Thursday, April 30, 2009

Ruling for Community of Christ in trademark suit against breakaway church

Those of you familiar with the history of the Mormon Church know that it has a few breakaway groups, the largest of which is known as the Community of Christ. However, until 2001 it was known as the Reorganized Church of Jesus Christ of Latter-day Saints, or RLDS Church, since that title is more than a mouthful. Despite the name change, the Community of Christ maintains the trademark to the RLDS name.

The recent history of the Community of Christ has been one of sweeping policy and doctrinal changes, which have resulted in quite a few breakaway congregations over the years. One recent offshoot is the Devon Park Restoration Branch, which was apparently using the RLDS name and old logo on its signs, stationary, website, etc. The Community of Christ didn't like this, of course, and sued in federal court for trademark infringement. COC alleged that the Devon Park church violated the copyright (which the COC still maintains) and that the use had a substantial likelihood of confusion.

The federal judge agreed, granting a preliminary injunction. Missouri District Court Judge Gary Fenner wrote that the confusion was particularly great since the Devon Park congregation was located so close to the COC headquarters in Independence, Missouri.

The Community of Christ can fully appreciate the importance of a name. Years ago, before the recent doctrinal changes and attempts to distance itself from the original Mormon Church, the then-RLDS Church offered to deed the Kirtland Temple over to the LDS Church in exchange for the rights to the name "Church of Jesus Christ of Latter-day Saints."  One person familiar with the offer explained that the LDS Church declined the offer. The logic was that a piece of property can always be acquired later through various means, but losing a name is permanent.

Hat tip: Religion Clause
Photo credit: coolvalley

Wednesday, April 29, 2009

Should Judge Jay Bybee take the blame for the CIA's rough interrogation tactics?


Should Judge Jay Bybee be the fall guy for the CIA's rough interrogation tactics of terror suspects? Yesterday, Time Magazine wrote an article describing Bybee as a "top Justice Department official who approved an array of so-called "enhanced interrogation techniques" against alleged al-Qaeda members that many observers call torture." The article continues; "though Bybee wasn't the only person responsible for crafting the Bush administration's interrogation policy, unlike his erstwhile colleagues he continues to hold public office, sitting on the Ninth Circuit Court of Appeals. He now faces calls for impeachment from Sen. Patrick Leahy, former Obama aide John Podesta and the New York Times editorial board, among other corners. The Justice Department has distanced itself from much of Bybee's work and is reportedly preparing a scathing internal report that could call for him and others to be reprimanded or even disbarred."

DISBARRED? DISBARRED!? All these talking heads keep saying that Bybee has broken both International and U.S. laws but SHOW ME what laws he has broken. I've looked and I can't find a single law of the United States that he broke. Each of the U.S. laws that I've read only proscribe penalties to the person who actually did the "torturing". Let's be honest the Bush administration was going to interrogate terror suspects anyway they wanted, regardless of what their lawyers told them. Additionally, are we really going to "reprimand" or "disbar" a United States Circuit Judge over the "standards" of an international treaty? Give me a break! Our country signs a treaty a day that we don't abide by. Why start now? And with a Federal Judge?

The fact of the matter is, politics are more important to some of our leaders then keeping this country safe.

Bybee received his B.A., from Brigham Young University in 1977, graduating magna cum laude. He went on to receive his Juris Doctorate from BYU's J. Reuben Clark School of Law three years later. He served his mission for the Church of Jesus Christ of Latter-day Saints in Chile from 1973- 1975.

Monday, April 27, 2009

LDS Church grapples with missionary immigration issues

Over the weekend the Salt Lake Tribune reported on an LDS missionary returning home from his mission was detained in the Cincinnati Airport for lack of documentation. The young man apparently was an undocumented alien, and his arrest has sparked new discussion about how the LDS Church deals with immigration issues.

Until 2005 this particular situation did not occur in the U.S. because religious organizations would be criminally liable for allowing undocumented workers to perform volunteer service (such as missionary service). Young men and women were not eligible for missionary service in the U.S. unless they had legal status; otherwise they would have to return to their countries of origin and apply from there. However, the law was changed by a bill amendment sponsored by Senator Bob Bennett (R-Utah), and the LDS Church stopped disqualifying missionary applicants based on immigration status.

With the arrest of the missionary earlier this month, those arrangements will likely change. Immigration and Customs Enforcement (ICE) has stepped up enforcement in recent years, including bus stations and airports. The Mormon Church's travel department has always had to deal with immigration issues, since the approximately 50,000 LDS missionaries serve in many countries worldwide. Due to the varied and often inconsistent manner in which immigration law is handled in other countries, Mormon missionaries have on occasion been arrested in other countries due to visa issues. However, this is the first time that a Mormon missionary has been arrested in the U.S. in recent memory.

Last month we had a similar discussion about whether there there was a conflict created by baptizing illegal residents in U.S. And just as in that situation, different people are of different opinions as to what should be done with illegal immigrants who want to do full-time missionary service. By Common Consent has a post about the arrest and a lengthy comment thread. Not all of the comments are particularly informed, but they at least give an idea of the range of opinions.

I don't see this as a particular tough problem for the LDS Church. If it's not illegal to send undocumented aliens on missions, I don't think the Mormon Church has done anything wrong. An alien out of status in the U.S. is at no more risk serving as a missionary as he or she would be going to school or working a job. The major issue is with the undocumented alien, not the Church. However, if ICE starts targeting Mormon missionaries, that may change. I think the LDS Church may soon reconsider the situation of these young missionaries, since it doesn't want to be in a position where its young volunteers are harmed by volunteer service.

Photo credit: versageek.

Sunday, April 26, 2009

Even Mormon Lawyers are on Twitter!


If you're like most people and you can't enough of MormonLawyers.com you can now follow us on Twitter! If you to go Twitter and search for "Mormon Lawyers" you'll be able to "follow" us on your phone or online. Or just go to www.twitter.com/mormonlawyers We'll "Tweat" (or is it spelled Tweet?) you each time we have an update; then you'll never have to wait to get an update. Apparently, Ashton Kutcher has 1 million people following him on Twitter... I think we'll beat that number...

Saturday, April 25, 2009

Job of the Week: Litigation Associate in the OC!

Today's Job of the Week is with another boutique law firm in the OC

Position: Litigation Associate

Location: Orange County, CA

Description: A highly regarded litigation boutique in Orange County is looking for an associate to join the practice. The associate will work primarily on commercial litigation with some real estate and bankruptcy lit as well. The attorney must have at least four years of substantive litigation experience and some experience taking depositions. In addition the associate must be an outstanding writer. Billables are around 1900 per year and compensation is less than that at the top national firms, but the associate will get significant hands on experience.

Membership in Lateral Link is free and you can apply at www.laterallink.com. Also, a reminder that the LACBA presentation "The LA Legal Market: How to Find a Job in the Midst of an Economic Downturn" is coming up on April 29.

Thursday, April 23, 2009

Tenth Circuit Finds Religious Bigotry is OK...As Long as You Attack Mormons

I recently came across this case and found it so interesting that I had to point it out. For some reason I can't help but think this case would have held differently if these comments had been made towards a different religion or minority group.

United States Court of Appeal,
Tenth Circuit
HONEYVILLE GRAIN, INC., Petitioner/Cross-Respondant,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Respondant
444 F. 3d 1269



Facts:
Honeyville Grain is a Utah corporation with facilities in California and Utah. It processes and distributes food products, and it employs truck drivers to deliver its products. In February 2002, the Local 166 of the International Brotherhood of Teamsters, AFL-CIO (“the Union”) petitioned the Board for an election in a unit of Honeyville's full-time and part-time truck drivers at the Rancho Cucamonga, California facility. “[T]he Board not only conducts elections, but it also oversees the propaganda activities of the participants in the election to insure that the voters have the opportunity of exercising a reasoned, untrammeled choice for or against labor organizations seeking representation rights.”

The Board conducted a secret-ballot election at Rancho Cucamonga on April 12, 2002. All thirty-two eligible voters cast ballots; twenty-three voted in favor of the Union, seven voted against the Union, and two ballots were challenged. Later that month, Honeyville filed ten objections to the election. Relevant to this appeal, Honeyville objected to comments made in a meeting held at the Union's office five days before the election; twenty to twenty-five of the drivers attended. Meeting attendees testified that two Union agents, Rene Torres and David Acosta, stated:

1. Honeyville is run by Mormons;

2. Honeyville is giving its money to the Mormon Church;

3. Companies have tax incentive to give profits to churches, which should be shared with the workers instead;

4. Honeyville's Mormon owners not only give their money to the Mormon Church, but they also give money to the Mormon missionaries; and

5. Mormons are missionaries, and missionaries speak good Spanish.

Mr. Torres is a driver with Honeyville Grain, and Mr. Acosta is a business agent and organizer for the Teamsters Local 396. The most extensive testimony came from Enrique Erazo, a Honeyville driver who attended the meeting where the religious remarks were made. At a Board hearing, Mr. Erazo testified that Mr. Torres stated:

[The drivers] have rights to benefits. So, the money the Company was making-was a rich Company and so, the money that the Company was making, they needed to share it with every worker and improve the benefits to workers.

Since the Company was a Company run by Mormons, [the Union] said they would ... see to it that they would make better contributions-they did to the church and they would also distribute or share that money with Missionaries going out of the country and because the money was tax deductible and that is why they would give part of that money to the Mormon Church, instead of giving it to-sharing it with the workers-the opportunity that they have in order to better their way of life.

Mr. Erazo further testified that the meeting attendees applauded after Mr. Torres discussed the distribution of the company's profits and referenced the religious beliefs of its owners. Neither party has put forward any evidence about the religious makeup of the unit employees.

At the outset of our review, let us be clear: the Union agents' references to the religious belief of Honeyville's owners at this meeting were wholly inappropriate for any representative campaign, and in no way do we condone such remarks. Religious prejudice can work in subtle ways. We are particularly troubled by the testimony that the employees applauded after the Union representative's discussion of Honeyville's profits and incentives to contribute to the Mormon Church.

In conclusion the majority felt that Honeywell had not meet its burden.
The party challenging an election on the basis of pre-election religious comments must initially show that the remarks were either inflammatory or formed the core or theme of the campaign. Here, Honeyville did not satisfy this preliminary burden. While we in no way condone the inappropriate, unwarranted, and unjustified religious references, substantial evidence from the record considered as a whole supports the Board's conclusion that the comments were not inflammatory or central to the Union's campaign. “[I]f supported by substantial evidence, we must affirm the Board's conclusions even though we might reach a different result were we reviewing the record de novo.” (emphasis added). The Board did not abuse its discretion when it declined Honeyville's request to set aside the election. Accordingly, we DENY Honeyville's petition for review, and we ENFORCE the order of the Board.

Paul Kelly, Jr. dissented from the majority. He made several points I thought were very interesting.
Five days before the election, the union organizers were obviously trying to incite the employees to vote for the union. What better way than to point out that the owners or managers of the company were of a different faith and that the money they contributed to their church instead rightfully belonged to the workers? It is common knowledge that members of the LDS Church tithe. With all due respect to the majority, religious bigotry is blatant in this case. The court's resolution, taking comfort in the apparent absence of overt abuse, vulgarity, or profanity in the union organizers' diatribe, simply misses the forest for the trees.

The comments also disparaged the company, Honeyville, Inc., based upon its alleged charitable contributions which were deductible for federal income tax purposes. A corporation may deduct charitable contributions from taxable income, subject to a maximum of ten percent of such income. No evidence in this record suggests that Honeyville made such contributions.

The court states, as it must, that the references to the religion of Honeyville's owners “were wholly inappropriate,” not to be condoned, and particularly troubling given the employee applause that followed these comments. Although the court's holding is couched in deference, we need not defer to patently incorrect factual findings. Ignoring the obvious, the ALJ and the NLRB held that the statements in question were not an attempt to inject religious issues into the campaign by appealing to religious prejudice against the company and its owners. That conclusion is simply transparent. The only purpose of such comments was to mobilize the employees against their employer by suggesting that the employer preferred the religious interests of its owners over the welfare of its employees. This more than adequately satisfies a prima facie case of inflammatory remarks sufficient to shift the burden to the union to prove the remarks were truthful and germane. Were there any doubt, one need only consider the balance of those remarks. (“[T]he allegations in the Company's objection raised a prima facie case that [the] religious slur did impermissibly infringe on the employees' freedom of choice.”)

The union agents did not stop after slurring the Mormon Church. The next target was real or imagined contributions to Mormon missionaries. Finally came the non-germane commentary on the ability of the stereotypical missionaries to speak “good Spanish,” yet another reason to distrust the owners. In my view, this case cannot be meaningfully distinguished from Silverman's. There, the Third Circuit held that a union official's referring to a company official as a “stingy Jew” required the union to meet the burden of establishing the legitimacy of the remark, an impossible burden. Indeed, this court's attempts to distinguish Silverman's are not particularly availing. While it is true that Silverman's remanded for a hearing and our review is for substantial evidence, the Third Circuit made it clear that calling a company official a “stingy Jew,” regardless of the labor policies of the company, could not be legitimate; the issue on remand was whether the union could prove that the remark was harmless.

This court also indicates that the Mormon discourse was an isolated incident, not the central theme of the union's campaign. That rings hollow when one considers the nature of the ten “meetings” between the union and the employees. Although Mr. Stephenson testified that ten meetings occurred, the culmination of the union's campaign occurred at the April 7th formal meeting where all or virtually all of the drivers were present. Prior to that, all that occurred was a series of informal encounters between employee organizers and substantially less than all of the employees. These informal encounters are nowhere near the equivalent of the April 7th meeting or rally. As such, the court's conclusion that these statements were only an isolated incident bears no merit. Further, it strains credulity to suggest, as the court has, that under the “totality of the circumstances” these comments were not inflammatory, particularly given the employees' embracing the comments with applause.

The comments in this case came at a critical time in the organizing process, were reprehensible and had absolutely no proper purpose in the election. I dissent.



As a former Spanish speaking missionary who served under one of the Honeyville owners , I also dissent.

Wednesday, April 22, 2009

BYU, J. Reuben Clark Law School Announce New Dean


Brigham Young University announced James R. Rasband as the new dean of the J. Reuben Clark Law School. Rasband previously worked in BYU's general administration as an associate academic vice president for faculty. Rasband graduated from BYU with a Bachelor's degree in 1986. Three years later, he earned a Juris Doctor from Harvard Law School. After a clerkship with the Ninth Circuit U.S. Court of Appeals, Brother Rasband worked in private practice in Seattle, Wash., for several years. In 1995 he joined the faculty of the J. Reuben Clark Law School, and from 2004-07 he was an associate dean for research and academic affairs at the law school. His tenure as associate academic vice president for faculty was announced in December 2007 and commenced Jan. 14, 2008.

"Jim Rasband will be a superb dean," BYU Academic Vice President John S. Tanner said. "I have worked closely with Jim for two years. He has tremendous gifts of mind and heart, along with high standards, people skills, administrative experience, and a love for the law school. I expect the school to flourish under his leadership."

The J. Reuben Clark deanship opened up in June 2008 when Kevin J Worthen vacated the post to become advancement vice president of BYU. James D. Gordon III has been serving as the law school's interim dean during the 2008-09 school year.

Tuesday, April 21, 2009

Nordyke v. King: Right holding, wrong reasoning

A unanimous Ninth Circuit panel of judges recently held that the Second Amendment was incorporated (or applied) against state and local governments in the case Nordyke v. King. I haven't read the whole opinion yet, but it looks like I agree with the outcome of the case, if not the methods the court used to reach the conclusion.

(I should mention at the outset that I don't see Second Amendment issues as having a particular "Mormon" component. Firearms are not permitted in Mormon houses of worship, but the LDS Church has never taken a position on the appropriateness of gun control laws. My anecdotal experience with other Mormons has shown that there is a wide range of opinions on this subject within the Church. For my part, my interest in the Second Amendment is almost purely legal -- I don't own a firearm and I have never had any interest in hunting.)

The Second Amendment has a strange history with respect to state and local governments. The Supreme Court has chosen to incorporate constitutional amendments selectively against the states, usually under the Due Process Clause. Under this approach, constitutional provisions are incorporated when they involve "fundamental liberties." In Nordyke, the Ninth Circuit panel held that the Second Amendment right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'" In its decision the court specifically references District of Columbia v. Heller , the D.C. handgun ban case.

I agree with the court in Nordyke. I think the Second Amendment clearly should be incorporated against state and local governments to prevent unconstitutional restrictions on a constitutional right. But I, along with many legal scholars, disagree with the approach the Supreme Court has taken since the first incorporation case, Duncan v. Louisiana (1968). Justice White's opinion for the Court in Duncan held that the defendant in that case was wrongfully convicted without a jury trial, and incorporated the Sixth Amendment jury protections against the states. However, Justice White's opinion held that only fundamental rights within the system of Anglo-American jurisprudence could be incorporated. This produced a series of Supreme Court cases that have one-by-one incorporated almost all of the Bill of Rights against the states. The most notable exception is the Second Amendment, but there are others, including the quartering of troops, and a right to a jury in civil trials.

My thinking follows that of Justice Black, whose strident dissent in Duncan is just as valid today as it was in 1968. Justice Black asked, if only "fundamental" rights are incorporated, what determines whether a right is "fundamental"? This inevitably leads to reliance on extra-constitutional sources (such as history, cultural norms, etc.) which Justice Black thought were unreliable, easily manipulated, and unpredictable. I think this is exactly right, and I think this has opened the door for reading new and unintended rights into the U.S. Constitution, such as the ill-defined "right to privacy". I agree with Justice Black that a better approach would be to incorporate the Bill of Rights in its entirety against state and local governments using the Privileges and Immunities Clause. The selective incorporation approach has reached similar results to that advocated by Justice Black, since almost all the Bill of Rights is now incorporated. But the Second Amendment is an obvious example of how this approach is inconsistent, so I disagree with the court's reasoning in Nordyke.

To be clear, my quarrel really isn't with the Ninth Circuit panel. The judges there followed the selective incorporation doctrine because they were thus bound by precedent. But as an armchair quarterback watching these cases without the burden of stare decisis, I think selective incorporation is hopelessly flawed. The good news is that the recent spat of gun control challenges is likely to result in a Supreme Court case that could overturn selective incorporation.

Photo credit:  Kevitivity.

Monday, April 20, 2009

Legal Telecommuting Jobs Available

The Dine Group is seeking admitted attorneys for several telecommuting positions with a major corporation to do research and writing on new developments in the law. These positions can be done from any state.

You need to have a minimum 3 years experience in any one of these practice areas:

1. Banking Regulation

2. Mergers & Acquisitions/transactional contract drafting

The positions are 40 hours a week. Interested parties please email resumes in Word format to: erosenthal@thedinegroup.com

***Thought someone might be interested.......Clint***

Sunday, April 19, 2009

Job of the Week: Mortgage Origination Attorney in the OC


Position: Mortgage Origination Attorney

Location: Orange County, California

Description: This private company and a hedge fund affiliate specializing in the full suite of services required by the residential loan and real estate market is seeking a Mortgage Origination attorney. Candidates should have experience with fair lending laws, HMDA, TILA, RESPA, loan disclosures and fees, state-specific requirements for marketing/advertising, CAN-SPAM, telemarketing and other relevant solicitation statutes; ability to devise policies and procedures for a growing origination business; able to communicate effectively with executive management and competently represent the Legal/Compliance department in meetings with business unit leaders; able to work in a fast, thriving environment; opportunity for a great work-life balance.

Membership in Lateral Link is free and you can apply at Lateral Link.

Saturday, April 18, 2009

Nate Oman on Mormons as Minorities

William & Mary Law prof and Times & Seasons blogger Nate Oman posts the audio of a presentation he gave to the William & Mary chapter of the J. Reuben Clark Law Society. I've heard Oman speak before, and he has done quite a bit of research on Mormon legal and political history.

Oman's topic in this presentation is on "Mormons and Minorities," and I think it's very interesting. The audio is a bit rough -- I think someone recorded it from the audience -- but I recommend giving it a listen. If I can get a written version of the presentation I'll post it later.

Nate Oman - Mormons as Minorities

Thursday, April 16, 2009

Part-Time Legal Work From Home

***I just received this email and thought that someone might be interested***

JuriStaff Legal Staffing is assisting a client in their search for an experienced bank regulation attorney to work 40 hours a week from home on a temporary basis. This opportunity is asking a commitment to work through June 2009 but is likely to last longer therefore we are looking for an attorney that can make a long term commitment. Attorney applicants must have at least 3 years practicing bank regulation, excellent editing, legal research, analysis and writing skills and the ability to complete assigned research and writing projects by prescribed deadlines. Prior law review or federal clerkship experience is also a plus. Our client is only willing to consider attorneys with at least 3 years of recent practice experience with strong law firm and academic credentials.

The position will pay $40p/h, non-negotiable.

Please send resumes in WORD format to bnepereny@juristaff.com Please list Job code BT9-B. Only qualified applicants will be contacted.

Word of Wisdom Approved Tea Party


I have to give a shout out to two of my University of Dayton School of Law, classmates for putting together the Dayton, Ohio "Tea Party". Rob Scott and Perry Reynolds organized the rally where thousands of locals gathered in downtown Dayton, to express their disgust with wasteful government spending. Hundreds of similar rally's were held all over the country.

Are these protests a sign of things to come? Has the average American finally said enough is enough? CNN said that these protests represented a "small minority" of "angry Americans". However, I disagree with CNN (that's not a first) I think that the average American knowns the country is headed down an unsustainable path and something must be done.

Wednesday, April 15, 2009

Utah Senate Pres. threatens CAN-SPAM against Jack Thompson

Last month we posted about Utah Governor Jon Huntsman's veto of an ineffectual bill that purported to prevent the sale of M-rated video games to minors. The driving force behind that bill was Jack Thompson, a now disbarred lawyer from Florida who is controversial for the tactics he uses in his campaign against violence and sex in video games. The Salt Lake Tribune is now reporting that Thompson is being threatened with legal action under the federal CAN-SPAM Act for unwanted emails sent to Utah State Senate President Michael Waddoups. Apparently Waddoups was on Thompson's mailing list and asked to be removed, but Thompson refused. The Senate Site blog, which calls itself "The Unofficial Voice of the Utah Senate Majority," provides some clarification with an email exchange between Thompson and Waddoups. Apparently Thompson sent an email out that highlighted certain images that were not particularly safe for work, which was the impetus for Waddoups' removal request.

While this drama goes on, I think it's important to note that you almost never see the CAN-SPAM Act enforced on a single spammer. The CAN-SPAM Act of 2003 governs commercial emails and prohibits false or misleading header information (To: and From: fields, etc.) and deceptive subject lines. There are also specific requirements that email advertisements be identified as such. Most relevant to this situation is the requirement that email recipients be given an opt-out method. Thompson apparently is refusing to let Waddoups opt out of the emails, thus violating that part of the Act.*

If you are a competent Internet user and have an email account, you have likely noticed that your junk mail folder regularly receives emails that violate these rules. This is due in large part to the fact that the CAN-SPAM Act provides no private cause of action against spammers. It can only be enforced by parties such as the Federal Trade Commission, the Department of Justice, or specific internet service providers. People like you and me can't sue for the email spam we receive. I don't know if this is a good thing or a bad thing, but that's how the Act is written.

For the most part, only flagrant or notorious spammers are sued or prosecuted under the CAN-SPAM Act. However, a defiant and disreputable character like Jack Thompson going up against the head of a state senate seems like one of the few situations in which an individual case of spamming might be enforced, either through FTC fines or by criminal prosecution by the DoJ. However, the email must first be considered commercial in order to fall under the CAN-SPAM Act. I doubt CAN-SPAM applies to an email sent to a legislator advocating a particular issue or viewpoint, as this email seems to have done. We'll wait and see what happens next.
__________________________________________
* The CAN-SPAM Act also has specific provisions applying to sexually explicit commercial emails, but I don't think that applies here because accroding to The Senate Site blog, the communication at issue is probably not sexually explicit.

Would Be Temple Shooter Pleads Guilty To Weapons Charges

Benjamin Speakman of South Jordan, Utah pleaded guilty to weapons charges for possession of an unregistered sawed-off shotgun. In his plea, Speakman admitted cutting down the barrel of a New England 12-guage shotgun that is not registered to him. He has agreed to give up that firearm, as well as a 9mm Glock handgun and an AK-47.

The 27-year-old is scheduled to be sentenced on June 22 at U.S. District Judge Dale Kimball. The offense carries a maximum sentence of 10 years in prison. Federal authorities say Speakman went to Valley Mental Health in Midvale, Utah on Feb. 2 and told employees he had a pistol and a shotgun and was planning to kill himself and others. Speakman allegedly told officers he planned to shoot anyone at the Jordan River Temple of The Church of Jesus Christ of Latter-day Saints.

Saturday, April 11, 2009

BYU Law prof Larry EchoHawk to head Bureau of Indian Affairs

President Barack Obama has nominated BYU Law professor Larry EchoHawk as the head of the Bureau of Indian Affairs, a sub-agency that is part of the Department of the Interior. Professor EchoHawk is a former Attorney General and State Representative for the State of  Idaho. EchoHawk is a member of the Pawnee Nation and has a long history of connections with BYU. He played varsity football for BYU in undergrad, has taught at the law school since 1994, and is currently serving as a BYU stake president. Congratulations to Professor EchoHawk. It seems that BYU's loss is the Bureau's gain.

Thursday, April 9, 2009

Playing ball at the Highest Court in the Land

One of my favorite legal blogs to read lately is Hunter's Query, the blog of the Howard W. Hunter Law Library at the BYU Law School. Shawn Nevers, the blog's author, always has some brief but interesting things to say. Sometimes it's academic, but it is often entertaining.

Last week he drew my attention to a Salt Lake Tribune article about a the infamous Supreme Court gymnasium, located above the Supreme Court chambers. (I genuinely thought this was a urban legend until I visited the Supreme Court building.) The article had quotes from couple BYU Law grads and professors who clerked for Supreme Court justices, and it's pretty entertaining. The best part is Justice Clarence Thomas' assertion that Supreme Court justices never play H-O-R-S-E. They play H-A-B-E-U-S C-O-R-P-U-S.

Photo credit: Balakov.

Wednesday, April 8, 2009

Is federalism divinely inspired?

One passing comment from the last J. Reuben Clark Law Society broadcast that caught my attention was a reference to federalism. Elder Quentin Cook mentioned that Elder Dallin H. Oaks has opined that the federal structure set forth in the U.S. Constitution were divinely inspired. I did a bit of searching, and came up with an Ensign article entitled "The Divinely Inspired Constitution" from February of 1992. This seems to be the source for Quentin Cook's reference. In the article Dallin Oaks states in relevant part:
Unlike the inspired adaptations mentioned earlier, this division of sovereignty [federalism] was unprecedented in theory or practice. In a day when it is fashionable to assume that the government has the power and means to right every wrong, we should remember that the U.S. Constitution limits the national government to the exercise of powers expressly granted to it. The Tenth Amendment provides:

“The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.”

This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the U.S. Constitution.

I think this is a pretty interesting claim. It seems like a no-brainer to say that Constitutional provisions such as the Free Exercise Clause would be inspired by God, since religious freedoms would facilitate worship and proselytizing. It is another thing entirely to claim that a specific structure of government is not only better, but actually inspired by God. Elder Oaks elaborates on his assertion:
The particular powers that are reserved to the states are part of the inspiration. For example, the power to make laws on personal relationships is reserved to the states. Thus, laws of marriage and family rights and duties are state laws. This would have been changed by the proposed Equal Rights Amendment (E.R.A.). When the First Presidency opposed the E.R.A., they cited the way it would have changed various legal rules having to do with the family, a result they characterized as “a moral rather than a legal issue.” I would add my belief that the most fundamental legal and political objection to the proposed E.R.A. was that it would effect a significant reallocation of law-making power from the states to the federal government (Emphasis added).

So not only is the federal system divinely inspired according to Elder Oaks, but this is apparently the grounds for which the First Presidency opposed the Equal Rights Amendment. Contrast that, however, with the Church's recent position on a federal constitutional amendment defining marriage between one man and one woman. Such an amendment would likely represent "a significant reallocation of law-making power from the states to the federal government."

I should point out that I am a firm believer in federalism. But I don't know if I consider it the product of divine revelation. I believe it to the the best governance system thus far conceived, but I don't consider federalism to be gospel truth. The LDS Church's inconsistent positions with respect to federalism seem to bear this out. Unfortunately, I wish the First Presidency had stuck to their guns on this one, because a federal marriage amendment presents quite a few legal problems. (For further reading on this issue, see Nate Oman's excellent post "A Legal Analysis of the 'Marriage Protection Amendment'".)

Photo credit: PBS.

Tuesday, April 7, 2009

LDS Lawyers Become Easier to Contact

For the past several months LDS Legal Link has been in a pre-launch phase, creating a data base of LDS lawyers from all over the country. The website has recently gone "live" and is now searchable by the public. LDS Legal Link is already the largest private data base of LDS attorneys on the internet and with more lawyers joining each day there are lawyers to fill just about every niche. Whether looking for an LDS bankruptcy attorney in Poenix, Arizona or a personal injury lawyer in Los, Angeles chances are you'll find an LDS lawyer to help you with your legal needs. In addition to a broad array of LDS attorneys the different foreign languages they speak is impressive and is a real benefit to their clients that speak foreign languages. Click HERE to begin a search of LDS lawyers.

If you are an LDS lawyer and have not registered yet click HERE to be brought to the LDS Legal Link registration page. It is completely free for LDS attorneys to be listed on the website. In this economic climate what's better than free legal advertising?

Monday, April 6, 2009

Results From All Law Schools Considered

This topic generated many different opinions.

It is only fair for you, the readers, to see how each considered school was ranked. By sharing this information hopefully some of your questions and concerns will be answered.

To view a PDF of all the schools considered for the list click HERE.

To view a PDF of the points scored by each law school considered click HERE.

We appreciate all the comments that were made. We value our readers opinions and ideas.

KEEP THE COMMENTS COMING.

2009 Top Ten Most Mormon Friendly Law Schools

1. University of Nevada, Las Vegas - William S. Boyd School of Law
Number of Mormon Law Students: 80
Percentage of Student Body: 16.98%
Cost of Living: $14,260
Cost of Tuition: $20,302
Distance to nearest Temple: 13 Miles
US News Ranking: 88
Total Points: 409


2. Arizona State University - Sandra Day O'Connor College of Law
Number of Mormon Law Students: 70
Percentage of Student Body: 11.12%
Cost of Living: $12,952
Cost of Tuition: $28,856
Distance to Nearest Temple: 10 Miles
US News Ranking: 51
Total Points: 394


3. University of Idaho School of Law
Number of Mormon Law Students: 82
Percentage of Student Body: 26.11%
Cost of Living: $15,270
Cost of Tuition: $20,962
Distance of Nearest Temple: 83 Miles
US News Ranking: 0
Total Points: 384


4. University of Michigan Law School
Number of Mormon Law Students: 26
Percentage of Student Body: 2.3%
Cost of Living: $15,000
Cost of Tuition: $22,250
Distance to Nearest Temple: 44 Miles
US News Ranking: 9
Total Points: 329



5. Texas Tech University School of Law
Number of Mormon Law Students: 38
Percentage of Student Body: 5.41
Cost of Living: $12,990
Cost of Tuition: $20,759
Distance to Nearest Temple: 7 Miles
US News Ranking: 0
Total Points: 326


6. University of Minnesota Law School
Number of Mormon Law Students: 27
Percentage of Student Body: 3.37%
Cost of Living: $13,392
Cost of Tuition: $32,303
Distance to Nearest Temple: 18 Miles
US News Ranking: 22
Total Points: 323



7. University of Nebraska College of Law

Number of Mormon Law Students: 38
Percentage of Student Body: 9.52%
Cost of Living: $11,476
Cost of Tuition: $27,742
Distance to Nearest Temple: 58 Miles
US News Ranking: 73
Total Points: 305


8. Gonzaga University School of Law
Number of Mormon Law Students: 50
Percentage of Student Body: 8.97%
Cost of Living: $14,375
Cost of Tuition: $30,120
Distance to Nearest Temple: 12 Miles
US News Ranking: 0
Total Points: 295


9. George Washington School of Law
Number of Mormon Law Students: 70
Percentage of Student Body: 4.13%
Cost of Living: $20,500
Cost of Tuition: $38,198
Distance to Nearest Temple: 10 Miles
US News Ranking: 20
Total Points: 285




10. Willamette University College of Law
Number of Mormon Law Students:55
Percentage of Student Body: 12.97%
Cost of Living: $15,986
Cost of Tuition: $27,495
Distance to Nearest Temple: 39 Miles
US News
Ranking: 0
Total Points: 284





Honorable Mention: Creighton University School of Law
Number of Mormon Law Students:44
Percentage of Student Body: 9.4%
Cost of Living: $16,530
Cost of Tuition: $28,442
Distance to Nearest Temple: 7 Miles
US News Ranking: 0
Total Points: 282





*Neither Brigham Young University or University of Utah were considered for this list.


Download a PDF of Top Ten List HERE

Friday, April 3, 2009

Are Mormon Church Members Conflicted by Illegal Immigrant Converts?

This past week the Arizona Republic published an article "LDS Church members conflicted on Church's illegal immigrant growth. Drawing converts vs. Upholding the law". The article highlights the fact that the Church of Jesus Christ of Latter-Day Saints is one of the fastest growing religions in the country. With a large percentage of this growth coming from Latino immigrants. Does it matter that a large percent of these recent converts are illegal aliens?

Brigham Young University history Professor Ignacio Garcia believes that nationwide in the past 10-15 years 70 percent of all Latino converts to the Mormon Church have been undocumented immigrants. The Arizona Republic article noted that this wave of illegal immigrants joining the LDS Church breaches one major tenet of the LDS Church--obeying the law.

The Twelfth Article of Faith says "We believe in being subject to Kings, presidents, rulers, and magistrates in obeying, honoring and sustaining the law". Some argue that it is not the Church's job to inquire of a potential converts immigration status. Mark Basset, President of the LDS Mesa Mission said "Our position is to invite everyone to the gospel of Jesus Christ and his plans for his children independent of national origin. We don't know what their immigration status is we aren't the government or the police." Missionaries and other local LDS Church leaders also mentioned that the Lord doesn't care about a persons documentation status but of their faith.

However, LDS Church members such as Arizona state senator Russell Pearce (R-Mesa) strongly believe in cracking down on illegal immigrants. Many LDS Church members are members of the Republican Party which has also been leading the crusade to stop illegal immigration. Maricopa county attorney Andrew Thomas released statistics last year that even though Latinos only make up 9% of Maricopa county they were convicted of 19% of the county's felonies. Latinos made up 44% of forgeries and frauds and 85% of false id convictions from the prior year. Because forging and falsifying documents is a felony most Latinos living in the country are committing felonies.

Therein lies the moral dilemma. Should the LDS Church continue to knowingly baptize people actively committing felonies? If so what other people actively committing felonies should be allowed to be baptized into the Church?

Top Ten "Mormon Friendly" Law Schools Announced Monday

The 2009 top ten most "Mormon Friendly" law schools will be revealed Monday! The long wait is almost over. Below is an explanation of the point system used to create the list.

Neither Brigham Young University's J. Reuben Clark School of Law or the University of Utah's S.J. Quinney College of Law were considered for the top ten most "Mormon Friendly" law school list. This was not done as a slight to either school but simply to make the list more exciting. (And unlike when I joked last year Utah wasn't excluded from the list along with BYU simply so they wouldn't be ranked #1) If BYU and the U had been included they would have ranked #1 and #2 respectively.

The top ten list was created to help "Mr./Mrs. Mormon Pre-Law Student" develop a better sense of what law school might be interested in attending. For the purposes of the top ten list it is assumed that the law student is married with one child.

How is "Mormon Friendly" defined? Taking the totality of the circumstances into consideration what would be the best law school for "Mr./Mrs. Mormon Pre-Law Student" to attend?

Why include the cost of living and tuition in the Top Ten list? After last year's top ten list was published several commenters expressed their opinion that the cost of attending a law school shouldn't have anything to do with how "Mormon friendly" it is. I disagree. The Church of Jesus Christ of Latter Day Saints has taught the benefits of frugality and the heavy burden of debt for decades. In fact this is one of the reasons that tithing funds are used to subsidize the cost of tuition and some housing at Brigham Young University. This leads to my premise; the cheaper the cost of tuition + the cheaper the cost of living = less debt = Mormon friendly.

The first element measured was the number of LDS law students at a particular law school. Each Mormon law student was worth 1 point. The University of Idaho School of Law had the most students of any single law school with 82.

The second element measured was the cost of living. The lower the cost of living the more points a particular law school received up to a maximum of 100 points. Any school that cost less than $12,000 received all 100 points. The more expensive the cost of living the less points the law school received down to 0 points. Any school that had a cost of living more than $22,000 received 0 points.

The cost of tuition was the third element measured. The less expensive the law school the more points they received up to a maximum of 100 points. The more expensive the law school the less points they received down to a minimum of 0 points. Any school that cost less than $19,000 per year received all 100 points. Any law school that cost more than $44,000 per year received 0 points. From every $250 increase in tuition above $19,000 a law school lost 1 point.

The fourth element measured was the distance of the nearest LDS Temple to the law school. Each school started out with 100 points and lost 1 point for every mile they are from the nearest temple. For law schools more than 100 miles from the nearest LDS Temple they received 0 points.

The fifth element measured was the law school's US News and World Report Ranking. Each law school started out with 100 points and then lost 1 point for its distance from the first place. For example the law school ranked 25th in the US News and World Report Ranking would receive 75 points. Why include the US News and World Report Ranking? For good and bad the law school ranking can have a very big impact on how many job offers a graduating law student has and it what income bracket.

The sixth element measured the percentage of LDS students that made up a schools overall population. This is the only new element to be added this year. By weighing the percentage of LDS law students at a given school to the school's general population this levels the playing field for smaller law schools. For example Harvard has roughly 4x's the student body of Yale and so to not take this into consideration unjustly benefits the larger law schools. To come up with the points possible we took the school's percentage of LDS students and then multiplied that percentage by 4. For example if the LDS students made up 10% of a law school's total population they would receive 40 points.

Any guesses as to who is number one? I will give a hint and say that last year's Champion has been "de-throned"!

Wednesday, April 1, 2009

Mesa Easter Pageant


The Mesa, Arizona Easter Pageant, "Jesus the Christ" begins today at the Mesa Temple. English performances run on April 1, 2, 7, 8, 9, 10, 11. Performances in Spanish are on April 3rd and 4th. Each night the performances begin at 8pm. Click HERE for Frequently Asked Questions. I've been to the performance before and the production is just amazing.

Legal topics abound at LDS International Society Conference

On April 6, the day after General Conference, the LDS International Society is holding its 20th Annual Conference.  The topic this year is "The Church and the Global Community," and several of the sessions feature interesting legal issues and presentations by well-known LDS attorneys.
  • Diane Card, the lead international attorney for the Perpetual Education Fund, will speak on some of the legal issues and obstacles associated with administering a program with thousands of donors and recipients in different countries.
  • Professor Cole Durham of the BYU Law School will speak on current initiatives related to religious liberties.
  • Attorney Roger Baker will moderate a panel discussion entitled "Poverty Relief Initiatives: Looking Forward."
The International Society Conference will be held in the Hinckly Alumni and Visitors Center on Brigham Young University campus. The conference is open to the public, and other than the luncheon, there is no charge to attend any of the sessions.  Also, if you cannot attend, the proceedings of each year's conference are made available free of charge to members of the International Society.

Photo credit: crsflick.

LDS International Society 20th Annual Conference Agenda (PDF)