After his Supreme Court clerkship, Lee entered private practice at the Salt Lake City law firm Kimball, Parr, Waddoups, Brown & Gee. He left the firm in 1997 to join the faculty at 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 remained a Distinguished Lecturer in Law at the JRCL.[2]
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]
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.
Utah Supreme Court
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] 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.".[15] However, Lee ended up retiring from the court on June 30, 2022.[16]
Authorship of opinions
Lee has been 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.[17]
"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.[17][18] 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).[17] 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."[17]
Post-court career
After stepping down from the Utah Supreme Court, Lee launched two national firms: Lee Nielsen, a boutique litigation firm with offices in Utah and D.C.; and Corpus Juris Advisors, a consulting firm performing linguistic and survey analysis for issues of legal interpretation (contracts, statutes, and constitutions), intellectual property (trademarks and patent claim construction), defamation, and false advertising.[16][19]
Jurisprudence
A 2016 paper written by Jeremy Kidd of the Mercer UniversityWalter 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.[20] 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.[21] The study was updated again in 2018, adding new variables and more names, and Lee again scored the highest.[22]
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."[23]
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.[24]
^Phillips, James; Walters, Ryan D.; Dasgupta, Riddhi Sohan; Kidd, Jeremy (2016). "Searching for Justice Scalia: Measuring the "Scalia-Ness" of the Next Potential Member of the U.S. Supreme Court". Social Science Research Network. SSRN2874794.
^Kidd, Jeremy; Walters, Ryan D. (January 12, 2018). "Searching for Scalia in 2018: Measuring the 'Scalia-ness' of President Trump's Supreme Court Shortlist". SSRN. doi:10.2139/ssrn.3100298. SSRN3100298.
^Lee, Thomas R. (December 24, 2008). "Demystifying Dilution by Thomas R. Lee :: SSRN". Papers.ssrn.com. SSRN1319457. {{cite journal}}: Cite journal requires |journal= (help)
^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". Papers.ssrn.com. SSRN1263580. {{cite journal}}: Cite journal requires |journal= (help)
^Lee, Thomas R. (September 4, 2008). "Preliminary Injunctions and the Status Quo by Thomas R. Lee :: SSRN". Papers.ssrn.com. SSRN1263609. {{cite journal}}: Cite journal requires |journal= (help)
^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". Papers.ssrn.com. SSRN1263603. {{cite journal}}: Cite journal requires |journal= (help)
^Lee, Thomas R. (September 4, 2008). "Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court by Thomas R. Lee :: SSRN". Papers.ssrn.com. SSRN1263610. {{cite journal}}: Cite journal requires |journal= (help)
^Lee, Thomas R. (September 10, 2008). "Pleading and Proof: The Economics of Legal Burdens by Thomas R. Lee :: SSRN". Papers.ssrn.com. SSRN1266327. {{cite journal}}: Cite journal requires |journal= (help)
^Lee, Thomas R. (September 10, 2008). "Comment: The Standing of Qui Tam Relators Under the False Claims Act by Thomas R. Lee :: SSRN". Papers.ssrn.com. SSRN1266328. {{cite journal}}: Cite journal requires |journal= (help)
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