Academic journal article Journal of Appellate Practice and Process

Tribute to the Honorable Rex E. Lee Solicitor General of the United States 1981-85

Academic journal article Journal of Appellate Practice and Process

Tribute to the Honorable Rex E. Lee Solicitor General of the United States 1981-85

Article excerpt

Rex E. Lee held a variety of jobs in his thirty-year legal career, and through them established himself as a skilled appellate litigator and a respected legal educator. Rex Lee received his J.D. from the University of Chicago Law School in 1963, and served as a law clerk to Supreme Court Justice Byron R. White during the 1963 term. He then joined the law firm of Jennings, Strouss, Salmon & Trask in Phoenix, Arizona.

Rex Lee practiced until 1971, when he left to become the founding Dean of the J. Reuben Clark Law School at Brigham Young University. He served in that capacity until 1975, when he became Assistant Attorney General, Civil Division, Department of Justice, and then, in 1981, Solicitor General of the United States.

In 1985, Rex Lee returned to private practice with the law firm of Sidley & Austin, and returned to teaching constitutional law as the George Sutherland Chair of Law at the J. Reuben Clark Law School. In 1989, Rex Lee was named President of Brigham Young University, and continued to serve in that capacity until less than three months before his death on March 11, 1996. Throughout his term with the university, Rex Lee maintained his private practice, and argued during his career over 50 cases before the Supreme Court.


On more than one occasion over the past few years I have wished that I could talk to the man who is honored in these pages to ask for his advice in preparing a case for oral argument on appeal. Rex Lee served as Solicitor General of the United States, headed up Sidley & Austin's enormously successful appellate litigation practice, and argued fifty-nine cases in the Supreme Court and many cases in other appellate forums. He was also my dad, and I have often longed to ask for his counsel as I prepare my cases for appeal.

To some extent, I can imagine the conversation that we would have. I attended more than a few of his Supreme Court arguments, including a couple during the early years of my own legal career. In the days leading up to his argument in O'Melveny & Myers v. FDIC, (1) I was with him literally around the clock, and had the opportunity to participate in his final preparation for that case and to talk about his views on oral advocacy.

As I think back on these memories, I am reminded of many of the attributes that brought him so much success as an oral advocate, and I can imagine him pointing to some of the basic principles that he lived by. During one of our conversations about oral advocacy, I remember him drawing an analogy between oral argument and a conversation about an important topic with a friend--not just any friend, but one that is respected and looked up to. (2) When this model is followed, he explained, an advocate's persuasiveness is enhanced because he naturally incorporates some basic guidelines of oral advocacy--to maintain eye contact, (3) speak conversationally and candidly, (4) and listen to and answer questions that are raised. (5) These were some of the hallmarks of a Rex Lee argument, and undoubtedly he would have advised me to practice them as well.

When I learned that this journal planned a series of tributes to my dad, I hoped that they would provide some additional insight into the pointers that he might have offered if he were still around. The authors of the following tributes worked closely with him in a variety of professional settings, and their tributes promised to give further enlightenment into the insight I have longed for. At first glance, the tributes that follow might appear to have missed the mark (at least the one that I had envisioned). The anecdote and acclaim set forth in these pages focus primarily on Lee's personal qualities, and are mostly devoid of the sort of practice pointers that I had envisioned.

But in fact, it seems to me that the tributes that follow offer profound insights into the profile of an effective oral advocate. …

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