Clark MemorandumJ.Reuben Clark Law SchoolBrigham YoungUniversityFall | 2000

CM·

The Trial and Death of Jesus

c o n t e n t s

Cover Artwork:

A Staff Among Spears, 1977,

by Alex B. Darais.

© by Intellectual Reserve, Inc.

Courtesy of Museum of

Church History and Art.

Used by permission.

·

H. Reese Hansen, Dean

Scott W. Cameron, Editor

Joyce Janetski, Associate Editor

David Eliason, Art Director

Bradley Slade, Photographer

The Clark Memorandum

is published by the J. Reuben

Clark Law Society and the

J. Reuben Clark Law School,

Brigham Young University.

© Copyright 2000 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.

20Good Words for the Journey Ahead

Stephen H. Anderson

35Memoranda

Primary General Board

In Honor of Ray Jay Davis

Area Authority Seventies

New Mission President

CM Gathers Awards

14Basic Mediation Training

Jane Wise

2Latter-day Saint

Reflections

on the Trial and

Death of Jesus

John W. Welch

30Portraits

Kevin J. Worthen

John Fee

26• An Individual Failure

• The Hidden Victims

Clay M. Smith

Of the numerous things that could besaid about the so-called trial and the deathof Jesus, I want to emphasize 10 personalreflections. These 10 points center aroundtwo perplexing questions: Why was Jesuskilled? and Who was responsible? As theworld marks the 2,000th birthday of JesusChrist, it would seem especially appropriateto think about his death, since “for thiscause came [he] into the world” (John 18:37).

REFLECTION 1 | Latter-day Saints andall people should approach this subjectwith humility and cautiousness. It willlong remain impossible to give a definitivedescription of the so-called “trial of Jesus.”Too little is known today about the lawsand legal procedures that would have beenfollowed in Jerusalem during the secondquarter of the first century a.d., and toolittle is known about all that was done solong ago for any modern person to speakwith any degree of certainty about thelegal technicalities of this case. As ElderBruce R. McConkie has written, “There is no divine ipse dixit, no voice from anarchangel, and as yet no revealed latter-day account of all that transpired when God’s own Son suffered himself to bejudged by men so that he could voluntar-ily give up his life upon the cross” (Bruce

R. McConkie, The Mortal Messiah [SaltLake City: Bookcraft, 1981], 4:142). We areusually more glib about this subject thanwe intellectually or spiritually ought to be.

REFLECTION 2 | What is it that makesit so hard to be definitive about the trialof Jesus? Many things contribute to ourperplexities. As just one example, wewould like to know more about the legalrules followed by the Sanhedrin in Jesus’day. Of course, we know much aboutRabbinic law from the Talmud, but theTalmud was written later, from the sec-ond to the fifth centuries a.d., by thePharisees or their successors, and so theTalmud presumably reflects the rules pre-ferred by the late Pharisaic movement.Moreover, the Pharisees were not in con-trol of the Sanhedrin at the time of Jesus;the Sadducees were decidedly in the major-ity. And we know that the Sadducees and Pharisees differed on a number ofpoints of law.

We also wonder: Did they or didn’tthey really have the authority to executesomeone in a case like that of Jesus? Thechief priests said to Pilate, “To us is notallowed to kill no one,” as the Greek readsin John 18:31, but we do not know why theylacked such authorization or why they

4 Clark Memorandum

T H I S T A L K W A S D E L I V E R E D J A N U A R Y 8 , 2 0 0 0 , A T A C O N F E R E N C E I N P R O V O , U T A H ,

E N T I T L E D “ C H R I S T , S A V I O R , S O N O F G O D , ” S P O N S O R E D B Y T H E B Y U C O L L E G E O F

R E L I G I O U S E D U C A T I O N . A M O R E C O M P L E T E V E R S I O N O F T H I S P A P E R , W I T H

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

B E P U B L I S H E D B Y T H E B Y U R E L I G I O U S S T U D I E S C E N T E R I N T H E N E A R F U T U R E .

no sequence of events in legal h i story has proven m

all that transpired from the time that jesus was arre

the t ime he was taken and cruc i f i ed on a small outc

would say this. Many possibilities come tomind. Perhaps they said this because novalid conviction had been reached allowingexecution under their own law. Perhapsthey were showing voluntary deference toPilate. Or perhaps they simply neededPilate’s ratification. In any event, it wouldappear that Jewish people under Romangovernance did have power, or at least took the power, to execute people on some occasions, as we see in attempts tokill Jesus in Nazareth or in the case of thewoman taken in adultery, or in the deathsof Stephen or John the Baptist, none ofwhich involved Roman authorities.

For reasons like these, it is hard tospeak with any degree of certitude aboutthe technicalities, especially any allegedillegalities, in the proceedings involvingJesus. Parenthetically, Protestants in thelate 19th century so exaggerated thealleged illegalities that their analyses back-fired, and many people concluded thatsuch a fiasco or travesty of justice simplyhad to be a myth.

More difficulties arise from the signifi-cant differences between the four Gospels.John’s account is very different from theaccounts in the synoptic Gospels, and evenbetween the synoptics significant legal dif-ferences exist. For example, did the councilmeet at night, as Matthew and Mark say(which probably would have been illegal),or did they meet only when day came, asin Luke (where that alleged illegality doesnot arise)? Or what about John, who men-tions the council only before the arrest,never after? Matthew and Mark seem toplace the ultimate burden on the Romans,

since it must have been Roman soldierswho led Jesus away into the Praetorium(Mark 15:16); but in John, Pilate gives Jesus back to the Jews “and they [the Jewsit would seem] took Jesus” (John 19:16)and directed the crucifixion with Pilate’sacquiescence.

Harmonizing these four Gospelaccounts is possible, but only if one iswilling to ignore their different purposesand irreconcilable jurisprudential details.Latter-day Saints are usually not troubledby the technical differences between thesefour New Testament accounts, but somepeople are. Jews, especially, are interestedin how these texts are interpreted, becausethe trial of Jesus has been a major cause of antisemitism over the ages. In directresponse to that antisemitism, whichfueled the Holocaust, Jewish scholars havepassionately argued that the Jews hadnothing to do with the crucifixion of Jesusbut that the Romans were completelyresponsible.

Latter-day Saints accept various ver-sions of important events that do notalways agree with each other. We live withfour accounts of the Creation, three ver-sions of the Sermon on the Mount, andseveral accounts of the First Vision. Latter-day Saints also appreciate that Matthew,Mark, Luke, and John each had differentpurposes and various audiences. For exam-ple, when writing to the Greeks, Lukenever mentions any accusation of blas-phemy, which to a Greek would not beconsequential. (Indeed, in Greek, blas-phemy can simply mean rude speech, and,thus, interestingly, in Luke it is the captors

who blaspheme, that is, speak insolentlyto Jesus.) Matthew, whose purpose is oftento show how Jesus prevailed over thePharisees, is the only Gospel writer to tellthe story of the chief priests and Phariseesasking Pilate to secure the tomb in whichJesus was buried, but to no avail.

REFLECTION 3 | Even more problem-atical is the difficulty of determiningintent. Why did any of them do it? Whywas Jesus killed? Even today, the greatestchallenge in modern courts of law is tryingto prove a person’s intent. Scholarly pru-dence and Christian charity behoove us to withhold casting any aspersions and to follow a more cautious, sensitive approachas we attempt to ferret out the motives ofCaiaphas, the chief priests, or Pilate.

Actually, one may scan the four NewTestament Gospels and find precious fewexplicit indications of what actually moti-vated any of these people. We may guess,of course, but our guesses are specula-tions. We may attribute to these people a wide range of political, commercial,social, personal, religious, or legalisticmotives; but in most cases the motivesthat seem the most plausible to us stemfrom our own retrojections. Thus, itshould not surprise us that scholars of theterrorist-bitten 1970s were quite confidentthat Jesus was executed as some kind ofsupposed guerrilla terrorist, while somepost-Holocaust Jewish scholars of the1950s argued that Caiaphas and his templeguards actually took Jesus kindly intoprotective custody to warn him about the Romans who were out to get him.

5Clark Memorandum

ore d i f f icult or more important to understand than

sted east of the temple on the mount of ol ives until

ropp ing of rocks ju st outs ide the walls of j erusalem .

Obviously, such theories are in tune withthe sources of angst of the people whohave propounded them.

Latter-day Saints are not immunefrom such inclinations. According toErnest L. Wilkinson in 1966, the cause ofthe atrocious death of Jesus was noneother than the concentration of “legisla-tive, executive and judicial powers . . . inone unit, . . . in the Great Sanhedrin,” inwhich Wilkinson expressly saw the omi-nous specter of Communism.

More commonly, Latter-day Saintsassert that Israel’s judges were motivatedby hate. In 1915 the work of James E.Talmage portrayed the Sanhedrists asbeing galvanized against Jesus by “malig-nant,” “inherent and undying hatred”(James E. Talmage, Jesus the Christ [SaltLake City: Deseret Book, 1976], 627, 637).But the word hate is not found in any ofthe trial narratives per se.

Specifically regarding the motives ofthese Jews, Matthew and Mark only saythat Pilate could tell “that the chief priestshad delivered [ Jesus to him] out of envy”(Mark 15:10); but notice that this ishearsay. And how did anyone know whatPilate was thinking? In any event, theword envy is not particularly antagonistic.It connotes jealous resentment of some-one else’s wisdom or good fortune, butscarcely does this common human emo-tion amount to lethal hatred.

Pilate’s motivations are equally obscure.Some people see Pilate as a weak, incompe-tent, middle-management functionary whohad recently lost his power base in Rome,who was easily intimidated, and who wasmanipulated by his wife. But this samePilate, who usually resided in Caesarea andmay have been cautious in handling Jesus inJerusalem, still held in his hands the highestlegal power of Rome in the area. He hadnot hesitated on other occasions to asserthimself, even with military force. Havingtried in several ways to get the chief prieststo drop their complaint against Jesus, Pilatesaw that nothing was working but “thatrather a tumult was made” (Matt. 27:24).Physical violence—a riot—was erupting.When he tried to placate the crowd by giv-ing them Barabbas as a “secure pledge,”Pilate may have acted out of desperation,fear for his own safety, or equally out ofhope that the crowd would disperse andleave Jesus alone. In fact, in the JosephSmith Translation, Pilate tells the Jews toleave Jesus alone.

Returning to the point about hate, theGospel of John makes it clear that the world(not just Pilate or the chief priests) wouldmisunderstand, reject, and hate Jesus, justas it would also hate all of his true disciples.Jesus said: “But me [the world] hateth,because I testify of it, that the worksthereof are evil” (John 7:7); “If the worldhate you, ye know that it hated me before it

hated you” (John 15:18), for “I am not of theworld” (John 17:14). In the cosmic conflictpresented in the Gospel of John, thisworldly hate of truth is the theologicalopposite of divine love; but that antipathyis too broad to provide a legal motive forkilling Jesus, for it applies to all people,both then and now, who reject Jesus in anyway, personally as well as legally.

In response to the question Of whatcrime was Jesus accused? there also is no simple answer. Blasphemy, sedition,encouraging tax protesters, and declaringhimself a king are all mentioned, but noneof these charges really stuck. But then, weare told that Jesus was arrested as a rob-ber, and such outlaws were given no legalrights, let alone a Miranda warning or aformal arraignment. Even Pilate had toask, “What is it these men accuse you of?”No one ever gave a straight answer. TheGospels in the end simply say that he wasaccused of “many things” (Matthew 27:13;Mark 15:3–4), leaving the legal issue inten-tionally vague, reminding us that precise,modern pleading practices were not nec-essarily followed in the ancient world.

The situation is very complicated. It isno wonder that uncertainty was a commonreaction of the people to Jesus. At the con-clusion of his temple speech on the Feastof Tabernacles, John says, “There was adivision among the people because of him”(John 7:43). “Some said, He is a good man:

7Clark Memorandum

others said, Nay; but he deceiveth the peo-ple. Howbeit no man spake openly of himfor fear of the Jews” (John 7:12–13).

REFLECTION 4 | When people get con-fused, they often become afraid. Whenthey become afraid, they act irrationally.Although the factor of fear is rarely men-tioned by commentators, fear provides the driving undercurrent that best explainsthe irregularities and vagaries of the so-called trial of Jesus. His trial was not arational affair. Fear played a much largerrole than we have stopped to realize.Sooner or later, everyone is afraid.

People who were sympathetic to Jesuswere afraid of the Jewish leaders. The dis-ciples fled from the scene of the arrest outof great fear. Even the powerful Joseph ofArimathaea kept his loyalty to Jesus secret“for fear of the Jews” (John 19:38).

The chief priests also were deeplyafraid. They worried that if Jesus becametoo popular, the Romans would comeand take away “our place [the holy city,the temple, or the land] and nation”(John 11:48). But more than that, theyfeared Jesus. Mark 11:18 clearly states thatafter Jesus denounced the temple as a denof robbers, they “sought how they mightdestroy him: for they feared him.”

Their scheme to destroy him, how-ever, seems to have gone quickly awry.After he was arrested, Jesus was treatedlike a hot potato, being passed spasmodi-cally from one hand to another—hands“of frightened subordinates whose planshad gone astray,” as law professor DallinH. Oaks wrote in 1969—with no onewanting to take the rap for either hisdeath or his release.

They were not the only ones whowere frightened of Jesus. When Pilateheard the words “he has made himself theson of God,” his reaction was fear. Johnstates that Pilate “was the more afraid”(John 19:8). Even Herod the fox was saidto fear the crowd.

Moreover, Golgotha, that scene ofgruesome death, was a theater of fear. Thecenturion and those with him, when theyfelt the earth quake, “feared exceedingly”about what they had done. Phobias areeverywhere in this story—far more thanpeople usually think.

REFLECTION 5 | What were these peo-ple so afraid of? Above all, they weredeeply afraid of the supernatural. Althoughthe followers of Jesus accepted his miraclesas manifestations of divine power, thosewho did not believe that Jesus was the Sonof God found those wondrous works dis-turbing. A common reaction to the mira-cles of Jesus was fear, for if Jesus workednot by the power of God, he must havebeen possessed by “Beelzebub, and by theprince of the devils casteth he out devils”(Mark 3:22).

In Matthew 9 we read that Jesushealed a man who had been paralyzed bysome kind of stroke. The King JamesVersion of the Bible says that when thepeople saw this “they marvelled”; but theoriginal Greek says that “they wereafraid” (Matt. 9:8). When the multitudesaw Jesus raise the son of the widow inNain and heard the young man speak,their reaction again was sheer terror:“And there came a fear on all,” readsLuke 7:16. Fear of the extraordinary pow-ers of Jesus, which nonbelievers saw ascoming from the realm of the occult,explains much that transpired in his trials.

Personal manifestations of miracles orthe glorious appearance of supernaturalbeings would probably evoke fear in mostof us. The first words of an angel toZacharias were, “Fear not.” Mary was toldby Gabriel, “Fear not” (Luke 1:30), as werethe shepherds in the fields. Even the apos-tles ran from the angel at the tomb, trem-bling, “for they were afraid” (Mark 16:8).When those disciples had assembled, theresurrected Lord’s first words to themwere, “Be not afraid” (Matthew 28:10).

Imagine trying to arrest Jesus. Thechief priests could not have undertakenthis venture lightly and must have steeledthemselves against the unexpected. Jesuswas known to have amazing powers. Hewas a new Moses, and the chief priestswere well aware of what Moses had doneto Pharaoh and his army. Some of the chiefpriests had been involved in the attempt tostone Jesus when he “hid himself . . . ,going right through the midst of them,”and escaped undetected (John 8:59). WithJesus known as something of an escapeartist, people had their hands full trying totake him at the height of his power. It is no

8 Clark Memorandum

wonder they needed to enlist the assistanceof one of his closest followers.

If Jesus had the power to commandloaves and fishes, to still the waves, towither fig trees, and to order evil spirits,what powers might he use in defense ofhimself and his apostles? The raising ofLazarus, only a few days earlier, just overthe hill from Jerusalem, brought Jesus’powers too close to the Holy City. It wasthen that the chief priests and Phariseesgathered in a council and said, “What dowe [do]? for this man doeth many mira-cles” (John 11:47). This disclosure tells usthat the deep root of their concerns wasthe fact that Jesus worked many miracles.If they were not miracles from God, thenJesus had to be some kind of trickster orsorcerer. Coupling these powers with whatthey considered to be his incantationagainst the temple (Mark 14:58) yields apotent formula for fear and trepidationand the need to strike quickly.

Even at his arrest, Jesus continued tocall upon his miraculous powers. Jesustold Peter, “Thinkest thou that I cannotnow pray to my Father, and he shallpresently give me more than twelvelegions of angels?” (Matthew 26:53); andwhen Peter cut off the ear of the highpriest’s servant, Jesus “touched his ear, andhealed him”( Luke 22:51). Anyone in thegroup of arresters hearing or seeing thesethings must have been stunned. Movingforward must not have been easy.

Supernatural factors continue to play adominant role up to the end of Jesus’ life.People witnessing his crucifixion won-dered if Jesus could save himself; theywaited to see if the miracle-working Elijahwould rescue him from the cross.Although that did not happen, the rockssplit apart, graves opened, and holy spiritscame forth out of the ground after Jesus’death (Matthew 27:51–53).

Behind everything lurked a strongundercurrent of fear, misplaced fear, thatJesus was an evil magician. In a significantrevelation from the Book of Mormon, anangel announces that Jesus Christ wouldgo about “working mighty miracles, suchas healing the sick, raising the dead, [and]cast[ing] out . . . evil spirits” (Mosiah 3:5);but “even after all this they shall considerhim a man, and say that he hath a devil, and

shall scourge him, and shall crucify him”(Mosiah 3:9). In the Book of Mormon, thisis the proximate cause of the death ofJesus: not that he was a political threat, andnot that some people disagreed with hisdoctrines, but that certain key people con-sidered him to be of the devil. Latter-daySaints can relate. In 1879 an article appearedin the Latter-day Saints’ Millennial Star com-paring the death of Jesus to that of theProphet Joseph Smith. In both cases, the“chief crime was that he obtained revela-tions from heaven.” In both cases, divinepower had been mistaken for magic.

Indeed, the chief priests worried tothe bitter end that Jesus, whom theycalled a “trickster” (planos), would riseafter three days, as he had prophesied.They worried that this, his last trick(plane), would be worse than his first.Their concern confirms the Book ofMormon text. Indeed, the word planos, inother early texts such as the Testaments ofthe Twelve Patriarchs and the SybillineOracles, can mean especially one whodeceives through evil powers or spiritsand fools even the elect through naturemiracles, including churning up the sea or raising the dead. Obviously, being aplanos could raise serious legal and reli-gious concerns.

REFLECTION 6 | Was it possible thatsorcery and necromancy could be consid-ered criminal conduct in Jesus’ day? Ofcourse, certain forms of magic and wiz-ardry were not legally problematical underthe law at that time. Magicians such asSimon the Magician (see Acts 8:9) andTheudas, another wonder worker (see Acts5:36), seemed to walk the streets freely. Butwhen magic was used for improper pur-poses, it was severely punished.

Biblical law prohibited sorcery, sooth-saying, and necromancy. Some knowledgeof sorcery was even “a requirement to beappointed a member of the Sanhedrin,”presumably so that such cases could beproperly prosecuted. Leviticus 20:27 pro-vides: “A man also or woman that hath afamiliar spirit, or that is a wizard, shallsurely be put to death.” We have here thesame words, “being worthy of death,” thatare used in Matthew and Mark to con-demn Jesus as worthy of death. Having a

familiar spirit refers to “calling out of theearth” or conversing with the spirits of thedead (might one think of Lazarus?). Beinga wizard has to do with giving signs orwonders, and Deuteronomy 13:1 made it acapital offense to use signs or miracles topervert or lead people into apostasy. Tosome, the case of Jesus could easily,although erroneously, have presented aprima facie case of such conduct warrant-ing the death penalty.

Likewise, Roman law at the time ofJesus outlawed certain forms of spell-cast-ing or divination and made them punish-able by death. In a.d. 11 Augustus Caesarhimself issued an edict forbidding manticsfrom prophesying about a person’s death.Such conduct had become a serious politi-cal and social problem in the Romanworld. The main thrust of Augustus’decree was to expand the law of maiestas,which had long punished people whoharmed the state by actions, to nowinclude treasonous divination, especiallyaugury directed against the imperial fam-ily. This “empire-wide imperial legisla-tion circumscribed astrological and otherdivinatory activities everywhere,” and weknow of about one hundred trials formaiestas from the time of Tiberius alone.Later Roman law would specify that the punishment for enchanters or spellbinders was crucifixion.

This is not to say that Jesus was cru-cified for predicting the death of TiberiusCaesar or anyone else, but it may explainwhy the chief priests thought they couldget Pilate to take action against Jesus. If Jesus—who had been born under anunusual star and visited as an infant bymagi (astrologers or sign-readers) fromthe east—spoke evil predictions againstthe temple and the lives of the Jews andprophesied about his own death, perhapshe would next lay spells on Caesar. If thatwere to happen, letting Jesus go wouldcertainly make Pilate no friend of Caesar.In final desperation the chief priestsargued that anyone who made himself a king “speaketh against Caesar” ( John19:12). All this looks like attempted allega-tions of maiestas.

Ultimately, of course, Pilate found nolegal cause of action here. Jesus claimedthat his kingdom had nothing to do with

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Caesar’s world, and Pilate was satisfiedthat the man from Nazareth had not bro-ken any Roman law. But Pilate was stillworried enough by the situation that hewas willing to take action or to go alongwith Jesus’ accusers.

Laws against sorcery are mentionedoccasionally by commentators writingabout the trial of Jesus, but this underly-ing cause of action is not usually takenseriously by them. No formal accusationof magic ever seems to be made duringthe trial. But, as Morton Smith argues, theterm “worker of evil” used by the chiefpriests only in John 18:30, or its Latinequivalent maleficius, is “common par-lance” in Roman law codes referring to a“magician.” So the supernatural may wellhave had more to do with the death ofJesus than people think, just as Mosiah 3:9indicates. This is not to say that otherlegal charges did not figure into thecourse of these proceedings. But concernover Jesus’ mighty power best explains allthat the Gospels report.

An underlying concern about demonswould explain especially the puzzles ofcrucifixion and the lack of legal formali-ties. Since the publication of the TempleScroll from the Dead Sea in the 1970s,many scholars acknowledge that hangingon a tree (or crucifixion) could serve as a

possible Jewish mode of execution. In oneother notorious case a century before thetime of Jesus, 80 witches were hung or cru-cified in Ashkelon without proper trials,because the Jewish court saw the matter asan emergency. This event shows that suchthings could happen, even if only rarely.Thus, both Romans and Jews (especiallyon an emergency charge involving a fear ofdemons) were capable of executing some-one by crucifixion.

REFLECTION 7 | We can now turn toour second main question: Who killedJesus? We can now realize that lots of peo-ple were involved. But before we answerthis question, we must back up again andreflect on which of the four Gospels tofavor, for again we get different answersfrom the different Gospels.

In giving weight to various statements,Latter-day Saints generally favor thereport of the highest priesthood authority,which in this case is the Apostle John.With Peter and James, John was one of thehighest ranking apostles. Matthew, thepublican, was one of the Twelve, but Markand Luke apparently were not.

Moreover, most people find morecredibility in the testimonies of eyewit-nesses, and it is not clear how Matthew,Mark, and Luke learned the details they

10 Clark Memorandum

report. None of them were present formost, if any, of the proceedings surround-ing Jesus’ trial and death. Mark may havelearned something from Peter, but afterthe arrest, Peter only “followed [Jesus] afaroff” (Matt. 26:58) and stayed outside thedoor of Caiaphas’ palace hoping to remainunrecognized. But John was present forthe duration of the hearing. Significantly,he was the only disciple who actually“went in with Jesus into the palace of thehigh priest” (John 18:15), and, of course,John was there at Golgotha when Jesusentrusted his mother Mary into his care(John 19:26–27). Of the spear thrust, Johntestified: “And he that saw it bare record[gives solemn testimony], and his [testi-mony] is true” (John 19:35). In this affirma-tion, John distinctively speaks of himselfas the one who saw, claiming for himselfspecial status. Latter-day Saints do nottake his witness lightly.

R E F L E C T I O N 8 | Latter-day Saintsshould be especially comfortable with theJohannine approach to the trial of Jesus,which is strongly supported and clarifiedby the Book of Mormon.

A key element in lds doctrine is theknowledge that the sacrifice of the Saviorwas promised and foreordained frombefore the foundation of this earth, as weread in the words of Lehi, Benjamin,Abinadi, and Alma. Likewise, for John, thedeath of Jesus was a foregone conclusionfrom the beginning. It had to happen. Itwas supposed to happen. “For this causecame I into the world” (John 18:37).

John particularly wants his readers tounderstand that Jesus was not killedbecause of some offense against the templeor its economy, as many people conclude(especially from Mark). Here John is par-ticularly interesting. Unlike Matthew andMark, John does not have Jesus say eitherthat he is able or actually will destroy thetemple; rather, John 2:19 reads, “[If you]destroy this temple, . . . in three days I willraise it up.”

People have also long puzzled overthe distance that John puts between thecleansing of the temple and the death ofJesus. For John, the cleansing occurs atthe very beginning of Jesus’ ministry (seeJohn 2:13–17), not after his triumphal entry

into Jerusalem. Why does John place itthere? One reason is to introduce Jesus’prophesy of his death from the beginning;another is to show Jesus working at acleansed temple, where he often wentthroughout his ministry.

Latter-day Saints understand thatJesus, the Holy One, was innocent of anycrime. Indeed, in John’s good news, Jesuswas not convicted of anything. In John wefind no mention of any Jewish court at all,let alone a verdict against him; and on thispoint I think John is right. Even in dis-cussing the synoptic accounts, it is some-thing of a misnomer to speak of the “trial”of Jesus. There was a hearing (maybe) orperhaps an inquiry or attempted deposi-tion and the voicing of an opinion of howthings “appeared” (as the Greek reads inMatthew 26:66 and Mark 14:64), but not atrial and verdict.

Latter-day Saints agree with John thatan innocent Jesus died for the wholeworld, for all mankind, and that the wholesinful world in a significant sense broughtabout the death of Jesus. Look who arrestshim in John’s account: not just a group ofmen with torches, as in the other Gospels,but a cohort of soldiers, servants of chiefpriests and Pharisees (see John 18:3), andthe commander or chiliarchos (see John18:12). The whole world, it seems, was sym-bolically there. This seems particularlyconsonant with another important revela-tion extended to us by the Book ofMormon. Nephi prophesied: “And theworld, because of their iniquity, shall judgehim to be a thing of naught; whereforethey scourge him, [smite him and spitupon him] and he suffereth it, . . . becauseof his loving kindness and his long-suffer-ing towards [all] the children of men” (1Nephi 19:9).

R E F L E C T I O N 9 | If we need to find a precipitating culprit in all of this, theprime and persistent movers in the finalactions against Jesus were probably only a small group identified as “the chiefpriests,” the most powerful and bestknown officials of Jerusalem. An interest-ing pattern emerges by carefully examin-ing every reference to these chief priests: It is the chief priests and scribes of whomHerod asks about the birthplace of the

Messiah. When Jesus prophesies about hisdeath in Matthew 16:21, he mentions onlythe chief priests, elders, and scribes asbeing involved. It is the chief priests andelders who in the temple question Jesus’authority. The chief priests alone seekJesus’ death after the raising of Lazarus.Judas betrays Jesus to the chief priests.The chief priests alone demand Jesus’death before Pilate in Mark 15:3; and in the end, it is they who want the title toread, “He said, I am King of the Jews”(John 19:21).

Fourteen times in the Gospels andfour times in Acts, the chief priests actalone against Jesus or his disciples.Eighteen other times they act togetherwith the elders, rulers, captains, or theSanhedrin. Twenty-one times they areassociated with the scribes. Clearly thechief priests and these associates of theirsare the driving force behind the arrestand execution of Jesus. The Phariseesoften debated Jesus and were verballydenounced by him, but they are men-tioned much less often, and they lackedthe political muscle of the Sadducceanchief priests, whose party had a strongmajority in the Sanhedrin. It is not hardto see that small group of chief priests as the one consistent force that agitatedand militated against Jesus and his disci-ples. Their crowd was not large; certainlyit did not contain all the Jews.

This subtle point is consistent with an important passage in the Book ofMormon. In 2 Nephi 10:5 it clearly saysthat it would be “because of priestcrafts[in other words, because of a small, pow-erful group interested in trafficking in reli-gion for money] and iniquities, [that] theyat Jerusalem will stiffen their necksagainst him, that he be crucified.” TheBook of Mormon by no means implicatesor condemns all Jews.

In this regard, we should also remem-ber the testimony of Paul. As a student of Gamaliel, Paul would have been wellinformed about legal events in Jerusalem,and he adds an important corroborationto this Book of Mormon position. Thewords in 1 Thessalonians 2:14–15 speak ofJews who killed Jesus. Notice the greatimportance of the punctuation betweenthese words: should it read “the Jews who

12 Clark Memorandum

killed Jesus,” with no comma (meaningthe particular Jews who killed Jesus)? orshould it read “the Jews [comma] whokilled Jesus” (meaning that all of themkilled Jesus)? This is the most famouspunctuation mark in the world and isknown as the “antisemitic comma.” Butbased on the Greek construction of thissentence, no punctuation mark should bethere. Paul spoke only of those particularJews who killed Jesus. Surely many Jewsaccepted Jesus. Peter was a Jew. Mary wasa Jew. John was a Jew. Those in the crowdson Palm Sunday were all Jews.

REFLECTION 10 | Finally, especially forJohn, Jesus was in full control from thebeginning to the end. At the beginning ofhis ministry, Jesus spoke of his death evento prominent Jewish leaders and othersoutside his circle of disciples. Speaking toNicodemus, Jesus said, “Even so must theSon of man be lifted up” (John 3:14).

Consistent throughout his writing,John reports the death of Jesus with Jesusknowing exactly what was required tocarry out the plan. When his hour hadcome, Jesus knew and “bowed his head,and handed over his spirit” (according tothe Greek in John 19:30). Might it be signif-icant that this same word is used threetimes in the story: when Judas betrayed orhanded Jesus over to his arresters; whenthe Jews handed Jesus over to Pilate; andwhen Jesus handed over his spirit to God?For John, we must never forget that it isGod who is voluntarily, purposefully, andknowingly dying as planned.

With all this as background, and know-ing that much more work still remains tobe done, we can now cautiously offer ananswer to the question Who was responsi-ble for the death of Jesus? For John and forLatter-day Saints, the whole world killedJesus. As Nephi prophesied, the whole“world” would kill their God (1 Nephi19:9). And if everyone was responsible, then,in an important sense, no one was responsi-ble or to blame. Or if someone specificallywere to blame, that is quite irrelevant forJohn, the apostle of love.

Of course, iniquity played its part.But, ironically, Greeks and pagans, forwhom the gods could be found anywhere,were quite accepting of miracle workers.

The Jewish legal system, however—with its prohibitions against witchcraft, necro-mancy, and idolatry—effectively made theJews (as the Book of Mormon says) theonly nation on earth in which anyonecould have cared enough about suchsupernatural conduct to have reacted withsuch hostility and to have “stumbled”against the very presence of their God intheir midst, as Jacob says (Jacob 4:15).

In 2 Nephi 10:3–6 Jacob writes that itwas “expedient” (which means pragmati-cally effective, “tending to promote somegood end or desired purpose, expedi-tiously, quickly, and profitably”) thatJesus “should come among the Jews,” for“thus it behooveth [or was fittingly neces-sary for] our God.” Jacob identified thatOld World location as “the more wickedpart of the world,” with more wickedbeing a comparative between two places.From Jacob’s point of view, the questionwas whether Jesus should come to theOld World or to the New, and his answeris, to the Old, for its inhabitants wouldbe more wicked than his posterity. Hefurther explains, “And there is noneother nation on earth that would crucifytheir God,” and I hasten to emphasizethat this statement views this conduct incollective terms and does not infer thatall people in that body necessarily agreedwith their national leaders on this action.Continuing on, Jacob writes, “For shouldthe mighty miracles be wrought amongother nations they would repent, andknow that he be their God.” We canindeed agree that such recognition wouldhave been more easily given by people incultures of other religions, where lawsagainst such activity did not warrant thedeath penalty.

There may have been some miscar-riages of justice in the trial of Jesus, but Ido not think that John or Jacob want usto think of the death of Jesus that way.Jesus was not a victim. His death was sup-posed to happen. It had to happen. Forthis reason, God in his mercy does notcome out and place blame on any singleperson or group of people. The writers ofthe New Testament Gospels were inten-tionally ambiguous. They could have beenmuch clearer about who killed Jesus ifthey had wanted to be, but that was not

their point. Even in Judas’ case, we do notknow what motivated him; things cer-tainly did not turn out the way he hadintended or expected.

In the final analysis, overwhelmedwith irrational fear, all of them knew notwhat they really did. As Peter said only afew weeks later to those very people inJerusalem “who killed the Prince of life,”“I [know] that through ignorance ye didit, as did also your rulers” (Acts 3:15, 17).Jesus forgave people as he hung on thecross, forgiving whom he would; and ofus it is required that we forgive all people.Whereas God will judge, we are to judgenot. Placing blame is not part of this pic-ture. Masterfully understating all thathappened, all Jesus said, out of the dark-ness to the Nephites, was, “I came untomy own, and my own received me not” (3 Nephi 9:16). Let us never forget that we also reject and crucify Jesus anewwhenever we partake of the world and itsdarkness.

In his first general epistle, the ApostleJohn concluded: “And we know that theSon of God is come, [we have heard; wehave seen with our eyes, and handled withour hands] and he hath given us an under-standing, that we may know him that istrue, and we are in him that is true, even inhis Son Jesus Christ. This is the true God,and eternal life” (1 John 5:20 [1 John 1:1]). Byreflecting carefully and cautiously on theevents and causes leading up to the deathof Jesus, one may more surely agree thathe is indeed the Son of God, of whom the Book of Mormon and all the holyprophets have ever testified.

John W. Welch is the Robert K. ThomasProfessor of Law in the J. Reuben Clark LawSchool at Brigham Young University. Editorin chief of byu Studies, he also is director ofpublications for the Joseph Fielding SmithInstitute and founding director of FARMS(the Foundation for Ancient Research andMormon Studies).

page 2 Rembrandt, Ecce Homo. © National Gallery, London.

Used by permission.

page 6 Rembrandt, The Raising of Lazarus. Courtesy Museum of

Art, Brigham Young University. All rights reserved.

page 11 Rembrandt, Annunciation to the Shepherds. Rijksmuseum,

Amsterdam. Used by permission.

13Clark Memorandum

It’s a beautiful morning in June, andI’m sitting at the dean’s conference table atthe J. Reuben Clark Law School eyeingthe 14 other mediation trainees. We’ll besitting at this table for 32 hours over thenext four days listening to lectures, enter-ing into discussions, and role-playing ourway to cle credit and a chance to partici-pate as mediators on the court-annexedroster. The Schooley Mediation Programthrough byu’s lawhelp sponsors this train-ing for anyone interested. In other words,you don’t have to be a lawyer.

Our group consists of five lawyers,three schoolteachers, two paralegals, aconstruction worker, two stay-at-homemoms, and assorted others. A few of usare wearing tee shirts and jeans, but mostof the trainees look like they are on theirway to an office. It also looks like I am theonly one who has been out of high schoolfor more than 30 years.

Remember A Civil Action? It’s a JohnTravolta movie about a cocky attorney whotries to take on giant industrial polluters on behalf of a small town where cancer-causing chemicals have been dischargedinto the water supply. The movie is basedon a true story where the actual attorneyended up in personal bankruptcy becauseof the enormous costs of discovery in thenine-year, multimillion-dollar lawsuit hebrought against the polluters.

Yes, he lost that one. But he is backrepresenting small towns in polluted areaswith a completely different approach toenvironmental law: he now mediates solu-tions between contending parties—nomore expensive, time-consuming litigationfor him. Negotiations take months insteadof years, and settlements can be arrangedwithout anyone admitting liability. Hisnew theory is that aggressive litigationdoesn’t bring about the kind of dialoguethat can solve problems. He is one of themany attorneys converted to mediation.

I became interested in mediation whenmy physician husband learned that “alter-native dispute resolution” is being used bymany health-maintenance organizations toresolve benefits disputes and improve ser-vices for its members. It seems that bettersolutions to health-care problems resultwhen patients and providers work outtheir differences face-to-face in a nonadver-sarial forum. Patients feel they have moreinfluence over the health-care system, andproviders come out with a stronger com-mitment to making it work.

Picture this: Sitting eyeball-to-eye-ball, a patient recounts the trying eventsthat brought her to mediation while thephysician listens intently. This, in and ofitself, is a miracle. The physician apolo-gizes and tries to resolve the problemwithin the safe and encouraging environ-ment created by mediation, where newideas can be fostered and attention isfocused on feasible solutions. The bene-fits? This process is geared to fixing whatis broken, and it’s much cheaper than litigation.

16 Clark Memorandum

Our group is subdivided so that we canplay a game entitled “Win as Much as YouCan!” The object is to earn as many pointsas you can without hindering or helpingthe other group. We make our decisionsbased on what we think the other side willdo, and we earn points by correctly second-guessing them. After several rounds wehave an opportunity to talk to each other.Each side makes some representations tothe other. We rely in good faith on theother group’s representations and follow tothe letter what we said we’d do.

They withhold information and lie.We lose. “But we trusted you!” we shout.“We believed what you said!” “Better lucknext time,” say the prevaricators.

Mediation, on the other hand, cancombine conflict and trust and achieve positive results. In the lingua franca of spe-cialists, conflict can be “constructive” ratherthan “destructive” if it involves “empower-ment” and “forward movement.”

“The goal of mediation,” we are told,“is to use the conflict as a springboard foropportunity.” Constructive conflict (view-

ing conflict in a positive way) can lead to open dialogue, communication, andrespect. It can lift morale.

This course of events only happens ifthe participants enter mediation in goodfaith—that means they are willing to worktoward a resolution of their problem andlay all their cards on the table. If theseground rules are set, mediation offers thingslitigation can’t, such as the following:

1 Conflicting parties work “in theshadow of the law” (knowing what couldoccur if they went to court), but they arenot necessarily bound by the law. Theycan work creatively towards solutions thatwould be impossible in a litigated court-room setting. I saw this in a small claimscourt mediation where an auto glassinstaller promised to install a new wind-shield and take the other parties to dinnerif they dropped their $1,000 claim againsthim. It was the dinner that put that settle-ment over the top.

2 Opponents communicate directlyrather than rely on attorneys. On the onehand, this discourse can foster feelings ofamicability and empathy; on the other, itcan result in a loss of good faith, whichcan quickly sink the ship. Mediators areprepared for this scenario. “Shuttle” nego-tiation allows a mediator to shuttle backand forth between unamicable and unem-pathetic parties with offers for settlement.All that is necessary is two separate roomsand a handy hallway.

3 All information gathered in theprocess is off-limits in any subsequentadversarial litigation. Mediation is a con-fidential process in which the mediator is not permitted to disclose informationabout the parties in dispute. This condi-tion allows parties to take risks and con-sider creative alternatives without fear thatthe discussions may later be used againstthem. Paper shredders are a must for thewell-equipped mediation office.

4 Finally, mediation can be conductedat a fraction of the cost of litigation and inmuch less time. To the contending parties,saving money and time seem to be thebiggest selling points.

17Clark Memorandum

Michael McLean, thesinger/songwriter, makesa surprise visit to sing“Happy Birthday” to one of the instructors. He tellsthe story of a “play doctor” in New York who gave adviceabout Fiddler on the Roof before it was mounted and staged. The composer and the lyricist spent an hourtelling the story of “Fiddler,” jumping anddancing around with short bursts of musicfrom the piano. They began: “There is thisman named Tevye who lives in a smallJewish settlement in Russia.” They finishedtelling the story and waited expectantly forthe play doctor’s opinion.

He pulled at his beard awhile and thenasked, “So, what’s it all about?” A little dis-composed, the composer and the lyricistagain started an explanation of the play.“There is this man named Tevye who livesin a small Jewish settlement in Russia.”

Ten minutes into the story they wereinterrupted again. “So, what’s it all about?”Once again they tried: “It’s about this mannamed Tevye.”

“No! What are you trying to say inthis play? What’s it all about?” The com-poser and lyricist stopped to think. “Theplay is about a family’s traditions.”

“Traditions!” yelled the play doctor.“Now, that’s your beginning!”

The begin-ning of any media-tion is identifying theproblem that brought the parties to the table, and that is done by listeningcarefully to their stories, the “What’s it allabout?” part.

The parties must agree before the sto-ries begin that they will be civil, that theywon’t interrupt, that there won’t be anyname calling or fighting, that they will tellthe truth, and that they will work togetherto solve the problem. It’s best if the partieswill actually sign a contract to this effect.A signed contract in the hand is worthtwo or three or four reminders to an oralagreement.

18 Clark Memorandum

In July 1997 Gerald R. Wil l iams, J. Reuben Clark Law School’s “Mr. Negotiations,” left to preside over

the France Bordeaux Mission. His departure left an irreplaceable space in the alternative dispute resolution

(ADR) efforts at the Law School. In response to Professor Wil l iams’ absence and growing student interest in

the theory and practice of negotiation and mediation, the Schooley Mediation Program (SMP) was established

in November of 1998 with the support of the Law School and funding received from the Schooley Trust.

Designed initial ly to coordinate student training and existing legal externships in the local small claims

court, the SMP has expanded to provide opportunities in the training of professionals as well as law

students’ participation in victim-offender, domestic, and school mediations.

The SMP’s goal is to promote peaceful conflict resolution through community outreach, certification,

coordination of training, and actual client experiences for law students and professionals. At a law

school sponsored by The Church of Jesus Christ of Latter-day Saints, a good “fit” for the

teaching of nonadversarial means for resolving disputes has always seemed appropriate.

Thus, the SMP has allowed the Law School to take such scholarly work and simulated

training and put them into practical use in serving the members of the local community.

When Professor Wil l iams returns during the summer of 2001, he wil l see

the fruition of the significant ADR “seeds” he planted. In addition to an

expanded curr iculum in this area of study and an active ADR extra-

curr icular student group, he wi l l encounter a growing number of

students who are act ively pursuing ADR-related externships

admin istered through the Schoo ley Mediat ion Program.

With the addit ion of Professor Wi l l iams’ vast ADR

experience and scholarly abil ity, the Schooley

Mediat ion Program is dest ined for

even greater things.

Mediation role-play is hungry, thirstywork. Each day we break midmorningand refuel with fresh fruit and muffins;midafternoon it’s corn chips and taco dip,with all the soda pop and juice we candrink. During these break times we findourselves using the listening and refram-ing skills we’ve been practicing in class.

“My jerky brother-in-law hasn’t paidme back what he owes me for a trip lastyear, and he just bought a new boat!”

“You are upset that he has not paidyou the money he owes you and feelsunshackled enough from your debt toincur this large expense.”

“He took my mother’s china to thecabin!”

“The china has sentimental value toyou because it originated in your family.”

Mediators call restating what has beensaid by the parties “reframing.” Reframingoccurs when the mediator substitutes “neu-tral” words for the parties’ biased or judg-mental words. It’s amazing how onceinsults and emotion are edited out of state-ments they can be restated concisely andeffectively.

Demonstrating “active listening,” amediator begins by having the parties taketurns telling stories. Through nodding yourhead and keeping eye contact, you demon-strate to the speaker that his or her mes-sage has been heard and that you areinterested in the information given. Youmay also ask occasional questions for clari-fication. These polite questions and yourreframing are the only interruption allowedduring their monologues.

The room is darkened and a tv with avcr is rolled in. The screen flickers as anold copy of Disney’s Pollyanna comes tolife. Aunt Polly’s house servants are com-plaining about their grim, no-joy Sundays.Pollyanna chirps that they should play the“glad game” to feel better. “What is there tobe ‘glad’ about on Sunday?” they grump.“Well,” intones the cheery miss, “it will beseven whole days until another Sundayrolls around.”

Mediation strives for a win/win situa-tion for the parties: all interests satisfied inthe best of all possible options, an out-come objectively fair and sensible, andcommitments well planned and realistic.To reach the best alternative, parties mustbe tolerant and willing to compromisewhen they disagree. When the processbegins with each side telling his or herstory, the mediator writes down the issuesand decides how to proceed on thoseissues (with the parties’ help). This step iscalled “brainstorming”: discussing andevaluating the options, discussing inter-ests, running “reality checks” for the par-ties (which means bringing them back toobjective criteria, especially the criteria thecourts would use). Is their position reason-able? Can they see the other party’s pointof view? What are the long-term conse-quences of their choices?

We didn’t just talk about the “how” of negotiation in mediation training; weplayed at negotiation over and over again.Sometimes we were parties, sometimeswe were negotiators. It was amazing howwe kept coming together, even whensome of us were typecast to be difficult.There was excitement in the air—media-tion does work!

At small claims court my fellowtrainees and I scramble to amass the 10hours of experience the court requiresbefore we can be put on its list of qualifiedmediators. A man relates to me that he isnow less adversarial in his law practice. Awoman tells me it has been the best train-ing she has ever received. Another mansays he uses active listening and reframingevery day with his three young children.One trainee has already started mediatingwith real-estate practitioners in politicalaction committees. He has been able todiffuse emotionally charged meetings bydrawing on his mediation training, drag-ging them back to the possible and thepractical. And me? I have my 10 hours andam waiting for the court to call.

Jane H. Wise teaches Legal Writing in the RexE. Lee Advocacy Program at the Law School.

19Clark Memorandum

P H O T O G R A P H Y B Y B R A D L E Y S L A D E

by Stephen H . Anderson

W O R D S

J O U R N E Y

F O R T H E

A H E A D

G O O D

y soon-to-be colleagues in the law, con-gratulations! You have successfully made itto the end of a long road, beginning backwhen you took the lsat, sent out lawschool applications, and entered here asfirst-year students. As an understatement, Isuspect that traveling that road you hadsome occasional stress. Since misery lovescompany, you probably shared your stressgenerously with family and friends.Because of that and many other things—especially overwhelming pride in youraccomplishment—this is a joyful day for allof them as well. On your behalf, I recog-nize, congratulate, and express gratitude tospouses, parents, other family members,and friends for their loving, long-sufferingsupport and sacrifice. In a very real sensethis is their graduation, too.

You have received a first-rate educationfrom a first-class law school. Graduates andothers associated with this school grace thelaw nationwide. For a proximate example,former byu professor Dale Kimball andalumnus and adjunct professor Dee Bensoncompose half of the four active judges ofthe federal district court for Utah.

Two of my favorite lines come fromChief Judge Benson. Some years ago JudgeBenson had to have surgery to remove agrowth just inside his skull. The night beforethe operation, the surgeon visited his hospi-tal room to discuss the procedure. JudgeBenson asked if the surgery would requirethe removal of any brain tissue. The surgeonreplied, yes, it was necessary to assure ade-quate margins around the growth. Judge

Benson responded quite cheerfully,“Good, take the part where the bar

review course is stored. Ithasn’t been a bit of use

to me since thebar exam.”

Then

after a moment’sreflection, he added, “And if youhave to take a whole lot of tissue, that’sokay, too. Then I’ll be qualified to sit on theTenth Circuit!”

I want to repeat what I said a few yearsago on a similar occasion. I know what youare thinking: I’m outta here! Of course, theproblem with being “outta here” is thatyou are into “there.” “There” is not a badplace to be right now. In Greenspan-speak,you are entering a vibrant economy and arobust job market. That market hasdemonstrated remarkable elasticity indemand for people trained in the law.

According to American Bar Associationmarket research, over 90 percent of 1998law school graduates were employed as ofFebruary 1999. That marked the fifth con-secutive year of increased overall employ-ment of new jd graduates.

The largest number of you will be inprivate practice, but positions abound ingovernment, public-defender work, publicinterest law, business, and other sectionsof the economy. Wherever you go, thefield of law has never been as importantand as fascinating as it is right now.

Globalization of commerce has increas-ingly internationalized the practice of law,creating enormous opportunities. The explod-ing universe of information and communi-cations technology, computer hardware,software, delivery systems, emerging mar-keting cultures, and more are ushering in a new age of law as well. Genetics isanother vast new frontier. More and moreclients and employers will deal in theseareas and will need sophisticated andinnovative legal advice.

Just to touch on a few other subjects,by way of further example: problems ofaging, including estate and disability plan-ning and surrogate decision making; multi-

culturalism; the environment; watersharing; energy; transportation;

all aspects of civil rightslaws; the behavior

of major cor-pora-

22 Clark Memorandum

M

T h e fo l l o w i n g s p e e c h w a s p r e s e n t e d a t t h e J . R e u b e n C l a r k

L a w S c h o o l c o m m e n c e m e n t o n A p r i l 2 1 , 2 0 0 0 .

tions; deliv-ery and recourse in medicine;and much more are all evolving areas of thelaw requiring skill and new thinking.

The courts are changing as well. Thesenior partners in the law firm I joinedtook the train to Denver to argue beforethe Tenth Circuit. Now the judges can sitin Denver and hear entire daily calendarsby way of videoconference from remotelocations so that lawyers don’t have totravel at all. When the court files an opin-ion, it is immediately accessible on an elec-tronic bulletin board. Electronic filing andcomputer access to court dockets areincreasingly available.

It may amaze you young folks toknow that some judges of golden yearshave put their quill back in the goose anddo e-mail and other computer stuff. And ifyou are not amazed, I am! Opinions, com-ments, arguments, and revisions circulateback and forth between chambers with thespeed of, well, e-mail.

On every hand there is change andinnovation. All of it amounts to a richlyvaried set of opportunities for you.

You may be wondering whether you will be happy in the profession. My first answer relates to a 1995 AmericanBar Foundation survey of 800 randomlyselected Chicago lawyers, which foundthat the vast majority—84 percent—reported they were satisfied or very satis-fied with their jobs. My second response isthat, basically, the answer for you willdepend on your values and expectations.Someone has said that happiness boilsdown to someone to love, something todo, and something to hope for. Add tothat a foundation of faith and sound val-ues, and I think you may find much truthin that statement. In any event, it wouldbe a mistake for you to regard money aslife’s report card.

As you commence your careers, I urgea few things for your consideration. I haveplaced them in six categories.

First, keep sharpening your tools. Your schoolinghas given you tools of both knowledge andskill. Legal knowledge is a depreciable assetrequiring ongoing capital improvements.During the past three years while you havebeen in law school, the federal courts, bothtrial and appellate, have decided more thana million cases resulting in about 275,000pages of published opinions. State courtshave decided tens of millions of cases.Congress has passed something like 1,200bills; state legislatures, thousands. Federalagencies have added thousands of pages tothe Code of Federal Regulations, and localgovernments have equaled that output inlaws and ordinances.

The law you know today will bepartly dated by tomorrow and mostlydated in 10 years. In addition, you willprobably change jobs or areas of practiceemphasis at least three times during yourcareer. So keep learning. We are all stu-dents of the law, always. Continuing legaleducation programs, seminars, sections ofthe bar devoted to specialties, and othersources of knowledge are important toyou. Use them.

The skills you have learned are moredurable tools. You have learned how tothink like a lawyer. I’ve heard some gradu-ates say they don’t know what that means.It means you know how to look at a prob-lem analytically from the standpoint oflegal precedent and text, sifting out whatis not relevant. In that context you havelearned a new view of what is salient in approaching human conflict. You havelearned that asking the right question maybe the most important thing. As I tell myclerks, ask four questions: What is theissue? What are the relevant facts? What isthe law? What is the solution? The firstquestion is always the most important:What is the issue?

Law is relentlessly, sternly, unforgivingly detailed. Yet, as in thegraphic arts, you must labor over the small-est detail while simultaneously knowingand never losing sight of the big picture.

The best finished product is the easiestto comprehend. Abraham Lincoln said ofStephen A. Douglas, “He can compressmore words into a smaller idea than anyman I have ever known.” There is anothersaying: “When ideas fail, words come inhandy.” In law, that failing is called “juris-babble.” The true legal artisan takes theraw material of legal complexity and fash-ions a powerful concept into words sosimple and descriptive that they rival theskill of a poet’s insight. There is elegancein clarity, in making the complex simple.

You have the necessary tools now.Keep sharpening them. They will serveyou well—in law, in business, or in what-ever activity you might engage.

Second, avoid isolation. Get out andserve and participate. Specialization, jobdemands, firm budgets, and similar forcestend more and more to cut lawyers offfrom full participation in the legal commu-nity and the community at large. Lawyershave traditionally worked within andthrough the organized bar to improve theadministration of justice. Members of thebar support law-related education in theschools, night small-claims courts, freelegal advice through the Young LawyersTuesday Night Bar, and many other programs, plus serving on committeesestablished to study and improve the effec-tiveness of the legal system. These volun-tary, public-spirited services are part ofwhat makes law a profession, not a trade.For some role-model examples, I willname just a few: President James E. Faust

23Clark Memorandum

of the FirstPresidency of the

Church, past president of theUtah State Bar; Eugene Hansen, pres-

ident of the Salt Lake Temple and past pres-ident of the Utah State Bar; Elder Dallin H. Oaks of the Quorum of the Twelve, former executive director of the AmericanBar Foundation; former Governor ScottMatheson, past president of the Utah State Bar; and Dean Reese Hansen, cur-rently an ex officio member of the Utah BarCommission.

Beyond ser-vice in the bar, there

is community service andvigorous participation in the politi-

cal process. Traditionally, lawyers havebeen fully involved in organizations andprojects that seek to make the communitya better place to live. Serve in these ways.Participate. You will make lifelong friendsand find your profession extraordinarilymore rewarding, while being part of thesolution to society’s problems.

Third, know the difference. I havesome advice for you based on my 40 yearsin the law. Some lawyers have the mottothat the breakfast of champions is notWheaties, it is the opposition. I supposethat’s okay. But, if I may put it bluntly,there is a difference between being a good

lawyer andbeing a jerk. You

don’t have to resign fromthe Church or the human race to be

brilliantly effective and successful as alawyer. In sports we are fond of labelingsome players as being a class act in addi-tion to being a superstar. The same is truein law. You can be a great lawyer and aclass act. I know some great lawyers whoI have never heard swear or seen lose theirself-control or cut an ethical corner.

There is a difference between being arealist and being a cynic, between beingintense and being mean, between beingprobing and being cantankerous, andbetween being a retailer of negatives anddifficulties and being a creator of solu-tions and results.

You do not have to become someone’smad dog to be their strong advocate. Idon’t know of anyone who wants theirepitaph to be “Here lies lawyer so-and-so,one of the meanest people in town.”

Seek and prize qualities of civility andintegrity. Develop advocacy based on bril-liant reason, deep learning, honest hardwork, and fair presentation. These aremarks of the true professional.

Fourth, respect youroath. Law is

theonly profession

that is not licensed by theexecutive branch of the government.

Lawyers are regulated by the judicialbranch of the government. And law is theonly profession that requires an oath as acondition of licensing. The lawyer’s oathyou will take incorporates by referencespecifically enumerated duties and theRules of Professional Conduct. The duties,among other things, require you to tell thetruth; to not delay, obstruct, or subvert thelegal process; to not knowingly prosecute afalse action or act maliciously or deceit-fully; to be loyal to your client; and tocharge fairly for your work. Just as impor-tant, you will undertake a separate duty asan officer of the court. This duty andresponsibility extends to the court and therule of law in a democratic society.

Your oath is serious business.Today you sit here unified as graduates.

When you pass the bar and take the oath,

24 Clark Memorandum

W e r e a l l y r o c k e d ! W e l a u g h e d ! W e b o n d e d ! T h e r e

you will stand unified as lawyers, as membersof the legal profession. Then you will scatterin dozens of directions, some into corpora-tions, some to government, some into bigfirms, some into small firms or a solo prac-tice. Because you split up to go in differentdirections, do you suddenly become less ormore of a lawyer than when you stoodtogether to take the oath? Does the door youwalk through to work diminish or enhancewhat your oath means? The answer is no.Your professional status means more thanjust a paycheck. You are never just anemployee. You are a lawyer, a professional.While the legal profession may be a milewide today, it is only one lawyer deep whereyou and your work as a lawyer are con-cerned. The health and regard for the rule oflaw in our society is not some other lawyer’sresponsibility. It is your responsibility. Thereare no free rides. You have worked hard to become a professional. Do not let the dooryou walk through to workmake you less ofone.

Fifth, I commend toyou the words above the entrance

to the Supreme Court of the United States:Equal Justice Under Law. Everyone, not justthe rich and powerful, deserves the full pro-tection of and access to the law, just as weexpect every American to obey the law.Commitment to equality under the law,embedded deep in the foundation of thisrepublic, is not played out just in programsand more due process; it begins in the heart.

In the book To Kill a Mockingbird,Atticus Finch’s daughter Scout was puz-zling over how a jury could find a blackman, Tom Robinson, guilty of raping awhite woman when the evidence clearlyshowed he hadn’t. Then it became clear toher. As she put it:

How could this be so, I wondered, as Iread Mr. Underwood’s editorial. Senselesskilling—Tom had been given due process oflaw to the day of his death; he had been triedopenly and convicted by twelve good men andtrue; my father had fought for him all the way.Then Mr. Underwood’s meaning became clear.Atticus had used every tool available to freemen to save Tom Robinson, but in the secretcourts of men’s hearts Atticus had no case. Tom

was a dead man the minute Mayella Ewellopened her mouth and screamed. [HarperLee, To Kill a Mockingbird, (New York:Warner Books, 1960), 241]

The teaching to us and all other citi-zens was given two thousand years ago. Itis the second great commandment: “Lovethey neighbor as thyself.”

As a political summation, JohnHancock, when urging the Massachusettsconvention to adopt the Constitution, putit this way: “We must all rise or falltogether. . . .” The true professional com-mits to a just society.

Finally, seek joy and balance. You canonly live happily ever after one day at a time.We all know that life is not a trip toDisneyland, but too many of us are likeAunt Agatha, whose life was full of tragedies,only a few of which actually happened.

In his book Leading the Charge,Lee Roderick tells of SenatorHubert Humphrey, dying of cancer,

returning to address the Senate a last time.Instead of words of sorrow or despair,Senator Humphrey still preached the poli-tics of hope and joy and faith. These aregood words for your journey ahead: hopeand joy and faith—especially joy. If welook for it, it is everywhere.

While I was sitting at my desk withmy brow furrowed a couple of weeks ago,I got a telephone call from my wifeinforming me that, due to a bizarre set ofcircumstances, I was the only logical oneavailable to tend my seven-year-old grand-daughter and my four-year-old grandsonfor several hours that afternoon. I hadnever been a starter in that game. I hadcome off the bench a couple of times, butonly when the mother and grandmotherstarts were on the floor. Both of thesegrandchildren have been pretty reservedaround me. I suppose it’s because I ambig, wear a black suit, and usually havemy nose stuck into something to read.But I was game. I answered the summons.I put on old clothes and spent a couple of hours inventing ball games and play-ing tag and doing a lot of stuff sitting onthe floor. The sun came out. The friend-ship between my grandchildren and mewarmed to a degree never before experi-enced. We had a terrific time!

But more was yet to come. On thedrive back to their parents’ house, with the children securely strapped in their seatbelts in the back seat, the seven-year-oldordered me to turn on the radio and tune itto 860, the Disney station. Shortly afterthat, the station started playing a song andmy formerly shy four-year-old grandsonshouted with glee from the back seat,“Grandpa, turn it up! This is my favoritesong!” Then with absolute joy he begansinging along in perfect pitch at the top ofhis lungs, “Hit the road, Jack, and don’t youcome back no more, no more.” It was soinfectious, the seven-year-old and grandpajoined in. Then, there were the four-year-old and the judge, belting it out with joyousabandon: “Oh woman, oh woman, whyyou treat me so mean, you’re the meanestold woman that I’ve ever seen.” We reallyrocked! We laughed! We bonded! There wasreal joy in that afternoon.

You have now and will continue tohave all kinds of moments of joy, large andsmall, in your life. Seek them. Treasurethem. They will act as counterbalances tolife’s difficult moments.

One of the best ways to position your-self for joy is to lead a balanced life.Working hard does not mean only work.Family and church and adventure andactivity and learning new things and serv-ing and sharing will be your greatest anti-dote to life’s ills.

You may wonder what lies at the end ofa 40-year career. I will tell you. Family andfaith and integrity. Everything else fadesinto the background. Nurture your familyand faith, and safeguard your integrity.

Take care of yourselves. Enjoy yourfamily. Enjoy your friends. Take care ofyour health. You are wonderful people,intelligent, ambitious, dedicated, goal-ori-ented, and idealistic. We welcome youwith all our hearts into the legal profes-sion. We look forward to your creativity,intelligence, energy, and constructive con-tributions.

May God bless you is my prayer in thename of Jesus Christ. Amen.

Stephen H. Anderson has served as a judge ofthe United States Court of Appeals for the TenthCircuit since 1985. He is a past president of theUtah State Bar.

25Clark Memorandum

w a s r e a l j o y i n t h a t a f t e r n o o n .

he criminal jus-tice system is

constantly measured, eval-uated, and criticized on a quantitative basis. Wetrack numbers of casesfiled in various categories,cases per judicial officer,cases awaiting trial, cases

resolved by plea, persons in jail,persons in state prison, etc.These statistics are valuable inassessing trends within soci-ety and the success or failure of programs, laws, and otheractions. Nothing, I repeat noth-ing, however, drives home afeeling of success or failure asdoes an individual experience.

In July of 1998, I wasassigned to the felony mastercalendar. Before going into thisextremely busy courtroom, I

spent a few hours observing mypredecessor, Judge RichardBehn, handle the calendar. Onthe afternoon of July 2, I sat inthe jury box monitoring theproceedings. A case was called.I was stunned to hear the nameof the case, People v. Malewski. Itwas a relatively unusual name,and several years earlier I hadknown a young man namedMark Malewski. The defendantand his attorney stood up inresponse to Judge Behn’s call ofthe case. I quickly located thedefendant. He was a young manof perhaps 22, tall and trim. Ivisually searched his face hop-ing that I would not recognizehim, that he would not be thesame Mark Malewski I hadknown. My fears, however,were realized. It was he.

Nine or 10 years earlier,Mark Malewski had been ayoung man of 12 or 13 who hadjoined the Boy Scout troopthat I served as Scoutmaster.He had come into the troopwith his cousin, Tim. As I lis-tened to the proceedings, Ireflected on the different pathsthat Tim’s and Mark’s lives hadtaken. Tim had continued inScouting and achieved therank of Eagle Scout. He hadspent two years in missionaryservice for his church and wasnow attending college at oneof the University of Californiacampuses. Tim’s life had pur-pose and meaning. His cousin,Mark, on the other hand, haddropped out of Scouting, hadnot pursued an education, hadallowed the insidious plague of drugs to work its way intohis life, and was now standing in Division Seven answering to a felony charge of posses-sion for sale of a controlledsubstance.

As I listened to Markenter a plea of guilty, answer-ing a long series of questions,waiving rights and acknowl-edging his understanding ofthe consequences of the plea,I reflected on the divergencein the paths of Mark and Tim. What had caused thatdivergence? Could I have pre-vented it? What went wrong?Who went wrong? Of course,there was no single cause of Tim’s success or Mark’s dif-ficulties. And although I obvi-ously don’t have the fullanswer to the questions thatran through my mind, myreflection, I feel, did lead to alittle insight.

During their years in Scouting,Tim’s parents always attendedeach event. His mother pro-vided encouragement, trans-portation, and other supportfor Tim’s Scouting, sports, and other activities. His fatheraccompanied the troop oncamping trips and other out-ings. Mark’s parents, from mylimited perception, were lessinvolved in his activities; theypermitted, but did not support,his involvement in Scouting andchurch activities. As Mark andTim reached the middle teenageyears, Mark dropped out ofScouting and disengaged fromhis prior church involvement.All aspects of human con-duct and misconduct are com-plex. And I do not intend hereto suggest simplistic causes or solutions. I firmly believe, however, that the key (but notsole) factor in the divergence ofMark’s and Tim’s life experi-ences was the degree of positiveinvolvement of family—espe-cially parents—in their liveswhen they were children.

Our society is replete withinstitutions devoted to helping,reaching, teaching, and redeem-ing people. We are grateful forthese institutions and their pos-itive effect in the lives of indi-viduals. My experience withthe Malewski and many othercases confirms to me that noinstitution even approaches theinfluence and impact that fam-ily in general and parents inparticular have on us as peo-ple. If every child had loving, committed, capable parents, Iwould be out of a job—andgratefully so (or perhaps reas-signed to a civil calendar!).

26 Clark Memorandum

by Clay M. Smith

The following article appeared in the April 1999

issue of the Orange County Lawyer.

riminal conduct has manycosts, some of whichare obvious and some

of which are not. Certainly,most people are generallyaware of the economic cost of criminality to society. Themere monetary cost of operat-ing our criminal justice andpenal institutions is stagger-ing. It is disheartening to con-template the good that could be accomplished with those

resources if they were devotedto other needs or left in thehands of taxpayers.

We are also keenly awareof the economic and emotionalimpact of criminal conduct onthe victims of crime. Our legit-imate concern for these victimshas been enshrined in our con-stitution as follows:

It is the unequivocal intention of the People of the State of

California that all persons whosuffer losses as a result of criminalactivity shall have the right torestitution from the persons con-victed of the crimes for losses theysuffer. [Cal. Const. art. 1, sec. 28]

In recent years Californiacourts have made huge strides in effectively implementingthis policy by imposing uponthose convicted of crimes anenforceable obligation to make

restitution to those injured bytheir conduct (see CaliforniaPenal Code § 1202.4). For exam-ple, during the period fromJuly 1, 1998, through June 30,1999, restitution payments tocrime victims in OrangeCounty alone exceeded $3 mil-lion. Significantly, these pay-ments do not come from thepublic fisc, but rather fromrestitution orders imposed onthe actual offender or from

28 Clark Memorandum

of his church. Many of his sup-porters had submitted lettersdescribing Mr. Bradshaw’s cur-rent life and his completedevotion to his young children.His attorney also gave a per-suasive plea in his behalf. Butthe most indelible memory ofthat case is not the packedcourtroom or the eloquentargument. Rather, it is the let-ter submitted to me by nine-year-old Tarah. It read:

My father has been gone for over aweek and I miss him dearly. I amnine and I have been living withmy father for four years now andthey have been the best years of mylife. He helps me with my home-work and we say the Lord’s prayerbefore I go to bed. My father is agreat father and I love him verymuch. My dad is a handsome manand I miss him sitting next to meand saying I love you Tarah andnever forget that and he would say you’re always with me in myheart. Please let my father comeback please because I do not wantthis family to fall apart. I’m start-ing to feel really lonely withoutmy dad being around. Did youtake my dad because he had to payrent for us? I am writing this letterbecause he means a lot to me. Ihope you understand this letter. Ireally hope you do. PLEASE let mydad come back HOME.

I occasionally take a copyof this letter out of a file andread it. I read it to remindmyself of just how much fathersmean to daughters, mothersmean to sons, and so on. But it

also reminds me of the unseenvictims present in virtuallyevery case. Tarah had very littlein the way of material things,but she did have that whichmeant the most to her—herfamily. And now, her father’scriminal conduct was threaten-ing to take that from her too.

Ironically, the law does notconsider Tarah to be a victim.Penal Code § 1202.4(k) defines a“victim” as a person or entity

that is a “direct victim of acrime.” The statutory require-ment that the person be a“direct” victim has been inter-preted to mean that the person(or entity) must be the “object ofa crime” (People v. Valdez, 24 Cal.App. 4th 1194 [1994]). Thus, whilean insurance company (People v. Foster, 14 Cal. App. 4th 939[1993]) or a governmental agency(People v. Crow, 6 Cal. App. 4th952 [1993]) can be deemed a vic-tim and entitled to restitution,Tarah cannot because she wasnot the object of the crime.

My purpose here is not tosuggest that the laws pertainingto restitution be broadened toallow an offender’s family to becompensated from the restitu-tion fund, but rather to pointout that there are often (or per-haps always) hidden victims ofcrime. They too are worthy ofour concern.

Clay M. Smith is a judge of theSuperior Court of California,Orange County. His articles are frequently published in theOrange County Lawyer.

result he received several hun-dred dollars in welfare benefitsto which he was not entitled.Because the amount exceeded$400, the district attorney wasprosecuting the case as a felonyunder Welfare & InstitutionsCode § 10980. The potential consequences to Mr. Bradshawof any felony conviction: 25years to life in state prison. Thepotential consequences to Tarah:unimaginable.

Shortly after Mr. Bradshaw’sarraignment, a bail review hear-ing was held. Mr. Bradshawwas seeking an own-recog-nizance release so he couldwork and care for his children.His goal was to make reim-bursement and attempt to per-suade the district attorney toreduce the charge to a misde-meanor. The district attorneyopposed such a release, becauseMr. Bradshaw was technicallya three-strikes defendant. Thestakes at that hearing seemedremarkably higher than mostbail review hearings. If released,Mr. Bradshaw might be able to make restitution, and if so, it would not be uncommon for the district attorney toreduce the charge to a misde-meanor, thereby eliminatingthree-strikes exposure. On theother hand, it would be extra-ordinary to release a three-strikes defendant on his ownrecognizance.

At the hearing, the court-room was literally full of sup-porters of Mr. Bradshaw, manyof whom were fellow members

the restitution fund, which isunderwritten by restitutionfines imposed upon virtuallyevery person convicted of amisdemeanor or felony.

Our systems are less capa-ble, however, of offering redressfor the emotional impact ofcrime on its victims. Tragically,many of the direct conse-quences of criminal conductcannot be remedied by writingout a check. Our human insti-

tutions simply do not have thepower to turn back the handsof time and restore the loss of aloved one, a battered body orpsyche, or even a sense of secu-rity and well-being.

There is, however, anotherand less apparent category of“victims.” This is a group uponwhich the cost of crime alsolands with both feet. Thesevictims are the innocent chil-dren, spouses, and other fam-ily members of criminals. Acase I recently handled illus-trates my point.

The case was People v.Bradshaw. Mr. Bradshaw was asingle father working to supporthimself and his children, one of whom was a nine-year-olddaughter named Tarah. At somepoint in his distant past he hadsuffered two felony convictionsfor serious or violent crimes. Inother words, Mr. Bradshaw hadtwo “strikes.” In the current case,Mr. Bradshaw, who was receiv-ing public assistance, had founda part-time, temporary job anddid not report the income to thecounty welfare officials. As a

29Clark Memorandum

by Clay M. Smith

This article was published in the March 2000 issue of the Orange County Lawyer.

f Kevin J. Worthen, who joinedthe law school faculty in 1987,could have had a second pro-fession, it would have beenteaching high school historyand coaching basketball on theside—or coaching high schoolbasketball and teaching historyon the side. His reason: “Youcan impact students’ lives atthe high school level in waysyou can’t at later stages in edu-cation and graduate school.You can affect the way theychart their lives.”

During his high school andcollege years, Kevin playedcompetitive sports, which hestill enjoys (“more by watchingthan playing at this point”),and he chose political science, a

close relative of history, as anundergraduate major. But whenit came to graduate school, law was his first choice. In allits forms, lawyering is what heloves still.

Now two new universityassignments may satisfy any ofKevin’s lingering needs to nur-ture and mold. In February1999 he joined the Law Schooldeans, consisting of Dean ReeseHansen and Associate DeansClifton Fleming, ConstanceLundberg, Scott Cameron, andKathy Pullins. More recentlyhe was invited to be byu’s fac-ulty athletic representative tothe National College AthleticAssociation (ncaa), where hecan work to assure that student

athletes’ education and welfareneeds are met.

Kevin’s particular purviewas associate dean is technol-ogy, including computers andcopier coordination; the advo-cacy program; and academicaffairs. These responsibilitiesare a departure from his areasof teaching and research exper-tise, which are particularlystrong in state and local gov-ernment law, rights of indige-nous peoples in internationaland comparative law, and fed-eral Native American law.

In the area of technology,Kevin assumes burgeoningduties in what continues to beone of the most technologi-cally advanced law schools in

the country. For the past threeyears, entering students havebeen required to own laptopcomputers compatible with theLaw School computer system.Coordinating and overseeingsystem access has grown tomammoth proportions with500 students now hooking intodatabases for anything fromperusing e-mail to Westlawresearch to taking final exams.Added to this duty is copieroversight. Under Kevin’s super-vision, the law library recentlyadded a digital scanner to copysuch resources as rare and frag-ile materials, professors’ pack-ets, handouts, and copyrightedsupplemental reading and thenelectronically send them to

30 Clark Memorandum

Expanding Assignments for Kevin J. Worthen,

Would-Be Historian/Basketball Coach

B Y L O V I S A LY M A N

ulty to presenting the programto full-time faculty and alumni.

Kevin’s third duty as associ-ate dean is in another expand-ing arena: academic affairs.Dean Fleming formerly tookcharge of all things academic inthe Law School, including fac-ulty, scheduling, exams, disci-pline, counseling, grade appeals,introduction to Law Week, andreadmission of disqualified stu-dents. Kevin says, “I don’t knowhow Cliff did it all. He nevertoots his own horn. I knownow how much I underappreci-ated him.” Several years ago,Associate Dean Pullins assumedsome of the counseling duties,dealing particularly with stu-dents in crisis and introducing

students to Law Week. Kevin’scharge to oversee academicaffairs includes exams and gradedisputations, along with disci-pline for academic misconductand insufficient academic per-formance.

Kevin finds that his newduties have a downside as wellas an up side. He has had tocut his teaching load in halfand fit his research into smallsegments of time. Since teach-ing and research are the rea-sons he left successful practiceto return to academia, this hasbeen challenging.

He discovered how satisfy-ing real-world legal research canbe after graduating first in hisclass and becoming one of onlynine byu Law School graduatesto have been awarded SupremeCourt clerkships. That clerk-ship immediately followed onewith Judge Malcolm R. Wilkeyof the United States Court ofAppeals for the d.c. Circuit. Inboth clerkships, Kevin foundthat his byu training had armedhim with research skills compa-rable to those of his co-clerksfrom Michigan and Harvard.

What Kevin liked mostabout his clerkship opportuni-ties was the chance to ask hardquestions about the nature ofthe law. When he had thosequestions in practice, he couldoccasionally manage an hour ortwo to research the issue, but ifthe response was not directlytied to his client’s problem, hewas essentially wasting time.Practice was, therefore, some-times frustrating, because it did not always allow him towork through all aspects of amatter as thoroughly as hewould prefer.

Occasionally his desire toresearch hard issues coincidedwith serving his client’s needs.Kevin particularly remembers acase in which he represented

course remains unique amonglegal writing programs becauseof the level of cooperationbetween library and writingfaculty and their unified dedi-cation to teach students inways that will directly carryover into their future prac-tice of law. In addition to law librarians who teach theresearch arm, the program hassix adjunct faculty who teachwriting, a writing specialist, law student research assistantswho tutor small groups of students, and administrativestaff. Kevin, ably assisted by theprogram’s current director, byuLaw School graduate MonteStewart, oversees everythingfrom selecting new adjunct fac-

print services for reproduction.In addition, the Law Schoolcontracted for byu PrintServices to provide and servicethe other copiers in the build-ing. Negotiations for this dealwere long and complex butcame to a successful conclu-sion in time for fall packets.

The advocacy program,begun four years ago whenDean Constance Lundberg pro-posed, researched, designed,directed, and taught a lawyer-ing skills course integratinglegal research and writing forall first-year students, has con-tinued to grow and change.Though the concept of inte-grating research and writingcourses is widespread, byu’s

31Clark Memorandum

the small town of Parker,Arizona, on the ColoradoRiver across from California. At issue was whether the town was part of the ColoradoRiver Indian Tribe Reservation.History of the region was crucial to the case, and heavidly pored over old manu-scripts. Historical researchfinally broadened to the pointthat the firm hired a profes-sional historian to write a his-tory of the area. Local smalltown politics added color. Ifthe town was part of the reser-vation, local leaders wondered,where should offenders be triedand by whom? Ultimatelythings got ugly when word gotout that the police didn’t haveauthority, and a young manwas shot while resisting arrest.Amazingly, when the townreverted back to the reserva-tion, the tribe ended up withno significant advantage.

“The main purpose of thecase was not to secure tribaladvantages but to get a defini-tive judgment,” Kevin con-cludes. “Having some settledrule was more important thanwhat the rule was.”

As a law professor, Kevinadvocates more “pro–tribal sov-ereignty” than he did at the timeof the case. Many of the articleshe writes are either about NativeAmerican law or about a con-cern linked to it. When heresearches he prefers to devoteconcentrated periods of four orfive hours at a time. As anadministrator he has roughly thesame amount of research time,but it is in smaller segments. Inthat regard, his current situationis more like it was in practice.Also gone are the days when he could invite students to dropin anytime or could skip out for a child’s school program andthen work late into the evening. Now students must often make

appointments. Deadlines help toget the research and writingdone. Thus, his two most recentpublications resulted from invi-tations to prepare and presentpapers at conferences.

The job’s up side is work-ing with “really good people.”“I’m trying to learn how theother deans do their jobs sowell,” Kevin says. He thinksthat, like Dean Fleming, DeanHansen may also be underap-preciated. He is the dean whohandles, with “apparent grace,”all the really hard matters thatthe other deans must some-times pass along to him.

As an associate dean, Kevinalso sees a broader view of themission of the Law School thanhe did before. He says,

We recently drafted a missionstatement for university budget-ing purposes, but I think the mis-sion is evolving, and at thispoint, no one knows what theultimate mission will be. If themission were only to providefirst-rate legal training to LDSstudents, there would be betterways to do that than to build thefacility we have, staff it, and pro-vide scholarships and financialassistance to a large proportion ofthe student body. I haven’t takenthe time to write down the hardcalculations, but I suspect if thatwere our goal, it would becheaper for the Church to simplygive full scholarships to 150 stu-dents a year to attend the bestlaw schools in the nation. Sothere must be a reason for bring-ing students and faculty withcommon beliefs and valuestogether—something that could-n’t occur if students were scat-tered over the whole country.[Because of their byu experi-ence,] students should be betterlawyers and Church membersfor being here. This critical massshould shape the law.

Kevin thinks there is evi-dence that this is happening:“Where else could one produceRichard Wilkins’ World Congresson the Family or Cole Durham’sCenter for Law and Religion?”He concludes, “Though we maynot be able to put the missioninto words, it was clearly man-ifest that there should be aschool. The exact reasons are stillunfolding.”

To fulfill the mission, what-ever it turns out to be, Kevinpinpoints one trait studentsneed to acquire and enhance:charity. “This may be naive, butI think the most valuable per-sonal characteristic a lawyer orlaw student can have is charity,in the sense of the pure love ofChrist for others,” he says. “Iflawyers really care about theirclients, they will work harderat the job, be more thoughtful,more persistent, more depend-able.” Kevin doesn’t considerhimself to be a people personand is perfectly content to bealone a lot of the time, but hedoes see clearly what can resultfrom charity in relationshipswith students and colleagues.He explains, “Though practicemay not always be intellectu-ally satisfying, it can be emo-tionally satisfying just becauseyou are dealing with a real per-son you care about who has anissue that matters.”

This attitude of charity andconcern for fellow beings carriesover into Kevin’s new assign-ment as byu’s faculty athleticrepresentative to the ncaa. He isnot new to this type of service.From 1992 to 2000 he served aschair of the University AthleticAdvisory Council, advising onacademic integration of studentathletes into the university.Between 1997 and 1999 he alsoserved as chair of the Self-StudySteering Committee for ncaaCertification, the athletic equiv-

alent of law school accredita-tion; and from 1998 to 2000, hewas a member of the UniversityAthletic Drug Testing PolicyCommittee.

Two years ago he sug-gested to Fred Skousen, byuadvancement vice presidentover, among other things, ath-letics, that it might be time toassign a new chair for theAthletic Advisory Council. Ayear later, Skousen asked ifKevin would be willing to tradethe Advisory Council job foranother representative position.Kevin agreed. The result was hispresent assignment to the ncaa.

All universities involved inintercollegiate sports must havean ncaa faculty representative.This person coordinates theuniversity’s interactions withthe ncaa and the MountainWest Conference, includingmatters dealing with eligibilityquestions, rule interpretations,and investigations. Kevin willmeet twice yearly with theMountain West Conference aspart of a joint council made upof athletic directors and univer-sity representatives. He alsoreports to the university presi-dent and helps to determinethe university’s position on anynew ncaa legislation.

On the local level, Kevinwill work with the newly cre-ated student athletic center oncampus to help meet athletes’welfare and education needs. Hewill also meet with coaches andgroups of athletes on a regularbasis to establish communica-tion lines and keep them open.

Both of Kevin’s new assign-ments fall under the head-ing “Making a Difference inStudents’ Lives.” Though hisimpact may not be as immedi-ately apparent as that of a highschool basketball coach, it canbe long-lasting as byu students“go forth to serve.”

32 Clark Memorandum

33Clark Memorandum

ow does five years of lawschool sound? While manymay blanch at the thought,new byu Law ProfessorJohn Fee does not. He

describes his three years at the University of Chicago LawSchool as extremely valuablebut acknowledges that his legaleducation continued beyondgraduation. In fact, he says, thelast two years of his legal educa-tion—one under the tutelage ofJudge Frank Easterbrook of theu.s. Court of Appeals for theSeventh Circuit and the secondas a law clerk under the guid-ance of Justice Antonin Scaliaof the u.s. Supreme Court—were the best part.

After serving as articleseditor of the University ofChicago Law Review and grad-uating Order of the Coif in1995, John clerked for JudgeFrank Easterbrook, “one ofthe finest individuals and oneof the best legal minds he hasever met.” He saw the clerk-ship as a great extension of his legal education. Alongsidethe judge’s other clerk, Johnprepared for each of the casesprior to oral argument. “Wewould sit and discuss the casestogether,” he relates. “JudgeEasterbrook would make eachof us say what we thought ofthe case and why it shouldcome out a certain way, andhe would ask questions to fol-low up.”

This same intense learningexperience continued for anadditional year as John had theopportunity to clerk for JusticeAntonin Scalia. After eachSupreme Court oral argument,Justice Scalia and his fourclerks would continue thedebate on each case. John feelsthat Justice Scalia will prove to

be one of the finest justices tosit on the Court and counts hisclerkship as a singular experi-ence. “The Justice has a greatlegal mind,” John says. “He is aperson who cares deeply aboutpeople and about the law. Andhe is a good person to workwith—very warm and caring.”

In addition to capping anear-perfect legal education,these experiences helped Johnrealize a goal he had set as an undergraduate: to become a professor at Brigham YoungUniversity. Although initiallyhe had entertained the thoughtof teaching music or history,early in his academic careerJohn focused on becoming aprofessor of law. He is pleas-antly surprised that he has real-ized this goal at this relativelyearly point in his career.Although it is what he and his wife, Elizabeth, have con-templated for several years,they nurtured it as a “hope”rather than a goal to be pur-sued aggressively.

A vacancy at the J. ReubenClark Law School was avail-able when John finished hisclerkship with Justice Scalia,but he absented himself fromconsideration because he knewthat experience with a law firmis essential for a law professor.He wondered if and when thetiming would be right for him

to pursue and accept an acad-emic appointment. In the latesummer of 1999 the desire to pursue an academic careerbegan to surface again, butJohn was too engrossed in hispractice to pursue it. WhenProfessor Stanley Neelemancalled John’s home in Februaryand left a message, the Feeswere delighted. They feltblessed that byu had called andexpressed interest.

As John reflects on hisdecision to become a lawyerand then a professor of law, herecalls with gratitude the influ-ence of particular individualson his life’s path: teachers, his-torical figures, colleagues, andthose he has merely observed.

During John’s junior highschool and high school years,his father worked closely witha number of fine lawyers in the Department of Commerce,the Department of Justice, and

the United States Attorney’sOffice in Washington, d.c., andJohn became interested in whatlawyers do. His interest con-tinued in the mission field,where he came to greatlyadmire one of his mission pres-idents, Perrin Walker, an attor-ney who had graduated fromthe University of Chicago LawSchool.

While an undergraduate atbyu, John’s interest in law wastemporarily superseded by hislove of music and history. Hisdesire to be a professor pre-ceded his decision to become alaw professor. He feels deeplyindebted to his undergraduateprofessors who had such astrong influence on his desireto teach in a university setting:Truman Madsen, Marie Hafen,Neil York, Frank Fox, andLarry Wimmer, among others.What struck John about teach-ing at a university level was the

The Making of a Law Professor

BY SCOTT W. CAMERON

34 Clark Memorandum

habit of carrying around amusical instrument. Althoughhe studied the trombone at byu as an undergraduate, hehas been concentrating on thetrumpet the last few years. InMaryland he put together a lit-tle jazz band for the ward roadshow. The musicians enjoyedthe association so much thatthey continued to play regu-larly. John smiles as he reflectson himself playing with a“bunch of teenagers.”

Not a part of any musicalgroup at the present time, John nevertheless is surroundedby music, with his childrenplaying the piano and the harp. Each morning the Feessing songs for 15 to 30 minutes in addition to their scripturestudy. John and Elizabethteach their children the princi-ples of voice, to sing in parts,and to memorize songs.

Other attractions that byuand Utah County hold forProfessor Fee include moun-tain biking and attendingplays, musical events, and theinternational cinema withElizabeth. The couple havefond memories of their under-graduate years at the Y andlook forward to sharing withtheir children the activitiesthat brought them happinessin the past.

John Fee is not the onlyone who should be indebted to his teachers and mentors.Indeed, students at the J.Reuben Clark Law School andthose of the next generationwill be indebted to them forinfluencing the development ofa strong legal scholar who, inturn, will shape the lives ofthousands of J. Reuben ClarkLaw School students. Withgratitude to his mentors, thebyu Law School family wel-comes its newest professor,John Fee.

while John was in high schooland Gene was a law clerk at theu.s. Supreme Court. Amongother things, they played jazztrombone together. Years later,when John returned to the areato clerk for the Court himself,he became reacquainted withGene, who later recruited Johnto work with him at Sidley &Austin. John comments, “I havelearned more from Gene aboutthe law and how to practice it than from anyone else. He is among the most dynamicand effective lawyers I know.He works tirelessly for valu-able causes such as religiousfreedom, and he has shown me how law can be used for the good.”

Another mentor and theperson who most influencedJohn to consider both thepractice of law and the teach-ing of law was President RexE. Lee. Although Professor Feemet President Lee just once,he feels he knows him: “I’vebeen at [Lee’s] law firm, Sidley& Austin, and worked withand known so many peoplethat have been his colleagues.I know his sons, Tom andMike, and have worked witheach of them. I have heard sto-ries about President Lee foryears; he has been a role modelto me as a legal professionaland as a person.”

Interestingly, John has hadthe opportunity to follow RexLee’s path even though they areseparated by more than a gen-eration—first, at the Universityof Chicago Law School and,subsequently, in two federalcourt clerkships. John thenpracticed law with Sidley &Austin, the firm with whichRex Lee practiced. Also, John’semphasis on religious freedomissues reflects interests of RexLee. Professor Fee representedthe Seventh-Day Adventist

chance to influence others notjust in a subject-specific areabut also in their view of whatconstitutes learning. He hopeshis students “will take from[his] classes a desire to learn, ahunger for knowledge, not justthe knowledge useful to themin practice, but a desire tolearn about ideas, about rightand wrong, about history.”John believes that a professorcan be a catalyst to help stu-dents realize “that we learn onour own, and we learn throughdiligent study all through life.”

John does not limit histhanks to those who havetaught him in the classroom; he is also grateful for the influ-ence of historical figures likeAbraham Lincoln and RalphWaldo Emerson. He identifiesLincoln as the historical lawyerwho has had the greatest influ-ence in framing his concep-tion of the legal profession. He acknowledges Ralph WaldoEmerson as a thinker who hasinfluenced his view of theworld, especially through hisspeech “The American Scholar”and his writings on nature, politics, and the spirit. Whilefavoring history and biography,John also values good fiction.His favorite novel is MarkTwain’s A Connecticut Yankee inKing Arthur’s Court. The novelis “good fun” says John, but it also taught him that “goodintentions, mixed with badambitions, can lead a personastray.”

John recognizes the impactof not only some of the finestliving jurists but also his mentors in the Washington,d.c., office of Sidley & Austin.Perhaps the most influentialcontemporary lawyer in John’slife has been Gene Schaerr.John and Gene first becameacquainted as members of thesame lds ward in Maryland

Church and The Church ofJesus Christ of Latter-daySaints, along with coalitions ofreligious groups. His responsi-bilities included working withothers to shepherd legislationthrough Congress.

While law school, clerk-ships, and the practice of lawhave been intense learningexperiences for John, hereserves his highest praise forthe learning that results frombeing a husband and parent.Upon his acceptance to theUniversity of Chicago LawSchool in 1992, John wonderedwhether he would be at a dis-advantage being a married stu-dent with a six-month-old son.In retrospect, John sees thathis wife, Elizabeth, with herrecently acquired degree inmusic from byu, made thegreater sacrifice. He has alsocome to realize that having a family is “really an advan-tage.” He notes that his family“helped [him] avoid spendingtoo much time with law.”Elizabeth kept “things in per-spective and focused [him] onthe right things.”

The growth of John andElizabeth Fees’ family hasbeen intertwined with John’slaw experience. Matthew, theFees’ oldest son, was bornprior to law school; their old-est daughter, Amanda, wasborn prior to their second yearof law school; Elizabeth gavebirth to Jacob right afterJohn’s graduation; and Hannaharrived shortly before Johnjoined the faculty at the LawSchool this past July.

With the Fees now com-fortably established in theirnew home in Utah County,they are ready for additionaladventures. Law may have wonout on the career front, butmusic is still king on the familyfront. For one thing, John has a

10th Circuit u.s. Court ofAppeals. She then workedpart-time for byu’s GeneralCounsel Office, but after a yearleft to spend time with herfather, who was dying fromLou Gehrig’s disease. “I was sograteful to have that time withmy dad, but it also gave memore time with my family,”Linda says. “By the time mydad passed away in January1995, I was feeling like I neededto be at home. I vowed I wasn’tgoing to work until my lastchild was on his mission.”

But then Constance Lundbergcalled Linda and asked her toteach a Lawyering Skills class. “I taught one year and lovedit,” Linda admits. “The LawSchool is such a treasure. I gotto come in when the new

library was all in place. But ittook a lot more time than Iwanted to be away from home.”

So Linda left the legalworld and went home again.She relates: “I said, ‘Here’s theresolution: I’m saying no to alljob offers until our youngestson is on his mission. When weget him on his mission, I willthink about what I’m going todo with my law degree.’ That’sbeen the plan. Then I got a tele-phone call [to serve on thePrimary General Board]. Youchange your plans.”

With their youngest asenior in high school, Linda is again wondering what she“is going to do with her lawdegree.” But part of the answerwill keep her busy for the nextfive years.

anywhere you go. You use theseskills in many ways in servingin the Church,” Linda says.

Aside from accepting amajor Church calling, Linda hasshown that she is used to curve-balls in life. Her decision to goto law school with encourage-ment from her husband, David,came at a time when their fourchildren ranged from 12 to 4years old. Though she hadearned a degree from theUniversity of Utah in 1976, shefound that returning to schoolwith a family at home is nosmall undertaking. Nevertheless,Linda did well enough to serveon the Law Review.

After graduating from lawschool, Linda completed ajudicial clerkship with JudgeStephen H. Anderson, on the

n April 1991 when LindaMagleby contemplated whatshe would do with her newlaw degree, serving on thePrimary General Board of theChurch wasn’t what she had inmind. This past January, how-ever, she found herself thrilledto accept a call to serve anaverage of 20 hours a week forfive years, training ward andstake Primary leaders, writingPrimary training materials, andspeaking before large audi-ences. She knew the skills shecultivated during four years at the J. Reuben Clark LawSchool would be valuable, evenoutside a legal setting.

“Law School helps you to think analytically, to thinkclearly, and to write well, andthese skills are transferrable

35Clark Memorandum

Linda Magleby

Serves on Primary

General Board

B Y J O Y C E J A N E T S K I

36 Clark Memorandum

t is an honor to speak aboutRay’s illustrious and distin-guished career in legal educa-tion and to extol him as acolleague and a dear personalfriend. In so doing, I recog-nize that I represent all of hisfriends, faculty, and staff in the Law School and his formerstudents. I hope I can do jus-tice to expressing our deepaffection for him and conveyhow much we are going tomiss him. Ray had a one-of-a-kind personality. The LawSchool will never be able toreplace him.

Ray Davis was one ofthose fortunate individualswho loved his work, his profes-sional career, from the first dayhe embarked upon it in 1953until April of this year whenhe ceased teaching, a period of47 years. Going to work was ajoy. He was like the proverbialbus driver who drives his buson holidays because it is thething he loves most to do.

To Ray, teaching was thegrandest profession there was,and the grandest subject to

teach, with one exception, waslaw. In a personal piece con-cerning his life, he wrote, “Byprofession I am a teacher. Fewjoys can equal the thrill of sharing learning with othersand of watching their growthand development come about. I teach law. There is no sub-ject other than the gospel more exciting to teach. I firmlybelieve that laws are ‘those wiserestraints which make menfree.’ I am proud of the rolethat I have had in making ourlegal system function.”

However, with all of hispublications, honors, and attain-ments, Ray did not consider his career his greatest accom-plishment. In the personal piecejust mentioned, he wrote, “Mychildren . . . have been my happi-ness, my joy, my delight, a

source of pride, the cause ofanxiety, a pleasure, a pain, a real need. Fatherhood of chil-dren like mine has been thegreatest accomplishment of mylife.” Shortly after writing this,upon marrying Marilyn, heacquired four more children,whom he loved as dearly as hisown. In the depths of his heartand soul, his new childrenbecame his very own.

Ray brought the finestlegal education possible to bearon his professional life as ateacher. He graduated from

two of America’s most illustri-ous law schools. He served as aprofessor of law at five univer-sities, including the Universityof Arizona, where he taughtfor 17 years, and BrighamYoung University, to which hecame in 1979.

His research career wasprimarily devoted to studyingand writing about the legalrules that govern, or shouldgovern, the appropriation anduse of water, particularly watercontained in the earth’s atmos-phere.

He served as chair of amonumental project under-taken by the American Societyof Civil Engineers to produce amodel state water code to betransmitted to all 50 state legis-latures with a recommendationfor adoption and to be pub-

lished abroad as a law reformsource in foreign countries.

Ray served as the chair, amember, a principal investiga-tor, or an advisor to countlesscommittees, to governmentalagencies of different states, andto agencies of the nationalgovernment. He representedthe United States at theUnited Nations Conference onInternational Legal Principlesfor Weather Modification. Hemade presentations at confer-ences in foreign countries andserved as an advisor on thelegal ramifications of cloudseeding to nine western andmidwestern states. Some of hiswritings have been translatedinto French, Russian, andSpanish. A prominent legaltreatise states, “Professor RayDavis is the leading figure onweather modification law”(Robert Beck, Water and WaterRights, Vol. 2 Section 3.04 [a]).

In addition to all that Ihave mentioned, Ray was oneof the most prolific writers inlegal education. There hasnever been a time when he didnot have underway a researchand writing project. Constancyis his middle name. His résumélists a total of 193 publisheditems, including nine booksand 20 chapters in books andtreatises. Rather than wane, his productivity increased thecloser he got to retirement.

All of this research, writ-ing, and advising and commit-tee work was done quietly. Noattention was drawn to it. Raydid not speak of it. He was avery modest man. He was nota prima donna. A person whois modest and has nothing toflaunt is admirable, but a per-son who is modest and as pro-ductive and as recognized asRay, is inspiring. Because of hismodesty, his productivity didnot weigh heavily upon the

In Honor of Ray Jay Davis | BY DOUGLAS PARKER

The following remarks were offered at the funeral of Ray Davis on August 15, 2000, in Provo, Utah.

37Clark Memorandum

time served with Ray on theadmissions committee, whichinvolved many meetings andthe arduous task of going overmany admission applications.The colleague missed a meetingand was late for the followingmeeting. Ray scolded him andsaid that was no way to fulfill

one’s responsibility. I asked hiscolleague how he reacted. Hesaid, “I felt chastised, but nothumiliated. I needed it. It wasdeserved and accepted withoutresentment, because Ray hassuch a high sense of justice andof what is right and wrong. Iprofited by it.” What a mar-velous compliment!

If the emperor was with-out clothes, Ray would tellhim not only that he was with-out clothes but that he hadbetter put some on and do itquickly! I’ve thought that Iwould like, if my credentialsare proper, to be at his sidewhen we approach the pearlygates, for if St. Peter does nothave the entrance proceduresin good order, Ray will recom-mend the proper correction.

On a more personal note,Ray was a person of deep feel-ings, a deeply sentimental indi-vidual who did not put hisemotional side on public dis-play. In the personal piece con-cerning his life, to which Ireferred to earlier, he stated withheartfelt gratitude to God, “Theearth is a wondrous place tolive. Its plains, meadows, forests,rivers, oceans, mountains, hills,lakes, deserts, jungles, andcanyons are great marvels. Butthere are some of these naturalwonders that I have seen thatstand out. They are special tome. In them I can see the great-

ness of God’s creations.” Hethen enumerated and describedthese special places that broughthim close to God.

In another place he wrote,“I have known and loved manypeople. . . . In the final analysisit has been my family that hasmeant the most to me. I love

the gospel and its teachings, butthey are abstract without peo-ple for whom they are meant.It’s the people who have beenparamount in my life.”

Underwriting the mellow-ing of Ray in the years he has been at byu is Marilyn. Sheis the greatest thing that everhappened to Ray.

We, Ray’s colleagues, arenot only proud of Ray andMarilyn, we love them dearly.

A significant part of the joyof teaching is the enjoyment ofone’s colleagues, close friendswith whom you share yourmind and convictions, and yourloyalty and love for the insti-tution at which you teach. Indoing so, we are more than ourminds, more than our reason,more than our publications. Weare individuals who need to beloved and who need to meansomething in the lives of others.Our association with Ray andMarilyn reminds us of this.

We will miss you, Ray. Wehave been changed by you. You will remain a one-of-a-kind, colorful, engaging, force-ful, authentic friend. We havenot lost you, but we sorelygrieve your temporary absence.You lifted and charmed us. Wesalute you, dear friend.

As Ray would have me do, Iclose my remarks in his behalf,and in yours and mine, in thename of Jesus Christ. Amen.

of cases and theory. I have beenmore practical and given tomaking systems work throughimplementation, regulation, andcontrol.”

All that I have said to thispoint is not to make Ray out asa lamb; he was also a lion whoknew how to roar. His incredi-

ble productivity is not why he will be so sorely missed. We love him and miss him for his personal qualities, a rareunlikely mixture that at firstblush might appear as a blendof incompatible qualities. Hecharmed us with these qualities.In one individual, the scripturethat states that in the last daysthe lamb and the lion shall liedown together was fulfilled.

In the classroom, Ray tookto heart the scriptures: Deut.8:5: “As a man chasteneth hisson, so the Lord thy God chas-teneth thee.” In other words,God won’t let his chosen peo-ple get by with sloppy compli-ance with his commandments.This might be reworded: as afew teachers chasteneth theirstudents, so the Lord thy Godchasteneth thee. Psalms 94:12:“Blessed is the man whomthou chasteneth, O Lord, andteachest him out of thy law.”Heb. 12:6: “For whom the Lordloveth he chasteneth.”

Most people find it hard tochastise, to love by seeming tobe angry. But, in spite of thescriptures just cited, Ray Davisdid not. Ray was blessed as ateacher with the gift of chas-tisement.

Another of Ray’s col-leagues, senior to him when hejoined the faculty, said, “Raywas no respecter of persons.”This faculty member at one

heads of others of us who wereless productive.

Ray did all that he did inthe face of significant physicalchallenges, from melanoma tosevere arthritis that eventuallyrequired two knee replace-ments. Rather than use hishealth problems as an excuse

to slow down, Ray sped upand continued to work over-time. His health did not seemto preoccupy him. He acceptedhis challenges in good humorand made no profession out ofmoaning and complaining. Hewas an example of how to livewith adversity.

Amazingly, Ray producedall that he did without evermastering the computer. Healways joked about his inabil-ity to figure out all of thethings that a computer can bemade to do. He said, “All Iwant to do is type. I don’t wantall this other stuff.”

Some people take suchpride in the way they dothings, they can’t believe any-one could do it better. NotRay. Ray was a man free ofpride. He was always support-ive and complimentary of thework of others. He liked all of his colleagues and spokehighly of every one of them.

About two months agowhen Corene and I were out todinner with Ray and Marilyn, Iasked Ray who had taken overthe areas he used to teach. Hementioned the name of a youngfaculty member and said, “He isfar better suited to give the stu-dents what they need than Iwas. He approaches the subjectfrom a different direction. He ismore theoretical and strongerin conveying an understanding

R AR A Y W A S B L E S S E D A S A T E A C H E R W I T H T H E G I F T O F C H A S T I S E M E N TA S B L E S S E D A S A T E A C H E R W I T H T H E G I F T O F C H A S T I S E M E N T.

38 Clark Memorandum

hree alumni of the J. Reuben Clark Law

School have been called to serveas Area Authority Seventies forThe Church of Jesus Christ ofLatter-day Saints. The FirstPresidency ordained Steven E.Snow, Michael L. Jensen, andJames J. Hamula to the office ofSeventy and set them apart asmembers of the Fifth Quorumof Seventy (Area AuthoritySeventies serving in the UnitedStates and Canada). All threemen have served as missionpresidents.

The calling of Area AuthoritySeventy is relatively new to theChurch. In April 1995 PresidentGordon B. Hinckley announced

the release of all regional repre-sentatives and “the call of a new local officer to be known asan Area Authority.” He said,“These . . . high priests . . . willcontinue with their currentemployment, reside in theirown homes, and serve on aChurch-service basis . . . gener-ally for a period of [five to] sixyears” (Elder L. Aldin Porter, “A History of the Latter-daySeventy,” Ensign, August 2000,14–20). In 1997 the prophet stated that Area Authoritieswould now be known as AreaAuthority Seventies.

Unlike General Authorities,who take assignments all overthe world, Area AuthoritySeventies fulfill assignmentswithin the geographic area ofthe Church to which they have been assigned. “We will goand do whatever the Quorumof the Twelve—or our AreaPresidency—assign us to go anddo,” explains James Hamula.“Area Authority Seventies areviewed not as the formerregional representatives, whowere assigned to specific stakes,but as Authorities having area-wide responsibility.”

Although not assigned to a number of stakes, an AreaAuthority Seventy may serve asa visiting authority at stake con-ferences. “We’ll go out on anynumber of weekends on assign-ment from the President of [the Quorum of] the Twelve topreside and speak at stake con-ferences,” says Michael Jensen.The Seventies also assist in thecreation or reorganization ofnew stakes, set apart stake pres-idencies, and help train thesepresidencies.

“I am all the more con-vinced today than I was sixmonths ago that this is theLord’s Church,” says ElderHamula. “You can’t go to astake conference as I have and

T h e S e v e n t y a r e . . .

c a l l e d t o p r e a c h t h e g o s p e l ,

a n d t o b e e s p e c i a l w i t n e s s e s u n t o

t h e G e n t i l e s a n d i n a l l t h e w o r l d . . . .

A n d t h e y f o r m a q u o r u m ,

e q u a l i n a u t h o r i t y t o t h a t

o f t h e Tw e l v e s p e c i a l w i t n e s s e s o r A p o s t l e s .

—d&c 107:25, 34

Law Alumni Called as Area Authority SeventiesB Y J O Y C E J A N E T S K I

39Clark Memorandum

The other seven [Utah South]Area Authorities and I act like a high council to the AreaPresidency, filling assignmentsin an area with more than 180stakes.”

Elder Snow, with his wife, Phyllis, returned to the St. George area in June 1997after serving as president of the California San FernandoMission. He continued as part-ner in the law firm SnowNuffer, originally named Snow,Nuffer, Engstrom, Drake, Wade& Smart, after its six foundingbyu Law School graduates. TheSnows have three sons and aNavajo foster son, all of whomhave served missions for theChurch.

Elder Snow’s past serviceincludes 11 years on the UtahBoard of Regents, the gov-erning board for higher educa-tion, where he was vice-chairfrom 1987 to 1993 and chair in1994. He also served as presidentof the St. George College Stake.

James Hamula, ’85, wascalled as an Area AuthoritySeventy in April 2000 to serve in the North AmericaSouthwest Area. He has workedfor Gallagher & Kennedy, a lawfirm in Phoenix, since his releaseas president of the Washingtond.c. South Mission in June 1997.He and his wife, Joyce, and theirfamily live in Mesa.

“We had four childrenwhen we left on our mission—we came home with six,” saysElder Hamula. “We had twinboys born to us in the missionfield. We learned that nothingin the mission field comessingly, only in sets. We lookforward to having those chil-dren return to the mission fieldsome day.”

Elder Hamula served asstake president of two Arizonastakes from 1988 to 1994. Afterhis three years as mission presi-dent, he served as ward, thenstake Young Men presidentbefore being called as AreaAuthority Seventy.

Michael L. Jensen, ’78, wasalso called in April 2000 as an Area Authority Seventy andserves in the California HawaiiArea. Released as president of the Germany HamburgMission in July 1998, hereturned to the San Diego firmof Luce, Forward, Hamilton &Scripps, where he had workedfor 11 years. “When I left, ittook a leap of faith,” he admits.“Three years later, I asked tocome back as a partner in thelaw firm; ordinarily you don’t.They were gracious in allowingme to come back. It’s taken a while to rebuild a practice,but I’m back to where I wasbefore.”

A past bishop of the NorthHollywood Third Ward, ElderJensen has served as stake presi-dent of the Penasquitos Stakeand as regional representative in the San Diego and BlytheRegions. As a young missionaryhe was called to the GermanyMunich Mission, to serve in acountry where 21 years later hewould be a mission president.

Elder Jensen and his wife,Jean, are the parents of onedaughter and five sons, two of whom are returned mis-sionaries.

A third assignment of AreaAuthority Seventies is presi-ding at Member MissionaryCoordinating Councils. TheSeventy, who may serve severalmmccs within a one-year assign-ment, meets quarterly with amission president and the stakepresidents served by that mis-sion. “You have a kind of a dualorganization under the AreaPresidency: the stakes on onehand and the missions on theother,” says Elder Hamula.“The missions overlie thestakes, and the two divisionswork cooperatively. There isreally marvelous structure.”

The councils provide aforum to coordinate and furthermissionary work. “President

Hinckley emphasizes the needfor nurturing new converts andintegrating them into the fabricof the Church,” says ElderJensen. “There’s a desire tohave an accountability nameby name, one by one like theSavior did.”

Steven E. Snow, ’77, who was called as an AreaAuthority Seventy in the Utah South Area in April1999, says his situation “is alittle unique.” He explains,“We have only one mission inour whole area—the UtahProvo Mission—so we don’tnecessarily visit missions assome Area Authorities do.

reorganize stake presidenciesand not feel the strong influ-ence of the Spirit to have donewhat the Lord wants done.The Church is in very goodhands with the quality ofpriesthood leaders that wehave throughout the stakes.”

“As I visit different stakesand serve as a visitor at stakeconference, I am overwhelmedby the goodness of peoplethroughout the Church,” saysSteven Snow. “The membersare wonderful. There are a lotof people doing a lot of greatthings.”

The duties of Area AuthoritySeventies also include conduct-ing mission tours. Once a yeareach mission is visited by the

Area Authority Seventy serv-ing that mission, who willinstruct and spend time withthe missionaries and missionleaders. Elder Jensen notes,“This particular assignment isreally fun, because you get toassociate with all of these won-derful missionaries.”

“As a mission presidentthat had Area Seventies cometo me, I certainly enjoyed itwhen they came,” says ElderHamula. “But I’ve not yet hadthe pleasure of having thatassignment. If I do, I will rel-ish the duty above all else—Ijust love being with the mis-sionaries.”

Steven E. Snow Michael L. Jensen James J. Hamula

40 Clark Memorandum

artin Reed Slater, ’82, was calledby the First Presidency of theChurch to be president of theThailand Bangkok Mission. Heand his wife, Jennifer, begantheir service on July 1, 2000.

The parents of three chil-dren, the Slaters are members of the Torrance Second Ward,Torrance California NorthStake. Martin has served as aseminary teacher, stake presi-dent and counselor, bishop,and ward Young Men presi-dent. His current calling takeshim back to the mission wherehe served as a young man.Jennifer has filled many call-ings in the Young Women,Primary, Relief Society, andScouting organizations.

Martin is the presidentand owner of First WaterInvestments, and Jennifer isthe owner of a real estate man-agement company.

hree national organizations recognized the outstanding graphicdesign and content of the 1999 issues of the Clark Memorandum.

The Council for the Advancement and Support of Education(case) presented the publication with a bronze medal in the spe-cial constituency magazines category of the 2000 case Circle ofExcellence Awards Program. The prestigious award honors thespring and fall 1999 issues of the magazine, which were producedby a team including editor Scott Cameron, associate dean of theLaw School; art director David Eliason; photographer JohnSnyder; and associate editor Joyce Janetski.

The Salt Lake City Chapter of the American Institute ofGraphics Arts (aiga) gave the Clark Memorandum a Copper Ingot

Award. The magazine was oneof 10 chosen from the 100 bestpieces of design and advertisingduring the year, and the awardrecognizes David Eliason’sdesign of the feature spread for“A Courtroom with a View,” inthe spring 1999 issue.

The Society of PublicationDesigners (spd) presented themagazine a Merit Award forthe design of a feature spreadduring its 35th annual compe-tition. The award recognizes

the design for the article “Gettysburg: A Personal Essay,” writtenby first-year law student Matthew Kennington, published in thefall issue. The spread was designed by David Eliason and AndyGoddard and photographed by John Snyder, whose additionalphoto of Gettysburg appeared on the cover of the magazine.Chosen from several thousand worldwide entrees, the spread wasdisplayed in the spd’s Publication Design Annual and the spdExhibition in New York City.

Clark Memorandum Gathers AwardsLaw Society

Member Made

Mission President

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

A Staff Among Spears

The jabs and the jeers,

Derision—and tears

On Calvary Hill

Afflicting Him still,

To this very day.

The things that we say

And do through the years

Assailing his ears,

Besieging his eyes

That still agonize,

Then piercing his heart.

But as from the start

The humble reveres

With penitent tears;

A staff among spears.

March 3, 1986

Alex B. Darais

Professor Emeritus of Art

Brigham Young University