Thomas Rex Lee
|Associate Chief Justice of the Utah Supreme Court|
July 19, 2010
|Appointed by||Gary Herbert|
|Preceded by||Michael Wilkins|
|Born||December 1964 (age 57)|
|Relations||Mike Lee (brother)|
|Parent(s)|| Rex E. Lee |
|Education|| Brigham Young University (BA)|
University of Chicago (JD)
|Institutions|| Harvard Law School |
J. Reuben Clark Law School
Thomas Rex Lee (born December 1964) is an American jurist and former legal academic who serves as a justice of the Utah Supreme Court. Lee is also a lecturer on law at Harvard Law Schooland an adjunct professor/distinguished lecturer at Brigham Young University's (BYU) J. Reuben Clark Law School (JRCL) since his appointment to the bench.
In his time on the court,Lee has been a prolific writer,authoring over a quarter of majority opinions on a five-member court,and frequently issuing concurring or dissenting opinions. Lee is a pioneer in law and corpus linguistics—the application of corpus linguistics to determine ordinary meaning in statutes—being the first American judge to do so in an opinion.
Thomas Rex Lee was born in 1964 to parents Janet (née Griffin) and Rex E. Lee. He grew up in Arizona,Utah and Northern Virginia. Lee attended Brigham Young University (BYU),graduating in 1988 with a Bachelor of Arts summa cum laude in economics.He then attended the University of Chicago Law School,where he was an editor of the University of Chicago Law Review and graduated in 1991 with a Juris Doctor degree with high honors.
After law school,Lee clerked for judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit from 1991 to 1992. He then entered private practice at the Salt Lake City-based law firm of Kimball,Parr,Waddoups,Brown &Gee,taking a one-year leave of absence to serve as a law clerk for Justice Clarence Thomas of the U.S. Supreme Court from 1994 to 1995. He became a shareholder at Kimball,Parr,Waddoups,Brown &Gee in 1995,a position he would hold until 1997 when he left the firm to join the faculty at BYU's J. Reuben Clark Law School (JRCL). At the law school,Lee taught courses in Civil Procedure and Intellectual Property Law,and a seminar on the United States Supreme Court. He also served as Associate Dean (2008-2010) and was named the Rex and Maureen Rawlinson Professor of Law.Following his 2010 appointment to the bench Lee has remained a Distinguished Lecturer in Law at the JRCL.
During his years as a full-time law professor,Lee was also of counsel at Howard,Phillips,&Andersen,handling intellectual property litigation. He was counsel in multiple trademark infringement cases brought by or against automobile manufacturers such as General Motors and Ford Motor Company. He also developed a part-time appellant practice,arguing numerous cases in federal courts throughout the country and in the United States Supreme Court.
Lee took leave of the JRCL from 2004 to 2005 to serve as Deputy Assistant Attorney General in the Civil Division of the United States Justice Department.While at the JRCL,from 2002 to 2004,Lee also served as the lead counsel in cases brought by the state of Utah in relation to plans to put nuclear waste on the Goshute Indian Reservation.
On May 28,2010,Utah Governor Gary Herbert nominated Lee to fill the vacancy in the Utah Supreme Court left by the retirement of Michael J. Wilkins.Receiving a unanimous vote (5–0) from the Utah Senate Judicial Confirmation Committee in mid-June 2010, Lee was confirmed by the full Senate on June 23,2010. Lee was sworn into office on July 19,2010;his mentor,U.S. Supreme Court Justice Clarence Thomas,administered the oath. On January 19,2022,Lee sent a letter to Governor Spencer Cox,informing him that he would be resigning,effective July 31,2022. His stated reason was "to pursue other opportunities in the legal profession."
A 2016 paper written by Jeremy Kidd of the Mercer University Walter F. George School of Law and others attempted to measure the "Scalia-ness" of various potential nominees to the Supreme Court to fill the seat left vacant by Antonin Scalia's death.The study created a "Scalia Index Score" combining the various measures of "Scalia-ness," and Lee scored highest. The study found that Lee was the most likely to endorse or engage in originalism in judicial opinions,was second most likely to cite Scalia's non-judicial writings in opinions,and the third most likely to write separately when not writing the majority opinion. The study was updated again in 2018,adding new variables and more names,and Lee again scored the highest.
In a 2016 article,John McGinnis,of the Northwestern University School of Law,argued that Lee was similar to Scalia in being "capable of pressing the intellectual case for following the Constitution as written" because of Lee "has pioneered the application of corpus linguistics to law," and further wrote that if elevated to the U.S. Supreme Court,"Lee would create a transmission belt from the best work of originalists in the academy to the Supreme Court."
Hannah Clayson Smith,writing in the National Review ,praised Lee as a possible successor to Scalia because of Lee's similar jurisprudential style to the late Justice,but noted that with respect to Lee's views on judicial precedent,"Justice Lee is more like Justice Thomas than like Justice Scalia." Smith noted that Lee (like Thomas) has repeatedly advocated for overruling precedent that he views as "contrary to the original meaning of the Utah constitution," even if precedent takes a different approach.
Lee is a prolific judicial writer. An empirical study of Utah Supreme Court opinions by political scientist Adam Brown found that in the approximately first three years on the court,Lee authored more opinions than any other justice over the 16-year period studied,writing some form of opinion (whether majority,dissenting,or concurring) in 43% of the opinions published while he was a justice.
"Whereas some justices release a concurring or dissenting opinion in only a handful of cases that they hear," Lee is a prolific writer of such opinions,releasing them in around 16% of the Court's opinions.Of the ten Utah Supreme justices who served on the court from 1997 to 2012,Lee has the second-highest rate of dissent,filing dissenting opinions in 10% of cases over this time period. (The justice with the highest dissent rate was I. Daniel Stewart,who dissented 11% of the time). Lee also authored the highest proportion of majority opinions of the court (27%);Brown wrote that "[g]iven that Lee dissents relatively frequently,it is remarkable that he is also the most common author of majority opinions. His willingness to dissent has apparently not alienated his colleagues."
|Data-Driven Originalism||University of Pennsylvania Law Review,Vol. 167,pp. 261-335,2019|
|Judging Ordinary Meaning||Yale Law Journal,Vol. 127,pp. 788-1105,2018|
|Corpus Linguistics &Original Public Meaning:A New Tool To Make Originalism More Empirical||Yale Law Journal Forum,Vol. 126,pp. 21–32,2016|
|Trademarks,Consumer Psychology,and the Sophisticated Consumer||Emory Law Journal,Vol. 57,pp. 575-650,2008|
|Demystifying Dilution||Boston University Law Review,Vol. 84,pp. 859–944,2004|
|The Original Understanding of the Census Clause:Statistical Estimates and the Constitutional Requirement of an 'Actual Enumeration'||Washington Law Review,Vol. 77,pp. 1–64,2002|
|Preliminary Injunctions and the Status Quo||Washington &Lee Law Review,Vol. 58,pp. 109–166,2001|
|The Anastasoff Case and the Judicial Power to "Unpublish" Opinions||Notre Dame Law Review,Vol. 77,pp. 135–173,2001|
|In Rem Jurisdiction in Cyberspace||75 Wash. L. Rev 97 (2000)|
|Stare Decisis in Historical Perspective:From the Founding Era to the Rehnquist Court||Vanderbilt Law Review,Vol. 52,pp. 647–735,1999|
|Pleading and Proof:The Economics of Legal Burdens||Brigham Young University Law Review,Vol. 1997,pp. 1–34,1997|
|Comment:The Standing of Qui Tam Relators Under the False Claims Act||University of Chicago Law Review,Vol. 57,pp. 543–571,1990|
Lee and his wife,Kimberly,have six children. His brother,Mike Lee,is a U.S. Senator representing the state of Utah.He is the son of Rex E. Lee,a former Solicitor General of the United States and the 10th president of BYU.
Antonin Gregory Scalia was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual anchor for the originalist and textualist position in the Court's conservative wing. For catalyzing an originalist and textualist movement in American law,he has been described as one of the most influential jurists of the twentieth century,and one of the most important justices in the Supreme Court's history. Scalia was posthumously awarded the Presidential Medal of Freedom in 2018 by President Donald Trump,and the Antonin Scalia Law School at George Mason University was named in his honor.
Rex Edwin Lee was an American lawyer and academic who served as U.S. Solicitor General from 1981 to 1985. He was responsible for bringing the solicitor general's office to the center of U.S. legal policymaking. Lee argued 59 cases before the U.S. Supreme Court. A member of The Church of Jesus Christ of Latter-day Saints,Lee was an alumnus and the tenth president of Brigham Young University (BYU). Lee was also the founding dean of BYU's J. Reuben Clark Law School (JRCLS).
Grutter v. Bollinger,539 U.S. 306 (2003),was a landmark case of the Supreme Court of the United States concerning affirmative action in student admissions. The Court held that a student admissions process that favors "underrepresented minority groups" does not violate the Fourteenth Amendment's Equal Protection Clause so long as it takes into account other factors evaluated on an individual basis for every applicant.
Harry Andrew Blackmun was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 until 1994. Appointed by Republican President Richard Nixon,Blackmun ultimately became one of the most liberal justices on the Court. He is best known as the author of the Court's opinion in Roe v. Wade,which prohibits many state and federal restrictions on abortion.
Hamdi v. Rumsfeld,542 U.S. 507 (2004),is a United States Supreme Court case in which the Court recognized the power of the U.S. government to detain enemy combatants,including U.S. citizens,but ruled that detainees who are U.S. citizens must have the rights of due process,and the ability to challenge their enemy combatant status before an impartial authority.
The J. Reuben Clark Law School is the graduate law school of Brigham Young University (BYU) in Provo,Utah. Founded in 1973,the school is named after J. Reuben Clark,a former U.S. Ambassador,Undersecretary of State,and general authority of the institution's sponsoring organization,The Church of Jesus Christ of Latter-day Saints.
Roper v. Simmons,543 U.S. 551 (2005),was a landmark decision in which the Supreme Court of the United States held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18. The 5–4 decision overruled Stanford v. Kentucky,in which the court had upheld execution of offenders at or above age 16,and overturned statutes in 25 states.
John Michael Luttig is an American lawyer and a former United States Circuit Judge of the United States Court of Appeals for the Fourth Circuit.
Stenberg v. Carhart,530 U.S. 914 (2000),was a landmark decision of the US Supreme Court dealing with a Nebraska law which made performing "partial-birth abortion" illegal,without regard for the health of the mother. Nebraska physicians who performed the procedure contrary to the law were subject to having their medical licenses revoked. The Court struck down the law,finding the Nebraska statute criminalizing "partial birth abortion[s]" violated the Due Process Clause of the United States Constitution,as interpreted in Planned Parenthood v. Casey and Roe v. Wade.
John Glover Roberts Jr. is an American lawyer and jurist serving as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases,including Shelby County v. Holder,National Federation of Independent Business v. Sebelius,King v. Burwell,Department of Commerce v. New York,and Department of Homeland Security v. Regents of the University of California. He has been described as having a conservative judicial philosophy but has shown a willingness to work with the Supreme Court's liberal bloc,and since the retirement of Anthony Kennedy in 2018 has come to be regarded as a key swing vote on the Court. Roberts presided over the first impeachment trial of Donald Trump in early 2020;however,he declined to preside over the second impeachment trial of Trump,who was impeached as president,but whose term had expired by the time of the trial.
Hamdan v. Rumsfeld,548 U.S. 557 (2006),is a case in which the Supreme Court of the United States held that military commissions set up by the Bush Administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." Specifically,the ruling says that Common Article 3 of the Geneva Conventions was violated.
A dissenting opinion is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. When not necessarily referring to a legal decision,this can also be referred to as a minority report.
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text,where no consideration is given to non-textual sources,such as intention of the law when passed,the problem it was intended to remedy,or significant questions regarding the justice or rectitude of the law.
Paul George Cassell is a former United States District Judge of the United States District Court for the District of Utah,who is currently the Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law at the S.J. Quinney College of Law at the University of Utah. He is best known as an expert in,and proponent of,victims' rights.
Arizona Christian School Tuition Organization v. Winn,563 U.S. 125 (2011),is a decision by the Supreme Court of the United States involving taxpayer standing under Article Three of the United States Constitution.
Connick v. Thompson,563 U.S. 51 (2011),is a United States Supreme Court case in which the Court considered whether a prosecutor's office can be held liable for a single Brady violation by one of its members on the theory that the office provided inadequate training.
In Maryland v. King,569 U.S. 435 (2013),the United States Supreme Court decided that a cheek swab of an arrestee's DNA is comparable to fingerprinting and therefore,a legal police booking procedure that is reasonable under the Fourth Amendment.
Utah v. Strieff,579 U.S. ___,136 S. Ct. 2056 (2016),was a case in which the Supreme Court of the United States limited the scope of the Fourth Amendment's exclusionary rule.
Law and corpus linguistics (LCL) is a new academic sub-discipline that uses large databases of examples of language usage equipped with tools designed by linguists called corpora to better get at the meaning of words and phrases in legal texts. Thus,LCL is the application of corpus linguistic tools,theories,and methodologies to issues of legal interpretation in much the same way law and economics is the application of economic tools,theories,and methodologies to various legal issues.
Lafler v. Cooper,566 U.S. 156 (2012),was a United States Supreme Court case in which the Court clarified the Sixth Amendment standard for reversing convictions due to ineffective assistance of counsel during plea bargaining. The Court ruled that when a lawyer's ineffective assistance leads to the rejection of a plea agreement,a defendant is entitled to relief if the outcome of the plea process would have been different with competent advice. In such cases,the Court ruled that the Sixth Amendment requires the trial judge to exercise discretion to determine an appropriate remedy.
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