This convocation address was given to the charter class of the BYU Law School on April 23, 1976

Lee, Rex E.

English

Brigham Young University Law School

Brigham Young University Law SchoolBYU Law Digital CommonsVol. 1: Answering God's Interrogatories Life in the Law10-16-2002Lawyer as Policy MakerRex E. LeeFollow this and additional works at: https://digitalcommons.law.byu.edu/life_law_vol1Part of the Legal Profession CommonsThis Unto What Were Ye Ordained? is brought to you for free and open access by the Life in the Law at BYU Law Digital Commons. It has beenaccepted for inclusion in Vol. 1: Answering God's Interrogatories by an authorized administrator of BYU Law Digital Commons. For more information,please contact hunterlawlibrary@byu.edu.Recommended CitationLee, Rex E., "Lawyer as Policy Maker" (2002). Vol. 1: Answering God's Interrogatories. 22.https://digitalcommons.law.byu.edu/life_law_vol1/22Lawyer as Policy MakerRex E. LeePresident Romney, President Oaks, President Wilkins, Dean Hawkins,Judge Wallace, members of the faculty, members of the charter class, ladiesand gentlemen: I think you know how honored Janet and I are that youasked us to be with you on this occasion. There are few tributes that couldplease us as much.Each class that graduates from this Law School will have a place all itsown and will make its own distinctive mark. Clearly, there will never beanother class like this one—a fact, I might add, that is a source of somesolace and comfort to the members of the faculty. Never again will the quan-tity or the intensity of eﬀort in recruiting and admitting each individualclass member be repeated. Nor, for that matter, will it ever need to be, thankslargely to you and the fact that three years ago you were willing to come andshare with us the joys and, at that time, the risks, of a new law school.[A] . . . second thought that I want to leave with you concerns the roleof the lawyer as a policy maker. There is no other profession whose membersﬁnd themselves, as a necessary consequence of the work that they do, socontinually involved in important policy-making functions. I believe thatfor most lawyers this is a plus.It is equally clear that there are some problems—some of them personalin nature, but more of them institutional. I have no doubt that one of thereasons for the increased interest in law school over the last seven years isthat so many law students perceive, and perceive correctly, that law trainingprovides an access to what Dean Hawkins has termed “the levers of power.”It is, I believe, one of life’s ironies that those who enter the professionfor this reason not only miss the broader satisfactions that the practice oflaw has to oﬀer but also fail to achieve their immediate objective, the exercise167of inﬂuence, as fully as those who see the broader service aspects of thelawyer’s calling and for whom the exercise of inﬂuence is an unsolicited by-product. It is, if you will, another manifestation of the biblical injunctionthat he who would save his life must lose it.For some, the role of the lawyer in policy formulation and implemen-tation is direct and predominant. In my view, it is more than coincidencethat a disproportionately high percentage of legislators and governmentadministrators come from the members of our profession. I am convincedthat the tools that are acquired at a ﬁrst-rate law school, such as the one thatyou have attended, qualify the graduate for a direct role in policy formulationand implementation.But the function of our profession in policy matters is more subtle andof much wider scope than the passage, interpretation, and enforcement oflaws. The practicing lawyer who operates in the most traditional lawyeringways—trying lawsuits, drafting contracts, counseling clients—is also apolicy maker. Note the choice of verb in the preceding sentence. It is notthat he has the opportunity to be a policy maker; he is a policy maker.The question is not whether but how well and how consciously. It is on thepremise that there is a probable relationship between the consciousness ofone’s participation in the lawyer policy-making function and the qualityof that participation that I have selected this as one of my four points.The inevitability of the lawyer as a policy maker is rooted in the uniquecharacteristic of our common law system: the pivotal role of the judge.Under our system, the resolution of disputes among private parties notonly results in determining who owes whom how much; it is also animportant source of law. Unlike his civilian counterpart, the common lawjudge is not conﬁned to interpreting what some legislative body probablymeant. In addition, he has the power and the duty in appropriate cases tomake law where there is no law and to ﬁll in the interstices of legislativejudgment where they exist.This, I submit, is the essence of policy making. And it is not restrictedto judges. A foundational premise of our adversary system is that we bestapproach the determination of truth when the facts and the law supportingeach opposing position are marshaled and presented by skilled advocatesand then leave the ultimate judgment to a neutral arbiter, whether judge orjury. Necessarily, therefore, the trial lawyer, as an oﬃcer of the court, playsan integral role in the common law judge’s policy-making function.Similarly, the substance of commercial document drafting and clientcounseling is determined in large part by the lawyer’s anticipation of howthe courts probably would decide particular issues if called upon to decidethem. This necessarily involves the same basic kind of policy formulation,even though on an anticipatory level, that the courts themselves pursue.This anticipatory policy-making process, when undertaken by skilledLawyer as Policy Maker168craftsmen, in turn has an eﬀect on the decisions of the person whosejudgment is anticipated, namely the judge.So I hope that you will enter the profession conscious of your role asa policy maker. Your entrances come at a time when the profession facespolicy issues of great magnitude.For example, unless some rather bold steps are taken during the courseof your professional lifetime, the ability of the American courts to performtheir tasks will be seriously jeopardized. An article published last year in theStanford Law Review by Professor John Barton pointed out that if federalappellate cases continue to grow at the same rate as they have grown for thepast ten years, then by the year  the United States Circuit Courts ofAppeal will be required to decide over ,, cases each year, which willrequire , appellate judges to make the decisions and , new volumesof the Federal Reporter to report them.When you consider that for every case that reaches Judge Wallace’slevel in our system there are ten cases that are ﬁled in the federal districtcourts, and when you consider further that in one state, California, thereare four times as many lawsuits ﬁled each year as in the entire federal system,you begin to develop a feel for the real crisis that currently faces the courts,the place where you will work. Proposals have been advanced, including() the identiﬁcation of certain matters such as probate and divorce thattraditionally have been handled by the courts but that might better be solvedby simpler and more eﬀective alternative means; () exercising some controlover the ever-increasing tendency of Congress and state legislatures toimpose new burdens on the judiciary without any corresponding increasesin judicial resources; and () doing away with jury trial in civil cases.These and other proposals are not without serious costs. Participationin the resolution of these kinds of complex, societal-impacting issues,unlike the policy roles necessarily involved in the lawyer’s day-to-day work,is largely optional. It is an option that I hope most of you will take.Now, as long as we are talking of policy, I would particularly inviteyour attention to a bill that is now in the hatching stage among some of themost thoughtful people in the Department of Justice. This bill has not yetcome to the attention of the attorney general, and, in fact, if it did, therewould probably be a few replacements. But it promises to be one of themost far-reaching pieces of legislation in the history of our republic. Title I,Section , would initiate the process for partial repeal of that provision ofArticle I of the Constitution that no title of nobility can be granted by theUnited States. Section  of Title I then provides that any person elected toany House of Congress shall have the option of designating himself to anytitle of nobility of his own choosing, whether duke, earl, marquis, or what-ever, together with all the traditional perquisites of nobility, an annualRex E. Lee 169stipend of $, for life, and the right once each year to select a repre-sentative of the Executive Branch to be subjected to the rack, screw, or anyother appropriate torture device. The only quid pro quo is the modestundertaking never to exercise any of the powers conferred by Article I of theConstitution.Title II provides for the appointment of a special president, chosenfrom the ranks of living presidents or, if there is none, at random from theManhattan phone book. The function of the special president will be toreview the acts of all ex-presidents and conclude without exception thatthey were within the public interest.Title III provides for judicial reform. It would require that all judges’opinions prior to publication be submitted to a board consisting of collegefreshmen logic students and eighth-grade grammarians.Having perfected only three titles thus far, the architects of this bill arenow working on Title IV, which deals with government bureaucrats andstill needs some work. Section  provides for a resident reasonable man ineach department and agency of government. To any ﬁrst-year law student,the need for such a position is obvious. But since he will function much likean oil ﬁlter, he will have to be replaced every six months, and there is aserious problem what to do with him in his clogged-up condition. Themost promising suggestions to date have been that he could teach tax orthat he could write evidence exams. Section  of Title IV requires anembroidered notice to be hung in the oﬃce of every government adminis-trator, in letters at least four inches high, stating, “If stupidity is an adequateexplanation for what has happened, don’t look for any other.”If this bill becomes law, it will obviously solve most of the policyproblems facing our nation. If it does not, then you will continue to ﬁll thelawyer’s role as policy makers. . . .I [also] want to discuss the unusual expectations that lawyers and non-lawyers hold concerning the standards of professional conduct to beobserved by the members of this class. This involves your relationships withyour clients, with your fellow lawyers, and with the community at large.Of those three groups, the one with which you should be most con-cerned is your fellow lawyers, because it is they who will be most inﬂuentialin establishing your reputation for high ethical standards. Whatever thecommunity in which you practice, you will shortly come to an understandingthat there are certain members of the bar within that community whoseoral assurance is all that you will ever need as a basis for conﬁdent reliance.There is no advantage that any lawyer enjoys that compares with that kindof reputation among his brethren at the bar.In some respects, I think that people are trying too hard to ﬁnd diﬀer-ences between you and the graduates of other law schools. But with regardLawyer as Policy Maker170to standards of professional conduct, I have no objection to the unusuallyhigh expectations of you that I perceive among the members of the profes-sion that you are about to enter. I am convinced that these expectationsexist. You should not consider their existence threatening but only sup-portive of the standards of professional conduct that you should be willingto demonstrate.Remember that like any great ediﬁce, a lawyer’s reputation cannot bequickly built, but it can be quickly destroyed. Remember also that there areenormous opportunities and temptations to trade long-range beneﬁts,including your reputation, for short-term advantages. It is the same kind oftrade-oﬀ that Jacob proposed to Esau some three millennia past. It was nota good deal then, and it hasn’t improved with age.So I’m hopeful that in your dealings with your fellow lawyers you willalways lean a little on the careful side. When those opportunities come, asthey surely will, to harvest an advantage in a particular case at the cost ofyour long-range relationship with your fellow lawyers: Don’t do it.I come now to my ﬁnal point. In a sense, it is the most important of allin achieving a proper ﬁt of your professional activities within your broaderwhole existence and interests. It is a subject that we ﬁrst discussed on thatmemorable day three years ago when we ﬁrst met as a class in the JesseKnight Building. It is a subject that has warranted and has received continualattention, discussion, and dialogue since that time, involving not only youbut also your spouses.The graduation of this class coincides with the centennial of our univer-sity and the bicentennial of our nation. I recently ﬁnished a novel by JamesMichener bearing the title Centennial. It is a ﬁctional history of a Coloradocommunity and surrounding areas since the beginning of time. A consistenttheme that emerges from the events that are the subject of that novel is thatat any given time in the development of our country, those who were for-tunate enough to be present and participating labored under an assumptionthat the prevailing way of life and the circumstances that made it possiblewould last forever.During the early th century, the rivers and streams of the RockyMountains abounded with beaver. There were literally millions of them.The trappers and traders who were the only white inhabitants of the areacould not conceive of such a vast wilderness ever being useful for anythingbut a harvest ground for pelts.A little farther east, and a little later in time, the historic treaty of FortLaramie in  assumed that the Great Plains would always be inhabited bybuﬀalo. Since the land had no possible utility for any other purpose, thetreaty conﬁdently assured that the Great Plains would belong to the Indiansfor as long as the water ﬂowed and as long as the grass still grew.Rex E. Lee 171The pattern repeated itself as the buﬀalo gave way to the cattlemen,who in turn saw their great open-range empire broken up by the sod-bustingfarmer, armed with that curious new invention, barbed wire.The continuing recurrence of the familiar pattern led me to contem-plate how rewarding it would have been to have personally witnessed, forexample, the annual gathering of the great northern and southern buﬀaloherds—sixty million of them—or to have been present at one of the raucoustrader/trapper rendezvous during the early s. Inevitably those whowere witnesses to such events would have seen them in a diﬀerent perspectiveif they had realized that they were part of our American heritage that wouldone day reach a stopping point and never be repeated.But the main function of history is to give some guidance to the pre-sent and future, not just to satisfy curiosities about the past. In a very realsense, every case that you will work on as lawyers is unique. The savoring ofthose experiences need not be retrospective only.The practice of law can be a much richer experience if at the time thatyou are working on each of these unique cases you will appreciate it atthat time for what it is, for the societal and economic environment inwhich it arises, and for the contribution that it makes to the communityin which you live and to your individual development as a lawyer. That kindof approach reaches beyond the professional experience.I want to show you a picture. Some of you may remember that littleface. I do too. The only place you can see that face today is in a picture. It istrue that we still have a Wendy. But she’s three and a half years older. Neveragain will there be opportunities to have and to love this Wendy at this stageof her existence, to share her experiences, and to contribute to her happiness.She’s nine years old now. Pretty soon she’ll be ten, and then when she’s twiceas old as she is now, she probably will be gone from our home. She also hasbrothers and sisters, and each new day brings a new opportunity for loving,for sharing, for understanding.I have no greater hope for this class than that you will fully appreciatenot only your professional opportunities at the time that they occur butalso the individual, personal, and family opportunities.Now I’m going to say something that I hadn’t really planned to say butthat I want to be the last words that you hear as a part of your oﬃcial lawschool program. A dominant feature of your law school training has beento instruct you in the skills of skepticism. This has been a necessary part ofyour training as advocates. But I want you to hear one last time from methat although I value those skills as highly as anyone, and though I feel verystrongly that the Law School must continue to give that kind of  rigorous,intellectual training, there are absolutes in this world, and just as there is aplace for skepticism, there is also a place where skepticism is as inappropriate asLawyer as Policy Maker172it is unnecessary. I have serious doubts concerning the eternal verities of theRule of Shelley’s Case, the doctrine of prior restraint, the law of oﬀer andacceptance, or even, as much as it pains me to say so, the Rule of Reasonunder the Sherman Act.But I want you to know, my brothers and sisters, that there are eternalverities. I was not present on the spring day in when Joseph Smith sawthe Father and the Son, nor was I present some nine years later when he andOliver Cowdery had hands laid upon their heads and the Aaronic Priesthoodwas restored. But I want you to know with all of the surety of one who wasnot there at that time that it really happened and that those truths are farmore important than anything that you ever learned in Law School, and Ileave this with you in the name of Jesus Christ. Amen.This convocation address was given to the charter class of the BYU Law School onApril , . Reprinted from the Clark Memorandum, Fall , –; a fullerversion also published “Convocation ,” Utah Bar Journal, vol. , nos. –,–, Summer–Fall  and “Convocation Address ,” in Speeches at the stConvocation of the J. Reuben Clark Law School, Brigham Young University,April , , –.Rex E. Lee (–) received his J.D. from the University of Chicago in ,clerked for Justice Byron R. White of the U.S. Supreme Court –, served asfounding Dean of the J. Reuben Clark Law School –, Solicitor General of theUnited States –, and President of Brigham Young University –.Rex E. Lee 173

Lawyer as Policy Maker

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