catholic Church has been tabled. According to Archbishop Henry Mansell of Hartford, the bill would “force a radical reorganization of the legal, financial, and administrative structure of [Catholic] parishes.” In case you think that wasn't descriptive enough, PrawfsBlawg's Rick Hills called the measure "The Connecticut Legislature's preposterously unconstitutional attack on Catholicism." Sensational enough for you now?

Professor Hills points out that, among other things, the proposed Connecticut measure is patently unconstitutional under Church of Lukumi Babalu Aye v. City of Hialeah. (For a brief but excellent analysis of all the issues, see the open letter written by several prominent law professors to the Connecticut legislature.) For all the ugliness directed towards Mormons after Proposition 8 in California, there hasn't been such an overt legislative assault on the LDS Church in any jurisdiction.

I certainly don't see this as a Catholic or Mormon issue. Even with in a divisive political climate, I am utterly surprised that any legislator in the nation would sign his or her name to such a bill. In a Q&A on the National Review Online, Katheryn Jean Lopez asked Brian Brown (executive director of the National Organization for Marriage) "Why should anyone who’s not Catholic in Connecticut or Mormon in California care?" He responded:
All Americans, whatever their political leanings, should care when politicians propose to take out a specific religious group because partisans in one party don’t like its moral stands on important public issues.
Brown goes on to call for "a response that makes these partisans regret it." I don't support Brown's vindictive approach, but I certainly agree that all Americans should be concerned that such a provision was ever contemplated.

Photo credit: Brent Danley

NYU Law Review and the Importance of the Internet in Law School

In the mood for a good laugh? Check out this video created by NYU's Law Review highlighting the importance of having laptops (and the internet) in class. After watching the video one of my classmates asked; "What did people do in class before the internet?"

Please Repeat the Question from Amanda Bakale on Vimeo.

Tuesday, March 3, 2009

New federal lawsuit challenges Defense of Marriage Act

The same group that won the Massachusetts Supreme Court decision paving the way for gay marriages in that state has filed a new federal lawsuit challenging the Defense of Marriage Act (DOMA). The suit alleges equal protection violations of same-sex spouses who were denied federal benefits (such as pensions or Social Security) under DOMA. I can't go into great detail without access to the actual filings, but at first blush this seems like a clear-cut equal protection violation. In my opinion DOMA cannot withstand constitutional scrutiny, and this lawsuit could very well be the first step in dismantling DOMA.

Today's lawsuit doesn't challenge the provisions of DOMA that allow states to refuse to recognize same-sex marriages effectuated in other states. Mary Bonauto, head of Gay & Lesbian Advocates & Defenders (GLAD), insists that her organization has no plans to challenge that portion of DOMA, but it's only a matter of time before the rest of DOMA is challenged. If the federal benefits portion of DOMA is faulty (and I believe it is), then a similar argument can be made that the state provisions violate the Full Faith and Credit Clause.

I've never heard any of the legal counsel to the LDS Church give an explanation as to why the Church supported a federal constitutional amendment on traditional marriage, but I have always assumed it was because the Church's legal advisers recognized that DOMA was probably unconstitutional. From a legal perspective I think an amendment to the U.S. Constitution on marriage is a bad idea, since marriages have always been left to the states. But if I am right and DOMA is destined to fail, then only a federal constitutional amendment could preserve the traditional definition of marriage on a national level.