Thomas Rex Lee

Thomas Rex Lee
Associate Chief Justice of the Utah Supreme Court
Assumed office
July 19, 2010
Appointed by Gary Herbert
Preceded by Michael Wilkins
Personal details
Born December 1964 (age 53)
Spouse(s) Kimberly Lee
Relations Mike Lee (brother)
Children 6
Parents Rex E. Lee
Janet Griffin
Education Brigham Young University (B.A.)
University of Chicago (J.D.)

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]

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]

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]

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.[8]

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.[9][10]

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.[11][12] 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.

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.[13] Receiving a unanimous vote (5–0) from the Utah Senate Judicial Confirmation Committee in mid-June 2010,[14] Lee was confirmed by the full Senate on June 23, 2010.[15] Lee was sworn into office on July 19, 2010; his mentor, U.S. Supreme Court Justice Clarence Thomas, administered the oath.[16]

Jurisprudence

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.[17] 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.[18] The study was updated again in 2018, adding new variables and more names, and Lee again scored the highest.[19]

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."[20]

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.[21]

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.[22]

"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.[22][23] 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).[22] 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."[22]

Works

TitlePublication
Data-Driven Originalism[24]

Judging Ordinary Meaning[25]

Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical[26]

 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[27]Emory Law Journal, Vol. 57, pp. 575-650, 2008
Demystifying Dilution[28]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'[29]Washington Law Review, Vol. 77, pp. 1–64, 2002
Preliminary Injunctions and the Status Quo[30]Washington & Lee Law Review, Vol. 58, pp. 109–166, 2001
The Anastasoff Case and the Judicial Power to "Unpublish" Opinions[31]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[32]Vanderbilt Law Review, Vol. 52, pp. 647–735, 1999
Pleading and Proof: The Economics of Legal Burdens[33]Brigham Young University Law Review, Vol. 1997, pp. 1–34, 1997
Comment: The Standing of Qui Tam Relators Under the False Claims Act[34]University of Chicago Law Review, Vol. 57, pp. 543–571, 1990

Notable work as an attorney

Guantanamo Bay Detainee cases (D. D.C.):

A series of suits filed against then President George W. Bush and the United States military regarding detainees held at the United States penitentiary facility at Guantanamo Bay, Cuba. The plaintiffs argued that in addition to being denied due process, prisoners ought to be subject to the laws under the Constitution, not military tribunals. Lee presented oral arguments on behalf of the United States. The majority of the rulings considered by the United States Supreme Court resulted in rulings that detainees should be able to file their complaints in civil courts.

Skull Valley Band of Goshute Indians v. Leavitt, 376 F. 3d 1223 (10th Cir. 2004)[35]

Case involving the transportation and storage of spent nuclear fuel on land leased to the State of Utah by the Skull Valley Band of Goshute Indians. As part of the appeal, Lee served as lead counsel for the State of Utah. The resulting opinion of the appellate court was to affirm the district court's ruling that it was the authority of the federal, not state, government that decided issues regarding the transportation and storage of spent nuclear fuel.

Bullcreek v. Nuclear Regulatory Commission, 359 F. 3d 536 (D.C. Cir. 2004)[36]

Case of appeal involving the jurisdiction of the Nuclear Regulatory Commission (NRC) in licensing the private storage of spent nuclear fuel. Lee argued on behalf of the petitioners who claimed that the Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101, repealed the authority of the NRC to grant licenses to store private nuclear spent fuel in facilities away from reactor storage facilities. The circuit court upheld that the NRC's interpretation of the act was more consistent, and therefore denied the motions of the petitioners for lack of standing.

Utah v. Evans, 536 U.S. 452 (2002)[37]

Case regarding the "hot-deck imputation" technique utilized by the US Census Bureau during the 2000 Census. The technique came under fire when it was shown to have earned North Carolina one additional representative, yet cost Utah one representative. Representing the State of Utah, Lee argued the case before the Supreme Court. The opinion of the court upheld the previous ruling that the use of "hot-deck imputation" did not violate statute nor constitution.

As a private attorney, Lee was a recognized expert in trademark law and litigated numerous trademark infringement cases, including the following:

CaseTopic
General Motors v. Urban Gorilla LLC (10th Cir. 2007)[38]Trade dress infringement action against manufacturer of body kit incorporating variation of HUMMER H1 body design
General Motors v. Phat Cat Carts, Inc. (S.D. Fla. 2006)Trademark and trade dress infringement action against golf cart manufacturer
Keystone v. Ford Motor Co. (C.D. Cal. 2005)Trademark infringement action between automobile manufacture and automobile parts distributor
Volkswagen v. Dorling Kindersley Publishing (E.D. Mich. 2005)[39]Trademark infringement action against publisher of children's book shaped like VW BEETLE
General Motors v. Chevy Duty, Inc. (E.D. Mich. 2005)Trademark infringement action against auto parts distributor
Automotive Gold v. Volkswagen of America (9th Cir. 2004)[40]Trademark infringement action against manufacturer of license plate frames and key chains incorporating Volkswagen and Audi trademarks
General Motors v. Avanti Motor (E.D. Mich. 2003)Trade dress infringement action against concept vehicle incorporating the look and feel of the Hummer H2
Porsche Cars v. Porsch.com (4th Cir. 2002)[41]In rem trademark cyberpiracy action concerning hundreds of domain names incorporating variations on Porsche's trademarks
Ford v. Lloyd (6th Cir. 2002)Trademark infringement action against manufacturer of floor mats bearing counterfeits of Ford's trademarks
Virtual Works v. Volkswagen (4th Cir. 2000)[42]Trademark cyberpiracy action concerning VW.NET
Ford v. 2600 Enterprises (E.D. Mich. 2002)Trademark cyberpiracy action
Ford v. Czech (N.D. Ohio 2000)Trademark cyberpiracy action concerning FORD-QUALITY.COM and other domain names
Ford v. GreatDomains.com (E.D. Mich. 2001)Trademark cyberpiracy action concerning numerous domain names incorporating variations on Ford's trademarks
Porsche Cars v. Manny's Porshop, 972 F. Supp. 1128 (N.D. Ill. 1997)Trademark infringement and dilution action
Anticybersquatting Consumer Protection Act of 1999, Pub. L. No. 106-113, 113 Stat. 1501 (1999)Case regarding the practice of holding of domain names for the purpose of financial gain

Personal life

Lee and his wife, Kimberly, have six children. His brother, Michael S. Lee, is a U.S. Senator representing the state of Utah.[43] He is the son Rex E. Lee, a former Solicitor General of the United States and the 10th president of BYU.

See also

References

  1. ↑ https://hls.harvard.edu/faculty/directory/11827/Lee
  2. ↑ https://law.byu.edu/faculty/thomas-r-lee/
  3. ↑ Volokh, Eugene (August 17, 2015). "Judges and 'corpus linguistics'". The Washington Post. ISSN 0190-8286. Retrieved October 8, 2015.
  4. ↑ "Corpus Linguistics as Interpretive Tool". National Review Online. nationalreview.com. Retrieved October 8, 2015.
  5. ↑ "Thomas Rex Lee". Archived from the original on February 10, 2010. Retrieved November 12, 2010.
  6. ↑ "Accolades & Achievements | University of Chicago Law School". Law.uchicago.edu. Retrieved March 7, 2014.
  7. ↑ "Thomas R. Lee New Associate Dean for Faculty and Curriculum at the BYU Law School". Archived from the original on October 10, 2008. Retrieved June 16, 2010.
  8. ↑ https://law.byu.edu/faculty/thomas-r-lee/
  9. ↑ https://www.utcourts.gov/judgesbios/showGallery.asp?dist=10&ct_type=S#3108
  10. ↑ "Oyez, Thomas R. Lee, Cases Argued". Oyez. Retrieved November 9, 2016.
  11. ↑ https://www.utcourts.gov/judgesbios/showGallery.asp?dist=10&ct_type=S#3108
  12. ↑ "Thomas R" (PDF). Retrieved March 7, 2014.
  13. ↑ Dennis Romboy (May 29, 2010). "BYU law professor Thomas Lee nominated to Utah Supreme Court". Deseret News. Retrieved March 7, 2014.
  14. ↑ Aaron Falk (June 15, 2010). "BYU law professor Thomas Lee moves closer to spot on Utah's high court". Deseret News. Retrieved March 7, 2014.
  15. ↑ "Lee Receives Unanimous Vote From Senate Committee". Archived from the original on June 24, 2010. Retrieved November 12, 2010.
  16. ↑ "Utah Local News – Salt Lake City News, Sports, Archive – The Salt Lake Tribune". Sltrib.com. January 29, 2014. Retrieved March 7, 2014.
  17. ↑ "Searching for Justice Scalia: Measuring the "Scalia-Ness" of the Next Potential Member of the U.S. Supreme Court". Social Science Research Network. 2016. SSRN 2874794.
  18. ↑ "Kidd, Sohan, Walters, & Phillips on Measuring Potential Trump Nominees to the Supreme Court for Similarities to Justice Scalia". Legal Theory Blog. Retrieved November 26, 2016.
  19. ↑ Kidd, Jeremy; Walters, Ryan D. (2018-01-12). "Searching for Scalia in 2018: Measuring the 'Scalia-ness' of President Trump's Supreme Court Shortlist". SSRN.
  20. ↑ "Scalia's Successor Needs His Virtues". Online Library of Law & Liberty. November 27, 2016. Retrieved December 5, 2016.
  21. ↑ "Replacing Justice Scalia: A Proven Originalist from Trump's List". National Review. Retrieved December 7, 2016.
  22. 1 2 3 4 "Utah's Supreme Court, where unanimity is the rule". Utah Data Points. June 10, 2013. Retrieved November 15, 2016.
  23. ↑ Kidd et. al, supra note 16.
  24. ↑ Lee, Thomas R.; Phillips, James Cleith (2018-01-27). "Data-Driven Originalism". University of Pennsylvania Law Review. SSRN. forthcoming.
  25. ↑ "Judging Ordinary Meaning". Yale Law Journal. 127: 788–879.
  26. ↑ "Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical". Retrieved November 15, 2016.
  27. ↑ "Trademarks, Consumer Psychology, and the Sophisticated Consumer by Thomas R. Lee, Glenn Christensen, Eric DeRosia :: SSRN". Papers.ssrn.com. doi:10.2139/ssrn.967742. SSRN 1263575. Missing or empty |url= (help); |access-date= requires |url= (help)
  28. ↑ "Demystifying Dilution by Thomas R. Lee :: SSRN". Papers.ssrn.com. December 24, 2008. SSRN 1319457. Missing or empty |url= (help); |access-date= requires |url= (help)
  29. ↑ "The Original Understanding of the Census Clause: Statistical Estimates and the Constitutional Requirement of an 'Actual Enumeration' by Thomas R. Lee :: SSRN". Papers.ssrn.com. SSRN 1263580. Missing or empty |url= (help); |access-date= requires |url= (help)
  30. ↑ "Preliminary Injunctions and the Status Quo by Thomas R. Lee :: SSRN". Papers.ssrn.com. SSRN 1263609. Missing or empty |url= (help); |access-date= requires |url= (help)
  31. ↑ "The Anastasoff Case and the Judicial Power to "Unpublish" Opinions by Thomas R. Lee, Lance S. Lehnhof :: SSRN". Papers.ssrn.com. SSRN 1263603. Missing or empty |url= (help); |access-date= requires |url= (help)
  32. ↑ "Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court by Thomas R. Lee :: SSRN". Papers.ssrn.com. SSRN 1263610. Missing or empty |url= (help); |access-date= requires |url= (help)
  33. ↑ "Pleading and Proof: The Economics of Legal Burdens by Thomas R. Lee :: SSRN". Papers.ssrn.com. SSRN 1266327. Missing or empty |url= (help); |access-date= requires |url= (help)
  34. ↑ "Comment: The Standing of Qui Tam Relators Under the False Claims Act by Thomas R. Lee :: SSRN". Papers.ssrn.com. SSRN 1266328. Missing or empty |url= (help); |access-date= requires |url= (help)
  35. ↑ "SKULL VALLEY BAND OF GOSHUTE INDIANS v. NIELSON, No. 02-4149., August 04, 2004 – US 10th Circuit | FindLaw". Caselaw.findlaw.com. Retrieved March 7, 2014.
  36. ↑ "BULLCREEK v. NUCLEAR REGULATORY COMMISSION, Nos. 03–1018 & 03–1022., February 24, 2004 – US DC Circuit | FindLaw". Caselaw.findlaw.com. Retrieved March 7, 2014.
  37. ↑ "FindLaw | Cases and Codes". Caselaw.lp.findlaw.com. Retrieved March 7, 2014.
  38. ↑ "GENERAL MOTORS CORPORATION v. URBAN GORILLA LLC, No. 06-4128., September 12, 2007 – US 10th Circuit | FindLaw". Caselaw.findlaw.com. Retrieved March 7, 2014.
  39. ↑ "Volkswagen AG v. Dorling Kindersley Publishing Inc" (PDF). Pub.bna.com. Retrieved March 7, 2014.
  40. ↑ "AU TOMOTIVE GOLD INC v. VOLKSWAGEN OF AMERICA INC, No. 04-16174., August 11, 2006 – US 9th Circuit | FindLaw". Caselaw.findlaw.com. Retrieved March 7, 2014.
  41. ↑ "PORSCHE CARS NORTH AMERICA INCORPORATED AG v. PORSCHE NET, Nos. 01–2028, 01–2073., August 23, 2002 – US 4th Circuit | FindLaw". Caselaw.findlaw.com. Retrieved March 7, 2014.
  42. ↑ "VIRTUAL WORKS INCORPORATED v. VOLKSWAGEN OF AMERICA INCORPORATED, No. 00-1356., January 22, 2001 – US 4th Circuit | FindLaw". Caselaw.findlaw.com. Retrieved March 7, 2014.
  43. ↑ "Brothers In Law". magazine.byu.edu. Retrieved October 8, 2015.
Legal offices
Preceded by
Michael Wilkins		 Associate Justice of the Utah Supreme Court
2010–present		 Incumbent
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