LDS Law Students

The future of the blog

2009-06-16T12:04:00.000-07:00

This blog has essentially wound down, since all of the previous participants have long since left law school. If you are looking for interesting topics for LDS lawyers or law students, we recommend MormonLawyers.com or LDS Law. There are also plenty of great Mormon lawyer who write interesting legal blog posts from time to time, such as Nate Oman, Kaimi Wenger, John Fowles, Kevin Barney, Steven Evans, and many others.

If you are interested in doing legal blogging or would like to keep this site going, contact us at ldslawtudents at gmail dot com.

Arkansas court rules that Mormonism is not Protestantism

2008-10-20T09:54:00.000-07:00

The Arkansas Court of Appeals recently handed down an unusual ruling in which a man was held in contempt for involving his children in the LDS Church. Actually, it's not as dramatic as it sounds. When Joel and Lisa Rownak divorced in 2005 they agreed that their two children would be raised "in the Protestant faith." Since this agreement was entered as part of the divorce decree, it was enforceable by the court. Subsequent to their divorce, Joel Rownak converted to Mormonism and involved his two sons in his new faith, including baptizing one of the boys. Rownak made several free speech arguments, but the Arkansas court still found in contempt of the decree. The court relied heavily on the fact that Rownak himself had asked for the language to be placed in the divorce decree.
The interesting part of this case, as it relates to the Mormon Church, is the court's discussion of whether the Church of Jesus Christ of Latter-day Saints was a Protestant church. 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 dispute 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.

The Arkansas Court of Appeals' decision is available here.

Property law and Mormon temple announcements

2008-10-09T14:16:00.000-07:00

Last Saturday's announcement of five new LDS temples was notable, if not for quantity, then locality. President Thomas S. Monson's predecessor, Gordon B. Hinckley, announced several dozen temples during his tenure as President of the Church of Jesus Christ of Latter-day Saints. But the locations these most recent temples are well-known and high-profile: Rome, Italy; Philadelphia, Pennsylvania, and the greater Kansas City area, among others. Rome is obviously a high-profile location, particularly given its proximity to the seat of Catholicism. A temple in the Kansas City area makes many people think of the temple in Independence, Missouri, which was announced by Joseph Smith in 1831 but never built. And the Philadelphia site is notable for its central location in a major American city.

View Larger Map

The site of the Philadelphia temple has already been identified as a parking lot the Church currently owns. For every temple or chapel announcement, there are hundreds of hours of quiet work in the background arranging the property sales. Temple building projects occasionally spark legal battles over issues such as zoning requirements. The opposition to the Mormon temple near Boston, Massachusetts, prevented the LDS Church from placing a steeple on the structure until after it was dedicated and in operation. Only time will tell whether these most recent announcements will result in any litigation, but you can be sure that the Church's property arm, Property Reserve, Inc., will be working overtime to get it all done.

First Presidency letter and free expression

2008-09-29T10:42:00.000-07:00

Yesterday, on the very day chosen by the Alliance Defense Fund for their "pulpit plan," the Church of Jesus Christ of Latter-day Saints released its customary letter about voting and political neutrality. Here is the letter in its entirety:

Political Participation, Voting, and the Political Neutrality of the Church
As citizens we have the privilege and duty of electing office holders and influencing public policy. Participation in the political process affects our communities and nation today and in the future.
Latter-day Saints as citizens are to seek out and then uphold leaders who will act with integrity and are wise, good, and honest. Principles compatible with the gospel may be found in various political parties.
Therefore, in this election year, we urge you to register to vote, to study the issues and candidates carefully and prayerfully, and then to vote for and actively support those you believe will most nearly carry out your ideas of good government.
The Church affirms its neutrality regarding political parties, platforms, and candidates. The Church also affirms its constitutional right of expression on political and social issues.
Sincerely yours,

Thomas S. Monson
Henry B. Eyring
Dieter F. Uchtdorf
The First Presidency

As I wrote last time, the Church's stance on political neutrality is no big surprise. I was, however, interested in that last sentence, in which the Church affirms its "affirms its constitutional right of expression on political and social issues." The LDS Church and other religious groups have played a significant role in the campaign supporting California Proposition 8, and some people both within and outside of the LDS Church are uncomfortable with religious groups becoming so involved in politics. I find it interesting that this letter contained a statement of the Church's free speech rights. These sorts of letters are issued every election year, and while I don't have the text of any previous letters, I think the last line is a new addition. Certainly, from a legal standpoint, the Church's political involvment is appropriate as long as it remains issue-based, rather than party- or candidate-based.

Churches challenge IRS policy

2008-09-15T09:28:00.000-07:00

There is an interesting fight going on right now between religious groups over the proper role of politics and religion. A Phoenix-based organization called the Alliance Defense Fund has encouraged ministers around the country to give political sermons on Sunday, September 28. The ADF wished to challenge an IRS restriction that would remove a church's tax-exempt status if pastors endorse of political candidates, and has offered to represent any church investigated by the IRS as a result of any political sermon delivered on that day. It even suggests that participating pastors The defense fund has met with opposition from other religious organizations, however, that disagree with the fund's purpose. Fifty-five religious leaders have filed a complaint with the IRS to stop the ADF's plan.

As is often the case, the story is a little more complicated than it may initially seem. For example, many of the religious leaders that complained to the IRS are from the more liberal United Church of Christ, whereas the Alliance Defense Fund is a conservative Christian group. UCC ministers might also be a little wary of such a proposal after it was investigated by the IRS in 2007 after hosting Barack Obama at its convention.

Despite the protests, more than three dozen ministers from 20 states have signed up to participate in the "pulpit plan." However, don't expect any political endorsements from LDS pulpits on September 28. (Not authorized ones, at any rate -- I'm sure we have all heard a few politically-charged testimony meetings.) The LDS Church's stance on political neutrality is regularly reaffirmed through open letters and press releases, particularly during political campaign seasons. You could look at this as the Church putting into practice the doctrine contained in the Twelth Article of Faith, "obeying, honoring, and sustaining the [tax] law." Of course, the financial repricussions of losing its 501(c)(3) tax-exempt status might also be a wee bit persuasive. Besides, the ADR plan is probably aimed at individual congregations, rather than a large centralized church. The LDS Church has the resources to defend itself in a court of law, but that doesn't make it any more likely to pick a legal fight.

Free Opinions about Same-sex Marriage in Law Schools

2008-09-09T12:55:00.000-07:00

Somewhat behind the times, I recently heard about an unusual intersection between law school, free speech, and opponents of same-sex marriage. Various groups of law professors have threatened to boycott the annual American Association of Law Schools (AALS) law professors' conference in San Diego because Doug Manchester, the owner of one of the hotels in which the conference is to be held, has donated $125,000 to support California Proposition 8. That measure would amend the California State Constitution to define marriage as between a man and a woman, essentially overruling by referendum the California Supreme Court's In re Marriage Cases decision that was handed down earlier this year. The Legal Writing Institute went so far as to take the position that attending the conference in that hotel would violate its nondiscrimination policy.

As a significant proponent of California Proposition 8, the LDS Church has a fairly direct connection with this issue. Noting this connection and the inherent tensions it produces with the AALS boycott, George Mason law prof Ilya Somin writes:

The AALS is an organization that is supposed to promote legal education and academic research in a politically neutral way. Taking stands on controversial political issues such as gay marriage is inconsistent with the organization's mission of promoting a free exchange of ideas and education that includes a wide range of viewpoints. If the AALS has an official position in favor of gay marriage (which is what a boycott would amount to), it cannot be a credible neutral organizer of panels, conferences, and academic research on gay marriage-related questions. The same goes for taking positions on other political issues.

Moreover, if political opposition to gay marriage is so wrong that the AALS should forego any economic relationship with those who engage in it, how can it continue to have Catholic, evangelical Protestant, and Mormon schools as members? When it comes to promoting opposition to gay marriage, the Catholic Church and other religious organizations are much bigger players than Doug Manchester. I don't see how the AALS can shun Manchester as beyond the pale while keeping Notre Dame and Brigham Young as members in good standing.

It seems to me that the proposed AALS boycott is both inconsistent and inappropriate.This underlies a problem many LDS law students have faced during law school. The intellectual environment at law schools is not always as open to discussion as it ought to be, and this is particularly true with hot-button issues in the public debate. Noting this dilemma, University of Illinois law prof Larry Ribstein asks several probing questions:

What if Mr. Manchester didn’t contribute money to oppose same sex marriage cause, but supported it vocally? Of course contributions are a form of expression. Would or should these groups make a distinction between contributions and other expression of belief?

. . .

How would the boycotters feel about teaching students who opposed same sex marriage? (I note that the chair of one of the boycotting groups heads the legal writing program at a Catholic law school).

If you were a student, would you feel comfortable expressing an anti-same-sex marriage view if you knew that the teacher couldn't stand to stay at a hotel owned by somebody who opposed same sex marriage?

The bottom line is that I wouldn't be comfortable expressing that opinion in such a situation. That may be the status quo in law school faculties, but it would be even worse if such an approach was sanctioned by the law schools themselves. Jonathan Adler, blogger and law professor at Case Western Resrve University School of Law put it this way:

[I]t would be unconscionable for a purportedly academic association to endorse the view that opposition to the imposition of gay marriage by judicial fiat, in and of itself, constitutes "discrimination" against homosexuals and that such views are beyond the pale of acceptability within such an organization.

Here's the full analysis from the law professors of The Volokh Conspiracy.

The Law School Class of 2011

2008-09-04T13:24:00.000-07:00

As another class of 1L's enters law school, here's a salute to the class of 2011. Incoming LDS 1L's should remember to register at the JRCLS Student website.

Also, if any LDS law students are interested in participating/invigorating this blog, send us an email. LDSlawstudents at Google mail.

Survey for LDS Law Students and Undergraduates

2008-03-22T07:11:00.000-07:00

The following is a public service announcement on behalf of a group of BYU Public Relations students. They're doing some research on how students make educational decisions, especially how they decide which law school to attend. The quizzes are just 10 simple questions, so please take a moment to fill them out.

Take the LDS Law Students survey here.

Take the LDS Undergraduate survey here.

A Good Lawyer

2007-08-14T07:11:00.000-07:00

Here's a few thoughts on the legal life and work of President James E. Faust, who passed away last week at age 87.

A quote from President Faust in the Spring 2003 Clark Memorandum, p. 7:

The pursuit of justice is a very noble path, but obtaining justice is often very elusive …. In some ways a more noble effort is to resolve differences by being a peacemaker.

From his obituary in the Deseret News:

The son of an attorney and judge, President Faust gravitated naturally to a law career. After claiming a juris doctorate from the University of Utah Law School in 1948, he practiced law in Salt Lake City until his call as an Assistant to the Twelve on Oct. 6, 1972.

Public service was a notable element of President Faust's life during his professional career. He served as a Democratic member of the Utah Legislature from 1949-1951. He also served as an adviser to the American Bar Journal and was president of the Utah Bar Association in 1962-1963. He was also appointed by President John F. Kennedy to the Lawyers Committee on Civil Rights and Racial Unrest.

From an address to the BYU Law School on November 22, 1987:

The canons of ethics and the rules of court with which you must be familiar are helpful rules of conduct to abide by, but I have always believed that they are the lesser law. An attorney's own careful conscience and his own standards of high integrity ultimately ought to govern his conduct.

Trademarking the word "Mormon"

2007-04-01T08:47:00.000-07:00

Recently there has been some discussion about the Church trademarking the term "Mormon." In September of 2002, Intellectual Reserve, Inc. (a wholly-owned subsidiary of the LDS Church) filed with the U.S. Patent and Trademark Office to trademark the word. You can find the application at the USPTO site by searching for the serial number (#78977858). Alternatively, you can see a screen capture of the page here.

Although the application process has gone on for some time, its recent discovery in the "Bloggernacle" has caused somewhat of a stir. (See a few of the comments on this Sustain'd thread for some opinions.) The Church likely hopes that trademarking the term "mormon" will alleviate confusion between the LDS Church and other sects. However, as many have noted, the issue of enforcement may make a trademark impossible or overly onerous. The term "mormon" has been around for a long time -- since 1833, according to the trademark application. It is a common word used to describe not just a church, but its members, a well-known choir, and various other affiliated institutions.

If the Church were to successfully obtain a Mormon trademark, it could potentially have a cause of action against groups who use the term in a confusing manner. And in order to maintain the trademark, the Church would likely have to actively contact and request clarification of people using the term incorrectly. Many people have pointed out that the likely bad publicity from such a move may cause the legal tactic to backfire.

However, the trademark has not yet been issued, so it remains to be seen if Intellectual Reserve will go through with the process or the Patent and Trademark Office will award the trademark.

D&C as required reading in law school

2007-01-30T09:42:00.000-08:00

Over on Prawfsblawg, the group blog for several law professors, Paul Horwitz has a post up on teaching the "Mormon" cases in a Law & Religion class at Notre Dame. Horwitz thinks they represent a unique opportunity to look at the relationship between religion and politics. Says Horwitz:

[A]dding this material opens up a far broader set of questions, many of which have broader resonance both for the question of Free Exercise accommodation and for the relationship between religion and the state in general.

Interestingly, Horwitz quotes Wildford Woodriff's address regarding the Manifesto on polygamy, now contained in Official Declaration 1 of the Doctrine & Covenants. He says, "It seems to me that professors who teach law and religion ought to include the Revelation in their reading materials."

How to Balance Religious Beliefs and Public Service

2007-01-06T13:48:00.000-08:00

There is a lively debate going on over at the New Republic Web site (free registration required) between Damon Linker, author of The Theocons: Secular America Under Siege, and Richard Bushman, History Professor at Columbia University and author of Joseph Smith: Rough Stone Rolling. The discussion is lively, intelligent, and civil -- I recommend it to any interested parties. I was particularly intrigued, however, by a segment from Linker's initial article that sparked the debate. Towards the end of the essay, Linker says:

Article VI of the U.S. Constitution famously stipulates that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Though the Framers meant to prohibit a test compelling office-seekers to affirm a particular set of religious views, it makes sense to treat the proscription as applying negatively as well--as prohibiting a test that would exclude members of certain religious sects from holding office. In our time of heightened sectarian tensions--when devout believers and secularists increasingly perceive themselves to be stationed on opposite sides of a cultural chasm--it is crucially important that Americans remain committed to allowing every qualified citizen to run for public office, regardless of his or her religious views.
But defending the constitutional right of every qualified citizen to run for office is not the same as saying that a candidate's religious views should be a matter of indifference to voters. In the case of Mitt Romney, citizens have every reason to seek clarification about the character of his Mormonism. Does he believe, for example, that we are living through the "latter days" of human history, just prior to the second coming of Christ? And does he think that, when the Lord returns, he will rule over the world from the territory of the United States? Does Romney believe that the president of the Mormon Church is a genuine prophet of God? If so, how would he respond to a command from this prophet on matters of public policy? And, if his faith would require him to follow this hypothetical command, would it not be accurate to say that, under a President Romney, the Church of Jesus Christ of Latter-Day Saints would truly be in charge of the country--with its leadership having final say on matters of right and wrong?

Linker's argument, of course, should sound familiar to those acquainted with the debate before John F. Kennedy was elected president. But it presents an interesting and vital question that public figures must consider: to what extent, if at all, should personal beliefs govern political decisions? This is all the more important if we consider how personal beliefs affect the decisions of judges, something Richard Bushman alludes to in his response to the essay. And I would submit that ethical attorneys must also ask themselves the same question: to what extent should my personal beliefs affect my legal practice?

In his response, Bushman notes that, per the Church's Web site, "[e]lected officials who are Latter-Day Saints make their own decisions and may not necessarily be in agreement with one another or even with a publicly stated church position." Similarly, LDS judges and attorneys must make their own decisions which may not necessarily correspond exactly with Church positions.

Most Latter-day Saints involved in the law profession would probably agree that personal beliefs have a place in their practice, but the extent of its influence likely varies by person. Now that Mitt Romney has official declared his presidential candidacy, his balance of personal belief and public duty will doubtless be an issue of continued scrutiny. This gives each of us a chance to reexamine our own beliefs and the role they play in our profession.

My personal opinion is that religious beliefs can make attorneys more compassionate and conscientious legal advocates. However, I also believe that an attorney is beholden to the public and to the clients he or she represents, and that these obligations may temper or even supersede Church directives. At some point, every attorney must make his or her own decision regarding the balance of obligations. Now that his candidacy is official, former Governor Romney will try to convince the public that he has made the same determination.

Court rejects alleged LDS bias

2006-12-13T05:52:00.000-08:00

It is a well-known fact that a significant portion of the population of the State of Utah is affiliated with the Church of Jesus Christ of Latter-day Saints. That's what three inmates in the the Utah prison system tried to used to their advantage in a recent lawsuit against the Utah Board of Pardons and Parole. Three convicted sex offenders filed individual suits alleging that the parole board gave preferentialtreatment to sex offenders that were members of the LDS Church. The cases were consolidated before a district judge.

Last Friday, U.S. District Judge Tena Campbell rejected the inmates' arguments, stating: "The uncontroverted affidavits of each board member attest that religious affiliation or participation is not considered in making parole decisions. There is also no evidence that religion was a significant factor in the board's decisions regarding Plaintiffs."

We would hope that members of the Utah parole board, if they were indeed members of the LDS Church, would have the professionalism and ability to consider individual inmate circumstances without religious affiliation coloring their judgment. Opportunistic lawsuits by inmates are legendary, but exploiting the local prevailing religious beliefs to escape prison time is particularly undesirable and would set bad precedent.

For more information, see the article in the Salt Lake Tribune.

Pilgrim Law

2006-11-26T21:09:00.000-08:00

In honor of Thanksgiving, we look at one of the first "American" laws, the Mayflower Compact. As you can see, the Pilgrims saw no need to separate their faith from their legal agreements.

In the name of God, Amen. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord, King James, by the Grace of God, of England, France and Ireland, King, Defender of the Faith, e&. Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents, solemnly and mutually in the Presence of God and one of another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid; And by Virtue hereof to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience. In Witness whereof we have hereunto subscribed our names at Cape Cod the eleventh of November, in the Reign of our Sovereign Lord, King James of England, France and Ireland, the eighteenth, and of Scotland the fifty-fourth. Anno Domini, 1620.

J. Craig Williams of the legal blog May It Please The Court comments:

The document was signed by 41 of the 102 passengers, 37 of whom were Separatists fleeing religious persecution in Europe. This compact established the first basis in the new world for written laws. Half of the colony failed to survive the first winter, but the remainder lived on and prospered. Although the Mayflower is commonly known as America's first constitution, it's more of a covenant among the settlors [sic] to obey the people that will govern the colony.

But it was a start, and a start on the long road to 1776. We thank the Pilgrims for showing us road to democracy. They celebrated that auspicious beginning with a feast, welcoming the original Americans and everyone's family members. We can do the same again.

Blogging and Copyright

2006-11-03T09:17:00.000-08:00

Several prominent law bloggers have noticed a few over-zealous legal disclaimers on popular blogs and Web pages around the Internet. Most notably, the North Country Gazette made this disclaimer with regards to its content:

In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette.

That's sort of funny, since forbidding reproduction sounds like "no use" rather than "fair use." As law professor and blogger Eugene Volokh noted, merely reproducing that statement would be a copyright violation if they were right. Thankfully, they are dead wrong. The administrators of the North Country Gazette eventually removed the notices and rewrote the site's Terms of Service.

Citing other Web sites and blogs is an integral part of blogging, and if bloggers really couldn't reproduce anything from other sites, it would eliminate half of what bloggers write about.

Law school limit admission options

2006-10-19T16:53:00.000-07:00

Several top-tier universities recently made headlines by publicly doing away with their early admission programs. Harvard was the first to make the change, saying that the early admissions program favored privileged students who didn't have to worry about financial aid. Princeton and the University of Virginia quickly followed suit. The trend has been replicated in several law schools: the top three law schools (Yale, Stanford, and Harvard) do not have early decision or rolling admissions policies. And the although the next four schools (Columbia, NYU, Chicago, and U. Penn.) have early decision, they do not offer rolling admissions. Other law schools in the top twenty do not have early decision or rolling admissions, and this approach seems to be catching on -- Vanderbilt Law School, which is ranked 17th, announced earlier this month that it would discontinue its early admission program.

While the equality and diversity interests recently cited by Harvard are unquestionably part of the equation, I can't help think that they would be unnecessary if law school tuitions were not so high. Top tier law schools can charge almost $40,000 a year, which can be difficult for under-privileged or middle class students. In fact, tuition increased 267% between the 1990 and 2005 school years. And with thousands of students vying for spots in those top law schools, the schools don't have to worry about filling the seats in the classroom. Eliminating early decision seems like a business decision more than a matter of equality. Wouldn't it be better for lower-income students if they could get a good legal education for under $100,000?

What the Warren Jeffs case is about

2006-10-04T08:58:00.000-07:00

Findlaw.com has a good article about the Warren Jeffs case. As you may be aware, the leader of the FLDS polygamist sect has been indicted on child rape charges. While many news outlets have plugged the case mercilessly ever since Jeffs was placed on the FBI's most wanted list, very few articles have accurately identified the legal issues. The Findlaw article correctly states that the case has little to do with polygamy, but everything to do with child rape.

The article is by Erik Luna, director of the Utah Criminal Justice Center at the University of Utah Law School. Luna discusses the legality of anti-polygamy laws, but he notes that the Jeffs case is not related to those issues. Most interesting for those interested in criminal law, Luna looks at the allegations Jeffs faces, and discusses some of the factual and legal defenses Jeffs may raise. The article is here.

Same-sex Marriage in Rhode Island

2006-09-30T05:59:00.000-07:00

Pajamas Media reported yesterday:

A gay couple from Rhode Island has the right to marry in Massachusetts because laws in their home state do not expressly prohibit same-sex marriage, a judge ruled Friday.

Wendy Becker and Mary Norton of Providence argued that a 1913 law that forbids out-of-state residents from marrying in Massachusetts if their marriage would not be permitted in their home state did not apply to them because Rhode Island does not specifically ban gay marriage.

Superior Court Judge Thomas Connolly agreed.

Prior to this decision, same-sex couples outside of Massachusetts could not get married in the state. Citing the 1913 law, Massachusetts Governor Mitt Romney had instructed clerks not to issue marriages to out-of-state same-sex couples. Couples from six neighboring states filed suit, and last march the Massachusetts Supreme Judicial Court ruled that residents of four of the states could not receive marriage licenses because of their home states' laws. However, the court sent the cases regarding New York and Rhode Island back for review. As you may remember, the courts in New York held last summer that marriage was between a man and a woman, but the Rhode Island courts reached an opposite outcome.

I see this as the inevitable next step in same-sex marriage litigation. And apparently, so did the Gay & Lesbian Advocates & Defenders, which represented the plaintiffs in this case. Their next moves will likely be the following: a same-sex couple from Rhode Island will get married in Massachusetts, and upon returning to Rhode Island, they will file suit to have the marriage recognized in that state. Currently, all the Rhode Island statutes contain language such as "bride" and "groom." One possibility is that the Rhode Island high court will rule along with the Massachusetts courts and decide that marriage in that state should include same-sex couples. However, a more likely outcome will be that the Rhode Island courts will hold such unions invalid, due to the Defense of Marriage Act of 1996 (DOMA). That act defines marriage as “a union between one man and one woman” (1 U.S.C. § 7) and prohibits any state or territory from recognizing any relationship between members of the same sex as marriage (28 U.S.C. § 1738C). The focus of same-sex marriage litigation will then turn to the constitutionality of the DOMA, which I fully expect to be struck down as violating th Full Faith and Credit Clause of the Constitution. Many people thought that nation-wide legalization of same-sex marriages was inevitable after the Massachussetts high court's decision in 2004, but not until the Rhode Island decision was the path to that inevitability so clear.

The Best Policy

2006-09-29T05:55:00.000-07:00

I caught part of the new show Shark last night, and I was rather annoyed with the characters' blatant dishonesty. It probably makes for more exciting television, but portraying crooked lawyers is old hack by now. I've met my fair share of shady defense attorneys, but none of them were so blatant (or stupid) as the young A.D.A.'s in the show. I think it's one more reason why the world needs more conscientious and ethical attorneys. Ironically, this was one of the Reuters headlines this morning:

SYDNEY (Reuters) - A law student who used taxis to escape with loot from dozens of house break-ins has been jailed after police in Australia caught him red-handed in the back of a cab fleeing his latest heist.

When not studying for a masters degree in law, Phillip Ryan See, 27, used his off-time to rob 43 houses in Sydney's plush harbourside suburbs, netting goods worth more than A$110,000 ($83,000), the Sydney Morning Herald newspaper said on Thursday.

See, who once worked as a legal assistant in a government law office, would load plasma televisions, cameras, jewelry and laptop computers into the boot of a taxi after each raid.

But when a surprised home-owner discovered See during a midnight burglary, police arrested the would-be legal eagle escaping in the back of another taxi.

During a search of See's flat, police found one of their own uniforms stolen during another break-in.

See was jailed for four years and nine months after the judge accepted he had a psychotic disorder.

I guess it's never too early to blow your legal career. Sometimes (read: all the time) honesty really is the best policy.

Plagiarism and Intellectual Property Rights

2006-09-22T14:06:00.000-07:00

Everything written since 1978 is copyrighted the moment it is put on paper or saved on disk. Even as I type this, my words are copyrighted. But how do those copyrights apply to work created as part of a school assignment? This is part of a new debate that has grown out of a Fairfax County, Virginia, school system new tactics to combat plagiarism. The school system now submits all student papers to a third-party company that maintains a database of student papers. The students' assignments are then checked against other students' work. The company, called Turnitin, has over 22 million papers in its database. However, as the Washington Post reports, not all students are happy about the idea.

Members of the new Committee for Students' Rights said they do not cheat or condone cheating. But they object to Turnitin's automatically adding their essays to the massive database, calling it an infringement of intellectual property rights.

The real question is whether the students surrender those copyrights when they turn in the assignments. But at McLean High School in Fairfax County, students refusing to have their papers entered into the database will receive a zero on the assignment. This, along with a "guilty until proven innocent" approach, raise some pseudo-due process issue. And the high school students aren't the only ones worried; the intellectual property caucus of the Conference on College Composition and Communication is debating these issue.

For those of us still in school, plagiarism is a constant issue with which university administrations constantly grapple. Most schools use tactics like honor code pledges and astute grading to prevent cheating, but the many resources available to students on the Internet are presenting new challenges to administrators. I think I might consent to having my work submitted to a database, but the idea of being forced to participate in such a program rankles me a bit.

The issue hasn't reach the stage of litigation in Fairfax, but a recent petition against the database system garnered 1,190 signatures. Sooner or later, school administrators are going to face a legal challenge to such practices and the courts will have to weigh in on the issue. In the meantime, a little honesty continues to go a long way.

Sustain'd

2006-09-20T15:10:00.000-07:00

Those of you who follow the myriad of social networking features now available on the Web will be familiar with community-driven Web sites. Members submit articles, usually by clicking on a button on the page or through a browser plug-in, and the most popular articles are aggregated on the community page. One such service is digg, with a little digging man logo and "digg this!" buttons on many Web pages.

Last month LDS blogger Connor Boyack decided the LDS Web community deserved its own community site. Boyack created Sustain'd, a digg-like service focused exclusively on content that would interest the LDS community. The Sustain'd icon, featuring a little man raising his right arm, plays on both the digg icon and the LDS tradition of sustaining Church members in their callings. Boyack has been working furiously to get Sustain'd ready by General Conference, and the word went out today that the system will go live this Friday.

I think this is a great idea. I really like using LDS blog aggregators (like LDSelect and Planet LDS, in the sidebar) to keep track of Mormon blogs, and I think Sustain'd will be an interesting addition to the bloggernacle. We'll try to get Sustain'd working on LDS Law Students when it comes on line, but in the meantime, check out Sustaind.org by clicking on the icon in the sidebar or read the Sustain'd blog.

Shadow governments

2006-09-17T19:41:00.000-07:00

In America, we normally think of governments as permanent entities. The government, particularly the federal government, seems as immutable as any other force in our lives. But for much of our country's history, the authority of the government was not a given. Aside from struggles between the federal and state levels, the authority of the federal government was frequently challenged up until the last century. One example in our cultural history is that of the Utah Territory. Despite the official governance structure established by the U.S. government, much of the actual governance in the territory occurred through Church-established channels. While the Utah "shadow government" ended prior to statehood, it is a fascinating part of Utah history.

Recently, I have seen some intriguing echoes of this phenomenon. One dramatic example is just south of our border, where presidential candidate Andrés Manuel López Obrador has rejected the election results that favored his opponent, Felipe Calderón. As the NY Times reported on Saturday:

More than 150,000 supporters of the losing leftist candidate for president flooded into the capital’s historic square on Saturday and declared him “the legitimate president” of Mexico.
As his supporters roared approval, the candidate, Andrés Manuel López Obrador, a former Mexico City mayor, vowed to set up his own government and to fight against “a band of white-collar crooks and corrupt politicians” who he has said stole the election from him.

A similar but more dire situation currently exists in Somolia, where the Western-backed government has been exiled to the inland town of Baidoa and an Islamist coalition of tribes has occupied Mogadishu.

Even in the U.S., some groups challenge the authority of the government in subtle but significant ways. One such way is minting alternative currency. The National Organization for the Repeal of the Federal Reserve Act and the Internal Revenue Code (commonly known as NORFED) makes a "currency" that competes with the U.S. dollar. LexisONE reports:

[NORFED] has been making the Liberty Dollar coins for eight years and claims $20 million is in circulation. The group says the money, unlike official U.S. cash, has a hedge against inflation because it is made almost entirely of silver and is backed by stocks of silver and gold in a vault in Idaho.

The coins are then spent by the group's 2,500 Liberty Associates in stores run by fellow supporters or are accepted unknowingly by clerks who are unaware they are not receiving real money.

The Justice Department has determined that use of Liberty Dollars, which come in varying denominations, "is a crime," according to the Mint, which issued a rare public warning Thursday."

The United States Mint is the only entity that can produce coins," Bailey says.

The Mint notes the coins share some resemblances to real money, such as the term "Trust in God" instead of "In God We Trust" and use of a torch in the design. Such similarities may confuse people into thinking the money is real, the Mint says.

But NORFED says it will challenge the government, arguing it has never claimed Liberty Dollars were official money and that it has a right to offer an alternative.

It appears that the spirit of prior "shadow governments" is alive and well in the United States, even if it does not manifest itself on same scale as other countries.

One more reason to live the Gospel

2006-09-12T13:32:00.000-07:00

NPR reports this morning about a false sex solicitation on Craigslist:

The men who responded to an Internet sex ad did not quite realize what they were getting into. The lonely woman who posted the ad wasn't a lonely woman at all. It was a graphic designer, who is now posting all the replies he received. The men's e-mail addresses and photos have been put online. Privacy experts say he didn't break any laws, although Craigslist -- an online service for classified ads -- says he did violate their policies.

I imagine Craigslist is referring to 7(h) of its Terms of Use, which prohibits the posting of information that "includes personal or identifying information about another person without that person's explicit consent." But other than getting kicked off Craigslist, I don't see much in the way of legal consequences for this enterprising young designer. While I don't condone his actions, the men who gave him their e-mail addresses and photos were extremely foolish. You don't have those problems if you don't respond to online sex advertisements. Sometimes the Gospel makes things simpler.

This incident is similar to the recent case of a hacker who seeded an online forum dedicated to child pornography with a Trojan horse virus. The program allowed the hacker to access the computers of the users who downloaded the Trojan. The hacker, who purportedly is from Turkey, then e-mailed the Montgomery, Alabama police department saying "I found a child molester on the Net." When the police asked for more details, the hacker gave the police information that lead to the arrest of Bradley Joseph Steiger, who was subsequently convicted for sexual exploitation of children and child pornography charges, and is currently serving a 17-year sentence. A year later the same hacker provided authorities information that led to the arrest of William Adderson Jarrett, a Richmond, Virginia man who plead guilty to similar charges and is currently serving a 19-year sentence.

From a legal standpoint, the Turkish hacker poses a problem: if he were in the U.S., it would be illegal. But U.S. law doesn't apply to him, so he can't be arrested. In fact, an FBI agent told the hacker by email: "[you] will not be arrested--that is a promise. You have helped to save at least two lives in the U.S. and [you] should be proud of that fact." So far, the convictions of the child molesters have held up: the 11th Circuit upheld Jarrett's conviction, and last month a U.S. District court judge refused to throw out Steiger's conviction.

The Judicial Nature of Church Governance

2006-09-11T09:27:00.000-07:00

Over on Times & Seasons, Nate Oman has an article about the governance structure of the Church. His assertion is that the Church's hierarchy is fundamentally judicial in nature, rather than administrative or pastoral. Oman, who teaches law at William & Mary School of Law, writes:

Read the Doctrine and Covenants on Church government, and what you will see is that most of the discussion about the offices of bishop or stake president have to do with judging. Indeed, in some ways the ur-institution seems to be neither bishopric, stake presidency, first presidency, nor even Quorum of the Twelve. Rather, it is the stake High Council. (Indeed, I believe that the High Council predates both the first presidency and the stake presidency, with stake presidents initially serving as presidents of the High Council, rather than as presidents of a separate quorum.) Furthermore, what the High Councils seem to have spent most of their time doing during the first three or four generations of the Church was adjudicating disputes between members. Early Mormons seem to have been a quarrelsome bunch (further evidence of post-Puritanism, perhaps?), and the ecclesiastical structure of the Church seems to have been largely about chandelling [sic] this litigious energy into priesthood-controlled fora.

Oman further opines that the judicial role of the Church has waned since the days of Lorenzo Snow, when the Church court system was transferred to the secular court system, and that some of the contributing factors to this change were the modernization and industrialization of the West. The full text of the article, with some interesting legal experience from LDS attorneys in the comments thread, can be found here.

A Presidential Conversation

2006-09-09T17:56:00.000-07:00

Over at Bloggernacle Times, John F. posted a small article about President Bush meeting with the First Presidency last month. President Bush spent 40 minutes speaking with President Hinckley & Co. in the Church Office Building. John F. wondered what they talked about, and a few people speculated about conversation topics in the comments thread. It's really more politics-related than law-related, but I thought it was so funny that I decided to reproduce the hypothetical conversations here. The first one is from John F.; the rest are from Jared* of LDS Science Review.

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PoUS: “So, sorry about that whole forced migration thing and the Utah War.”

FP: “Yeah, ‘it was the largest forced migration in the history of America.’ That was sad but, in the end, we found a place safe for us — at least for a while.”

PoUS: “Well, it looks like you have a beautiful city here.”

FP: “Yeah . . . So, have you ever heard of the Book of Mormon?”

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[silence]

PoUS: “Sooo, I hear you guys don’t drink.”

FP: “Nope.”

PoUS: “Me neither. I gave it up a few years ago.”

FP: “Good for you.”

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PoUS: “Any idea what you’re approval rating is?”

FP: “Well, we don’t want to be immodest…”

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PoUS: “Do your people belly-ache as much as mine?”

FP: “Probably not as much. Gay marriage seems to get them going, though.”

PoUS: “Oh, I totally know what you mean.”

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PoUS: “…I told them to stop being close minded–I am the president of all Americans. So I deleted Mormons from the “axis of evil” list.

FP: “We appreciate that.”