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…

On Rep Justin Miller and Means and Ends in Politics

The big news in Utah is the curiously quiet controversy surrounding Rep. Justin Miller’s apparent misappropriation (to use a nice word) of $30,000 (give or take a few thousand) from Salt Lake County Mayor Ben McAdams’ campaign fund. You can add my voice to those saying that Miller should resign.  I’m sure some will say that we should all await the results of an investigation or more information, but, as was the case in the John Swallow matter, there’s a recorded conversation that tells you as much as you need…

Something New Under the Political Sun?

I want to put you through an almost unimaginable imagination exercise. Close your eyes. Now, try to imagine politicians fighting about something new. Can’t do it?  Me either. Oh, I can come up with different scenarios in which the same old fight is given slightly new color.  But I can’t imagine a new fight. And neither, I suspect, can you.  After all, it’s all been doooooooooone befooooorrrrrrre.  While this may disappoint us, it shouldn’t surprise us.  Not really. After all, we’ve been bickering over, under, and around the same political issues…

10 Ways Jade Helm Could Have Been Even Better

You’ve heard about Jade Helm, the military training exercise generating paranoia in the media (on both sides), some mild concern in Texas, and plenty of amusement everywhere else? Assuming the military is trying to stoke the embers of government paranoia, a military exercise conducted on US soil, including special forces instructed to “blend in” with American civilians, and allegedly involving the use of abandoned Wal-Mart stores, Jade Helm is a pretty solid effort. But it could have been improved. Here are 10 suggestions to make Jade Helm even better (1) Date all internal…

Time to Stop the Freakout over RFRA in Indiana

Indiana’s governor signed a Religious Freedom Restoration Act last week, and from the media and business reaction you’d have thought it heralds The End of the World We Know It. Indiana’s legalized discrimination!  Artists and companies — hurry up and boycott the state! Seriously? All this freakout over a law that’s existed at the federal level and numerous states (including that bastion of crazy conservative “thought” known as Connecticut!) for more than 20 years? And RFRA, of course, does not legalize discrimination.  It allows for an individual to obtain a…

SB 296 Includes Protections for Individuals and Represents the Best of Utah Politics

Aside from the continual shadow (or bright sunlight, depending on your perspective) of Obamacare, which seems to somehow continue to dominate political dialogue nearly five years after its enactment, the big news at the Utah legislature for the past week has been the SB 296, the new anti-discrimination and religious liberty comprise. HB 296 was announced last week with much fanfare — as you might suspect any bill supported by both Equality Utah and the LDS Church might be.  It’s almost certain to pass, but nonetheless it’s generated quite a…