Thomas Rex Lee

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Thomas Rex Lee
Justice Lee.jpg
Associate Chief Justice of the Utah Supreme Court
Assumed office
July 19, 2010
Appointed by Gary Herbert
Preceded by Michael Wilkins
Personal details
BornDecember 1964 (age 54)
Political party Republican
Spouse(s)Kimberly Lee
Relations Mike Lee (brother)
Parents Rex E. Lee
Janet Griffin
Education Brigham Young University (BA)
University of Chicago (JD)
Academic work
Institutions Harvard Law School
J. Reuben Clark Law School

Thomas Rex Lee (born December 1964) is the Associate Chief Justice of the Utah Supreme Court. Lee is also a lecturer on law at Harvard Law School [1] and an adjunct professor/distinguished lecturer at Brigham Young University's (BYU) J. Reuben Clark Law School (JRCL) since his appointment to the bench. [2]

Utah Supreme Court the highest court in the U.S. state of Utah

The Utah Supreme Court is the supreme court of the state of Utah, United States. It has final authority of interpretation of the Utah Constitution. The Utah Supreme Court is composed of five members: a chief justice, an associate chief justice, and three justices. All justices are appointed by the governor of Utah, with confirmation by the Utah Senate. The five justices vote among themselves for the position of chief justice and associate chief justice, who each serve a term of four years.

Harvard Law School law school in Cambridge

Harvard Law School is one of the professional graduate schools of Harvard University located in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States and one of the most prestigious in the world. It is ranked first in the world by the QS World University Rankings and the ARWU Shanghai Ranking.

Brigham Young University private research university in Provo, Utah

Brigham Young University is a private research university located in Provo, Utah and owned by The Church of Jesus Christ of Latter-day Saints. The university is run under the auspices of its parent-organization, the Church Educational System (CES), and is classified among "Doctoral Universities: High Research Activity" with "more selective, lower transfer-in" admissions. The university's primary emphasis is on undergraduate education in 179 majors, but it also has 62 master's and 26 doctoral degree programs. The university also administers two satellite campuses, one in Jerusalem and one in Salt Lake City.


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. [3] [4]

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.

Corpus linguistics is the study of language as expressed in corpora (samples) of "real world" text. Corpus linguistics proposes that reliable language analysis is more feasible with corpora collected in the field in its natural context ("realia"), and with minimal experimental-interference.

Early life, education, and career

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. His undergraduate studies took place at BYU, graduating summa cum laude in 1988 with a bachelor's degree in economics. [5] Lee graduated from the University of Chicago Law School with high honors in 1991. [6]

Rex E. Lee United States Solicitor General

Rex Edwin Lee was an American lawyer, law clerk for former U.S. Supreme Court Justice Byron White, and the United States Solicitor General during the Reagan administration. He was responsible for bringing the Solicitor General in the center of policymaking. He 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 the J. Reuben Clark Law School at BYU.

Arizona U.S. state in the United States

Arizona is a state in the southwestern region of the United States. It is also part of the Western and the Mountain states. It is the sixth largest and the 14th most populous of the 50 states. Its capital and largest city is Phoenix. Arizona shares the Four Corners region with Utah, Colorado, and New Mexico; its other neighboring states are Nevada and California to the west and the Mexican states of Sonora and Baja California to the south and southwest.

Virginia U.S. state in the United States

Virginia, officially the Commonwealth of Virginia, is a state in the Southeastern and Mid-Atlantic regions of the United States located between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth are shaped by the Blue Ridge Mountains and the Chesapeake Bay, which provide habitat for much of its flora and fauna. The capital of the Commonwealth is Richmond; Virginia Beach is the most populous city, and Fairfax County is the most populous political subdivision. The Commonwealth's estimated population as of 2018 is over 8.5 million.

After receiving his law degree, Lee served as law clerk to J. Harvie Wilkinson, III of the United States Court of Appeals for the Fourth Circuit (1991–92). He then joined the firm of Kimball, Parr, Waddoups, Brown & Gee as an associate in 1992, before clerking for Clarence Thomas, Associate Justice of the United States Supreme Court (1994–95). 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 of BYU's 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. [7] Following his 2010 appointment to the bench Lee has remained a Distinguished Lecturer in Law at the JRCL. [2]

Law clerk person who provides assistance to a judge in researching issues before the court and in writing opinions

A law clerk or a judicial clerk is an individual—generally an attorney—who provides direct assistance and counsel to a judge in making legal determinations and in writing opinions by researching issues before the court. Judicial clerks often play significant roles in the formation of case law through their influence upon judges' decisions. Judicial clerks should not be confused with legal clerks, court clerks, or courtroom deputies who only provide secretarial and administrative support to attorneys and/or judges.

United States Court of Appeals for the Fourth Circuit

The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:

Clarence Thomas Associate Justice of the Supreme Court of the United States

Clarence Thomas is an American judge, lawyer, and government official who currently serves as an Associate Justice of the Supreme Court of the United States. He is currently the most senior associate justice on the Court following the retirement of Anthony Kennedy. Thomas succeeded Thurgood Marshall and is the second African American to serve on the Court. Among the current members of the Court he is the longest-serving justice, with a tenure of 27 years, 339 days as of September 27, 2019.

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. [8] [9]

Of counsel is the title of an attorney in the legal profession of the United States who often has a relationship with a law firm or an organization but is neither an associate nor partner. Some firms use titles such as "counsel", "special counsel", and "senior counsel" for the same concept. According to American Bar Association Formal Opinion 90-357, the term "of counsel" is used to describe a "close, personal, continuous, and regular relationship" between the firm and counsel lawyer. In large law firms, the title generally denotes a lawyer with the experience of a partner, but who does not carry the same workload or business development responsibility.

Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees. Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence civil legal proceedings against a party which infringes its registered trademark. In the United States, the Trademark Counterfeiting Act of 1984 criminalized the intentional trade in counterfeit goods and services.

General Motors American automotive manufacturing company

General Motors Company, commonly referred to as General Motors (GM), is an American multinational corporation headquartered in Detroit that designs, manufactures, markets, and distributes vehicles and vehicle parts, and sells financial services, with global headquarters in Detroit's Renaissance Center. It was originally founded by William C. Durant on September 16, 1908 as a holding company. The company is the largest American automobile manufacturer, and one of the world's largest. As of 2018, General Motors is ranked #10 on the Fortune 500 rankings of the largest United States corporations by total revenue. GM is incorporated in Delaware.

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. [8] [10] 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.

Confederated Tribes of the Goshute Reservation

The Confederated Tribes of the Goshute Reservation is located in Juab County, Utah, Tooele County, Utah, and White Pine County, Nevada, United States. It is one of two federally recognized tribes of Goshute people, the other being the Skull Valley Band of Goshute Indians of Utah.

Nomination and confirmation

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. [11] Receiving a unanimous vote (5–0) from the Utah Senate Judicial Confirmation Committee in mid-June 2010, [12] Lee was confirmed by the full Senate on June 23, 2010. [13] Lee was sworn into office on July 19, 2010; his mentor, U.S. Supreme Court Justice Clarence Thomas, administered the oath. [14]


Similarities to Justices Scalia and Thomas

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. [15] 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. [16] The study was updated again in 2018, adding new variables and more names, and Lee again scored the highest. [17]

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." [18]

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. [19]

Authorship of opinions

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. [20]

"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. [20] [21] 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). [20] 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." [20]


Data-Driven Originalism [22]

Judging Ordinary Meaning [23]

Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical [24]

University of Pennsylvania Law Review (forthcoming)

Yale Law Journal, Vol. 127, pp. 788-1105, 2018

Yale Law Journal Forum, Vol. 126, pp. 21–32, 2016

Trademarks, Consumer Psychology, and the Sophisticated Consumer [25] Emory Law Journal, Vol. 57, pp. 575-650, 2008
Demystifying Dilution [26] 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' [27] Washington Law Review, Vol. 77, pp. 1–64, 2002
Preliminary Injunctions and the Status Quo [28] Washington & Lee Law Review, Vol. 58, pp. 109–166, 2001
The Anastasoff Case and the Judicial Power to "Unpublish" Opinions [29] Notre Dame Law Review, Vol. 77, pp. 135–173, 2001
In Rem Jurisdiction in Cyberspace75 Wash. L. Rev 97 (2000)
Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court [30] Vanderbilt Law Review, Vol. 52, pp. 647–735, 1999
Pleading and Proof: The Economics of Legal Burdens [31] Brigham Young University Law Review, Vol. 1997, pp. 1–34, 1997
Comment: The Standing of Qui Tam Relators Under the False Claims Act [32] University of Chicago Law Review, Vol. 57, pp. 543–571, 1990

Personal life

Lee and his wife, Kimberly, have six children. His brother, Mike Lee, is a U.S. Senator representing the state of Utah. [33] He is the son Rex E. Lee, a former Solicitor General of the United States and the 10th president of BYU.

See also

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  1. School, Harvard Law. "Thomas R. Lee - Harvard Law School".
  2. 1 2 "Thomas R. Lee – BYU J. Reuben Clark Law School".
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  4. "Corpus Linguistics as Interpretive Tool". National Review Online. Retrieved October 8, 2015.
  5. "Thomas Rex Lee". Archived from the original on February 10, 2010. Retrieved November 12, 2010.
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  13. "Lee Receives Unanimous Vote From Senate Committee". Archived from the original on June 24, 2010. Retrieved November 12, 2010.
  14. "Utah Local News – Salt Lake City News, Sports, Archive – The Salt Lake Tribune". January 29, 2014. Retrieved March 7, 2014.
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  19. "Replacing Justice Scalia: A Proven Originalist from Trump's List". National Review. Retrieved December 7, 2016.
  20. 1 2 3 4 "Utah's Supreme Court, where unanimity is the rule". Utah Data Points. June 10, 2013. Retrieved November 15, 2016.
  21. Kidd et. al, supra note 16.
  22. Lee, Thomas R.; Phillips, James Cleith (January 27, 2018). "Data-Driven Originalism". University of Pennsylvania Law Review. SSRN. forthcoming.
  23. "Judging Ordinary Meaning". Yale Law Journal. 127: 788–879.
  24. "Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical" . Retrieved November 15, 2016.
  25. "Trademarks, Consumer Psychology, and the Sophisticated Consumer by Thomas R. Lee, Glenn Christensen, Eric DeRosia :: SSRN". doi:10.2139/ssrn.967742. SSRN   1263575 .Cite journal requires |journal= (help)
  26. Lee, Thomas R. (December 24, 2008). "Demystifying Dilution by Thomas R. Lee :: SSRN". SSRN   1319457 .Cite journal requires |journal= (help)
  27. Lee, Thomas R. (September 4, 2008). "The Original Understanding of the Census Clause: Statistical Estimates and the Constitutional Requirement of an 'Actual Enumeration' by Thomas R. Lee :: SSRN". SSRN   1263580 .Cite journal requires |journal= (help)
  28. Lee, Thomas R. (September 4, 2008). "Preliminary Injunctions and the Status Quo by Thomas R. Lee :: SSRN". SSRN   1263609 .Cite journal requires |journal= (help)
  29. Lehnhof, Lance S.; Lee, Thomas R. (September 4, 2008). "The Anastasoff Case and the Judicial Power to "Unpublish" Opinions by Thomas R. Lee, Lance S. Lehnhof :: SSRN". SSRN   1263603 .Cite journal requires |journal= (help)
  30. Lee, Thomas R. (September 4, 2008). "Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court by Thomas R. Lee :: SSRN". SSRN   1263610 .Cite journal requires |journal= (help)
  31. Lee, Thomas R. (September 10, 2008). "Pleading and Proof: The Economics of Legal Burdens by Thomas R. Lee :: SSRN". SSRN   1266327 .Cite journal requires |journal= (help)
  32. Lee, Thomas R. (September 10, 2008). "Comment: The Standing of Qui Tam Relators Under the False Claims Act by Thomas R. Lee :: SSRN". SSRN   1266328 .Cite journal requires |journal= (help)
  33. "Brothers In Law". Retrieved October 8, 2015.
Legal offices
Preceded by
Michael Wilkins
Associate Justice of the Utah Supreme Court