This message is for you, not that obnoxious, over-posting friend of yours.

You. Yes YOU. Open up your echo chamber. Shortly after I graduated from law school, I had the opportunity to serve as a clerk on the Utah Supreme Court. I loved my time there, and I learned many things. One thing struck me immediately — when our judge received a case on appeal, he would provide us with the briefs prepared by the attorneys on either side, in order for us to discuss the case with him and offer recommendations on how he should rule. I remember distinctly reading the…

The day the panic died

Well, folks, it’s officially a brave new world. It’s hard for me to believe it’s been 8 years since I, along with a small band of other Utah Supreme Court clerks, clustered in the hallway at the back of the fifth floor of the Matheson Courthouse and watched Barack Obama be sworn in as the 44th President of the United States. I had mixed feelings. I believe I was the only person in our little group watching that day who hadn’t voted for Obama.  I wasn’t quite sure what to…

It’s easy to play games with other people’s land: Black Diamond v. Rural Utah

This post is a response to an Op-Ed written by Peter Metcalf, CEO and Founder of Black Diamond, Inc., that was published in the Salt Lake Tribune on January 10, 2017 (and linked to below). Let me begin by saying… (1) I enjoy and love spending time on Utah’s public lands. (2) I don’t support a wholesale transfer of public land from the federal government to the state government. BUT… When it comes to analyzing the costs and benefits of designating national monuments and federal land preservation decisions, it is…

Election 2016: It shouldn’t be all about the Court

Trump v. Clinton.  Double ugh. Whoever really thought it would come to that?  OK, apparently there were a few people.  And kudos to them, because I never saw a Trump nomination coming.  Nope, not a bit…until it was too late. But now the Trump Train’s here, baby, and you’ve got to decide whether to get aboard. Same with the Clinton Bus Tour, Part 4.  Do you climb on or stay off? (It might come around in a few more years, when Chelsea’s 36). It’s a tough decision for a lot of…

You want to save the GOP? Just stop Trump.

My father has a saying that he types to test typewriters and word processing software: “Now is the time for every good man to come to the aid of the party.” (I know it’s not a pangram, but this post isn’t about typewriters) Well, Republican friends, it looks as though our second-to-worst nightmare may come true.  Donald Trump appears to be well on his way to being the Republican candidate for President of the United States.  The only thing that could possibly be worse (OK, slight hyperbole there…) is for…

Some thoughts on our sad, predictable reaction to Scalia’s death

The words “giant” or “legend” get thrown around far too much these days, but they fit Justice Antonin Scalia.  The single greatest influence on the Supreme Court since, perhaps, Oliver Wendell Holmes, he almost singlehandedly effected a sea change in American jurisprudence. Prior to Scalia originalism and textualism (or course, I’m using words loosely here, a tendency Scalia himself often criticized) were not taken seriously; they were the province of the fringe and the intellectually lazy.  Now, they form the guiding principles for much of the work done by lawyers all…

The Fallacy of Cheap Rights

There is currently a fashionable idea that a right extends only to the point where it becomes a minor inconvenience and no farther. You see this type of thinking quite a bit these days.  But here’s an example, taken from a piece written by Prof. Gedicks (of BYU Law School, no less): The First Amendment’s establishment clause prevents the government from requiring people to bear the burden of religions to which they do not belong and whose teachings they do not practice. To be sure, the U.S. government should accommodate religious beliefs…

Some Thoughts on Why King v. Burwell Is Wrong, But Also, Maybe, Right

Occasionally, I’ll be sitting in church, and I’ll hear someone start dissecting the Bible like a piece of legislation: “Well, if Jesus meant ___, he wouldn’t have said ___, because then ___ would be superfluous.”  Or some similar thing. As a lawyer, I understand this impulse — and do my very best to resist it.  I think there is very little, if any, good that comes of trying to interpret scripture according to formalistic rules — rules that I can pretty guarantee that none of Moses, Isaiah, Jesus, Peter, or Paul…

Ivory’s Legal Theories are Weak, But Fraud is a Bridge Too Far

A bad legal strategy doesn’t equate to fraud. I’m no supporter of Ken Ivory’s public lands crusade. I’ve written before about how flimsy I think the legal theories are underlying his claim that the federal government has some enforceable legal obligation to return public lands to western states. In my view, they are not supportable by any coherent legal analysis, and they border on the frivolous. And I dislike Ivory’s theory even more because I happen to think there’s merit to the idea of more local control of public land, and Ivory’s quixotic crusade…

FreeBYU Complaint Against BYU is a Publicity Stunt Clothed as an Accreditation Issue

Free Willy! And free BYU! Mr. Brad Levin, JD (his own designation, not mine) has submitted a complaint to Brigham Young University Law School, alleging that the law school is not in compliance with certain American Bar Association (ABA) accreditation standards relating to religious and academic freedom. The complaint comes in the form of a 43 page letter, complete with flow charts and appendices. As an attack on BYU’s accreditation it is without merit and, frankly, a little amateurish and very annoying. Mr. Levin has an axe to grind with BYU.  That’s his prerogative, and…