Thomas Rex Lee
|Thomas Rex Lee|
|Associate Justice of the Utah Supreme Court|
|Nominated by||Gary Herbert|
|Born||1964 (age 50–51)
|Alma mater||University of Chicago Law School|
||This article's introduction section may not adequately summarize its contents. (August 2013)|
Thomas Rex Lee (born 1964) is the Associate Chief Justice on the Utah Supreme Court. His nomination unanimously passed a vote by the Utah Supreme Court Judiciary Committee in mid-June 2010, and he was sworn in July 19, 2010.
Above the Law has identified Justice Lee as one of five state supreme court justices who have had at least one of their clerks later clerk at the U.S. Supreme Court. Additionally, seven of his twelve past and current clerks have or will go on to federal appellate clerkships: D.C. Circuit (Thomas B. Griffith--2 and Janice Rogers Brown), 9th Circuit (Milan Smith and Jay Bybee), 6th Circuit (Jeffrey Sutton), and 3rd Circuit (Kent A. Jordan). Justice Lee is also a pioneer in the application of corpus linguistics to determine ordinary meaning, being the first American judge to do so in an opinion.
Justice Lee is the son of former United States Solicitor General Rex E. Lee. He received his bachelors in economics from Brigham Young University (BYU) and his law degree from the University of Chicago Law School. After graduating from law school, he clerked for Justice Clarence Thomas of the Supreme Court of the United States and Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit. Justice Lee has been a faculty member at BYU's J. Reuben Clark Law School since 1997, where he is the Rex and Maureen Rawlinson Professor of Law and teaches in an adjunct capacity after his appointment to the Utah Supreme Court. In 2008 Justice Lee was appointed associate dean for faculty and curriculum at the Clark Law School. Prior to his appointment to the Utah Supreme Court, Justice Lee also worked in private practice for the law firm of Howard, Phillips and Andersen.
In private practice, Justice Lee specialized in intellectual property law. Many of the intellectual property rights cases he has been involved in revolved around trade-mark infringements brought by or against automobile manufacturers such as General Motors and Ford Motor Company. He has also written multiple papers on the issues related to counting non-residents in the census with Lara J. Wolfson. He was Deputy Assistant Attorney General in the Civil Division of the United States Justice Department from 2004-2005. In 2002-2004 he served as the lead counsel in cases brought by the state of Utah in relation to plans to put nuclear waste on the Gosuite Indian Reservation.
Justice Lee and his wife Kimberly are the parents of six children. He is a member of the Church of Jesus Christ of Latter-day Saints. His brother, Mike Lee, was elected a U.S. Senator from Utah in 2010.
Early life, education, and career
Thomas Rex Lee was born in 1964 to parents Rex and Janet Lee. He grew up in Arizona, Utah and Northern Virginia. His undergraduate studies took place at Brigham Young University (BYU), graduating summa cum laude in 1988 with a bachelor's degree in economics. Lee pursued a law degree at the University of Chicago, graduating with high honors in 1991.
After receiving his law degree, Lee began a one-year term as a law clerk for the Honorable J. Harvie Wilkinson, III of the United States Court of Appeals for the Fourth Circuit (1991–92). He joined the firm of Kimball, Parr, Waddoups, Brown & Gee as an associate in 1992, after clerking for Judge Wilkinson. Lee accepted a one-year term as a law clerk for the Honorable 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 the J. Reuben Clark Law School at Brigham Young University. 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 and was named the Rex and Maureen Rawlinson Professor of Law. He remains a Distinguished Lecturer in Law at BYU. While at the law school, Lee worked in an "of counsel" capacity at Howard, Phillips, & Andersen, representing the firm in numerous cases involving intellectual property matters. During the years of 2001 to 2004, Lee served as lead counsel for the State of Utah in a number of cases. In 2004-05, Lee took a leave from the law school to serve as the Deputy Assistant Attorney General, Civil Division, US Department of Justice.
Cases prior to appointment
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) 
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) 
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) 
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:
|General Motors v. Urban Gorilla LLC (10th Cir. 2007) ||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) ||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|
|Au-tomotive Gold v. Volkswagen of America (9th Cir. 2004) ||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) ||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) ||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|
Nomination and confirmation
On Friday, May 28, 2010, Utah Governor Gary Herbert nominated Lee to fill the vacancy in the Utah Supreme Court left by retired Justice Michael J. Wilkins. Receiving a unanimous vote (5-0) from the Utah Senate Judicial Confirmation Committee, Lee was confirmed by the full Senate on Wednesday, June 23, 2010. Lee was sworn into office on Monday, July 19, 2010, accepting the oath administered by his mentor, US Supreme Court Justice Clarence Thomas.
Lee has authored a number of majority opinions, including the following:
- In the Matter of the Adoption of BABY B., 2012 UT 35 (overturning an adoption and returning paternity rights to Rob Manzanaras four years after the birth and adoption in Utah)
- Bahr v. Imus, 2011 UT 19 (clarifying and refining the three boundary dispute doctrines in Utah case law: boundary by acquiescence, boundary by estoppel, and boundary by agreement)
- Carter v. Lehi City, 2012 UT 2 (establishing new constitutional test for determining whether the subject matter of a ballot initiative is encompassed by the people’s initiative power)
- Young Living Essential Oils, LC v. Marin, 2011 UT 64 (clarifying the scope of the implied covenant of good faith and fair dealing in contract law)
- State v. Prion, 2012 UT 15 (declaring Utah’s Guilty and Mentally Ill (GAMI) statute unconstitutional; holding that statute violated the Double Jeopardy Clause by allowing judge to increase a defendant’s sentence months after initial sentence based on conduct during confinement at state hospital)
- FLDSA v. Horne, 2012 UT 66 (on certification from the Tenth Circuit Court of Appeals, holding that Utah Supreme Court's earlier decision dismissing on laches grounds a constitutional challenge to the reformation of a charitable religious trust was preclusive under the doctrine of res judicata, barring subsequent legal challenges to that reformation; clarifying the law of res judicata in the context of a decision on an extraordinary writ and evaluating the applicability of time-bar principles to constitutional claims)
- State v. Verde, 2012 UT 60 (clarifying the law of evidence under rule 404(b) regarding the admissibility of prior misconduct offered for purposes other than to demonstrate action in conformity with bad character; establishing the principle of the "doctrine of chances" in Utah law)
Lee is also a prolific author of separate dissents and concurrences, including the following:
- Carranza v. United States, 2011 UT 80 (Lee, J., concurring) (concluding that an unborn fetus is a "minor child" under the wrongful death statute)
- Marion Energy v. KFJ Ranch, 2011 UT 50 (Lee, J., dissenting) (rejecting, in the course of construing an eminent domain statute authorizing condemnation for the construction of roads to facilitate the working of "mineral deposits," a substantive canon of statutory construction requiring "strict" construction against the condemning authority)
- In re Baby E.Z., 2011 UT 38 (Lee, J., concurring in the judgment) (concluding, based among other things on corpus linguistics data from the Corpus of Contemporary American English (COCA), that the federal Parental Kidnapping Protection Act's regulation of "custody" determinations did not apply to adoption proceedings)
- State v. Walker, 2011 UT 53 (Lee, J., concurring) (asserting that article I, section 14 of the Utah Constitution—the state counterpart to the federal Fourth Amendment—does not incorporate an exclusionary rule as a remedy)
- State v. Parduhn, 2011 UT 55 (Lee, J., dissenting) (concluding that the Utah Indigent Defense Act overruled the court's earlier decision in State v. Burns, and thus required indigent defendants requesting a government-funded defense to accept legal aid defense resources as the exclusive source of such resources in a package encompassing legal aid counsel, and rejecting the right of the defense to order a la carte resources such as a private investigator or expert witness)
|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|
- Aaron Falk (2010-06-15). "BYU law professor Thomas Lee moves closer to spot on Utah's high court". Deseret News. Retrieved 2014-03-07.
- "Utah Local News - Salt Lake City News, Sports, Archive - The Salt Lake Tribune". Sltrib.com. 2014-01-29. Retrieved 2014-03-07.
- "Supreme Court Clerk Hiring Watch: Ranking The Non-Traditional Feeder Judges". Above the Law. Retrieved 2015-10-08.
- Volokh, Eugene (2015-08-17). "Judges and ‘corpus linguistics’". The Washington Post. ISSN 0190-8286. Retrieved 2015-10-08.
- "Corpus Linguistics as Interpretive Tool". National Review Online. http://www.nationalreview.com. Retrieved 2015-10-08.
- "Faculty & Staff Directory". Law2.byu.edu. Retrieved 2014-03-07.
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- [dead link]
- "Accolades & Achievements | University of Chicago Law School". Law.uchicago.edu. Retrieved 2014-03-07.
- "Thomas R" (PDF). Retrieved 2014-03-07.
- "SKULL VALLEY BAND OF GOSHUTE INDIANS v. NIELSON, No. 02-4149., August 04, 2004 - US 10th Circuit | FindLaw". Caselaw.findlaw.com. Retrieved 2014-03-07.
- "BULLCREEK v. NUCLEAR REGULATORY COMMISSION, Nos. 03-1018 & 03-1022., February 24, 2004 - US DC Circuit | FindLaw". Caselaw.findlaw.com. Retrieved 2014-03-07.
- "FindLaw | Cases and Codes". Caselaw.lp.findlaw.com. Retrieved 2014-03-07.
- "GENERAL MOTORS CORPORATION v. URBAN GORILLA LLC, No. 06-4128., September 12, 2007 - US 10th Circuit | FindLaw". Caselaw.findlaw.com. Retrieved 2014-03-07.
- "Volkswagen AG v. Dorling Kindersley Publishing Inc." (PDF). Pub.bna.com. Retrieved 2014-03-07.
- "AU TOMOTIVE GOLD INC v. VOLKSWAGEN OF AMERICA INC, No. 04-16174., August 11, 2006 - US 9th Circuit | FindLaw". Caselaw.findlaw.com. Retrieved 2014-03-07.
- "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 2014-03-07.
- "VIRTUAL WORKS INCORPORATED v. VOLKSWAGEN OF AMERICA INCORPORATED, No. 00-1356., January 22, 2001 - US 4th Circuit | FindLaw". Caselaw.findlaw.com. Retrieved 2014-03-07.
- Dennis Romboy (2010-05-29). "BYU law professor Thomas Lee nominated to Utah Supreme Court". Deseret News. Retrieved 2014-03-07.
- [dead link]
- "Trademarks, Consumer Psychology, and the Sophisticated Consumer by Thomas R. Lee, Glenn Christensen, Eric DeRosia :: SSRN" (PDF). Papers.ssrn.com. doi:10.2139/ssrn.967742. Retrieved 2014-03-07.
- "Demystifying Dilution by Thomas R. Lee :: SSRN" (PDF). Papers.ssrn.com. 2008-12-24. Retrieved 2014-03-07.
- "The Original Understanding of the Census Clause: Statistical Estimates and the Constitutional Requirement of an 'Actual Enumeration' by Thomas R. Lee :: SSRN" (PDF). Papers.ssrn.com. Retrieved 2014-03-07.
- "Preliminary Injunctions and the Status Quo by Thomas R. Lee :: SSRN" (PDF). Papers.ssrn.com. Retrieved 2014-03-07.
- "The Anastasoff Case and the Judicial Power to "Unpublish" Opinions by Thomas R. Lee, Lance S. Lehnhof :: SSRN" (PDF). Papers.ssrn.com. Retrieved 2014-03-07.
- "Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court by Thomas R. Lee :: SSRN" (PDF). Papers.ssrn.com. Retrieved 2014-03-07.
- "Pleading and Proof: The Economics of Legal Burdens by Thomas R. Lee :: SSRN" (PDF). Papers.ssrn.com. Retrieved 2014-03-07.
- "Comment: The Standing of Qui Tam Relators Under the False Claims Act by Thomas R. Lee :: SSRN" (PDF). Papers.ssrn.com. Retrieved 2014-03-07.
- "Brothers In Law". magazine.byu.edu. Retrieved 2015-10-08.
- Deseret News, May 29, 2010
- BYU Law School profile
- Lee's vita
- BYU Law School Faculty Profile
- Utah State Courts: Judges' Bios
- Utah State Supreme Court