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Spring 1999

Clark Memorandum: Spring 1999J. Reuben Clark Law Society

J. Reuben Clark Law School

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Clark MemorandumJ.Reuben Clark Law SchoolBrigham YoungUniversitySpring | 1999

CM·

Weightier Matters

c o n t e n t s

Cover Photograph

John Snyder

2Weightier

Matters

Dallin H. Oaks

·

H. Reese Hansen, Dean

Scott W. Cameron, Editor

Joyce Janetski, Associate Editor

LoAnn Fieldsted, Assistant Editor

David Eliason, Art Director

John Snyder, Photographer

The Clark Memorandum

is published by the J. Reuben

Clark Law Society and the

J. Reuben Clark Law School,

Brigham Young University.

© Copyright 1999 by

Brigham Young University.

All Rights Reserved.

The mission of the J. Reuben

Clark Law Society is to promote

high moral and professional

standards in the legal profes-

sion and service to society.

In fulfilling its mission, the Law

Society is guided by the phi-

losophy, personal example, and

values of its namesake, J. Reuben

Clark, Jr. Those values include

(1) public service, (2) loyalty to

the rule of law as exemplified

by the United States Constitution,

and (3) appreciation for the

religious dimension in society

and in a lawyer’s personal life.

46Memoranda

BYU’s National Moot Court Champions

Larry EchoHawk

CM Awards

16A Courtroom with a View

Joyce Janetski

32The Challenge:

Basing Your Career

on Principles

Elder Alexander B. Morrison

10The Constitutional

Thought of

J. Reuben Clark, Jr.

J. David Gowdy

40Portraits

James Claflin

John W. Welch

William K.Wallace III

title and subject today

is taken from the Savior’s

denunciation of the scribes and

Pharisees: “Ye pay tithe of mint and

anise and cummin, and have omitted the

weightier matters of the law, judgment,

mercy, and faith: these ought ye to

have done, and not to leave

the other undone”

(matthew 23:23;

e m p h a s i s

y

added).

by Dallin H. Oaks Photos by John Snyder

w e i g h t i e r

m a t t e r s

I wish to speakabout some“weightiermatters”we might overlook ifwe allow ourselves to focus exclusivelyon lesser matters. The weightier matters towhich I refer are the qualities like faith andthe love of God and his work that willmove us strongly toward our eternal goals.

In speaking of weightier matters, Iseek to contrast our ultimate goals in eter-nity with the mortal methods or short-term objectives we use to pursue them. I read in the Universe about Professor Sara Lee Gibb’s message from this pulpitlast week. She discussed the differencebetween earthly perspectives and eternalones. Then, on Sunday, President ThomasS. Monson reminded you that eternal lifeis our goal. My message concerns thatsame contrast, which the Apostle Pauldescribed in these words: “We look not atthe things which are seen, but at thethings which are not seen: for the thingswhich are seen are temporal; but thethings which are not seen are eternal”(2 Corinthians 4:18).

If we concentrate too intently on ourobvious earthly methods or objectives,we can lose sight of our eternal goals,which the apostle called “things . . . notseen.” If we do this, we can forget wherewe should be headed and in eternal termsgo nowhere. We do not improve our posi-tion in eternity just by flying farther andfaster in mortality, but only by movingknowledgeably in the right direction. As the Lord told us in modern revela-tion, “That which the Spirit testifies untoyou . . . ye should do in all holiness ofheart, walking uprightly before me, con-sidering the end of your salvation” (d&c46:7; emphasis added).

We must not confuse means and ends.The vehicle is not the destination. If welose sight of our eternal goals, we mightthink the most important thing is how

fast we are moving and that any road willget us to our destination. The ApostlePaul described this attitude as “hav[ing] azeal of God, but not according to knowl-edge” (Romans 10:2). Zeal is a method, nota goal. Zeal—even a zeal toward God—needs to be “according to knowledge” ofGod’s commandments and his plan for hischildren. In other words, the weightiermatter of the eternal goal must not be dis-placed by the mortal method, howeverexcellent in itself.

Thus far I have spoken in generalities.Now I will give three examples.

f a m i l y

All Latter-day Saints understand thathaving an eternal family is an eternal goal.Exaltation is a family matter, not possibleoutside the everlasting covenant of mar-riage, which makes possible the perpetua-tion of glorious family relationships. Butthis does not mean that everything relatedto mortal families is an eternal goal. Thereare many short-term objectives associatedwith families—such as family togethernessor family solidarity or love—that aremethods, not the eternal goals we pursuein priority above all others. For example,family solidarity to conduct an evil enter-prise is obviously no virtue. Neither is

family solidarity to conceal and perpetu-ate some evil practice like abuse.

The purpose of mortal families is tobring children into the world, to teachthem what is right, and to prepare all fam-ily members for exaltation in eternal familyrelationships. The gospel plan contem-plates the kind of family government, dis-cipline, solidarity, and love that serve thoseultimate goals. But even the love of familymembers is subject to the overriding firstcommandment, which is love of God (seeMatthew 22:37–38) and “if ye love me, keepmy commandments” (John 14:15). As Jesustaught, “He that loveth father or mothermore than me is not worthy of me: and hethat loveth son or daughter more than meis not worthy of me” (Matthew 10:37).

c h o i c e o r a g e n c y

My next example in this message onweightier matters is the role of choice oragency.

Few concepts have more potential tomislead us than the idea that choice oragency is an ultimate goal. For Latter-daySaints, this potential confusion is partly aproduct of the fact that moral agency—the right to choose—is a fundamental con-dition of mortal life. Without thisprecious gift of God, the purpose of mor-

4 Clark Memorandum

Dallin H. Oaks is a member of the Councilof the Twelve Apostles of The Church of JesusChrist of Latter-day Saints. This devotionaladdress was given on February 9, 1999, in theMarriott Center.

tal life could not be realized. To secureour agency in mortality we fought amighty contest the book of Revelationcalls a “war in heaven.” This premortalcontest ended with the devil and hisangels being cast out of heaven and beingdenied the opportunity of having a bodyin mortal life (see Revelation 12:7–9).

But our war to secure agency waswon. The test in this postwar mortalestate is not to secure choice but to useit—to choose good instead of evil so thatwe can achieve our eternal goals. In mor-tality, choice is a method, not a goal.

Of course, mortals must still resolvemany questions concerning what restric-tions or consequences should be placedupon choices. But those questions comeunder the heading of freedom, notagency. Many do not understand thatimportant fact. For example, when I wasserving here at byu, I heard many argu-ments on byu’s Honor Code or dress andgrooming standards that went like this:“It is wrong for byu to take away my freeagency by forcing me to keep certainrules in order to be admitted or permit-ted to continue as a student.” If that sillyreasoning were valid, then the Lord, whogave us our agency, took it away when hegave the Ten Commandments. We areresponsible to use our agency in a worldof choices. It will not do to pretend thatour agency has been taken away when weare not free to exercise it without unwel-come consequences.

Because choice is a method, choicescan be exercised either way on any matter,and our choices can serve any goal.Therefore, those who consider freedom ofchoice as a goal can easily slip into theposition of trying to justify any choice thatis made. “Choice” can even become a slo-gan to justify one particular choice. Forexample, in the 1990s, one who says “I ampro-choice” is clearly understood as oppos-ing any legal restrictions upon a woman’schoice to abort a fetus at any point in herpregnancy.

More than 30 years ago, as a younglaw professor, I published one of the earli-est articles on the legal consequences ofabortion. Since that time I have been aknowledgeable observer of the nationaldebate and the unfortunate Supreme

Court decisions on the so-called “right toabortion.” I have been fascinated withhow cleverly those who sought and nowdefend legalized abortion on demand havemoved the issue away from a debate onthe moral, ethical, and medical pros andcons of legal restrictions on abortion andfocused the debate on the slogan or issueof choice. The slogan or sound bite “pro-choice” has had an almost magical effectin justifying abortion and in neutralizingopposition to it.

Pro-choice slogans have been particu-larly seductive to Latter-day Saints becausewe know that moral agency, which can bedescribed as the power of choice, is a fun-damental necessity in the gospel plan. AllLatter-day Saints are pro-choice accordingto that theological definition. But beingpro-choice on the need for moral agencydoes not end the matter for us. Choice is a method, not the ultimate goal. We areaccountable for our choices, and onlyrighteous choices will move us toward oureternal goals.

In this effort, Latter-day Saints followthe teachings of the prophets. On this sub-ject our prophetic guidance is clear. TheLord commanded, “Thou shalt not . . . kill,nor do anything like unto it” (d&c 59:6).The Church opposes elective abortion forpersonal or social convenience. Our mem-bers are taught that, subject only to somevery rare exceptions, they must not submitto, perform, encourage, pay for, or arrangefor an abortion. That direction tells uswhat we need to do on the weightier mat-ters of the law, the choices that will moveus toward eternal life.

My young brothers and sisters, intoday’s world we are not true to ourteachings if we are merely pro-choice. Wemust stand up for the right choice. Thosewho persist in refusing to think beyondslogans and sound bites like pro-choicewander from the goals they pretend toespouse and wind up giving their supportto results they might not support if thoseresults were presented without disguise.

For example, consider the uses somehave made of the possible exceptions to ourfirm teachings against abortion. Our leadershave taught that the only possible excep-tions are when the pregnancy resulted fromrape or incest, or a competent physician has

5Clark Memorandum

We do not

improve our

position in

eternity just by

flying farther

and faster in

mortality, but

only by moving

knowledgeably

in the right

direction.

7Clark Memorandum

determined that the life or health of themother is in serious jeopardy or the fetushas severe defects that will not allow thebaby to survive beyond birth. But eventhese exceptions do not justify abortionautomatically. Because abortion is a mostserious matter, we are counseled that itshould be considered only after the personsresponsible have consulted with their bish-ops and received divine confirmationthrough prayer.

Some Latter-day Saints say theydeplore abortion, but they give theseexceptional circumstances as a basis fortheir pro-choice position that the lawshould allow abortion on demand in all circumstances. Such persons shouldface the reality that the circumstancesdescribed in these three exceptions areextremely rare. For example, conceptionby incest or rape—the circumstance mostcommonly cited by those who use excep-tions to argue for abortion on demand—are involved in only a tiny minority ofabortions. More than 95 percent of themillions of abortions performed each yearextinguish the life of a fetus conceived byconsensual relations. Thus the effect inover 95 percent of abortions is not to vin-dicate choice but to avoid its consequences(see Russell M. Nelson, “Reverence forLife,” Ensign, May 1985, pp. 11–14). Usingarguments of “choice” to try to justifyaltering the consequences of choice is aclassic case of omitting what the Saviorcalled “the weightier matters of the law.”

A prominent basis for the secular orphilosophical arguments for abortion ondemand is the argument that a womanshould have control over her own body.Just last week I received a letter from athoughtful Latter-day Saint outside theUnited States who analyzed that argu-ment in secular terms. Since his analysisreaches the same conclusion I have urgedon religious grounds, I quote it here forthe benefit of those most subject to per-suasion on this basis:

Every woman has, within the limits ofnature, the right to choose what will or willnot happen to her body. Every woman has,at the same time, the responsibility for theway she uses her body. If by her choice shebehaves in such a way that a human fetus is

conceived, she has not only the right to, butalso the responsibility for that fetus. If it isan unwanted pregnancy, she is not justifiedin ending it with the claim that it interfereswith her right to choose. She herself chosewhat would happen to her body by riskingpregnancy. She had her choice. If she has nobetter reason, her conscience should tell herthat abortion would be a highly irresponsi-ble choice.

What constitutes a good reason? Since a human fetus has intrinsic and infinitehuman value, the only good reason for anabortion would be the violation or depriva-tion of, or the threat to the woman’s right tochoose what will or will not happen to herbody. Social, educational, financial, and per-sonal considerations alone do not outweighthe value of the life that is in the fetus. Theseconsiderations by themselves may properlylead to the decision to place the baby foradoption after its birth, but not to end itsexistence in utero.

The woman’s right to choose what willor will not happen to her body is obviouslyviolated by rape or incest. When conceptionresults in such a case, the woman has themoral as well as the legal right to an abortionbecause the condition of pregnancy is theresult of someone else’s irresponsibility, nothers. She does not have to take responsibilityfor it. To force her by law to carry the fetus toterm would be a further violation of herright. She also has the right to refuse an abor-tion. This would give her the right to thefetus and also the responsibility for it. Shecould later relinquish this right and thisresponsibility through the process of placingthe baby for adoption after it is born.Whichever way is a responsible choice.

The man who wrote those words alsoapplied the same reasoning to the otherexceptions allowed by our doctrine—lifeof the mother and a baby that will notsurvive birth.

I conclude this discussion of choicewith two more short points.

If we say we are anti-abortion in ourpersonal life but pro-choice in public pol-icy, we are saying that we will not use ourinfluence to establish public policies thatencourage righteous choices on mattersGod’s servants have defined as serioussins. I urge Latter-day Saints who have

Some say

we should

not legislate

morality.

Those who

take this

position

should realize

that the law

of crimes

legislates

nothing but

morality.

taken that position to ask themselveswhich other grievous sins should bedecriminalized or smiled on by the law onthis theory that persons should not behampered in their choices. Should wedecriminalize or lighten the legal conse-quences of child abuse? of cruelty to ani-mals? of pollution? of fraud? of fatherswho choose to abandon their families forgreater freedom or convenience?

Similarly, some reach the pro-choiceposition by saying we should not legislatemorality. Those who take this positionshould realize that the law of crimes legis-lates nothing but morality. Should werepeal all laws with a moral basis so ourgovernment will not punish any choicessome persons consider immoral? Such anaction would wipe out virtually all of thelaws against crimes.

d i v e r s i t y

My last illustration of the bad effectsof confusing means and ends, methodsand goals, concerns the word diversity.Not many labels have produced moreconfused thinking in our time than thisone. A respected federal judge recentlycommented on current changes in cultureand values by observing that “a new credoin celebration of diversity seems to beemerging which proclaims, ‘Divided WeStand!’” (J. Thomas Greene, “ActivistJudicial Philosophies on Trial,” FederalRules Decisions 178 [1997]: 200). Even inreligious terms, we sometimes hear “cele-brations of diversity,” as if diversity werean ultimate goal.

The word diversity has legitimate usesto describe a condition, such as whenPresident Bateman referred in last sum-mer’s Annual University Conference to the “racial and cultural diversity” of byu(Merrill J. Bateman, “Brigham YoungUniversity in the New Millennium,” BYU

1997–98 Speeches [Provo: byu, 1998], p. 366).Similarly, what we now call “diversity”appears in the scriptures as a condition.This is evident wherever differences amongthe children of God are described, such asin the numerous scriptural references tonations, kindreds, tongues, and peoples.

In the scriptures, the objectives we aretaught to pursue on the way to our eternal

goals are ideals like love and obedience.These ideals do not accept us as we arebut require each of us to make changes.Jesus did not pray that his followerswould be “diverse.” He prayed that theywould be “one” (John 17:21–22). Modernrevelation does not say, “Be diverse; and ifye are not diverse, ye are not mine.” Itsays, “Be one; and if ye are not one ye arenot mine” (d&c 38:27).

Since diversity is a condition, amethod, or a short-term objective—not anultimate goal—whenever diversity is urgedit is appropriate to ask, “What kind ofdiversity?” or “Diversity in what circum-stance or condition?” or “Diversity in fur-therance of what goal?” This is especiallyimportant in our policy debates, whichshould be conducted not in terms of slo-gans but in terms of the goals we seek andthe methods or shorter-term objectivesthat will achieve them. Diversity for itsown sake is meaningless and can clearlybe shown to lead to unacceptable results.For example, if diversity is the underlyinggoal for a neighborhood, does this meanwe should take affirmative action toassure that the neighborhood includesthieves and pedophiles, slaughterhousesand water hazards? Diversity can be agood method to achieve some long-termgoal, but public policy discussions need toget beyond the slogan to identify the goal,to specify the proposed diversity, and toexplain how this kind of diversity willhelp to achieve the agreed goal.

Our Church has an approach to theobvious cultural and ethnic diversitiesamong our members. We teach that whatunites us is far more important than whatdifferentiates us. Consequently, our mem-bers are asked to concentrate their effortsto strengthen our unity—not to glorifyour diversity. For example, our objectiveis not to organize local wards andbranches according to differences in cul-ture or in ethnic or national origins,although that effect is sometimes pro-duced on a temporary basis when requiredbecause of language barriers. Instead, weteach that members of majority groupings(whatever their nature) are responsible toaccept Church members of other group-ings, providing full fellowship and fullopportunities in Church participation. We

seek to establish a community of Saints—“one body” the Apostle Paul called it (1 Corinthians 12:13)—where everyone feelsneeded and wanted and where all can pur-sue the eternal goals we share.

Consistent with the Savior’s com-mand to “be one,” we seek unity. On thissubject President Gordon B. Hinckley hastaught:

I remember when President J. ReubenClark, Jr., as a counselor in the FirstPresidency, would stand at this pulpit andplead for unity among the priesthood. I thinkhe was not asking that we give up our indi-vidual personalities and become as robotscast from a single mold. I am confident hewas not asking that we cease to think, tomeditate, to ponder as individuals. I think hewas telling us that if we are to assist in mov-ing forward the work of God, we must carryin our hearts a united conviction concerningthe great basic foundation stones of our faith.. . . If we are to assist in moving forward thework of God, we must carry in our hearts aunited conviction that the ordinances andcovenants of this work are eternal and ever-lasting in their consequences. [TGBH, p. 672]

Anyone who preaches unity risks mis-understanding. The same is true of anyonewho questions the goal of diversity. Sucha one risks being thought intolerant. Buttolerance is not jeopardized by promotingunity or by challenging diversity. Again, Iquote President Hinckley:

Each of us is an individual. Each of us isdifferent. There must be respect for those dif-ferences. . . .

. . .We must work harder to build mutualrespect, an attitude of forbearance, with toler-ance one for another regardless of the doc-trines and philosophies which we mayespouse. Concerning these you and I may dis-agree. But we can do so with respect and civil-ity. [TGBH, pp. 661, 665]

President Hinckley continues:

An article of the faith to which I sub-scribe states: “We claim the privilege of wor-shipping Almighty God according to thedictates of our own conscience, and allow allmen the same privilege, let them worship

8 Clark Memorandum

9Clark Memorandum

how, where, or what they may” (Article ofFaith 11). I hope to find myself always on theside of those defending this position. Ourstrength lies in our freedom to choose. Thereis strength even in our very diversity. Butthere is greater strength in the God-givenmandate to each of us to work for the upliftand blessing of all His sons and daughters,regardless of their ethnic or national origin orother differences. [TGBH, p. 664]

In short, we preach unity among thecommunity of Saints and tolerance towardthe personal differences that are inevitablein the beliefs and conduct of a diversepopulation. Tolerance obviously requires a noncontentious manner of relatingtoward one another’s differences. But tol-erance does not require abandoning one’sstandards or one’s opinions on political orpublic policy choices. Tolerance is a wayof reacting to diversity, not a command toinsulate it from examination.

Strong calls for diversity in the publicsector sometimes have the effect of pres-suring those holding majority opinions toabandon fundamental values to accommo-date the diverse positions of those in theminority. Usually this does not substitutea minority value for a majority one.Rather, it seeks to achieve “diversity” byabandoning the official value positionaltogether, so that no one’s value will becontradicted by an official or semiofficialposition. The result of this abandonmentis not a diversity of values but an officialanarchy of values. I believe this is anexample of byu visiting professor LouisPojman’s observation in a recent UniverseViewpoint (October 13, 1998, p. 4) thatdiversity can be used “as a euphemism formoral relativism.”

There are hundreds of examples ofthis, where achieving the goal of diver-sity results in the anarchy of values wecall moral relativism. These examplesinclude such varied proposals as forbid-ding the public schools to teach thewrongfulness of certain behavior or therightfulness of patriotism and includesattempting to banish a representation ofthe Ten Commandments from any publicbuildings.

In a day when prominent thinkerslike James Billington and Allan Bloom

have decried the fact that our universitieshave stopped teaching right and wrong,we are grateful for the counterculturalposition we enjoy at byu. Moral rela-tivism, which is said to be the dominantforce in American universities, has nolegitimate place at Brigham YoungUniversity. Our faculty teach values—theright and wrong taught in the gospel ofJesus Christ—and students come to byufor that teaching.

In conclusion, diversity and choice arenot the weightier matters of the law. Theweightier matters that move us towardour goals of eternal life are love of God,obedience to his commandments, andunity in accomplishing the work of hisChurch. In this belief and practice wemove against the powerful modern tidesrunning toward individualism and toler-ance rather than toward obedience andcooperative action. Though our belief andpractice is unpopular, it is right, and itdoes not require the blind obedience orthe stifling uniformity its critics charge. Ifwe are united on our eternal goal andunited on the inspired principles that willget us there, we can be diverse on individ-ual efforts in support of our goals andconsistent with those principles.

We know that the work of God can-not be done without unity and coopera-tive action. We also know that thechildren of God cannot be exalted as sin-gle individuals. Neither a man nor awoman can be exalted in the celestialkingdom unless both unite in theunselfishness of the everlasting covenantof marriage and unless both choose tokeep the commandments and honor thecovenants of that united state.

I testify of Jesus Christ, our Savior.As the One whose atonement paid theincomprehensible price for our sins, he isthe One who can prescribe the condi-tions for our salvation. He has com-manded us to keep his commandments(see John 14:15) and to “be one” (d&c38:27). I pray that we will make the wisechoices to keep the commandments andto seek the unity that will move ustoward our ultimate goal, “eternal life,which gift is the greatest of all the gifts ofGod” (d&c 14:7). I say this in the name ofJesus Christ. Amen.

We move

against the

powerful modern

tides running

toward indi-

vidualism and

tolerance rather

than toward

obedience and

cooperative

action.

t h e c o n s t i t u t i o n a l

t h o u g h t o f

j. r e u b e n c l a r k, j r.

t h e c o n s t i t u t i o n a l

t h o u g h t o f

j. r e u b e n c l a r k, j r.

t h e c o n s t i t u t i o n a l

t h o u g h t o f

j. r e u b e n c l a r k, j r.

by J. David Gowdy

This address was given at the

Dallas/FortWorth Chapter of the J. Reuben Clark

Law Society on February 16, 1999.

In july 1935, j. reuben clark, jr., spokeat a luncheon at the California Clubon the subject of the Constitutionand said in part:

We are deaf today to the approach of tyrannybecause we have lived so long under the pro-tection of the Constitution that we take forgranted the blessings of liberty. . . . We needmore people today with strong convictions insupport of the Constitution and with courageto back their convictions. [ J. Reuben Clark,Jr., Stand Fast by Our Constitution (SaltLake City: Deseret Book Company, 1973),p. 4 (cited herein as “Clark”)]

One of the fundamental purposes ofthe J. Reuben Clark Law Society is toemphasize “loyalty to the rule of law andto the Constitution of the United States.”

Since the substance and meaning of theConstitution has of late been such animportant subject in our national discourseand in the minds of many Americans, itseems appropriate for us to focus ourattention upon the constitutional thoughtof that great statesman for whom our soci-ety is named: J. Reuben Clark, Jr.

J. Reuben Clark, Jr., was the first nativeUtahn to receive national and interna-tional acclaim for his legal and diplo-matic skills. Dallin H. Oaks described J. Reuben Clark as “a widely acclaimedauthority in international and constitu-tional law, and a distinguished public ser-vant,” and said, “His coherent philosophyof law and government was born of bril-liance and nurtured by superior educa-tion, experience, love of country, anddevotion to God” (address to J. ReubenClark Law School, 1973).

Joshua Reuben Clark, Jr., was born on September 1, 1871, in Grantsville, Utah, to Joshua Reuben Clark and Mary Louisa Woolley Clark. He graduated asvaledictorian in the first class at theUniversity of Utah in 1898 and marriedLuacine Annetta Savage in September ofthat year. They became the parents ofthree daughters and one son. In 1903 Clarkmoved his family to New York City toattend the law school at Columbia

University, where he graduated with anllb degree in 1906. He excelled in lawschool and was elected to the editorialboard of the Columbia Law Review.During his public career from 1906 to 1933,Clark served as assistant solicitor, solici-tor, and undersecretary of the u.s. StateDepartment, taught as an assistant pro-fessor of law at George WashingtonUniversity, and crowned his public careerby serving as u.s. ambassador to Mexico.It was during his service as undersecretaryof the State Department that he publishedhis influential “Clark Memorandum onthe Monroe Doctrine” (after which oursociety’s publication is named). From 1933on he served for 28 years as a member ofthe First Presidency of The Church ofJesus Christ of Latter-day Saints until hispassing on October 6, 1961.

I have divided the constitutionalthought of J. Reuben Clark into two cate-gories: (1) his thoughts on the fundamentalprinciples upon which the Constitution isbased and (2) his thoughts on the impor-tance of individual vigilance in under-standing and upholding the Constitutionin our day. As a further preface to theseremarks, please note that this is a briefsummary of his thoughts on the subjectonly and is not intended to be comprehen-sive in nature. Next, I believe it is impor-tant to understand the context in which heviewed this great document. J. ReubenClark declared, “[T]he Constitution of theUnited States is a great and treasured partof my religion” (Clark, p. 7). It was hisfirm belief that the Constitution wasindeed inspired by the hand of Providence.He told a group of bankers in 1938: “Fromthe time I stood at my mother’s knee, Ihave been taught to reverence theConstitution as God-given” (Martin B.Hickman, “J. Reuben Clark, Jr.: The GreatFundamentals,” BYU Studies 13, no. 3 [1973],p. 257 [cited herein as “Hickman”]). He wasalso a devoted and lifelong student of his-tory and of the roots of the Americanfounding. With particularity he studiedthe Roman legal system and its progeny.From this background he viewed theConstitution “as emerging from a long his-

torical process. . . . [and saw] the framers ofthe Constitution as being men of great his-torical knowledge as well as practicalexperience.” He said:

The Framers of our Constitution . . . weretrained and experienced in the CommonLaw. They remembered the barons and KingJohn at Runnymede. They were thoroughlyindoctrinated in the principle that true sover-eignty rested in the people. . . . Deeply read inhistory, steeped in the lore of the past inhuman government, and experienced in theapproaches of despotism which they had,themselves, suffered at the hands of Georgethe Third, these patriots, assembled in solemnconvention, planned for the establishment ofa government that would ensure to them theblessings they described in the Preamble.[Clark, p. 145, 147]

Yes, he revered the Framers and, describ-ing them, said, “As giants to pygmies arethey when placed alongside our politicalemigrés and fellow travelers of today, whonow traduce them with slighting work andcontemptuous phrase” (Clark, pp. 135–36).

Fundamental Principles of theConstitution

J. Reuben Clark firmly believed thatthe cornerstone of limited governmentunder the Constitution lies in its provi-sion for the separation of powers. Hebelieved, with Locke and Montesquieu,that “a combination of legislative, execu-tive and judicial power in one person orbody was destructive of all freedom andjustice” and that this fact was key in thefounders’ minds in providing in theConstitution for a “government in whichthese three branches were distinct andwholly independent the one from theother” (Hickman, p. 263). Clark stated:

It is this union of independence and depen-dence of these branches—legislative, executiveand judicial—and of the governmental func-tions possessed by each of them, that consti-tutes the marvelous genius of this unrivaleddocument. The Framers had no direct guidein this work, no historical governmentalprecedent upon which to rely. As I see it,

12 Clark Memorandum

“From the time I stood at my mother’s knee, I have been taught to reverence the Constitution as God-given.”

it was here that the divine inspiration came. It was truly a miracle. [Hickman, p. 265]

His understanding of this basic frameworkof the Constitution led him to make spe-cial efforts “to call attention to the dan-gers involved in permitting either of thethree branches of government to usurppowers that did not rightfully belong tothem” (Id.). These efforts included hisopposition to congressional subservienceto presidential demands and to presi-dential usurpation of congressional pre-rogatives. With respect to the first issue,“congressional subservience to presiden-tial demands,” he set forth what hebelieved to be usurpation by presidents ofthe legislative power. He stated:

We the people provided in our Constitutionthat the President should report the State ofthe Union to Congress and recommend legis-

lation. But there is growing up the custom forthe chief executive not only to recommendlegislation, but actually to draft it, and sub-mit it to his favorites in Congress to secure itspassage. The administration support inCongress takes the bill and makes everyeffort to pass it. . . . While in [Roman] daysmen were executed as traitors for not goingalong with the program, in our days, politicalvengeance is visited, either by denyingpatronage, or by social ostracism, or by activeopposition at the polls against recalcitrantlawmakers. [Clark, p. 153]

With respect to the latter, “presidentialusurpation of congressional prerogatives,”he spoke out on the issue of the presi-dent’s right, as commander in chief, to actin times of war—and “he argued that theplain words of the Constitution grantedwar powers specifically to Congress” (Id.).Although he agreed that the president

13Clark Memorandum

Luacine Annetta Savage Clark wears her wedding gown

as she poses in the studio of her father, C. R. Savage,

Utah’s foremost early photographer.

The Clark family gathers for a photograph on July 24, 1892. Standing (from left) are Esther, Elmer, Reuben (J. Reuben Clark, Jr.), Edwin, and Frank. Seated (from left) are

Mary Louisa Woolley Clark, John (on lap), Samuel, Alice, Joshua Reuben Clark, Sr., and Lucille.

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(2)

could act to repel an invasion, he warnedof the growing excesses in presidentialpower to conduct a war without congres-sional authority (note that this was in thepre–Vietnam War era). He asserted that:

[T]his authority and these powers are to bemeasured exclusively by the express statutoryenactments of the Congress, passed pursuantto and in virtue of the duty and powers ofCongress to provide for the waging of war bythe United States as specifically authorized byConstitutional provision. They are not to beconsidered as growing out of, or in any neces-sary way, concerned with, related to, orenlarged by his powers as Commander inChief. [Clark, p. 156]

Finally, on the same premise, PresidentClark warned of the “growing tendency forour Congress to turn over to administrativecommissions the power to make laws. Thisplan carries the innocent description ofmaking regulations to enforce the laws. Butlawyers know that under the guise of issu-

ing regulations, these administrative bodiesreally legislate, not only in procedural mat-ter, but in substantive matters” (Clark, p. 151).

In describing the concept of federalisminherent in the Constitution, J. ReubenClark emphasized that there is a dualjurisdiction in our constitutional form ofgovernment—state and federal. He feltstrongly that a limited federal governmentis what the Founding Fathers clearlyintended in the Constitution and that“local government governs best.” He said:

The Federal Government may only do whatwe the people have authority to do; if it does more it is guilty of usurpation. The peo-ple have reserved to themselves or to theirState governments every right and powerthey have not delegated to the FederalGovernment, which must always look to theConstitution and its amendments to find itsrights, for it has none other. This system putsthe great bulk of our daily life activities inthe hands of our own neighbors who knowus and our surroundings, and not in the

hands of a bureaucrat in a far-away nationalcapitol, who, to all intents and purposes, is analien to us and our affairs. This plan gives thelargest possible measure to local self-govern-ment controlling and directing matters per-taining to our personal liberties and to thesecurity of our private property; it will notabide with us if we lose our local self-govern-ment. [Clark, pp. 187–88]

Another key feature of the Constitutionimportant to J. Reuben Clark was the Bill of Rights—particularly the FirstAmendment. He observed that “the great-est struggle that now rocks the whole earthmore and more takes on the character of astruggle of the individual versus the state”(Hickman, p. 268). In this regard “he wasparticularly concerned with the protectionof the freedoms guaranteed by the FirstAmendment: freedom of the press, ofspeech, and of religion” (Id.). His firm

14 Clark Memorandum

Ambassador J. Reuben Clark, Jr., sits at his desk at

the U.S. Embassy in Mexico City, September 1,1931.

Photographic A

rchives, Harold B

. Lee Library, Brigham

Young University, Provo, U

tah (2)

opinion was that “[t]he fathers felt thatwhen they protected freedom of speechand of the press against government inter-ference, they had effectively guaranteed thecitizens freedom to talk and write as theyfelt and thought about their own govern-ment” (Id., p. 269), and that this was essen-tial to a free society.

With respect to freedom of religion, J.Reuben Clark revered the soul of man as“the holy of holies” (Id.).

He was outraged that the state should intrudeonto such sacred ground and there seek todethrone God and exalt the state into God’splace. [He stated:] “This is the archest treasonof them all. For man robbed of Godbecomes a brute.” President Clarkwas explicit in his belief that for gov-

ernment to trespass on the religiouslife of its citizens was a sin of highestmagnitude. “This sin must be felt,not told, for words cannot measurethe height and breadth of this iniquity.” [Id.,pp. 269–70]

His conviction, no doubt, was born of thememory of the trials, persecution, andsuffering of the Mormon people. In anApril conference of the Church in 1935, hestated that nothing was so important tothis people as “this guarantee of religiousfreedom, because underneath and behindall that lies in our lives, all that we do inour lives, is our religion, our worship, ourbelief and faith in God” (Id., p. 270).

The Importance of Individual Vigilancein Understanding and Upholding theConstitution

J. Reuben Clark, Jr., continually stressedthe need for all American citizens (and par-ticularly Church members) to “constantlyreview the purposes for which theConstitution was written” (Id., p. 271). Hetaught that our patriotic allegiance shouldnot run to individuals or government offi-

cials, “no matter how great or small theymay be,” but that the only allegiance weowe as citizens runs to our Constitution.He stated that “[t]his principle of allegianceto the Constitution is basic to our free-dom” (Clark, p. 189). He decried “thosewho . . . are incapable of understanding orappreciating the fundamentals of, or tothink practically and creatively about, theproblems of free self-government.” Heexpressed the conviction that “those whounderstand the spirit as well as the word ofthe Constitution will be able . . . to pre-serve its great principles and the republicanform of government for which it provides”(Clark, p. 158).

In regard to the founding documentswith which every citizen should be famil-iar and conversant, J. Reuben Clark was adiligent student of the history of thefounding and particularly of the FederalistPapers. He made the statement (in agree-ment with Thomas Jefferson) that “[t]heseessays have been appraised as ‘the greatesttreatise on government that has ever beenwritten,’ and its writers have been rankedas of the same order with Aristotle,Montesquieu, and Locke” (Id., p. 135). Hequoted Fiske stating that “for all posteritythe ‘Federalist’ must remain the mostauthoritative commentary upon theConstitution that can be found” (Id., p.167). He also loved George Washington’spoignant farewell address, describing it asa “prophetic admonition and warning.”He frequently quoted excerpts from theaddress when writing or speaking on themeaning of the Constitution and earnestlyrecommended to his listeners “to read itin its entirety.”

J. Reuben Clark acknowledged thegreat price paid by so many to both deliv-er and redeem this nation and to upholdour precious liberty in subsequent wars.He minced no words in his call to eachcitizen to remember those sacrifices inorder to appreciate and uphold our con-stitutional freedoms when he stated:

I say to you that the price of liberty is andalways has been, blood, human blood, and ifour liberties are lost, we shall never regain themexcept at the price of blood. [Clark, p. 137]

Finally, in connection with constitution-al learning and vigilance, he vigorously

urged each citizen to be watchfuland to discern gradual encroach-ments to our liberties under theConstitution. James Madison stat-ed: “I believe that there are moreinstances of the abridgment of thefreedom of the people by gradualand silent encroachment of those inpower than by violent and suddenusurpations.” In this regard J.Reuben Clark said:

[I]n the whole history of the humanrace, from Adam until now, Tyrannyhas never come to live with any peo-

ple with a placard on his breast bearing hisname. He always comes in deep disguise,sometimes proclaiming an endowment of free-dom [or rights], sometimes promising to helpthe unfortunate and downtrodden, not by cre-ating something for those who do not have,but by robbing those who have. But Tyrannyis always a wolf in sheep’s clothing, and healways ends by devouring the whole flock,saving none. [Clark, p. 5]

I don’t think that his message to us wouldbe any different if he were here today.

In conclusion, I hope that each of usmay learn from the words and example ofour society’s namesake and that we, asmembers of the J. Reuben Clark LawSociety, may be found to be both loyal tothe Constitution and courageously stand-ing up in defense of the divine principlesupon which it is based.

15Clark Memorandum

J. Reuben Clark, Jr., pauses for a group

picture in Toluca, Mexico, September 14,

1931, while serving as U.S. ambassador.

Photo on page 11 courtesy of Photographic Archives, Harold B.

Lee Library, Brigham Young University, Provo, Utah.

b y j o y c e j a n e t s k i

i l l u s t r a t i o n b y c r a i g f r a z i e r

p h o t o s b y j o h n s n y d e r

as a clerk for a United States SupremeCourt justice. Although a clerkship in anycourt—federal or state, appellate or trial—is a powerful learning experience, a per-spective on judicial decision makingsharpened at the Supreme Court levelcannot be compared. “Clerkships of allkinds . . . expose young lawyers to chal-lenging legal problems and provide a win-dow into our legal system that can beobtained in no other way,” says DavidCampbell, visiting professor at the byuLaw School. “[But] as a federal clerk,” headds, “you get to see the world from themountaintop.”

J U D G E D A N H O N O R

Just like the few who make it to thehighest summit, a Supreme Court clerkenjoys an opportunity that is not onlygreat but also rare. The competition isplenty tough for the few clerkship slots atthe top of our judicial system. The honoris defined by the statistics: approximately40,000 students will graduate fromAmerican law schools each year; onlyabout 25 to 30 of them will obtain clerk-ships at the Supreme Court level.

Yet since its first graduating class in1976, the J. Reuben Clark Law School hasproduced nine graduates who have earnedthe distinction of being selected to serveas a judicial clerk for the high Court. Thisnumber places the Law School in thesmall percentage of law schools who canboast such a high representation. “Theoverwhelming number of Supreme Courtclerks have come from a few of thenation’s elite law schools,” notes DouglasFloyd, law professor and member of thefaculty judicial-clerkship committee. “Theachievement of nine byu graduates inattaining these positions has been quite

remarkable, given the relatively recentfounding of the byu Law School.”

No one knows better how difficult it isto be chosen for the honor than those whohave been. “It’s so hard to get one,” saysJay Jorgensen, who will start his clerkshipthis fall. “I was so surprised when ChiefJustice Rehnquist’s secretary called. I wasflabbergasted.” Steve Sargent, who fiveyears ago also clerked for the chief justice,recalls, “I just assumed that ‘no news wasbad news’ when I hadn’t received any wordfrom Chief Justice Rehnquist. Then whenhis secretary called and told me I had beenselected, I couldn’t believe it.”

Several of the jrcls Supreme Courtclerks testify that—aside from being quali-fied to compete—it was just chance thatgot them the position. As Von Keetchthinks back on his 1989 Term in the court-room of Justice Antonin Scalia and ChiefJustice Warren E. Burger, he admits,

One factor above any other that applies to theselection process is pure luck. That’s not to saythat qualifications aren’t important. To thecontrary, applying from a law school otherthan Harvard, Yale, Chicago, or Stanford, itis almost a prerequisite that one finish in thetop one or two in his or her class. . . . But as Ilooked over the résumés of those who appliedfor clerkships while I was at the Court, I liter-ally found hundreds of applicants who hadthose qualifications. [Much] is just a product ofdarn good luck.

Even the Law School’s first Supreme Courtclerk, Monte Stewart, responds to the ques-tion of selection criteria with a pause fol-lowed by a common conclusion: “Luck?”

But, as Keetch points out and as everylaw student knows, it takes more than luckto become a Supreme Court clerk. Thequalifications are the highest: a lofty class

18 Clark Memorandum

O N E O F T H E G R E AT E S TO P P O R T U N I T I E S A L AW S C H O O L

G R A D U AT E C A N H A V E I S T H E C H A N C E T O S E R V E

19Clark Memorandum

rank, law review editorial experience, aclerkship with perhaps a “feeder” federalappellate court, and, hopefully, some legalpractice. The competition is the stiffest:the best law students from the most presti-gious law schools. “Other clerks had grad-uated at the top of their classes fromHarvard, Yale, and Stanford. . . . There is a certain mystique about the legal educa-tion at these schools,” says Keetch. WhenStewart showed up for his clerkship, hegreeted two Harvard grads and a southern-er from the University of Virginia. “I wasthe Mormon from Las Vegas,” he relates.

Though most of the clerks confessthey were a bit nervous during their firstfew summer days in Washington, theyquickly put things in perspective. “WhenI first arrived at the Court, I must admitto having felt extremely intimidated,”says Keetch.

I feared that it would be obvious just how far behind I was. The other clerks, however,couldn’t have been better. From the start theytreated me as an equal. During the time I wasat the Court, I never felt from them a sense ofsuperiority, nor did I see any other indicationthat they were “looking down their noses” at a BYU graduate. They knew and respectedRex Lee and other professors at BYU, andmore than anything else, they repeated theiramazement at my having received an excel-lent legal education without having to incurthe large debt that they all carried.

Stewart agrees. “I felt that the liberaleducation I got here was as good as theeducation that any of the other SupremeCourt clerks had received,” he says. “I basi-cally had access to the same cases and case-books and the same law review articles.And my teachers in my estimation were asgood as those these other clerks had had,although my teachers probably were not aswell known nationally. There’s no questionin my mind . . . that in some cases theywere better than the more-famous teachersfound at other prominent law schools.”

Michael Mosman, who clerked forJustice Lewis F. Powell, Jr., during the1985–86 Term, also felt well prepared for hisclerkship by his law training at the LawSchool, “particularly Woody Deem’s crimi-nal law and procedure classes and Doug

When Rex Lee and Bruce Hafen were scouting for outstanding indi-

viduals they wanted at BYU’s new law school, people who would

inspire others to come, they looked to Monte Stewart to boost their

student recruitment. “Stewart’s decision to join the charter law class at BYU

influenced a number of his classmates to do the same,” notes Carl Hawkins.

When it came time after his gradu-

ation from law school for Stewart to

seek a judicial clerkship in the Supreme Court, the leaders of the Law School

remembered Stewart, who recalls, “A lot of people supported me, and Rex,

obviously, was at the center of that.”

Another person who spoke highly of Stewart was Judge J. Clifford Wallace

of the Ninth Circuit Court of Appeals in San Diego, for whom Stewart clerked

after his graduation from law school. When Chief Justice Warren Burger

called on the judge to see what kind of

clerk Stewart had been, Wallace “went to

bat” for the young lawyer. Two weeks

later, Stewart learned he had been select-

ed for a Supreme Court clerkship.

Stewart began his clerkship with

Chief Justice Burger the summer of 1977.

“I was of the view then—and still am,”

Stewart says, “that there were many clerks

with a whole lot more candlepower than I

had, but I believe I had enough candle-

power that I felt that I did well as a law

clerk. I know that Chief Justice Burger was

pleased with my performance.” Likewise,

Stewart took a good view of the chief jus-

tice. “I was impressed with Chief Justice

Burger’s wisdom and instincts,” he says. “I

gained an appreciation for the sincerity of the justices in striving to do the right

thing and make the right decision in very difficult and challenging cases.”

When his year at the Supreme Court was up, Stewart returned to San

Diego to practice with Gibson, Dunn & Grutcher, the law firm that had

originally hired him out of law school. Two and a half years later he

moved with his growing family to his hometown of Las Vegas to join his

uncle’s firm, Heaton & Wright. When his uncle died in October of 1982,

Stewart formed his own firm—Wright, Shinehouse & Stewart—a successful

civil practice for which he worked for more than 10 years.

But in 1991 Stewart shifted gears, accepting an appointment to serve as a

United States attorney in Nevada for 18 months. Then in June 1995 he inter-

rupted his law career to serve as mission president in the Georgia Atlanta

Mission for three years.

Stewart and his wife, Ann, eventually moved their family, which includes

seven sons and three daughters (in that order), to Provo. Now on the Law

School’s faculty, he serves as director of the Advocacy Program, focusing on

the legal research, analysis, writing, and oral advocacy skills of first-year law

students. Stewart remains of counsel to his previous employer, the Provo law

firm Fillmore, Belliston & Israelsen.

M O R E T H A N L U C K

Monte N. Stewart, ’76

20 Clark Memorandum

Fasting, prayer, and the advice of friends

and mentors helped Eric Andersen make

“the better choice . . . between studying

law and pursuing a PhD in history.” Prompted

particularly by then Law School professor Bruce

Hafen, Andersen says, “I was intrigued by the

adventure of being in the second class of the new

law school at BYU and, after considering

enrolling at a few other fine schools, felt that BYU

was where I belonged.”

The road that led Andersen to a judicial

clerkship with Justice Lewis F. Powell, Jr., in 1978

and a satisfying career has been paved with high

opinions of the young lawyer. Not only Hafen but

also then BYU President Dallin H. Oaks brought

Andersen to the attention of Justice Powell. And

his clerkship with Powell, Andersen claims, was

“the single most important thing for getting a job

teaching.”

Following his graduation from law school,

Andersen and his wife, Catherine (Hardy), a

member of the Law School’s charter class, whom he had married right after

her graduation, moved to San Diego, California, for a clerkship with Judge J.

Clifford Wallace of the United States Court of Appeals for the Ninth Circuit.

The next year they moved to Washington, D.C., to clerk for Justice Powell.

“Other law-related experiences—both in prac-

tice and teaching—have been of great value,”

Andersen says, “but the concentration of learning was greater during the

Supreme Court clerkship than at any other time in my professional life.”

Immediately after his clerkship Andersen spent a year working in the

Washington, D.C., office of Vinson & Elkins, a Houston-based firm. When the

firm had an opening in its London office, Andersen and his wife moved to

England, where they lived for the next four years.

In 1984 Andersen left London to accept a teaching position on the faculty

at the University of Iowa College of Law in Iowa City. “After a while we knew

we’d have to make the jump sometime from practice to teaching, so we

couldn’t get too used to the lifestyle and salary of practicing.” He has been on

the faculty ever since and is currently devoting half of his university time as

associate academic dean of the law school.

With two of their children in college (one at BYU, the other at BYU—

Hawaii) and the third in junior high school, Andersen and his wife are find-

ing a little more time for themselves. Yet even their getaway of driving four

hours to the Chicago Illinois Temple is within the context of responsibilities

shaped by the Church. Andersen admits that his life’s choices may seem

“boring” in comparison to those who live a bit closer to the edge, but that’s

the way he likes it.

Eric G.Andersen, ’77

F R E E A G E N T

Floyd’s class on federal courts.” He relates,“I went to both my clerkships really con-cerned about how a byu graduate wouldstack up against graduates of the bestschools in the country. I felt that the train-ing I had at byu prepared me to go toe-to-toe with those people. . . . I didn’t feelshorted.”

Denise Lindberg, who clerked forJustice Sandra Day O’Connor during the1990–91 Term, agrees that she felt just asprepared as clerks from the Ivy Leagueschools but adds that she and other clerksfrom “second-tier” schools felt “morekeenly the need to prove [them]selves as individuals and as representatives of[their] schools.”

Though all nine Law Schoolgrads felt they had the “rightstuff” for their clerkships, theyadmitted it helped to have some-one help them get their foot in thedoor of the courtroom. Keetchconcurs that “the strongest factorover which the applicant has some control is references.” Whenchoosing clerks, “justices rely agreat deal on those whom theyknow and respect throughout the legal community of lawyers,judges, and educators.” He findsthat it helps to find someone suchas “a former clerk, a professor, ora judge who knows one or moreof the justices and to cultivate a sterling recommendation fromthat person.”

Perhaps the best-known advocate forlaw grads was Rex E. Lee, founding deanof the Law School and president ofBrigham Young University prior to hisdeath in 1996. It is no coincidence thatLee also served a Supreme Court clerk-ship (for Justice Byron White) after grad-uating first in his class from theUniversity of Chicago Law School in1963. Well known for personally recruit-ing a strong group of law faculty and students at the Law School’s inception,Rex Lee saw to it that this strengthwould carry on after, and far beyond,those first commencement exercises.Through his own reputation and powerto persuade, Lee—who during his lifeargued nearly 60 cases before the

Supreme Court—literally opened doorsfor promising young lawyers.

Eight of the nine byu law grads pointto Lee as a key factor in obtaining theirSupreme Court clerkships. Jorgensen, theninth and most recent clerk, was recom-mended for his 1999 clerkship by severalLaw School professors but still recognizesthe impact of Lee. “Part of the reason Ichose to attend the J. Reuben Clark LawSchool,” he says, “is a professor I knew atthe Law School—Rex Lee.”

Like the other clerks, Jorgensen canthank many of his Law School professorsfor their support. Richard Wilkins,Gerald Williams, and Kevin Worthen sent

recommendations to the justices in hisbehalf, although Jorgensen is sure that asthey were writing letters to the justices,“they were thinking I didn’t have achance.” Karl Tilleman, who served forthe retired Chief Justice Warren E. Burgerand for Justice Clarence Thomas duringthe 1992 Term, recalls that Tim Flaniganand Rex Lee were influential in his secur-ing a Supreme Court clerkship.

Eric Andersen, a clerk for Justice Powellduring the 1978–79 Term, credits a byu presi-dent for his opportunity. “The ‘qualifica-tion’ that made the difference was theoutstanding support I received from facultyand administrators, including then byu pres-ident Dallin H. Oaks (who had ties withPowell). . . . I owe them an enormous debt.”

Besides professors and administra-tors, judges have a strong influence on the selection of Supreme Court clerks.Andersen notes that “part of the reasonhe received the clerkship was JusticePowell’s personal ‘affirmative action’ poli-cy in recruiting clerks. Powell generallysecured three clerks from the more presti-gious law schools, and then he would be ‘willing to go with a lesser-knownschool.’ The justice would go out of hisway to give the top students of lesser-known schools a chance for a clerkship.”

With a similar appreciation, Stewartsays that Chief Justice Burger broadenedhis field of vision when looking for good

clerks. “He was not an elitist, evi-denced by the fact that he took asa law clerk someone who was froma brand-new law school. It was notuncommon for him to take lawclerks from the less well knownlaw schools, whereas some of thejustices tended to hire their lawclerks from only a handful of fouror five of the most prestigious lawschools in the country.” Stewartalso notes that Justice Powell—though he had declined him aclerkship—“told the chief somevery favorable things about me”and that Judge Wallace, for whomStewart had previously clerked,also “went to bat for me.”

Sargent credits a recommendationfrom Judge Deanell Reece Tacha ofthe Tenth Circuit, for whom he had

clerked in 1993, in getting him a clerk posi-tion with Chief Justice Rehnquist the fol-lowing year.

Mosman recounts that he “had threemain qualifications: (1) Judge MalcolmWilkey recommended me, (2) JudgeMalcolm Wilkey recommended me, and (3)Judge Malcolm Wilkey recommended me.

O P E N I N G E Y E S

The true value of a clerkship lies notso much in the honor of the position butin how it will enlighten the lawyer inbecoming a better person. When he con-templated a judicial clerkship, DavidCampbell asked himself, “Will this be avaluable way to spend my time?”—a far

T H R O U G H H I S O W N

R E P U TAT I O N A N D P O W E R

T O P E R S U A D E , R E X L E E

L I T E R A L LY O P E N E D

D O O R S F O R P R O M I S I N G

Y O U N G L A W Y E R S .

21Clark Memorandum

superior question, he believed, than “Willthis experience be a stepping-stone in mycareer?” or even “Will I be a better lawyerfor having had this experience?” (Thevalue of a Supreme Court clerkship is cer-tainly not found in any immediate finan-cial rewards. Clerks are paid less than anew associate at a law firm—about $38,600for an average starting salary, compared to$110,000-plus at a firm.)

Once a judge has chosen a law gradu-ate for his clerk, he will greatly define thevalue of that clerk’s experience. ElderDallin H. Oaks, a former justice of theUtah Supreme Court, stated: “The mostimportant thing in dictating the quality ofa clerkship is not whether the court isstate or federal but the quality ofthe judge and the way he or sheuses law clerks.” Once a judge hasopened the door for a younglawyer, he can help open theireyes to the value of the law and totheir potential to use the law forthe benefit of the human race andthe world it touches.

The nine Law School clerksagree. Von Keetch says, “JusticeScalia taught me to question everything. . . . Case law and prece-dent . . . are only as strong as thereasoning upon which they arebased. . . . Despite a résumé thatcontains the highest honors thatthe legal profession can bestow, he was always searching for newviewpoints and concepts thatcould be utilized to get the verybest out of the law. [He taught me that] wedo not exist as servants to the law; the lawexists as a servant to us.”

J U D G E A S L A W M E N T O R

As a member of a select group com-prising a chief justice and eight associatejustices, a Supreme Court judge is incharge of reviewing 140 to 150 cases aterm—the hardest cases, those that couldnot be settled in lower courts. The highestof appellate courts sees lawsuits that havealready been through much debate andjudgment and that are making their finalappeal before some of the most discrimi-nating minds in the nation.

As an expert in discernment, aSupreme Court judge functions as a men-tor to the clerk who wants to learn thelaw and then apply it wisely to individualsituations. Those serving clerkships findthat the judge serves as a model for deci-sion making. They also come to realizethat the judge is where he is because ofthis ability.

As a law review article by Rex Lee andRichard Wilkins states: “The judge has theancient task of settling disputes betweenspecific individuals, groups, or institu-tions. [A] judge must interpret the lawspassed by the legislature and the regula-tions issued by executive agencies andmonitor the conduct of government agen-

cies, public institutions, and even privateindividuals and groups in light of theConstitution.” To this purpose DeniseLindberg adds, “Justice O’Connor taughtme the importance of having thoughtthrough the issues carefully—not just inthe present context but in thinking aboutthe ramifications of a proposed decisionin other contexts.”

“The quality of a judge refers largely tothe quality of the judge’s decisions,” notesJudge Larry M. Boyle, former member ofthe Idaho Supreme Court and present u.s.magistrate judge for Idaho. “The ‘correct-ness’ of the decision is only one consider-ation because many judicial decisionsinvolve issues that could be decided in

several different ways. As a result, attrib-utes such as whether the judge is scholar-ly in his or her approach to the law aswell as fair, impartial, unbiased, thought-ful, and wise in properly assessing theconflicting legal, equitable, and policyconsiderations at issue in a case are at theheart of assessing the quality of a judge’sdecisions and the value of a clerkshipwith that judge.” The clerks all concurthat the quality of their judge’s decisionswas high and, consequently, was one ofthe main rewards of their experience.

Rex Lee quoted Leon Friedman toexpress his view that “Justice White‘approaches each case without precon-ceived ideas and with a desire to examine

the individual problem in that caserather than deducting the resultfrom set principles. His approach . . . makes for greater justice in thecases coming before our highestCourt.’” Kevin Worthen sees inWhite a “thirst for knowledge and a great capacity to assimilate andanalyze information.” In a lawreview tribute to the chief justice,he quotes one of White’s formerlaw partners referring to the manas “the only lawyer he ever knewwho physically attacked a library”and another describing him as “afierce worker who advanced on aproblem, shredded it, and put ittogether again.”

Though they saw at the timethat their research, writing, anddebating had some impact on the

judge’s decisions, the clerks knew that, asVon Keetch says, “the justices—and thejustices alone—made the ultimate decisionon how a case would be decided.” Herelates, “Justice Scalia’s writings are trulyJustice Scalia’s writings. . . . He wouldalways take whatever rough draft hereceived, improve upon it dramatically,and, through additional arguments andreasoning, make it his own.”

Other clerks agree with Keetch. MonteStewart says, “In my experience ChiefJustice Burger knew how he wanted torule on all the court matters, [though] thechief’s law clerks had the responsibility tomake a statement of the judge’s view.” EricAndersen relates that “Justice Powell . . .

22 Clark Memorandum

A S A N E X P E R T I N

D I S C E R N M E N T, A S U P R E M E

C O U R T J U D G E F U N C T I O N S

A S A M E N TO R TO T H E C L E R K

W H O W A N T S TO L E A R N

T H E L A W A N D T H E N A P P LY I T

W I S E LY TO I N D I V I D U A L

S I T U AT I O N S .

23Clark Memorandum

Kevin J.Worthen,’82

As Kevin Worthen looks out the window of his fifth-floor office in the Law

School building at BYU, he sees more than mountains: he enjoys a

clear vision of the power and potential of the law. In his role of law

professor, he hopes to clarify that vision to new generations of lawyers. “I

want every law student to gain a thorough understanding of how the law

develops from and impacts the society in which we live,” Worthen says.

“Such an understanding inevitably generates passionate enthusiasm for par-

ticipation in the legal process and a keen appreciation of the enormous

responsibility that accompanies that participation. It is what makes a life in

the law so rewarding and so challenging.”

Perhaps the main thing that convinced Worthen that he wanted to teach

law rather than practice it was his clerkship with Justice Byron White during

the 1983–84 Term. “I found that I enjoyed discussing and debating the law

and what it can and should do. After my clerkship I could continue to

approach law this way through teaching.”

In addition to his desire to teach law, Worthen developed a particular

interest in Indian law during his Supreme Court clerkship, a period of time

when several Indian lawsuits reached the high Court. Previously at the Law

School he had taken an Indian law course and found the field “sort of an

uncharted area of law . . . with few court decisions, [yet one] about

Constitutional issues.” Following his clerkship he headed southwest to

Phoenix, where the practice of Indian and environmental law flourishes.

There he became an associate in the natural resources department of the

Jennings, Stouss & Salmon firm, where he split his time three ways between

Indian law, appellate courts, and environmental law.

Worthen’s desire to teach, however, drew him back to BYU, where he

joined the Law School faculty in 1987. He often draws from his experience

clerking for Judge Malcolm R. Wilkey of the United States Court of Appeals

for the D. C. Circuit, as well as from his clerkship with Justice White—not

only as a teacher but also as a judicial clerkship coordinator for the Law

School. He is a strong advocate of the clerkship experience and the opportu-

nity it offers to “take part in an invaluable mentoring process” with a judge.

He asserts, “Students can’t get that kind of insight anywhere else.”

Worthen, who went to the College of Eastern Utah in Price, “just a few

blocks from [his] home,” before coming to BYU for undergraduate and law

degrees, has an older brother, Clyde, who is also a graduate of the J.

Reuben Clark Law School. Worthen and his wife, Peggy, wonder if any of

their three children—Collin, 13; Aaron, 11; or Kaylee, 7—will someday be

enjoying the same view from that Law School window.

S T I L L E N J O Y I N G T H E V I E W

usually reached a decision without a lot ofdiscussion with his clerks. . . . The clerkshad some influence in the details of theopinion, [but] Justice Powell reviewedevery word carefully and invariably madechanges in what we proposed.”

Worthen knows that with JusticeWhite “there was rarely any doubt aboutwho would make the final decision.” Heremembers “Justice White’s oft-repeatedstatement that the clerks were ‘rarely indoubt and often in error,’ whereas the jus-tices ‘were often in doubt and rarely inerror.’” He adds, “Although Justice Whitewould occasionally refer to his clerks as‘the big brains,’ there was little question asto who the big brain really was. . . . Asone former clerk observed, ‘You have toremember, he’s three steps ahead of every-body else.’”

J U D G E A S L I F E M E N T O R

In addition to “the wonderful qualityof law practiced at the highest level,”remarks Monte Stewart, “I appreciatedthe goodness and the humanity of all nineof the justices and their intent, theireffort, to do right in every case. I wasimpressed with Chief Justice Burger’s wis-dom and instincts. . . . He was very goodand kind, . . . very genuine.” Karl Tillemanechoes Stewart’s sentiments: “I learned agreat deal about the law during my clerk-ships, but, more important, I learned ofintegrity and honor.”

From the first to the most recent LawSchool graduate serving a Supreme Courtclerkship, words describing impressions ofthe judge as a person expose a layer of theexperience that underlies a clerkship’s ulti-mate worth. One of the elements that bindjudge and clerk as they sort through theintricacies of the law is the benevolencerevealed during that struggle.

Michael Mosman tells a story aboutJustice Powell, “a southern gentleman whotaught me that you could be a very suc-cessful lawyer and still maintain high stan-dards of conduct”:

We had more capital punishment cases thatterm by far than any since 1976. During thetime when they came in, there was no waywe could leave for anything—Powell knew

24 Clark Memorandum

Michael Mosman,’84

Alook at Michael Mosman’s pedigree might lead one to think that he lives

and breathes the law. His father and two brothers practice law together

in Moscow, Idaho. His great-grandfather was a lawyer in Virginia until

he left to become the only lawyer in Cul-de-Sac, Idaho. Even Mosman’s broth-

er-in-law is in law. But those acquainted with Mosman and his sense of humor

and zest for things nonlegal know that he frequently comes up for fresh air.

Before serving a clerkship with Justice Lewis F. Powell, Jr., during the 1985

Term, Mosman cruised through his undergraduate years at Ricks College and

Utah State University, then looked at BYU’s Law School. “I did not plan my

education or my career—which explains why I went to law school,” he says. “I

chose the J. Reuben Clark Law School for three reasons: (1) I thought my edu-

cation would be a unique blend of legal training and gospel influence, (2) I

was offered a scholarship, and (3) I wanted to live in the Mountain West for as

much of my life as possible.”

Mosman did well enough in law school

to obtain a clerkship with Judge Malcolm

Wilkey of the U.S. Court of Appeals for the

D.C. Circuit, a stint that helped him into

Justice Powell’s chambers. About his

chance to work for the Supreme Court, he

recalls, “I was nervous at first, partly from

the many changes—moving, the birth of

our third child—that occurred within weeks

of starting my D.C. clerkship. By the time I

started the clerkship, I felt confident.

“I evaluated petitions for certiorari,

wrote bench memos, drafted opinions,

dealt with urgent death penalty filings,

and played basketball in the highest

‘court’ in the land,” he says. “Justice

Powell was a southern gentleman. He taught me that you could be a very suc-

cessful lawyer and still maintain high standards of conduct.” Mosman found

that the most satisfying aspect of his clerkship was having “the ability to exer-

cise some positive influence on important issues.”

Following the Powell clerkship, Mosman “wanted most to go to the small-

est city that had a good legal system” and consequently left Washington, D.C.,

the summer of 1986 for Portland, Oregon. “I spent the next two years as an

associate at Miller, Nash, Wiener, Hager & Carlsen,” he relates about the law

firm—which emphasizes work for timber companies, import and export in the

Pacific Rim, and political work in the Portland area. “I tried several cases

(mostly pro bono) and learned a lot from talented lawyers,” he adds.

“Contrary to a common perception, I enjoyed these two years very much.”

“My family grew from three children to five, 181/2 years apart; my oldest is

a freshman at BYU, my youngest, 11/2 years old. On a given day in June in

Portland, if you drove quickly, you could ski on Mt. Hood, windsurf the

Columbia, water ski on the Williamette, golf at Pumpkin Ridge, nap on the

beach, and then go deep-sea fishing. We love it here.”

Mosman left Miller, Nash in October 1998 to become a federal prosecu-

tor—“the finest legal job in America,” he affirms—and is currently an assistant

United States attorney, still living in Portland.

A I R A P P A R E N T

that. One time, however, my wife was sick.Powell knew we had three children andfound out that my wife was ill. So he insistedon paying out of his own pocket for a privateprofessional nurse to come in and take care ofmy wife and the children while I had to beaway working for him.

We ended up not using the nurse, but it wasall set up. He wouldn’t take no for an answer.Powell wouldn’t feel comfortable keeping methere while my wife was sick.

Eric Andersen, another Powell clerk,agreed that the justice “took a personalinterest in his clerks.” Andersen remem-bers, “He took the time to becomeacquainted with our families and was con-cerned for their well-being.”

Karl Tilleman, who served as the clerkfor the retired Chief Justice Burger, relates,“I worked very closely with him, travelinga lot. . . . I found that after he got to knowyou and trust you that a personal relation-ship developed that was very warm andextremely rewarding.”

In their role as a human being, saysKevin Worthen, a judge is “a true mentor.Most judges treat their clerks almost liketheir children—taking time to help themunderstand what is going on, pointingout ways in which they can improve. . . .This mentoring relationship continues,and even deepens in some cases, after theclerkship ends. . . . I heard one of his for-mer clerks refer to the judge as his‘father-in-law.’”

In his own relationship with JusticeWhite, Worthen discovered to his delightthat “the impact was not solely on the intel-lectual process.” Such experiences as “din-ner at the Whites’ home, field trips tobuildings in Washington, d.c., and basket-ball games . . . created a bond [that] goesmuch deeper than that of intellectual men-tor and pupil. . . . Although reserved indemeanor, the justice managed to conveyto his clerks the genuine warmth he felt for them.”

Worthen also describes White as a“man who defined the experience by theforce of his personality,” one who taughtand showed his respect for you throughtoughness. The justice’s teaching style isillustrated by one of Worthen’s many sto-ries about Byron White:

25Clark Memorandum

Von G.Keetch,’87

From his youngest days in Pleasant Grove, Utah, Von Keetch had hoped

for the opportunity to attend Brigham Young University for his under-

graduate degree. While his hopes were being fulfilled, he became

very familiar with the J. Reuben Clark Law School. Even though Keetch had

law school opportunities from “a number of so-called ‘top echelon’ law

schools,” he chose BYU.

“By far the most influential factor in my decision was the faculty,” Keetch

says. “As the time came to make my law school decision, I had significant

exposure to such nationally known BYU professors and administrators as Rex

Lee, Bruce Hafen, Carl Hawkins, and others. Put very simply, I wanted to

learn the law from these individuals. More than anything else, they were the

reason I decided to stay at BYU for law school.”

These individuals not only impressed Keetch, they also helped him become

a Supreme Court judicial clerk. In July 1989, immediately following a clerkship

with Judge George C. Pratt on the United States Court of Appeals for the

Second Circuit in New York City, Keetch began a year with Justice Antonin

Scalia. He particularly remembers the “long afternoon[s] of discussion and

debate focus[ing] on all of the cases that had been argued that week. These

discussions were always fasci-

nating; rarely did all of the

clerks agree on a particular

outcome. Opinions were often

strongly held, and sometimes

the discussion was lively.”

During the Term, Keetch

also worked several hours per

week for retired Chief Justice

Warren Burger. “Because the

chief was retired, he did not

engage in any court work. My

duties for him included writing

speeches, assisting him with

his writing, and participating

in numerous activities com-

memorating the Bicentennial

of the Constitution.”

Immediately after his clerk-

ship Keetch accepted a posi-

tion with the Salt Lake City law

firm of Kirton & McConkie. “In my practice,” he says, “I spend a great deal of

my time providing advice to [the Church] in the areas of constitutional, reli-

gious, and appellate law. When time permits and when I truly find a case of

interest, I also greatly enjoy filing petitions for certiorari or filing an amicus

brief on behalf of interested parties.”

“An avid basketball player and fan,” Keetch finds relaxation in sports and

spending time with his wife, Bernice, and their five children at home in

Highland, Utah. “From time to time,” he says, “I serve as an adjunct professor

at the J. Reuben Clark Law School, where I have taught first amendment law

and a seminar on the United States Supreme Court.”

R E D , W H I T E , A N D C O U G A R B L U E

26 Clark Memorandum

Denise Posse-Blanco Lindberg,’88

While Denise Lindberg was serving as a judicial clerk for Justice

Sandra Day O’Connor in 1990, she noticed a pillow in the justice’s

chambers embroidered with the words “Maybe in error, but never in

doubt.” Eight years later, on the day Lindberg was sworn in as a trial judge for

the Third District in Utah, her daughter-in-law gave her a pillow with the same

saying. She says, “I keep it in my chambers as a daily reminder of Justice

O’Connor and of the need to be true to my own voice.”

As the first woman from BYU’s Law School to serve as a Supreme Court

clerk, as the school’s first clerk with a minority

background, and as the first BYU clerk to serve

Justice O’Connor, Lindberg could point to herself

as being unique. But before she ever went to law

school she stood out from the crowd.

The story of her life before and after coming

to the United States as a Cuban immigrant par-

tially explains her drive. Lindberg was born into a

life of privilege in Havana, where she attended

private schools until Fidel Castro’s oppressive

regime forced her family to flee the country.

Stripped of their wealth, the Posse-Blanco family

settled in New Rochelle, New York. Education

became Lindberg’s refuge. “One of the few things

I did well was school,” she says. “It was a place

where I found I could control the outcome.”

And well she did: Converted to the Church

while in high school, Lindberg earned a bache-

lor’s degree at BYU, then completed two master’s

degrees and a PhD at the University of Utah.

Thinking her “days of formal schooling were

over,” she discovered after talking with BYU law

professor Eugene Jacobs—who said she was

“ornery enough that [she]’d probably make a

good lawyer”—that she was wrong. Within three

weeks she was accepted to BYU’s Law School

and awarded a full scholarship.

Lindberg graduated second in her law class

before serving a one-year clerkship with the

Honorable Monroe G. McKay of the United

States Court of Appeals of the Tenth Circuit in Salt Lake City. This background,

plus “Rex Lee’s recommendation,” led her to the clerkship with Justice

O’Connor. Having lived in Washington, D.C., for some time, first as an asso-

ciate attorney with the D.C. office of Sidley & Austin (Lee’s law firm), then as a

clerk for the Supreme Court, Lindberg and her husband decided to remain in

the D.C. area so that the youngest of their two sons could finish high school

there. She practiced for three years with Hogan & Hartson before the

Lindbergs moved back to Salt Lake City, where she worked as general counsel

for Aetna Life Insurance Co. and then was recently appointed as a judge.

Lindberg’s husband “wanted to get in on the act” and graduated from

BYU’s Law School two years after his wife. He now practices as a land-use

attorney in Draper, Utah. Lindberg, who looks forward to being a grandmother

twice this year, says, “Our youngest son also anticipates a career in the law.”

H E R O W N R O B E

On one occasion early in the Term, I wrote abench memo noting that the briefs of oneparty had not adequately responded to what Ithought was the determinative argument.Several days after I had turned in the memo,but before conference on the case, the justiceand I were discussing the case. When I raisedwhat for me was the dispositive argument,the justice countered in quite a loud voice,“Don’t you think [the party opposing theargument] rebutted that argument in thebrief?” I said, somewhat hesitantly, “No.”Then even more challengingly he said, “Youreally don’t think they did?” I said, somewhatmore assertively, “No.” He then smiled andsaid, “I guess you’re right.”

Worthen explains, “The challengecame not because Justice Whitewanted to unnerve me but becausehe wanted to make sure I hadthought deeply enough about myposition to be confident of it.”

The respect between justiceand clerk was apparently mutualduring Worthen’s term at theSupreme Court. White’s clerkswere in awe of the man, who hasbeen described as being “as closeto a true Renaissance person asour modern complex times willallow.” Not only was he a capablejudge but he was an All-Americanand professional football player.And as difficult as their workloadwas, notes Worthen, “it was hard[for the clerks] to complain abouttoo much work to a justice whoeven in his 70s arrived at work at 7:00 a.m.and who regularly frequented chamberson weekends. . . . One former clerkobserved, ‘I tried beating [ Justice White]into work in the morning, but I finally fig-ured it was like trying to open the refrig-erator door . . . before the light comes on.It can’t be done.’”

But Justice White “valued competitionnot because it gave him a chance to showoff his magnificent abilities,” Worthenreemphasizes, “but because it was a wayof bringing out the best in those whocompeted.” And the clerks enjoyed havingtheir best brought out: “Clerking forJustice White was a thrilling and wonder-ful exercise in combat, from intellectual to

basketball,” said one White clerk. “Everyday was like the Athenian youth goingwith Socrates, and Socrates won 38 to 0on a daily basis.”

Chief Justice William H. Rehnquistimpressed Steve Sargent as “a tremendousteacher. He was also a great man with awonderful sense of humor.” Sargent says,“He taught me much about how to workout a compromise and about how tomake your views known without beingoffensive or didactic.”

Though he has yet to clerk for theman, Jay Jorgensen has also gotten a senseof what Chief Justice Rehnquist is like. Inhis interview with the chief justice, he was

surprised to learn that not only hadRehnquist heard of the small rural townof Roosevelt, Utah, where he grew up, butas a young man Rehnquist hiked acrossthe country and slept on the Vernal court-house lawn. “I was surprised how graciousand down-to-earth Rehnquist was in ourinterview,” Jorgensen says.

L I F E I N T H E F A S T L A N E

Life at Court is illuminating, but thesources of that enlightenment can come atlaw clerks from all directions, and theysoon discover that they have to keep theireyes wide open. A daily menu of research-ing, writing, and recommending offers

them a full plate of work. Kevin Worthenfeels that some of the writing assign-ments, such as draft opinions, are “moreinteresting and ‘prestigious’ than others.Work on draft opinions, after all, mightactually be published in a somewhat rec-ognizable form for the world to see.Bench memos, on the other hand, are gen-erally read only by the justice and thenrelegated to the case file, never again tosee the light of day.”

Clerks have to keep reminding them-selves of all the skills they are honing asthey wear out the clock and themselves.Dissents from denial, where the clerk“had to read the cases themselves and cer-

tify whether the conflict was real,”recalls Worthen, were “an oftenunanticipated addition to the volu-minous work for which the clerkwas already responsible.” MichaelMosman admits that the work wasexhaustive; he would arrive at thejudge’s chambers about 6 a.m. sohe could leave early enough tospend some of the evening withhis family.

Knowing that there is methodto this madness helps make all thework palatable to the clerks.Worthen learned that though thejudge ultimately made his owndecision in a case, he “wanted tohear all that the clerks had to say. Clerks were used as sound-ing boards to make sure that thejustice fully considered all possi-ble arguments and points of view.

. . . One former clerk observed thatJustice White ‘[w]asn’t invested in anargument; [if] you could hit him backwith a chair, intellectually speaking, hecould be convinced.’”

“[This] role of sounding board ordebate opponent was for many the mostgratifying aspect of their clerkships,” saysWorthen. “To be able to engage in free-flowing debate on important legal issues—knowing that the justice really wanted toknow what you thought, not what youthought he thought—was an unforgettableand, for many White clerks, a never-again-to-be-paralleled experience.

“At times this leeway in drafting opin-ions and expressing views about a case

27Clark Memorandum

THE FREEDOM FROM

OBL IGAT ION TO A PART ICULAR

CL I ENT WHI LE DEBAT ING

REAL- L I F E L EGAL I SSUES W I L L

PAY OFF LATER FOR LAW

CLERKS WHEN THEY BANK ON

THE I R AB I L I TY TO SEE AL L

S IDES OF AN ARGUMENT.

could be heady for the clerks,” addsWorthen. “As clerks worked on draftopinions, they could entertain thoughtsof shaping the course of the law, of pen-ning words that would live on in SupremeCourt decisions to be studied with awe bysucceeding generations. But the euphoricdreams were generally short-lived—termi-nated with the return of the draft bleedingwith red ink from the justice’s pen.”

One of the satisfying things aboutworking at the Supreme Court level is, as Jim Gordon writes in The JudicialClerkship Job Hunt Book, “You do notrepresent a particular client, and youinfluence the decision-making process in important ways [as you work] withthe judge and the other clerks.” DavidCampbell adds, “For one year you get toquestion what is right or wrong in par-ticular cases. From then on in the prac-tice, the right answer will be yourclient’s answer unless you become ajudge. So there is an objectivity you getto bring into it and a creativity thatmost lawyers will never get the opportu-nity to experience.”

This freedom from obligation to a particular client while debating real-lifelegal issues will pay off later for lawclerks when they bank on their ability tosee all sides of an argument. “Seeing howthings work at the decision-making levelis immensely valuable when one begins to practice law and to craft arguments in support of a particular legal position,”says Von Keetch. The Judicial ClerkshipJob Hunt Book reports, “Almost alllawyers who have worked as law clerkswill tell you that they are better advo-cates as a result.”

P O S I T I V E S I D E E F F E C T S

As they considered the value of theirSupreme Court clerkships, several of theLaw School graduates commented ontwo personal benefits: self-confidence andsatisfaction.

When asked what the most gratifyingthing about his clerkship was, MonteStewart—who was an academic leader in his senior class at byu and had beenoffered admission to Harvard LawSchool—responded: “Finding out that I

28 Clark Memorandum

Karl Tilleman, ’90

Karl Tilleman’s first shot at being a professional was not in a court of

law—it was on a basketball court. Once told he was the first

“Canadian Olympic athlete” to clerk at the Supreme Court, Tilleman

views his career move as circumstantial. He explains the rebound:

I became an attorney because the night I

proposed to my wife, Holly, my father-in-law told

me that I should think about my future and how I

would support a family. He told me that he

believed I should be some type of “professional.”

Having failed at being a professional basketball

player and wanting badly to marry Holly, I decid-

ed I would be an attorney. He approved, and I

proceeded to prepare for law school.

The Calgary, Alberta, native did well

enough at BYU’s Law School to win the sup-

port of his professors in obtaining clerkships

with retired Chief Justice Warren E. Burger and

Justice Clarence Thomas. “Frankly, I found my

initial days at the Supreme Court to be some-

what intimidating,” Tilleman admits. “Four

years earlier I was playing basketball in Canada. At first I had to wonder

what I was doing clerking at the Supreme Court of the United States. I also

found my coclerks to be extremely bright and competent. I felt after several

weeks, however, that I was able to do my job as well as the other clerks.”

Tilleman says that “being able to analyze complex legal issues quickly and

then write effectively about those issues” were his greatest qualifications for

the Court clerkship, skills he learned not only in law school but also during a

clerkship with the Honorable John T. Noonan, Jr., Ninth Circuit Court of

Appeals, in 1990–91. While in Noonan’s chambers he “researched issues,

prepared bench memorandum concerning

pending cases, debated issues with other clerks

in the chambers, and assisted the judge”—experience he would need at the

court of Justice Thomas two years later.

Before joining four other clerks in Justice Thomas’ chambers, Tilleman

served as the clerk of the retired Chief Justice Burger. “I assisted him with a

variety of duties in his capacity as the retired chief justice, including . . . writing

speeches, a book, and several articles,” he says. And, Tilleman adds,

although the chief justice “was known for observing a lot of formalities,” he

got to know him personally as he worked and traveled with him. “Both my

wife and I felt very close to the justice and his wife.”

Following his Supreme Court clerkship, Tilleman went into private practice

with Jones, Day, Reavis and Pogue in Washington, D.C., working alongside

Timothy Flanigan, a former clerk of Chief Justice Burger and a BYU graduate.

Three years later Tilleman left for Phoenix, Arizona, where he continues to

work for the law firm Dalton, Gotto, Samson, and Kilgard.

Though Tilleman became an attorney, he “also married Holly,” he points

out, which “has been worth it all.” When he is not spending time with his wife

and four children, Tilleman finds relief from his law work “by being a bishop,

which helps keep everything in perspective.”

S U I T I N G U P

could do it.” What the clerkship adds tothe already-high self-confidence of thesecapable Law School grads is often in itselfworth the experience.

Kevin Worthen “would recommendthat students pursue clerkship optionsbased solely on the personal satisfactionthey will receive during the experience.”Von Keetch’s greatest satisfaction camefrom “working with colleagues who wereamong the brightest the legal professionhad to offer on issues that were some ofthe most difficult to be found in the law.”Karl Tilleman says, “The most satisfyingthing about my clerkship was getting toknow such remarkable men and women.”

Although Denise Lindberg agrees thatthe “continuing relationships are, by far, themost satisfying part of a clerkship,” she addsthat “having a front-row seat . . . observingthe day-to-day workings of the Court—which to most outsiders (even in the lawprofession) remains a mystery—was veryexciting. Despite the unrelenting hard work,it was always a thrill to sit in ‘my’ justice’schambers on the Saturday before oral argu-ments . . . absorbing . . . the core principlesthat guided her decision making.”

O P E N I N G D O O R S

Opportunities are like dominoes: onecan activate another. Those “lucky” enoughto serve clerkships for a Supreme Courtjustice find that the door to the courtroomnot only opens to a valuable learning expe-rience but also opens up other opportuni-ties benefiting their law careers.

The decision of what that career will beis often shaped by a clerkship experience.Kevin Worthen says, “The longer I amaway from the actual clerkship, the more Ihave come to appreciate the positiveimpact that a judicial clerkship can have ona person’s life and career in ways that I hadnot anticipated while clerking.” He con-cedes that his interest in Indian law grewwhile he clerked for Justice White and saw three or four Indian law cases reach the Supreme Court. Worthen, a byu LawSchool professor, also says, “One of themain things my clerkship did was to con-vince me I wanted to teach law. I enjoyedthe pure discussion and debate of the lawand what the law can and should do.”

29Clark Memorandum

Stephen M.Sargent,’94

Ashift from accounting to law seemed like a natural move to Stephen

Sargent, who grew up in Fruit Heights, Utah, in a home with a father

who continues to practice law after 30 years. “He seemed to enjoy

his work, and he always made time for his children,” Sargent says. “In talk-

ing with him, I decided the practice of law was something that seemed both

challenging and satisfying.” Apparently Sargent’s decision was right.

His acceptance as a judicial clerk for Chief Justice William H. Rehnquist

for the 1994–1995 Term capped Sargent’s legal education. Having served

as editor in chief of the BYU Law Review during the 1992–93 school year, he

sat for the Washington State Bar in July 1993, then moved with his wife and

young daughter to Kansas, where he clerked a year for Judge Deanell Reece

Tacha of the U.S. Tenth Circuit Court of Appeals. After a year in Kansas,

Sargent began his clerkship in

Washington, D.C.

“I felt that law school

prepared me pretty well for

my clerkship,” Sargent relates,

admitting that he “was intimi-

dated clerking with others who

had gone to the ‘big name’

schools.” But working on cases

that ranged from Vernonia—a

fourth-amendment case ques-

tioning the legality of drug test-

ing of student athletes—to

death penalty actions, he dis-

covered “an opportunity to see

and work with some of the

brightest legal minds in the

country.” He says, “It taught me

the value of hard work in the

legal field. I gained a great

appreciation for the Supreme

Court as an institution and a tremendous amount of respect for the justices

who serve on the Court.” Like many judicial clerks, Sargent also appreciated

that the docket of hard work often included a good game of basketball as

well as tennis doubles with the chief justice every week. (No, the gold stripes

on the sleeves of Rehnquist’s robe—added by the chief during Sargent’s

clerkship—were not intended for athletic reasons.)

Leaving the Supreme Court but not Washington, D.C., Sargent worked as

a litigation associate at the city’s law firm of Hogen & Hortson for two years.

In September 1997 he and his family moved west to Salt Lake City, where

Sargent continues to work in estate planning for the law firm of Parr

Waddoups Brown Gee & Loveless.

Sargent says that just about anything that takes him away from his law

work provides a break for him. But he particularly enjoys basketball and golf

and, of course, spending time with his wife, Kathryn, and their four children:

Maren, 8; Spencer 4; Kendall, 2; and Samantha, 1.

F I V E P E R C E N T B A S K E T B A L L

30 Clark Memorandum

Jay T. Jorgensen, ’97

Jay Jorgensen, the most recent Law School graduate to serve a Supreme

Court clerkship, is the first to receive the position since the passing of

BYU President and first Law School Dean Rex E. Lee in March 1996.

Jorgensen acknowledges, however, that his knowing Lee was a reason he

chose to attend the Law School and that Lee’s opinion of his own Supreme

Court clerkship influenced his decision to apply for a clerkship.

Jorgensen, who will work for Chief Justice William H. Rehnquist this com-

ing fall, relates, “After I’d gotten news that I would interview with the chief jus-

tice, I spoke with several of his previous clerks to try and learn what I should

expect, and I spoke with Steve Sargent” (who clerked for Rehnquist in 1994).

“I don’t know why I got it. . . . I was so surprised when the chief justice’s sec-

retary called.”

Thinking back on why he went into law, Jorgensen describes his early

decision: “I have known that I wanted to be a lawyer since I was about seven

or eight. It’s kind of funny, the thing that made me want to be a lawyer: I was

sitting in my living room watching television, and my parents were watching

President Carter give an address, and I thought to myself, you know, I want

to be just like him. So I decided right then that I would become a lawyer. . . .

It wasn’t until years later that I learned that he wasn’t a lawyer.”

Besides the influence of Lee, Jorgensen’s desire to “have some spiritual

grounding in the law” helped him choose BYU’s Law School. “My own per-

sonal experience shows me that law school tends by its very nature to invite

people to rely on their own reasoning and not on what I would call the

Spirit,” he says. “I thought I would get that at the J. Reuben Clark Law

School—and, indeed, I did.”

During that three-year period, Jorgensen participated in various activities,

including law review, trial advocacy, writing competitions, and the Federalist

Society for Law & Public Studies. He also served as the national editor for an

issue of the Harvard Journal of Law and Public Policy. During the summer of

1996 he worked in the Washington, D.C., office of Kirkland & Ellis, where he

became acquainted with former Solicitor General Kenneth W. Starr. Solicitor

General Starr occasionally spent time with Kirkland & Ellis’ law clerks dis-

cussing his litigation background, an experience that influenced Jorgensen’s

desire to seek a litigation and appellate practice.

The fall after graduating from law school, Jorgensen clerked for Judge

Samuel Alito, Jr., of the United States Court of Appeals for the Third Circuit.

Following the clerkship with Alito, he returned to Utah as an associate at

Stoel Rives in Salt Lake City, where he will continue to work until moving to

Washington, D.C., in June. Jorgensen and his wife, Melissa, are pleased to

return to Washington—this time with two “wonderful” daughters, who are

four months old and 18 months old.

T H E L A S T A N D T H E F I R S T

Eric Andersen says, “Ever since lawschool I had wanted to be a law schoolteacher,” and the clerkship “had greatvalue in preparing me to teach law.”Andersen, a faculty member of theUniversity of Iowa College of Law for thepast 15 years and now associate dean, says,“I read judicial opinions far differentlythan if I had not served as a judicial clerk,and I try to pass some of that insightalong to my students.”

That a Supreme Court clerkship,through its very prestige, empowers careeropportunities was observed by MonteStewart when the Law School’s charterclass was graduating, but no law firmswere coming on campus to interview.

It was tough—nobody could get a job with abig firm, no matter what your credentialswere, even if you were editor in chief of thelaw review and top of your class. We plas-tered one room of the law review with rejec-tion letters from big firms.

Suddenly (after the clerkship) I’d get tele-phone calls out of the blue from senior part-ners of top firms around the country callingas if we were good buddies and wanting tosee if I would go with their firm.

The correlation between SupremeCourt clerkships and law careers is notimagined. Many of Justice White’s clerks“have gone on to distinguished careers. . . .[T]here are four federal courts of appealsjudges, a former solicitor general of theUnited States [Rex E. Lee], a member ofCongress, a former state attorney general,the president of a university [Rex E. Lee],and the dean of an Ivy League lawschool,” Worthen reports. “There are also,of course, numerous law professors,” hequips. “Not even Justice White couldredeem all his clerks.” Andersen believesthat for him “the single most importantthing for getting a job teaching was [his]clerkship with Powell.”

The personal connections lawyersmake while serving as clerks also increasetheir visibility within the legal profession.“Who you know” at this level of the lawcan pave the way for a lawyer’s career. “Aclerk often creates a lifetime network offriends and professional acquaintanceswho can have a positive impact on the

course of a clerk’s future career,” writesWorthen in The Judicial Clerkship JobHunt Book. “The people with whom aclerk works, especially judges and otherclerks, are either in influential positions—in the case of judges—or often headed inthat direction—in the case of clerks.” Thehandbook further reads,“The recommen-dation of a judge known in the legal com-munity will carry a great deal of weightwith potential legal employers.” For KarlTilleman, Timothy Flanigan, a fellowclerk of Chief Justice Burger as well as abyu alum, introduced him to the law firmhe joined after his clerkship.

Aside from what others can do fortheir careers, the clerks simply appreciatethe individuals with whom they worked.Von Keetch muses, “I will always treasurethe friendships and relationships fosteredduring the year I was at the Court.”

A B R I G H T H O R I Z O N

The view has been and will be great forthe nine Law School graduates who haveseen the law from the “top of the moun-tain.” But will this record continue? Willfuture generations of J. Reuben Clark LawSchool students climb to such heights andclerk for the Supreme Court?

The outlook appears favorable for thosestudents who work hard and set their sightsas high as those of their predecessors—capable men and women who have becomevery good at seeing the finest detail in thebig picture and for spotting those whoshould follow after them. Michael Mosmanbelieves, “Anyone who puts a decentamount of effort into law school at byu willcome out with the same training as anyprestigious school graduate.”

Is it worth the climb? The LawSchool’s nine grads who made it think so.Von Keetch speaks for each of them whenhe says, “A lawyer’s product is himself orherself. Refining that product and makingit as effective as possible—to vigorouslyrepresent one’s client and to promote jus-tice as an officer of the court—should bethe paramount goal of each and everyattorney. There is no greater university forlearning and applying this concept than aclerkship position at the United StatesSupreme Court.”

31Clark Memorandum

theChallenge:Prıncıplesb a s i n g y o u r c a r e e r o n

I L L U S T R A T I O N S B Y B R A D H O L L A N D

i n t h e i r b e s t - s e l l i ng b o o k of a few years ago, entitled

In Search of Excellence, Peters and

Waterman point out that the great-

est fear people have is not that they

will die—it is not the fear of sep-

aration from loved ones, or even of

extinction—but the fear that life

will not have mattered, that its

struggles and triumphs, tears and

laughter will all have been in vain.

by Elder

Alexander B.

Morrison,

First Quorum

of the

Seventy

> This address

was presented

to the J. Reuben

Clark Law

Society in

Edmonton,

Alberta, Canada,

on February

26, 1999.

34 Clark Memorandum

In the cynical world in which we live,confronted each day as we are by “man’sinhumanity to man,” by the cruelty andindifference of much of human existence,it seems to many that life does indeedhave little meaning.

We live in a society saturated with self-absorption, which promotes and rewardsexcessive materialism, mocks and deridesmoral principles, and worships secularism.Increasingly, Western society is bereft ofthe enduring virtue of honor, of whichPericles, the great Athenian statesman,said two and a half millennia ago: “For itis love of honor that never grows old; andhonor it is, not gain, as some would haveit, that rejoices the heart of age and help-lessness.”

Faced with the wintry reality of life,with all its contradictions and imperfec-tions, cruelty and injustice, one can feelsome sympathy for those who, in theirdespair, proclaim that life is but a hollowcharade, an obscene joke, or, in the wordsof Shakespeare’s Macbeth, “a walkingshadow, a poor player that struts and fretshis hour upon the stage, and then is heardno more . . . a tale told by an idiot, full ofsound and fury, signifying nothing” (Act5, Scene 5, lines 26–28).

But I must tell you in the strongestpossible terms that those who feel likethat are wrong, tragically and terribly so.“Man is that he might have joy,” thescriptures tell us. Our task is to fulfill themeasure of that destiny by tasting thesweetness of the joy the Lord wishes forus. As we do so, the scales of cynicism,pride, indifference, and disregard for oth-ers will fall away from our eyes, and wewill begin to see who we are and whatGod expects us to do with our lives.

My only wish today is to help con-tribute to your search for understanding. Ihave no quick-fix “do-it-yourself” recipebook to offer—only a few principles thatare well worn but proven. As we applybasic principles, we gain a perspective ofthings as they really are. We see in life’schallenges opportunities to serve.

The darkness of night portends thedawning of a new and better day. Thegreatest Englishman of this century,Winston Churchill, knew of the opportu-nities to serve during difficult days when

he spoke at Harrow School in October of1941. He said:

Do not let us speak of darker days; let usspeak rather of sterner days. These are notdark days: these are great days—the greatestdays our country has ever lived; and we mustall thank God that we have been allowed,each of us according to our stations, to play apart in making these days memorable in thehistory of our race.

I group my advice under several head-ings: prepare yourselves temporally andspiritually, and see that preparation as onegrand eternal round; set your prioritiesstraight; learn the spirit of service and thejoy of work; and let devotion to duty andhonor be the hallmarks of your life.

Prepare Yourself Temporally and Spiritually

If you are to serve yourself, your family,community, country, and church properly;if you are to be your brother’s keeper inthe sense that you accept your measure ofresponsibility for others, you must be pre-pared. You cannot contribute if you don’thave the skills and knowledge to do so.Sincerity will not suffice and goodwill willnot win. Consider Winston Churchill’swords as he described the day he becameprime minister on May 10, 1940. If everthere was a time for action and not forpreparation, that was it. The French armywas collapsing piecemeal before the fero-cious fury of the German blitzkrieg.Britain stood alone, nearly defenseless.There was serious doubt the BritishExpeditionary Force could be saved.Churchill said of that day:

As I went to bed at about 3:00 a.m., I wasconscious of a profound feeling of relief. Atlast I had authority to give direction over thewhole scene, and I felt as though I were walk-ing with destiny, that my past life had been apreparation for this honor, for this trial. Icould not be reproached, either for havingmade the war or for lack of preparation for it,and yet I felt I knew a good deal about it andI was sure I would not fail.

He was prepared! No preparation canoccur in the absence of work. What theworld mistakes for genius is, as Edisonpointed out, 90 percent perspiration and10 percent inspiration. If you wish toserve, prepare yourself through study,work, and faith.

As you struggle to learn and relearn inthe intellectually demanding field of thelaw, I urge you to cultivate a flexibility ofattitude, a willingness to venture intofields not yet cultivated by you, a catholic-ity of interest that sees all learning asinterrelated. You must make learning aneternal quest. If I may be permitted a per-sonal comment, the chance to learn is tome one of the greatest privileges of lifeand one of the great attractions and fasci-nations of the restored gospel. Indeed,two doctrines of the Church attracted me as a young university student inEdmonton nearly half a century ago: eter-nal marriage and eternal progression. Iremain grateful for them and perhaps

One of the great tragedies of life

is to observe men who struggle up the

was leaning against the wrong wall.

35Clark Memorandum

Get Your Priorities Straight

Several years ago President David O.McKay in speaking to a group of Churchemployees put into perspective what weshould concentrate on in our lives. He said:

Let me assure you, brethren, that somedayyou will have a personal priesthood inter-view with the Savior Himself. If you areinterested, I will tell you the order in whichHe will ask you to account for your earthlyresponsibilities.

First, He will request an accountabilityreport about your relationship with yourwife. Have you actively been engaged inmaking her happy and ensuring that herneeds have been met as an individual?

Second, He will want an accountabilityreport about each of your children individu-ally. He will not attempt to have this for sim-ply a family stewardship but will requestinformation about your relationship to eachand every child.

Third, He will want to know what youpersonally have done with the talents youwere given in the preexistence.

Fourth, He will want a summary of youractivity in your Church assignments. He willnot be necessarily interested in what assign-ments you have had, for in His eyes the hometeacher and a mission president are probablyequals, but He will request a summary ofhow you have been of service to your fellow-man in your Church assignments.

Fifth, He will have no interest in how youearned your living, but if you were honest inall your dealings.

Sixth, He will ask for an accountabilityon what you have done to contribute in apositive manner to your community, state,country, and the world. [Reported byCloyd Hofheins in a talk to the SeventiesQuorum of Provo, Utah, Oak Hills Stake,May 16, 1982]

You will note that the Lord puts firstemphasis on family—your relationshipswith spouse and children. He is certainlyless interested in how you earn your living,though He is most concerned whetheryou are honest in your dealings. Whateverelse you do, provide time for your family.If you are as busy and active as you shouldbe, it will not always be easy to do so.

Sometimes you will not get it right (atleast I certainly haven’t), but keep on try-ing. Call down the powers of heaven tohelp you in your struggle. I promise youthe needed assistance will be yours.

“It takes more nobility of character,”Stephen Covey has said, “to do whateveris necessary to build that one relationship[the family] than to labor diligently andfaithfully for the many others outside it.”

One of the great tragedies of life is toobserve men—and increasingly women—who struggle up the ladder of theircareers, perhaps, though certainly notnecessarily, over the backs of colleagues,and in the process, through carelessness,neglect, or selfishness, lose their families.They divorce their spouse, from whom, inthe euphemism of the day, they claim tohave “grown apart” in their search for“personal fulfillment,” whatever that is.Their children drift away, finding nowarmth, no giving, no help, no under-standing, and then, perhaps in the twilightof their lives, these gray husks of men findthat all they’ve done has turned to ashes.The ladder up which they climbed wasleaning against the wrong wall. It led notto light and joy but to darkness of mindand spirit.

It need not be so. Many there arewhose lives are tributes to the happinessthat comes from commitments made andrenewed daily. President Gordon B.Hinckley tells a sweet and loving storythat illustrates, far better than I could, thestrength and joy that come from havingproper priorities in life. He relates the fol-lowing:

I think of two friends from my high schooland university years. He was a boy from acountry town, plain in appearance, withoutmoney or apparent promise. He had grown upon a farm, and if he had any quality that wasattractive it was the capacity to work. He car-ried bologna sandwiches in a brown paper bagfor his lunch and swept the school floors to payhis tuition. But with all of his rustic appear-ance, he had a smile and a personality thatseemed to sing of goodness. She was a city girlwho had come out of a comfortable home. Shewould not have won a beauty contest, but shewas wholesome in her decency and integrityand attractive in her decorum and dress.

more knowledgeable about their impor-tance now than I was as a callow youth.

President Spencer W. Kimball encour-aged us to lengthen our stride. Thatadvice applies in the temporal realm asmuch as in the spiritual. Learn to stretchyour mind, to reach a little further eachday in testing the limits of your intellectu-al capacity. We are told that most of us useless than 25 percent of our intellectualabilities. We can all do much more thanwe now do. That stretching may bepainful. It will certainly be exhausting.But it is ever so exhilarating. Indeed, it isintoxicating! Make it a lifelong habit toflex and stretch your intellectual muscles.

There is a Chinese proverb that states:

To live and not to learn is not living;To learn and not to understand is not

learning;To understand and not to do is not under-

standing.

Seek to understand. Develop and retainan eternal curiosity. Some of you mayremember Merlin’s advice to King Arthur:

The best thing for being sad . . . is to learnsomething. That is the only thing that neverfails. You may grow old and trembling inyour anatomies, you may lie awake at nightlistening to the disorder of your veins, youmay miss your only love, you may see theworld about you devastated by evil lunatics,or know your honor trampled in the sewersof baser minds. There is only one thing for itthen: to learn. Learn why the world wags andwhat wags it. That is the only thing whichthe mind can never exhaust, never alienate,never be tortured by, never fear or distrust,and never dream of regretting. Learning isthe thing for you. [T. H. White, The Swordin the Stone, p. 183]

In a few words: Seek always to learn!

ladder of their careers [and find it]

36 Clark Memorandum

37Clark Memorandum

Something wonderful took place betweenthem. They fell in love. Some whispered thatthere were far more promising boys for her,and a gossip or two noted that perhaps othergirls might have interested him. But thesetwo laughed and danced and studied togetherthrough their school years. They marriedwhen people wondered how they could everearn enough to stay alive. He struggledthrough his professional school and came outwell in his class. She scrimped and saved andworked and prayed. She encouraged and sus-tained, and when things were really tough,she said quietly, “Somehow we can make it.”Buoyed by her faith in him, he kept goingthrough these difficult years. Children came,and together they loved them and nourishedthem and gave them the security that came oftheir own love for and loyalty to one another.Now many years have passed. Their childrenare grown, a lasting credit to them, to theChurch, and to the communities in whichthey live. . . .

. . . Forty-five years earlier people withoutunderstanding had asked what they saw ineach other. . . .Their friends of those days sawonly a farm boy from the country and a smil-ing girl with freckles on her nose. But thesetwo found in each other love and loyalty,peace and faith in the future.

There was a flowering in them of some-thing divine, planted there by that Fatherwho is our God. In their school days they hadlived worthy of that flowering love. Theyhad lived with virtue and faith, with appre-ciation and respect for self and one another.In the years of difficult professional and eco-nomic struggles, they had found their greatestearthly strength in their companionship.Now in mature age, they were finding peaceand quiet satisfaction together. Beyond allthis, they were assured of an eternity of joyfulassociation through priesthood covenantslong since made and promises long sincegiven in the House of the Lord. [Ensign,March 1984, pp. 3–4]

Having prepared yourself, or, moreaccurately, having begun the eternal taskof preparing yourself, go forth to serve,expressing always the joy of work, seeingit as a spiritual necessity as well as a tem-poral imperative. As you do so, I admon-ish you to keep ever in your mind theseinspired words of King Benjamin: “I

would that ye should impart of your sub-stance to the poor, every man accordingto that which he hath” (Mosiah 4:26).

We lighten Christ’s yoke as we acceptsome of the burdens of others, as we helpthem to have hope rather than darkdespair, as we apply a healing balm ofGilead to their scarified, suffering souls.

A few years ago the Wall Street Journal(November 13, 1992, pp. a1, a16) recounteda heartwarming tale of suffering, compas-sion, and Christlike service. Some 20 yearsago, Dr. Ian Jackson, a world-famous cran-iofacial surgeon, was on a charity missionfrom his native Scotland to Peru. There hemet David Lopez, a tiny Indian boy, justtwo years old, who had virtually no face atall. A gaping hole covered the areas wherehis mouth and nose should have been.There were no upper teeth or upper jaw.To drink, David simply tilted back hishead and poured the liquid straight down.His lower teeth could actually touch hisforehead. Most of David’s face had literallybeen eaten away by a terrible parasitic dis-ease called leishmaniasis.

Relief workers begged Dr. Jackson tohelp. He was leaving for Scotland the nextday, but he agreed to try to rebuildDavid’s face if the boy could come toScotland. Eventually a way was found,and the Jackson’s went to GlasgowAirport to pick up David. As he walkeddown the ramp, they saw a tiny boy wear-ing scuffed white boots and a hand-knitponcho. A woolen cap was pulled so lowon his head that only his big brown eyesand the round hole beneath them werevisible.

The Jacksons took David into theirhome and into their hearts. There followedlong years of surgery—more than 80 opera-tions in all—as Dr. Jackson attempted togive David a new face. All of the doctor’sservices were donated. Each summer, asother children played, David would be inthe hospital, his head swathed in bandages.

The painstaking, pioneer surgical effortsto rebuild David’s face went on for 15 years.Today David looks like a young man whohas been in a serious automobile accident,but he is well adjusted and fully function-al. He used to be teased and tormentedabout his looks, but over the years, that hasdied away.

38 Clark Memorandum

The Jacksons now live in the UnitedStates, where Dr. Jackson continues to beone of the leading craniofacial surgeons inthe world. In 1982 Mrs. Jackson flew toPeru to try to find David’s parents. After along journey downriver from a remoteCatholic mission, David’s father wasfound. He explained that the boy hadbeen born healthy, but when he devel-oped leishmaniasis after having been bit-ten by an infected sandfly, he was taken tothe mission to seek treatment. The fathergave permission to the Jacksons—whohad developed a deep love for David—toadopt him as their own. Since 1984 DavidLopez has been David Jackson.

I don’t know whether Dr. Jackson is aChristian or not. But I do know he isdoing God’s work. “When ye are in theservice of your fellow beings ye are onlyin the service of your God” (Mosiah 2:17).

As we lose our lives in compassionateservice to others, we develop a deeperunderstanding of our dependence on God.I return again to the wisdom of KingBenjamin: “And now, if God, who has cre-ated you, on whom you are dependent foryour lives and for all that ye have and are,doth grant unto you whatsoever ye askthat is right, in faith, believing that ye shallreceive, O then, how ye ought to impartof the substance that ye have one toanother” (Mosiah 4:21). Said faithful

Nephi, “I know in whom I have trusted.My God hath been my support; he hathled me through mine afflictions in thewilderness; and he hath preserved meupon the waters of the great deep. He hathfilled me with his love, even unto the con-suming of my flesh. . . . he hath heard mycry by day, and he hath given me knowl-edge by visions in the nighttime. . . . Andupon the wings of his Spirit hath my bodybeen carried away. . . . I will trust in theeforever” (2 Nephi 4: 19–21, 23, 25, 34).

Now of course you can’t do all thatneeds to be done to help change thisworld, but you can do your best and hopethat others will follow.

As you strive to serve others, I urgeyou to look beyond those who are yourclients. They deserve your very best, ofcourse, but your concern must not stopwith them. You must look to the broadercommunity in which you live and work.Voluntary service to others will be anincreasingly significant characteristic ofcaring communities in the new millenni-um. It takes many forms, including workin your church, neighborhood schools,and professional and service organizationsand assistance to the disadvantaged—thepoor, children, immigrants, etc. In Utah,lawyers are being encouraged by LegalServices, the Disability Law Center, andthe Legal Aid Society to donate each yearthe monetary equivalent of two billablehours to provide free legal services tothose in need. The Church has announcedthat if the drive to do so raises $300,000, it

will donate an additional $100,000. I com-mend that sort of initiative to you, tai-lored, of course, to fit the needs of yourown community.

It will take both courage and commit-ment if you are to help change the world asit must be changed. Do not lose your ideal-ism. Do not slip into the sophisticated cyni-cism of those who sell their moral integrityfor this world’s goods. Do not become sotied to your mortgage payments, careerambitions, company loyalties, or profes-sional associations that you become afraidor unwilling to search for the truth and tospeak out in its defense. Corporate greed,bureaucratic empire-building, and politicalvenality all flourish because otherwise goodmen and women are unwilling to say no towhat they recognize in their hearts iswrong. “I was only obeying orders,” theysay. “You can’t fight City Hall.” Of such isborn the moral outrage of our time. In lessspectacular fashion, but of equal impor-tance, such a decline in commitment tomoral integrity leads to an indifferent,almost passive acceptance of the myriad ofminor corruptions of our society.

The demands of the future relate notonly to man’s physical needs but to all ofthe dimensions of human existence. It isironic that the rise of materialism hasresulted in a decline in the quality of man’sspiritual life. This potentially fatal imbal-ance can only be redressed if we begin topay proper attention not only to the thingsthat are Caesar’s but also to those that areGod’s. Man obviously needs food, shelter,clothing, clean water, education, and healthcare. But he also needs love and hope andthose other attributes of the spirit that col-lectively contribute to the quality of life. InTeilhard de Chardin’s words, we must seekfor a future “consisting not merely of suc-cessive years but of higher states.” The cur-rent witless pursuit of materialism bears

We must move beyond a

unidimensional view of manto consider all that is needed to

give meaning and value to life.

39Clark Memorandum

within it the seeds of death for industrialsocieties and perhaps for the world as weknow it. We must move beyond a unidi-mensional view of man to consider all thatis needed to give meaning and value to life,all that contributes to the formation of thewhole man.

Let Devotion to Duty and Honor Be Your Hallmarks

There will be opportunities—some bla-tant, some seductive—for you to lose yourintegrity every day. The adversary will seeto that. It may be the lure of compromisingyour principles of honesty: the chance tomake a somewhat soiled dollar in a some-what shady deal. Or it may be the tempta-tion to break one of the other moral laws: tolie a little, cheat a little, or be a little dishon-est, to have just one drink, or to be unfaith-ful to your spouse just once. Almost alwaysthe temptation will come wrapped in glitterand gloss, dressed up to look like what it isnot, the devil’s counterfeit. And to theextent you succumb you will be weakenedand deprived of your manhood or woman-hood. The work of the Lord will be imped-ed, and the Devil will laugh. Conversely, asyou rise above temptation, you will grow inspiritual stature and enjoy the approbationof good men and women everywhere.“Duty,” said the great Confederate militarycommander Robert E. Lee, “is the most sub-lime word in any language. Do your duty inall things. You cannot do more. You shouldnot expect to do less.”

Duty achieves its highest expressionwhen carried out within the framework ofand adherence to a firm set of moral stan-dards. Many observers have commented onthe slackening of moral fiber in theWestern democracies over the past severaldecades. In his celebrated commencementaddress at Harvard a few years ago,Alexander Solzhenitsyn drew attention tothe most outstanding weakness of theWestern democracies: their growing lack ofcourage. In Solzhenitsyn’s view, this declinein courage is particularly striking amongthe ruling and intellectual elites. In part itmay arise from having too many of thisworlds’ possessions, too easily come by.Those who remain courageous (and thereare many) have little impact on public life.

“Political and intellectual functionar-ies,” Solzhenitsyn continues, “exhibitdepression, passivity, and perplexity intheir actions and in their statements, andeven more so in their self-seeking ratio-nales as to how realistic, reasonable, andintellectually and even morally justified itis to base state policies on weakness andcowardice.” Although Solzhenitsyn wasreferring primarily to political courage ofthe kind needed by national leaders, thecourage of nations begins with thecourage of individuals.

Courage is the great need of our time,courage to accept the ineluctable truththat greatness can never be achieved with-out adversity, that struggle is the prerequi-site for growth. Edmund Burke taughtthis well when he said:

Adversity is a severe instructor, set over usby one who knows us better than we do our-selves, as He loves us better, too. He thatwrestles with us strengthens our nerves andsharpens our skill. Our antagonist is ourhelper. This conflict with difficulty makes usacquainted with our object and compels us toconsider it in all its relations. It will not suf-fer us to be superficial.

Yes, adversity is the refiner’s fire thatbends iron but tempers steel. It is in thefire of struggle and stress that greatness isforged. A measure of your greatness asmen and women will be your response toadversity, the courage you have as youwrestle with problems that can strengthenyour nerves and sharpen your skill, asBurke said.

Hastiness and superficiality have beentermed the psychic disease of the 20thcentury. The pace of modern life, whichseems to grow more frantic each year,penalizes thoroughness and promoteshaste. Society demands speed—speed atall costs, speed regardless of the conse-quences to the health and happiness ofindividuals, speed at the expense ofdiminishing supplies of irreplaceableresources. We demand instant communi-cation, ever more rapid means of trans-port, faster decisions. Business deals are conceived in Toronto, planned inEdmonton, and consummated inVancouver or New York or Tokyo, all in a

few hours time—but not without a pricebeing paid. Often the price is tragicallyhigh: anxieties that must be calmed withtranquilizers or alcohol, children whogrow up not knowing their father (or,increasingly, their mother), and lives spentin acquiring rather than giving.

It will take courage for you to step farenough away from the glamour andexcitement of the speedway of life to seeit for what much of it really is: a poor,tawdry counterfeit of what life can be. Ifor one am delighted to note that increas-ing numbers of people are doing just that,deciding that the game isn’t worth thecandle, and that there are more importantthings to do in this world than to act likea speeded-up version of the Roadrunner. Ican’t tell any of you, nor would I wish to,what speed to run your life at. All I ask isthat you be honest enough to take a hardlook at what you really want and coura-geous enough to act on your decision,even if it means fewer material posses-sions and less worldly acclaim.

Finally, I remind you that the final stagein the development of an exceptional pro-fessional is that of teacher and mentor ofthe next generation—the young men andwomen just entering the profession and inneed of the example and guidance of thosewho have already scaled the heights andwho are the skilled practitioners of theircraft. Law school provides the intellectualframework for the practice of law, but doeslittle to actually teach students how to belawyers. That is done as the new graduatelearns the realities of practice at the kneeof one who is more experienced.

Each generation has a solemn obligationto give a helping hand to those comingbehind, who will in their turn be the carri-ers of the torch. A profession that loses thatvision has at best an uncertain future.

The choice is clear: If you want to domore than exist, if you want to soar as oneagle’s wings to the outermost limits ofyour potential as a human being, youmust pay the price. That price is an amal-gam of discipline and desire, lightened byhope and love, bound together by thesteel hoops of work and service, temperedin adversity, undergirded by faith, andoverlaid with courage. This is your chal-lenge, and I send you forth to accept it.

40 Clark Memorandum

c ommenting on his recent portrayal of SirThomas More in the byu production AMan for All Seasons, James Claflin, ’91, pro-claims, “It was the greatest theater experi-ence I have had.” A criminal defenselawyer in Salt Lake City, James’ interest intheater began at Orem High School,where it took only one drama class to dis-cover that his ability matched that interest.Following high school, he accepted ascholarship in theater to byu, fully intend-ing to enjoy his education and then attendlaw school.

During his sophomore year at byu,however, James became convinced that hehad to choose a “real” major to preparefor law school, that is, until he heardBruce Hafen speak to undergraduatesinterested in law. Dean Hafen indicatedthat law schools admit students fromevery academic discipline and that perfor-mance within the discipline was moreimportant than the type of discipline. Healso told the students that if they had apassion for something, they would excelat it. This was enough incentive for Jamesto renew his theater scholarship and toappear in at least two byu dramatic pro-ductions each of his next three years.

For two years law school intimidatedJames enough to keep him from audition-ing for any plays. However, by his thirdyear, with an offer at the Phoenix firm ofBrown & Bain firmly in hand, he acceptedthe part of Stanley, opposite his brother,Scott, as Eugene, in the byu production ofNeil Simon’s Broadway Bound. The play

James Claflin in

A Man for All Seasons

by Scott W. Cameron

Mark P

hilbrick

41Clark Memorandum

won a berth in the Irene Ryan AmericanCollegiate Theater Festival held at theKennedy Center in Washington, d.c.Immediately following his law school con-vocation at the Provo Tabernacle, Jamesflew to Washington, d.c., to perform in theplay. He won the Best Scene PartnerAward at the competition, and his brotherwon the Best Actor Award.

After two years in Phoenix at Brown& Bain and hoping for more trial experi-ence, James moved his family to SaltLake City, where he worked first withBerman & O’Rorke and then withScalley & Reading. He now does pre-dominantly criminal defense work as asolo practitioner. Commenting on hiswork, James indicates his love of his con-stitutionally-based practice, which com-pensates for being a part of a criminaldefense bar that is often misunderstood.Using skills of oratory worthy of SirThomas More, he knows that “it was acriminal defense attorney that wouldhave represented Joseph Smith.” Alsocommenting on trial practice, James indi-cates that it provided him with a “finalbit of growing up.”

Law is a demanding profession, andeight years had passed since James’ lastperformance. Another eight years mighthave gone by were it not for the lovingintervention of his wife, Amy. She encour-aged James to audition for a role in A Manfor All Seasons and further encouraged himto take the role once it was offered. Amydid this knowing she would be taking care

of their five children—Stephanie (11),Christopher (9), James (7), Samantha (4),and Brett (6 months)—single-handedly forseveral months while James was inrehearsals. James refers to this opportuni-ty as “Amy’s gift to me.” She sensed thathe would be happier with the opportunityto act and knew that it would be a chancefor their children to see an additional sideof their father’s personality.

When asked what it was like to playthe part of Sir Thomas More, as interpret-ed by Robert Bolt, James responds, “I feelforever better, forever improved for havingbeen so intimately connected with such agreat piece of work.” As a family man,James feels he had an advantage in inter-preting More. He understands that for thesake of “principle,” More made a choicethat was not in his family’s best materialinterest. James discussed the difficulty ofkeeping the first scene light, knowing howsomber the second scene becomes. It isalso a challenge to play a “saintly” manwho would not see himself in that way.

Pondering the depth of More’s integri-ty, James feels that his own lawyering haschanged slightly. He indicates that he nowpays even closer attention to principlesand how they guide his life. He has anincreasing consciousness that situationalethics are corrupt ethics, that followingguiding, immutable principles is the onlyantidote to the claim that one must weardifferent hats for different roles.

Having developed such profound feel-ings for More, James longs for other oppor-

tunities to play heroes. He comments thathe could learn so much from playing acharacter like Captain Moroni, knowingthat in the portrayal he would come toknow the character and hence have a moreprofound sense of the character’s goodness.This tribute goes to both More and Bolt,for it is Bolt who clothes More’s sainthoodwith the appropriate cloak of speech.

The play provided another opportuni-ty for James to play opposite his brother,Scott, who played the part of ThomasCromwell. James and Scott Claflin havethe good fortune of being brothers andclosest friends. According to James, theopportunity to work with his brother forthe first time since Broadway Bound was asingular pleasure.

Among the lines James grew to reverein Bolt’s play was More’s stinging rebukeof Richard Rich who perjured himself andbetrayed More in exchange for a govern-mental position in Wales: “It profits a mannothing to give his soul for the wholeworld.” This became the line printed onthe cast T-shirt for the production. Amind filled with expressive lines as well asa keen sense for the goodness of ThomasMore are two of the benefits carried fromthe production.

James vowed it will not be anothereight years before he acts in another play.This trial attorney/thespian has finallyaccommodated two important parts of hispersonality. For those of us who haveobserved his acting, this accommodationis one to be congratulated.

U S I N G S K I L L S O F O R A T O R Y W O R T H Y O F S I R T H O M A S M O R E ,

H E K N O W S T H A T “ I T W A S A C R I M I N A L D E F E N S E

A T T O R N E Y T H A T W O U L D H A V E R E P R E S E N T E D J O S E P H S M I T H . ”

hile visiting a reception for the board ofvisitors at Associate Dean Kathy Pullins’house, Professor John W. (Jack) Welch wasamused to see that the Pullinses’ welcomemat was an old home plate. (Kathy’s hus-band is the dean of baseball coaching atbyu.) Kathy explained that they wantedpeople to feel “safe at home.”

For Jack, “home” for many years hasbeen the J. Reuben Clark Law School.“The Law School has been a wonderful‘home base’ for the many projects I aminvolved in,” he says. As founder and for-mer president of farms (Foundation forAncient Research and Mormon Studies),editor of BYU Studies, and a teacher of sev-eral different classes, his projects mayinclude anything from editing poetry for BYU Studies to displaying ancientBabylonian law tablets. He also has servedon the Encyclopedia of Mormonism editori-al board and is currently working on myr-iad projects, including monitoring farms’work on volume 14 (of 20) of The CollectedWorks of Hugh Nibley.

Jack was instrumental in bringing theMasada exhibit to byu in 1997. Originally,he conceived the idea while visiting theArchaeological Institute at the HebrewUniversity in Jerusalem on MountScopus. Arranging the preliminary legalcontracts alone took nearly three years,but the reward was well worth it.According to Jack, the Masada exhibitwas an “extraordinary and memorablepart of my academic experience.” Morethan 175,000 people visited the popularexhibit during its six months at the byuMuseum of Art.

Jack spends about half his universitytime with the Law School, and he occu-pies the remaining time with various pro-jects that are assigned him by theuniversity, such as serving as editor of BYU Studies for the past eight years. BYU

Studies is a quarterly lds journal featuringarticles, essays, art, poetry, book reviews,and bibliographies dealing with academicsubjects of interest to Latter-day Saints.Besides the journal, BYU Studies also pub-lishes books and resource materials.

42 Clark Memorandum

wJohn W. Welch: Safe at Home

by Carl Cranney

John R

ees

43Clark Memorandum

With BYU Studies celebrating its 40thanniversary this year, Jack feels that “40years in the wilderness is long enough.There are still people who don’t knowabout us. The information we publish isexciting. It’s new. It’s not the same oldstuff. We’ve got new documents comingout, new research that’s being done, newquestions being asked.”

Another of Jack’s current projectsincludes a book he has been working onintermittently for 20 years that deals withthe legal trials in the Book of Mormon. Inthe book, he examines and analyzes thetrials, legal issues, procedures, and prece-dents set by the cases.

The university also keeps Jack busyteaching several classes. He teaches a classon ancient Near Eastern and Biblical lawthat primarily deals with legal issues to600 b.c. The class is a springboard forstudying law in the Book of Mormon.(After all, Lehi’s party did leave Jerusalemabout 600 b.c.) Masada and the World of the New Testament, published by BYU

Studies, serves as a textbook for the NewTestament class he co-teaches with JohnHall. At the Law School, Jack also teachesnonprofit and corporate tax courses.When asked why someone who had stud-ied Greek philosophy in the originalGreek at Oxford had become a tax lawyer,his reply was, “If there is anything I haveread that is similar to reading Aristotle inGreek, its reading the complex regulationsunder the Internal Revenue Code.”

Jack writes prolifically. Every day hetries to block out time for writing. His listof published books and articles, from theJewish Law Association Studies to theEnsign, is exhaustive. Since 1969 he haspublished more than 125 articles, books,reviews, and papers.

“You’ve not really thought about some-thing until you’ve written about it,” saysJack. “I like the discipline and the self-dis-covery that goes on in the writing process.How do I really know what I think untilI’ve written it out and examined and cri-tiqued it? It’s an enriching process of self-discovery and adventure into terrains thatI’ve not explored very thoroughly before. Ilike thinking of things in new ways, puttingold pieces together in ways that open upnew perspectives on old, familiar subjects.”

Much like when he was practicing law,Jack still writes on the run. “You neverknow when the Muse will sit on yourshoulder,” he says. If he is driving and has athought, he will pull over to the side of theroad and write a paragraph. Since hebelieves in a collaborative model of schol-arship, he uses many different people tohelp edit and critique his writings, from hisstudents to fellow editors and professors.

Even the family trip seems to transforminto written metaphors. Recently Jack andhis family hiked the Grand Canyon fromthe north rim, a 28-mile round-trip. Hesays, “I found the whole hike down . . . ametaphor of descending into mortality andback up, returning to where we started—but not without a lot of pain.”

Jack’s strong drive comes from his loveof what he does. “I love exploring old sub-jects. I love the challenge of reexploringold subjects and thinking through and fig-uring out as much as I can about a topic,”he relates. “When I get up in the morningI don’t ever say to myself, ‘Darn, I’ve gotto go to the Law School this morning.’ Ijust love it.”

Yes, Jack still finds time for an activeChurch life. Recently released as the firstcounselor in the byu 14th Stake presidency,he now teaches the high priests and acourse in temple preparation. But his mostcritical calling, he says, is as the executiveassistant to the Relief Society president inhis ward (his wife, Jeannie).

Jack deeply believes that “somedaywe will all be asked, in the FinalJudgment, what we’ve done with the tal-ents we’ve been given. How have we usedthem? How have we developed them?”He expresses, “I think that these thingsare not given to us for our own amuse-ment or to satisfy our own curiosity butto do good in the world. My great joy in this work is thinking that someoneout there might read and benefit fromanything that we publish at BYU Studies,in the Law Review, at farms, or otherplaces.”

The Law School has served as a goodhome base for Jack Welch. “So much ofwhat I do radiates out from the approach-es and the latitude that I have as a profes-sor here,” he says. “I really do feel ‘safe at home.’”

fter more than 40 years, William K.Wallace III, ’84, is finally growing into his middle name, Ka‘ua‘iwi‘ula‘okalani, or“the red bones of the heavens.” “In 1994Wallace went with his cousin, a memberof the Oahu Burial Council, to KokololioBeach Park in Hauula to rebury someancient bones that had been unearthed.Wallace recalled that when he reached forthe bones, ‘Suddenly I could hear mygrandmother’s voice ringing in my ear.She said, “Now you are beginning tounderstand the purpose of your name.”’. . .Wallace realized his grandmother hadgiven him a name he could not elude . . .Ka‘ua‘iwi‘ula‘okalani, [which] loosely trans-lated, means ‘the caretaker of the bones ofyour ancestors.’”1

Wallace and his cousin, Cy Bridges, cul-tural island director at the PolynesianCultural Center, were both Mormon bish-ops at the time. They believed that thepower of the priesthood made them sensi-tive to their responsibilities. Wallace saidthat, as he climbed into the hole that hadbeen excavated and approached the bones,in addition to the prompting from hisgrandmother he could hear the voice of ayoung girl singing. After gathering thebones in a traditional woven basket, he toldarchaeologists that the bones belonged to ayoung girl who was buried next to herfather. A week later an archaeologist cameback to Wallace and verified that their testsshowed that the bones, in fact, belonged toa young girl of six or seven years and thatthe other bones were of a mature male.Since this first incident, Wallace andBridges have been involved with the rebur-ial of the remains of 80 individuals whose

bones have been uncovered by developersover the past decades and deposited inboxes in the Bishop Museum in Honolulu.

Although not the first alumnus toleave full-time law practice for other pur-suits, Wallace’s choice of careers, preserv-ing Hawaiian and Polynesian culture andlanguage, has certainly been one of themost interesting, and his reason for leav-ing one of the most compelling. Duringlaw school he could not have predictedhis career path. He spent his first twoyears after graduation as assistant attor-ney general in American Samoa. He thenreturned to Hawaii and for four yearsbuilt his own general practice, specializingin criminal defense. At the conclusion ofhis first major securities fraud defensetrial, where the jury held for his client, hethought his practice was on the high roadto success. However, his mentor from the history department at byu—Hawaii,Dr. Kenneth Baldridge, had another idea.Baldridge told him that byu—Hawaiineeded a center for the study of Hawaiianand Polynesian culture and that Wallacewas the person to head it up. Although itdid not seem logical, in his heart Wallacefelt that he should accept.

In joining the faculty to chair theCenter for Hawaiian Language andCultural Studies at byu—Hawaii in 1992,Wallace realizes that he was responding to feelings of kinship with his ancestors.He does not feel that he has abandonedlaw, but he has spent the past seven yearsdeveloping and teaching courses inHawaiian and Pacific Island studies,Hawaiian language, Hawaiian history, andthe history of Polynesia. He has also

44 Clark Memorandum

William Ka‘ua‘iwi‘ula‘okalani Wallace III

The Caretaker of the Bones of His Ancestors

by Scott W. Cameron

a

developed a passion for research projectswith upper-division students ranging fromcultural studies to environment studies,from traditional family practices in amodern setting to native Hawaiian sover-eignty. One of his recent projects has beento develop a course in land stewardshipand responsibility, in which the studentslearn to plant and care for taro.

Wallace teaches his students as he, in turn, was taught by his grandfather,William Sr., that planting is to be donewith prayer: “William Sr. often wrappedhis grandson in a blanket and carried himoutside into the pre-dawn chill to let thechild watch as he planted. The seniorWallace would rub soil tenderly into eachplant’s roots, lift it to the sky and prayaloud, “Kokua, kokua, Ke Akua,” or “Pleasehelp, Father God.”2

Although the connection between cul-tural studies and law may seem tenuous,Wallace has used the skills he acquired inlaw school on a daily basis. He is nolonger engaged in white-collar criminaldefense, but he continues to handle casesinvolving abused and neglected children.He has served as a guardian at litem andconsulted with the courts regarding thecultural relevance of the service plans incases involving Tongan, Samoan, andHawaiian families. He has been asked tospeak several times at judicial conferenceson cultural perspectives.

Wallace has combined his knowledgeof dispute resolution with his culturalsensitivity to achieve favorable results. Forexample, recently there was need toexpand the wastewater treatment plan inLaie. The plan was vehemently opposed

by some people, because it was adjacentto an ancient Hawaiian temple, or hei‘au,located on the campus of byu—Hawaii.Wallace helped craft an agreement where-by the treatment center would be builtand the hei‘au would be restored. Becauseof his knowledge of Hawaiian culture, hewas able to act as mouthpiece for theelders in the community, the kapuna, inallowing the project to move forward. Therestoration of the hei‘au will provide byu—Hawaii with the opportunity to demon-strate its desire to preserve both Hawaiianculture and its sacred past.

In acting as a bridge between his cur-rent students and their Polynesian ances-tors, Wallace feels that he has not onlybeen caring for the bones of the dead, hehas also been caring for the bones of theliving. As his students have learned fromtheir past and have grown to reverence theland and the ocean and the culture that hasgrown from them, Wallace has been caringfor their bones as well. By example, he hasalso taught that the study of law can be anasset in solving problems wherever theymight arise. His students at byu—Hawaiimay have affectionately called him “UncleBilly,” but to his friends at the J. ReubenClark Law School, Wallace will be remem-bered as distinguished graduate WilliamKa‘ua‘iwi‘ula‘okalani Wallace iii, Esq., the“caretaker of the bones of his ancestors.”

1 Esme M. Infante, “What Makes Us Ohana—A

Tapestry of Peoples,” Honolulu Advertiser, February 22, 1999.

2Ibid., 3.

45Clark Memorandum

John

Sny

der

(2)

46 Clark Memorandum

hen Jonathan Boyd, Maren Daines, andDawn Hendrickson, second-year law stu-dents at the J. Reuben Clark Law School,flew to New York City on March 4, 1999,to compete in the 24th Annual Irving R.Kaufman Memorial Securities Law MootCourt Competition, they looked forward

to the week with eager anticipation. Theydidn’t know what the next few days wouldbring, but they did know what they want-ed. “All of us on the team from byu wantedto do well, not only for ourselves but forBrigham Young University and for the J.Reuben Clark Law School,” says Jonathan.“We all feel very strongly that we have agreat law school, and we wanted to makesure, if we could, that the impression weleft with our competitors and with thejudges in New York was favorable.” Whenthe byu team left New York City after four

days of intense competition, they not onlyleft behind a favorable impression but theytook with them first-place honors.

The Irving R. Kaufman MemorialSecurity Law Moot Court Competition isheld each spring at Fordham UniversitySchool of Law in New York City. TheKaufman Competition is an interscholas-tic moot court competition that focuseson legal issues in federal securities law. It is held in honor of Judge Irving R. Kaufman, a Fordham alumnus whoserved on the United States Court ofAppeals for the Second Circuit for manyyears, including a seven-year tenure aschief judge. The Kaufman Competition iswell respected among practitioners andlaw schools and attracts a nationwideaudience. This year, representatives from30 schools throughout the United Statesand Canada participated. In order to com-pete in New York City, the byu teamargued in moot court competitions foralmost two years. During winter semesterof the second year, the scores from bothyears of competitions were weighted todetermine the team who would representBrigham Young University at the nationalcompetition at Fordham University.

The byu team knew they would facetough competition in New York City, and they also knew the judges would be demanding critics. Preliminary-roundjudges at the Kaufman Competitionincluded, among others, experienced secu-rities litigators from top New York Cityfirms, law school professors, Securitiesand Exchange Commission practitioners,and legal in-house counsel at investmentbanks. The semifinal round panels consist-ed of partners from top law firms involvedin securities and Internet legal issues. Inaddition, this year the competition washonored to have Justice Antonin Scalia ofthe United States Supreme Court, JudgeJoseph McLaughlin of the Second Circuit,and Judge Ilana Diamond Rovner of theSeventh Circuit presiding on the final-round panel. Maren Daines appreciatesthe opportunity she had to argue beforesuch distinguished panels of judges andfeels the moot court experience is of greatvalue to law students. She says, “Becauseof moot court competitions, I was able toargue before u.s. Supreme Court justices

by LoAnn Fieldsted w

BYU’s National Moot Court Champions

John R

ees

Dawn Hendrickson and Jonathan Boyd

47Clark Memorandum

two times this year. These are memories Iwill treasure for the rest of my life. Notmany get to have this experience, and Irealize these are opportunities I may nothave again.”

But having this once-in-a-lifetimeopportunity did not come without prepa-ration and hard work. The byu team heft-ed a stack of 30 briefs onto the plane inSalt Lake City, one from each school thatwas participating in the competition, andspent the five-and-a-half-hour plane flightporing through each brief and bouncingideas off each other. Throughout theirstay in New York City, the dedicated lawstudents continued to work. In fact, theydidn’t take much time for sightseeing,even though their hotel was situated in agreat tourist location near Central Parkand Times Square. Dawn Hendricksonrecalls, “None of that mattered in the end,since we worked in our hotel rooms allday, taking fresh air only to grab a bite toeat or traverse the one city block to par-ticipate in another round of competition.”Jonathan Boyd adds, “When you keepwinning and advancing to the next round,the little time you have between rounds istoo precious to be spent on sightseeing.Our team argued six times in four days. Itwas an oft-repeated cycle of preparation,performance, and critique that neverseemed to get any easier, regardless ofhow many times we did it.”

Though the byu law students foundthe week of preparation and competitionstressful, the team members also saw apositive side of their experience. Marenrelates, “Not only did we have the oppor-tunity to represent our school, but thisintense experience of arguing and prepar-ing every day, developed our skills—skills that will be valuable in our futurepractices.”

The byu team knew there were sixtotal rounds of competition, includingthe final round, but didn’t anticipateadvancing all the way to the finals. “If wehad,” Dawn says, “the task would haveseemed overwhelming at that point.” Infact, each night Jonathan would tell histeammates that if they didn’t advance, hewould fly home the next day to be withhis wife, who had just given birth totheir baby the previous week. But

Jonathan didn’t go home. The team keptadvancing, taking it one day at a time,one round at a time. Dawn remem-bers, “A fleeting moment of joy rushedthrough me each time our team wasannounced, followed by a rush of stressas I realized that meant preparing allover again. The most exciting part of thecompetition was hearing our school’sname, Brigham Young, announced roundafter round, especially in light of the factthat many schools present at the compe-tition were unaware that byu even had alaw school, and also knowing that part-ners in large New York City securitiesfirms were present as judges and werejust getting familiar with byu as a compe-tent law school.” The team memberswere well aware that they were helpingto build byu Law School’s reputation.

And build that reputation they did.After the byu team had advanced throughthe preliminary rounds, the round of 16,the quarter finals, and the semifinals, itwas announced that byu would face WakeForest in the final round. The byu law stu-dents knew they had a lot to do to getready for the event. Two of the threeteam members would compete the nextday, and they had a big decision to make.Jonathan had competed each round argu-ing Issue One, so they determined thathe should continue arguing. Maren andDawn had alternated arguing Issue Twoin the preceding rounds. Dawn arguedthe petitioner side, and Maren argued therespondent side. As the coin tosses hadfallen, they had argued petitioner four ofthe five rounds, so Dawn had done mostof the arguing at that point. Now, in thefinal round, they had been assigned to theside of respondent. Maren felt, though,that Dawn should argue, since she hadargued most of the rounds and becauseshe had already had the opportunity toargue before a u.s. Supreme Court justice,Justice Clarence Thomas, a few monthsearlier at a moot court competition heldat byu. In the spirit of teamwork, Marenselflessly relinquished the opportunity toargue before Justice Scalia and told Dawnto step in.

The final round was intimidating.When the justices entered the room,Dawn says she was amazed to see they

looked like ordinary people—people withbig titles, but still just ordinary people.As soon as the competition began, how-ever, they no longer seemed so ordinary.They roasted each of their opponents,forcing them to rescind earlier statementsor to admit they simply didn’t knowsomething. Dawn says, “Jonathan arguedthird and answered their questions like a master, unshaken and confident.”Jonathan felt it was a unique experienceto argue before Justice Scalia and says,“His questions were detailed and focused,and he expected answers that made sense.He isn’t the type to let you off the hookif he asks a hard question—you’ve got toanswer the question, one way or theother. The other judges on the panel wereequally tenacious with their concerns . . .and no oralist got off easy.” Dawn pre-sented her arguments last, and after shefinished, she says, she felt uncertainwhether they had won. When the judgesemerged from deliberations, however,they announced Jonathan Boyd as BestOralist and Brigham Young University asBest Team, an honor that would makeany law school proud.

The byu Law School is indeed proudof these students. Not only did they helpbuild the reputation of the J. ReubenClark Law School by winning a nationalmoot court competition, but they repre-sented byu and the Church in a posi-tive way. Dawn recalls that “throughoutthe competition, many individuals fromother schools and judges for the com-petition asked about Brigham Young, the honor code, the Church, and ourstandards. We were pleased to be ‘ambas-sadors’ from byu.” These remarkable students are also grateful for the oppor-tunity the Law School gave them tocompete in moot court competitions.Maren states, “It would be much moredifficult to hone our advocacy skillswithout this opportunity. We are gratefulthat money is set aside for this purpose.It’s interesting to see ourselves competeagainst other schools—to see the skills ofothers and to learn from their tech-niques.” It’s clear, though, that othermoot court competitors can learn a thingor two from the award-winning teamrepresenting byu.

Professor Larry EchoHawk to Serve onNational Council

Larry EchoHawk, a professor at the J.Reuben Clark Law School, was recentlyappointed by President Clinton to theNational Coordinating Council on JuvenileJustice and Delinquency Prevention.Attorney General Janet Reno is the chairof the council and makes recommenda-tions to Congress and the president eachyear. The council coordinates all federalprograms that care for unaccompaniedjuveniles or relate to missing and exploitedchildren. It examines how separate pro-grams can be coordinated among federal,state, and local governments to better serveat-risk children and juveniles.

Professor EchoHawk believes that therecent killing spree by two teenagers atColumbine High Schoolin Littleton, Colorado,will undoubtedly intensi-fy the work of the coun-cil. He expects it willexamine issues relatingto what causes teenagersto act so violently, whatcan be done to iden-tify dangerous youth inadvance, whether some-thing more can be done to keep guns and bombs out of the handsof teenagers, and how to better safeguard chil-dren attending schools.EchoHawk feels that the council will for-mulate recommendations to Congress forenactment of new laws to address theseimportant issues. Council members mayalso be called upon to testify on variousbills that may be considered by Congress.“I look forward to participating in thesediscussions,” EchoHawk says. “I am partic-ularly interested in trying to find ways tolessen the exposure our children have toviolence on television, video games, andthe Internet.”

Juvenile-related issues are not new toEchoHawk. Prior to joining the LawSchool faculty in 1995, he served asIdaho’s attorney general from 1990 to1994, where his responsibilities as a poli-

cymaker often focused on juveniles. As aBannock County prosecuting attorneyfrom 1986 to 1990, he was responsible forjuvenile cases in Idaho’s fourth largestcounty. Before that, he was a member ofIdaho’s House of Representatives. From1977 to 1986 EchoHawk was chief generalcounsel for the Bannock-Shoshone tribes,serving as special prosecutor for theNavajo Nation in 1985. He has alsoserved on the boards of American IndianServices and the Land and Water Fund of the Rockies and as vice president ofthe National Association of AttorneysGeneral. He received a bachelor’s degreefrom byu in 1970 and a jd degree from theUniversity of Utah in 1973.

Because of his background as a policy-maker, prosecutor, and professor of crim-inal law and criminal procedure, EchoHawkhas been contacted by the White House

Personnel Office severaltimes over the past yearsto take full-time posi-tions. Each time he hasdeclined because of hiswork at the Law School.However, the appoint-ment to serve on theNational CoordinatingCouncil on JuvenileJustice and DelinquencyPrevention interests him,not only because it is a part-time position butbecause of the issues the council focuses on.Commenting on his

appointment to the council, EchoHawksays, “I hope to use the experience I havegained as a county prosecutor, state attor-ney general, and criminal law professor totry to improve how the resources of thefederal government are used to address thegrowing problem of juvenile violence inAmerica. I also have a special interest inaddressing the factors contributing to theincrease in juvenile violence and delinquen-cy occurring within Indian reservationcommunities. Hopefully, this experiencewill lead me to do legal research and writ-ing in the area of juvenile justice.” ProfessorEchoHawk began his appointment inMarch and will meet with the council quar-terly in Washington, d.c.

48 Clark Memorandum

Clark Memorandum Draws Awards

Continuing a tradition of strong graphicdesign and content, the magazine of the J.Reuben Clark Law Society and the jrc LawSchool has earned prestigious awards fromthree organizations for its 1998 publications.

“For its creative design, excellent use of resources, and substantive content,” the Clark Memorandum received a silvermedal in the special constituency maga-zines category of the 1998 annual Councilfor the Advancement and Support ofEducation (case) Circle of ExcellenceAward Program. The national award wasthe highest given in its category this yearand honors the spring/summer and winterissues. case also applauded the magazinewith gold and silver medals for editorialdesign of two feature spreads in the win-ter issue, designed by David Eliason.

The Clark Memorandum received aCopper Ingot Award from the Salt LakeCity Chapter of the American Instituteof Graphic Arts (aiga). The award, oneof 10 chosen from the 100 best pieces ofdesign and advertising during the year,distinguishes the overall design of thespring/summer issue by Linda Sullivan.

In addition, the publication received a Merit Award from the Society ofPublication Designers during its 34th annualcompetition. Selected from more than 7,500worldwide submissions, the spring/summerand winter issues of Clark Memorandum areshowcased in the spd’s Publication DesignAnnual and Exhibition in New York City.The full-color, 266-page annual contains thework of the graphic industry’s leadingdesigners, photographers, and illustrators.

The spd award recognizes the cover ofthe spring/summer issue, designed by LindaSullivan, and a feature spread of the winterissue, designed by David Eliason with pho-tography by John Snyder.

Photo courtesy of Larry E

choH

awk

Clark MemorandumJ. Reuben Clark Law SocietyJ. Reuben Clark Law SchoolBrigham Young University