Category: Law

Summer 2011 Syllabus

Part of my job as a law professor is to model to students what a transactional attorney does. As part of that, I include in my syllabus a list of things media that they ought to consume in order to understand the world a business lawyer functions in. The list is not exhaustive, by any means, nor should they necessarily read or listen to all of it, but it provides a slice of intelligent commentary on the world I’m teaching them how to enter. If you were preparing people to do what you do, what resources would you recommend? [fn1] And, if you do what I prepare my students to do, what necessary resources am I tragically leaving out? [fn2] Syllabus: Wall Street Journal.  Depending on your politics, you may detest or you may embrace the Opinions section, but the Journal’s business reporting is superb.  (Note that it has a paywall around most of its content; you either need to…

Times & Seasons Welcomes Sam Brunson

Times & Seasons is excited to introduce Sam Brunson as our latest guest blogger.  Sam grew up in the suburbs of San Diego and served a Brazilian mission what seems like a millennium ago.  He went to BYU as an undergrad and found that a freshman saxophone performance major made his eventual English major look like a practical choice.   After toying with teaching critical theory or becoming an author, he did what all good English majors do and chose law school.  At Columbia, he met his wife, got a degree, and got a job as a tax associate at a New York firm.   Several years later, he managed to escape the clutches of big law and landed a job teaching tax and business law at Loyola University Chicago.  While Sam, sadly, does not play much saxophone these days, he and his wife do have two beautiful girls with whom he loves to spend time when he’s not pondering…

Polygamy, Natural Law, and Imperialism

I have been researching Reynolds v. United States (1879), the Supreme Court’s first polygamy case, on and off for several years.  For those who are interested, my paper on the topic is now available for download at SSRN.  Reynolds is an important case in American constitutional history, because was the first time the U.S. Supreme Court ever passed on the meaning of the First Amendment’s protections for freedom of religion.  Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction.  The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West.   I offer a new interpretation.

The Doctrine of Revelatory Justiciability

A good friend, while studying constitutional law for the bar exam this summer, emailed me some thoughts he scribbled down when he should have been hacking away at a few more MBE questions on judicial review. Instead, however, he hammered out a constitutional analysis on the justiciability of prayers.  You see, in case you weren’t aware, in order to receive an answer to a prayer, one’s prayer must involve a “case or controversy” that is fit for review. So, without further adieu, allow me to present the doctrine of revelatory justiciability (a.k.a., what studying for the bar does to your brain).

Bye-bye, Bybee?

A week ago, the New York Times joined the growing chorus of commenters calling for Judge Jay Bybee’s impeachment. Is impeachment really going to happen? And what should we think about the issue?

Mormons as Minorities

Today I gave a presentation to the William & Mary chapter of the J. Reuben Clark Society on “Mormons as Minorities” in which I discuss some of my research on Mormon legal and political history (and other stuff). If you are interested, you can listen to the presentation here.

Conscience in the Obama Era

I linked yesterday on the sidebar to Stanley Fish’s latest editorial in the New York Times, which takes as its occasion the possibility that President Obama will revoke the “conscience clause” allowing health care providers the right to refuse to provide certain services. I thought I’d add a few thoughts here.*

Contemplating Missionary Work in Cuba

The Obama administration announced yesterday that it is easing a handful of restrictions imposed by the U.S. embargo against Cuba. Among other things, Cuban-Americans will now be allowed to travel to Cuba as much as they like and will be free to send money and gifts to friends and relatives without securing travel or export licenses from the Treasury or the Commerce Department.

What I Learned about Mormon Courts (and the Writing of Mormon History)

For those who are interested in Mormon legal history, my article “Preaching to the Court House and Judging in the Temple” was just published in the most recent issue of the BYU Law Review. (You can download a copy of the article here.) This article provides my own take on the rise and fall of civil cases in church courts in the nineteenth-century. Of course the story of how nineteenth-century Mormons took lawsuits over broken contracts, wandering cows, disputed property lines, and the like to their local bishops has been told before, most elaborately in Ed Firmage and Collin Mangrum’s book Zion in the Courts, which was published about twenty-years ago. Here is where my take differs from previous interpretations.

The Double-Minded Essence of Mormonism

A while ago I was reading some sermons from the 1880s in the Journal of Discourses.  The 1880s, of course, is the decade when the anti-polygamy crusades were at their most intense.  Thousands of Mormons were incarcerated, the Brethren were in hiding from the law much of the time, and every time you turned around there was a new law confiscating Mormon property or disenfranchising Mormon voters.  Hence, I was surprised to come across a sermon in which George Q. Cannon spoke unironically of his admiration for George Edmunds.  Edmunds was a Republican Senator from Vermont, and the chief proponent of harsher anti-Mormon legislation in Congress.  Cannon noted that he disagreed with Edmunds and thought him mistaken.  Nevertheless, he said in effect that he thought Edmunds an admirable man of principle.  Cannon’s remarks reveal a deep double-mindedness in nineteenth-century Mormonism, a double-mindedness whose preservation surely counts as one of the triumphs of the modern Church.

When is Sin Tax a Sin?

The new tobacco tax in the United States took effect yesterday, which tripled the amount of tax collected on each pack of cigarrettes, and probably raising the cost of a pack to as much as $9. The tax is the single largest increase in tobacco taxes in history. For an LDS audience, this probably seems all fine and good. You aren’t likely to complain about a sin tax if you aren’t committing that sin. And, to be honest, its hard to imagine a sin tax that LDS Church members would be particularly vulnerable to (perhaps ice cream?) But even if we aren’t vulnerable, isn’t there a limit to sin taxes?

Garment Rights?

Do we have a right to wear garments? If we do, how far does that right go? What , kind of right is it? Is it a human right? Or a legal one that might disappear and reappear as we pass national boundaries?

A New Book for the Mormon Canon

There are a number of Mormon pamphlets and books that have achieved a kind of semi-canonical status within Mormon studies. Everyone agrees, for example, that Parley P. Pratt’s Key to the Science of Theology or John Taylor’s Mediation and Atonement are key texts for understanding nineteenth Mormon thought. If any evidence is needed, both texts, I believe, are still in print. At the very least both have produced modern reprints. I have a proposed addition to the canon, George Q. Cannon’s A Review of the Decision of the Supreme Court in the Case of Geo. Reynolds v. the United States.

The Gospel and Immigration

A High Priest I know is in crisis. He is an immigrant who, like many other Church members, came to the US without a visa, according to what I understand of the situation. After arriving here he joined the Church, and eventually fell in love and married a U.S. Citizen, a wonderful, faithful Church member. This situation would normally put him on track for a green card and U.S. citizenship. But this brother is facing deportation, and his ward and stake are praying for a miracle that will keep him here in the United States.

What Should Mormons Do?

The Associated Press reported yesterday that Mormon employees at the University of Phoenix benefited from discrimination based on religion, according to a lawsuit filed by the Equal Employment Opportunity Commission. The University settled the suit, paying $1.9 million to 52 employees (an average of more than $36,000 each!) and agreeing to a “zero-tolerance” policy to religious discrimination, but did not admit wrongdoing. What’s up with that?

Court Finds Mormonism is Not “Protestantism”

An appellate court in Arkansas last week refused to overturn a lower court ruling which found a woman’s ex-husband in contempt of court for [violating the couple’s custody agreement by] failing to raise their minor children “in the Protestant faith” after the ex-husband started promoting his Mormonism to their children. While many Mormons, and the Church itself even, would agree with the idea that Mormonism is not a Protestant faith, it seems to me that having courts making theological determinations about what denominations constitute “Protestant” is wading into some pretty murky territory. What if the custody agreement had stipulated that the kids were to be raised “in the Christian faith” and the wife similarly objected?

Morality, Legality and Alcohol

The church issued a statement about alcohol laws in Utah. The last paragraph reads: “The Church of Jesus Christ of Latter-day Saints believes that Utahns, including those who work in the hospitality industry, can come together as citizens, regardless of religion or politics, to support laws and regulations that allow individual freedom of choice while preserving Utah’s proven positive health and safety record on limiting the tragic consequences of overconsumption of alcohol.”

Changing Conceptions of Zion

The Mormon conception of Zion has changed dramatically over the past century. Today’s members of the church are likely to define “Zion” as wherever the members of the church are: LDS homes, congregations, and stakes. While the conception of Zion in the 19th century may have included these elements, these Saints were determined to literally be Zion communities

Prophecy vs. History

Not too long ago, I stumbled across the PBS presentation of Jared Diamond’s book Guns, Germs, and Steel (2d ed. 1999). It reminded me of dealing with the book at college and enjoying the ideas presented and the sweeping take of world history that it offered. But while watching the presentation and contemplating the message of the book itself, I was reminded about how much Diamond’s whole analysis depends solely on inference from extremely scant historical evidence.[1]

Someone’s got it in for me, they’re planting stories in the press

I see that Slate now puts the odds of Harriet Miers confirmation at 70%. Silly Slate, don’t they know that niche is taken? As I’ve mentioned before, the best bet, literally, is to follow the gamblers. And as of press time, they are betting that Miers has a 3 in 10 chance of making it to the Big Bench. Want a second opinion? It’s pretty much the same as the first.

The English Nature of the Mormon Constitution

The Church has a certain amount of constitutional law, by which I mean norms and rules that govern and control its institutional structure. What is the nature of this constitutional law? I would submit that the Church ends up being more English than American. Priesthood quorums illustrate why this is so.

How Corporations Saved the United Order (kind of)

One of the great advantages of blogging is that you can ramble on regardless of whether or not what you are saying is of any interest to anyone else. Hence this post. I feel it is time that we had the discussion that you have all be waiting for: The one on real estate leases, corporate law, and the United Order.