Logan, David A.

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Reflections on the Tenth Anniversary: Looking Back and Looking Ahead

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Roger Williams University Law ReviewVolume 9 | Issue 2 Article 2Spring 2004Reflections on the Tenth Anniversary: LookingBack and Looking AheadDavid A. LoganRoger Williams University School of LawFollow this and additional works at: http://docs.rwu.edu/rwu_LRThis Reflection is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion in Roger WilliamsUniversity Law Review by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationLogan, David A. (2004) "Reflections on the Tenth Anniversary: Looking Back and Looking Ahead," Roger Williams University LawReview: Vol. 9: Iss. 2, Article 2.Available at: http://docs.rwu.edu/rwu_LR/vol9/iss2/2Reflections on the Tenth AnniversaryLooking Back and Looking AheadDavid A. Logan*In a very real sense, the idea of a law school in Rhode Islandshares much with the principles of freedom of thought espoused bythe state's founder, Roger Williams. Because of enforced orthodoxyin Old Europe and even in the American colonies, Rhode Islandwas conceived as a "lively experiment," and became home to here-tics and other freethinkers.1 Rhode Island was the first colony todeclare independence and the last to ratify the Constitution (be-cause it lacked a Bill of Rights to protect freedom of conscience), 2so it is only fitting that when Thomas H. Roberts (Chief Justice ofthe Rhode Island Supreme Court 1966-76) called for the estab-lishment of a law school in the state, he sought more than a localtraining ground for practitioners; he also recognized the need foran independent academic voice for law reform.3Chief Justice Roberts did not live to see his dream realized,but eventually Roger Williams University stepped forward and,with the help of far-sighted citizens, a law school was establishedin the East Bay that has done much to respond to Chief Justice* Dean and Professor of Law, Roger Williams University School of Law.1. See Edward J. Eberle, Roger Williams' Gift: Religious Freedom inAmerica, 4 ROGER WILLIAMS U. L. REV. 425, 468-69 (1999).2. Eric Parnes, 43 SANTA CLARA L. REV. 495, 509 n.60 (2003); R.I. GEN.ASSEM., RHODE ISLAND HISTORY: CHAPTER IX, THE REVOLUTIONARY ERA 1763-1790, at http://www.rilin.state.ri.us/studteaguide/RhodeIslandHistory/chapt3.html (last visited May 11, 2004).3. Thomas H. Roberts, The Necessity for a Rhode Island Law School, 21R.I.B.J. 4 (1973).322 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 9:321Roberts' call. In its first decade the School of Law has trained anexcellent cadre of lawyers, now numbering almost 1,000, manyperforming public service for the needy as all or at least part oftheir practices. This is no surprise, as our Feinstein Institute forLegal Service, as well as our clinics in Providence, not to mentionthe terrific law faculty, inculcate in our students an understand-ing that professionalism is rooted in the desire to serve. Consis-tent with this, many of our graduates are already assumingimportant leadership roles in their communities, in Rhode Islandand, increasingly, across the country.Chief Justice Roberts also believed that a law school would bea boon to Rhode Island because of the need to "improve the qualityof government on every level" and "improve the quality of justicein our courts."4 Again, Roger Williams University School of Lawresponded to the challenge, as the school has provided many op-portunities for the bench, bar and public to gain a better under-standing of important public issues. Among many examples of thisleadership are the hosting of a gubernatorial debate,5 a discussionof whether Rhode Island should abandon its idiosyncratic separa-tion of powers regime, 6 and, most recently, the Thurgood MarshallLecture Series, which brought to campus leaders in the fight forracial justice.7The faculty has not been hiding their lights under a bushel,either. From the school's inception, members of the faculty havestaked out their own positions on a dizzying array of issues, frommatters unique to the Ocean State, like the selection process forstate judges,8 to problems of global concern, like the fight againstterrorism. 9 Many of my colleagues are sought out by the mediaand even Congress to explain and comment upon the issues of the4. Id.5. Liz Anderson, Candidates Weigh Public's Right to Know, PROVIDENCEJ., Apr. 30, 2002, at Al.6. Doane Hulick, Separation of Powers Debate Leaves Legal ScholarsDivided, PROVIDENCE SUNDAY J., Apr. 26, 1998, at El.7. Edward Fitzpatrick, Black Lawyers Examine Progress, PROVIDENCEJ., Apr. 15, 2004, at Bl.8. See Michael J. Yelnosky, Rhode Island's Judicial Nominating Com-mission: Can 'Reform" Become Reality?, 1 ROGER WILLIAMS U. L. REV. 87(1996).9. See Peter Margulies, The Virtues and Vices of Solidarity: Regulatingthe Roles of Lawyers for Clients Accused of Terrorist Activity, 62 MD. L. REV.173 (2003).LOOKING BACK AND LOOKING AHEADday, from the fire at the Station nightclub ° to biodiversity. 1 Inshort, this is a faculty of fiercely independent scholars who "call'em as they see 'em." 12The School of Law also decided to sponsor a law review. Lawreviews have been an aspect of the landscape of American legaleducation since the late nineteenth century, and they are an insti-tution unique to law schools. "Students control every aspect of thelaw review, including article selection [and] publication .... Eventhough law schools provide financial support, office space, andprofessors as advisors, the students on the law review have agreat deal of autonomy and discretion." 13 In its first decade, thestudent editors and staff of the Roger Williams University LawReview have contributed much to public debate on a range of top-ics, from publishing notes and comments on land use and othertimely local matters, 4 to publishing the works of academics andpractitioners on issues of national scope, like fisheries law andpolicy.' 5With the tenth anniversary of the School of Law came an op-portunity to bring these two resources together, the faculty whohave made Bristol their professional home, and our student-editedjournal. A large majority of the full-time faculty agreed to conceiveand research their own distinctive projects and then publish theresults in the Law Review. Their efforts make up what follows: aneclectic mix of articles and essays, some short, some long, some10. Pam Belluck, 3 Men Are Indicted in Fire at Rhode Island Nightclub,N.Y. TIMES, Dec. 10, 2003 (quoting Associate Professor Andrew Horwitz).11. National Security Readiness Act: Hearing on H.R. 1835 Before theHouse Comm. on Resources, 108th Cong. 117-19 (2003) (statement of John C.Kunich, Associate Professor of Law, Roger Williams University School ofLaw).12. See Western Bank v. RaDec Constr. Co., 382 N.W.2d 406, 413 (S.D.1986) (Henderson, J., concurring) ("To an umpire, sometimes it's a strike andsometimes it's a ball. Sometimes it just shaves the plate. You call 'em as yousee 'em.").13. Michael L. Closen & Robert J. Dzielak, The History and Influence ofthe Law Review Institution, 30 AKRON L. REV. 15, 43 (1996).14. See, e.g., Matthew D. Slepkow, Shoring Up the Limits of Rhode Is-land's Public Trust Doctrine: Greater Providence Chamber of Commerce v.State of Rhode Island Makes It as Simple as One, Two, Fee, 1 ROGERWILLIAMS U. L. REV. 183 (1996).15. See, e.g., Symposium, National Fisheries Law and Policy, 8 ROGERWILLIAMS U. L. REV. 1 (2002).2004]324 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 9:321narrow, some broad, and yes, some which are going to be contro-versial, in Rhode Island and abroad.Of course, to publish a piece is not to endorse its content orconclusions. 16 In fact, it is uniquely the role of a law review to pro-vide a forum for such diversity of viewpoint. And all citizens, notleast individual members of a school of law faculty, 17 must be un-afraid to challenge conventional wisdom in order to fully partici-pate in the "marketplace of ideas" upon which our nation wasfounded.' s The same search for truth, though often difficult andhalting, is no mere quaint notion given lip service by ivory-towered academics.' 9 The freedom of faculty to conceive, research16. It is well-established that neither the school of law nor the universitywith which a law review is associated endorse the positions taken by the au-thors whose work is published. See Michael L. Closen, A Proposed Code ofProfessional Responsibility for Law Reviews, 63 NOTRE DAME L. REV. 55, 59-60 (1988).17. See generally Robert R. Kuehn, A Normative Analysis of the Rightsand Duties of Law Professors to Speak Out, 55 S.C. L. REV. 253 (2003).18. See Abrams v. United States, 250 U.S. 616 (1919).[Tihe ultimate good desired is better reached by free trade in ideas -that the best test of truth is the power of the thought to get itself ac-cepted in the competition of the market, and that truth is the onlyground upon which... [the Founders] wishes safely can be carriedout. That at any rate is the theory of our Constitution. It is an ex-periment, as all life is an experiment.Id. at 630 (Holmes, J. dissenting).19. The modern notion of academic freedom has its roots in the 1915Declaration of Principles of the American Association of University Professors(later revised as the 1940 Statement of Principles). These guidelines, nowadopted by virtually all universities and law schools, specifically acknowl-edge, indeed applaud, a trial and error approach to the advancement ofknowledge: "[A true university is an] intellectual experiment station, wherenew ideas germinate and where their fruit, though still distasteful to thecommunity as a whole, may be allowed to ripen until finally, perchance, itmay become a part of the intellectual food of the nation or of the world." Ash-ley Packard, Copyright or Copy Wrong: An Analysis of University Claims toFaculty Work, 7 COMM. L. & POL'Y 275, 287 n.65 (2002) (citing the AmericanAssociation of University Professors, Declaration of Principles (1915), re-printed in ACADEMIC FREEDOM AND TENURE app. A, 157-76, 167-68 (L.Joughin ed. 1969)). See also Rita L. Liberwitz, The Marketing of Higher Edu-cation: The Price of the University's Soul, 89 CORNELL L. REV. 763, 778 (2004)(book review); Donald J. Weidner, Academic Freedom and the Obligation toEarn It, 32 J.L. & EDUC. 445 (2003).Academic freedom is the freedom of a teacher or researcher in higherinstitutions of learning to investigate and discuss the problems of hisscience and to express his conclusions ... without interference frompolitical or eccliastical authority, or from the administrative officialsLOOKING BACK AND LOOKING AHEADand write, without interference from the law school with which heor she is affiliated, is a core value of the institutions that controlthe very fate of law schools - the American Bar Association andthe Association of American Law Schools.20From Distinguished Visiting Professor Robert Kent's RhodeIsland Civil Procedure - Some Problems,21 with its state law focus,to the national law concerns of Professor Diana Hassel's Lawrencev. Texas: Evolution of Constitutional Doctrine,22 this issue of theRoger Williams University Law Review contains convincing evi-dence that there is now an independent academic voice for law re-form that has its roots in Rhode Island and its sights on the nationand, indeed, the world.I hope you are engaged by the fruits of this effort and will joinin the debate.of the institution in which he is employed, unless his methods arefound by qualified bodies of his own profession to be clearly incompe-tent or contrary to professional ethics.Id. at 447.20. See American Bar Association Standards for Approval of Law SchoolsStandard 405(b) ("A law school shall have an established and announced pol-icy with regard to academic freedom and tenure."). The Appendix to Standard405 states: "Institutions of higher education are conducted for the commongood.... The common good depends upon the free search for truth and itsfree expression. ... The teacher is entitled to full freedom in research and inthe publication of the results, subject to the adequate performance of hisother academic duties." See also Bylaws of the American Association of LawSchools 6-lb(ii) ("Core values. The Association expects its member schools tovalue: Scholarship, academic freedom, and diversity of viewpoints."); Section103 of the Roger Williams University School of Law Faculty Handbook ("Thefaculty of the School of Law are entitled to freedom to pursue research and topublish the results of that research.").21. Robert B. Kent, Rhode Island Civil Procedure - Some Problems, 9ROGER WILLIAMS U. L. REV. 429 (2004).22. Diana Hassel, Lawrence v. Texas: Evolution of Constitutional Doc-trine, 9 ROGER WILLIAMS U. L. REV. 565 (2004).32520041

Roger Williams UniversityDOCS@RWUFaculty Scholarship Faculty Scholarship4-1-2004Reflections on the Tenth Anniversary: LookingBack and Looking AheadDavid A. LoganRoger Williams University School of LawFollow this and additional works at: http://docs.rwu.edu/law_fac_fsThis Article is brought to you for free and open access by the Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in FacultyScholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationLogan, David A., "Reflections on the Tenth Anniversary: Looking Back and Looking Ahead" (2004). Faculty Scholarship. Paper 24.http://docs.rwu.edu/law_fac_fs/24Reflections on the Tenth AnniversaryLooking Back and Looking AheadDavid A. Logan*In a very real sense, the idea of a law school in Rhode Islandshares much with the principles of freedom of thought espoused bythe state's founder, Roger Williams. Because of enforced orthodoxyin Old Europe and even in the American colonies, Rhode Islandwas conceived as a "lively experiment," and became home to here-tics and other freethinkers.1 Rhode Island was the first colony todeclare independence and the last to ratify the Constitution (be-cause it lacked a Bill of Rights to protect freedom of conscience), 2so it is only fitting that when Thomas H. Roberts (Chief Justice ofthe Rhode Island Supreme Court 1966-76) called for the estab-lishment of a law school in the state, he sought more than a localtraining ground for practitioners; he also recognized the need foran independent academic voice for law reform.3Chief Justice Roberts did not live to see his dream realized,but eventually Roger Williams University stepped forward and,with the help of far-sighted citizens, a law school was establishedin the East Bay that has done much to respond to Chief Justice* Dean and Professor of Law, Roger Williams University School of Law.1. See Edward J. Eberle, Roger Williams' Gift: Religious Freedom inAmerica, 4 ROGER WILLIAMS U. L. REV. 425, 468-69 (1999).2. Eric Parnes, 43 SANTA CLARA L. REV. 495, 509 n.60 (2003); R.I. GEN.ASSEM., RHODE ISLAND HISTORY: CHAPTER IX, THE REVOLUTIONARY ERA 1763-1790, at http://www.rilin.state.ri.us/studteaguide/RhodeIslandHistory/chapt3.html (last visited May 11, 2004).3. Thomas H. Roberts, The Necessity for a Rhode Island Law School, 21R.I.B.J. 4 (1973).322 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 9:321Roberts' call. In its first decade the School of Law has trained anexcellent cadre of lawyers, now numbering almost 1,000, manyperforming public service for the needy as all or at least part oftheir practices. This is no surprise, as our Feinstein Institute forLegal Service, as well as our clinics in Providence, not to mentionthe terrific law faculty, inculcate in our students an understand-ing that professionalism is rooted in the desire to serve. Consis-tent with this, many of our graduates are already assumingimportant leadership roles in their communities, in Rhode Islandand, increasingly, across the country.Chief Justice Roberts also believed that a law school would bea boon to Rhode Island because of the need to "improve the qualityof government on every level" and "improve the quality of justicein our courts."4 Again, Roger Williams University School of Lawresponded to the challenge, as the school has provided many op-portunities for the bench, bar and public to gain a better under-standing of important public issues. Among many examples of thisleadership are the hosting of a gubernatorial debate,5 a discussionof whether Rhode Island should abandon its idiosyncratic separa-tion of powers regime, 6 and, most recently, the Thurgood MarshallLecture Series, which brought to campus leaders in the fight forracial justice.7The faculty has not been hiding their lights under a bushel,either. From the school's inception, members of the faculty havestaked out their own positions on a dizzying array of issues, frommatters unique to the Ocean State, like the selection process forstate judges,8 to problems of global concern, like the fight againstterrorism. 9 Many of my colleagues are sought out by the mediaand even Congress to explain and comment upon the issues of the4. Id.5. Liz Anderson, Candidates Weigh Public's Right to Know, PROVIDENCEJ., Apr. 30, 2002, at Al.6. Doane Hulick, Separation of Powers Debate Leaves Legal ScholarsDivided, PROVIDENCE SUNDAY J., Apr. 26, 1998, at El.7. Edward Fitzpatrick, Black Lawyers Examine Progress, PROVIDENCEJ., Apr. 15, 2004, at Bl.8. See Michael J. Yelnosky, Rhode Island's Judicial Nominating Com-mission: Can 'Reform" Become Reality?, 1 ROGER WILLIAMS U. L. REV. 87(1996).9. See Peter Margulies, The Virtues and Vices of Solidarity: Regulatingthe Roles of Lawyers for Clients Accused of Terrorist Activity, 62 MD. L. REV.173 (2003).LOOKING BACK AND LOOKING AHEADday, from the fire at the Station nightclub ° to biodiversity. 1 Inshort, this is a faculty of fiercely independent scholars who "call'em as they see 'em." 12The School of Law also decided to sponsor a law review. Lawreviews have been an aspect of the landscape of American legaleducation since the late nineteenth century, and they are an insti-tution unique to law schools. "Students control every aspect of thelaw review, including article selection [and] publication .... Eventhough law schools provide financial support, office space, andprofessors as advisors, the students on the law review have agreat deal of autonomy and discretion." 13 In its first decade, thestudent editors and staff of the Roger Williams University LawReview have contributed much to public debate on a range of top-ics, from publishing notes and comments on land use and othertimely local matters, 4 to publishing the works of academics andpractitioners on issues of national scope, like fisheries law andpolicy.' 5With the tenth anniversary of the School of Law came an op-portunity to bring these two resources together, the faculty whohave made Bristol their professional home, and our student-editedjournal. A large majority of the full-time faculty agreed to conceiveand research their own distinctive projects and then publish theresults in the Law Review. Their efforts make up what follows: aneclectic mix of articles and essays, some short, some long, some10. Pam Belluck, 3 Men Are Indicted in Fire at Rhode Island Nightclub,N.Y. TIMES, Dec. 10, 2003 (quoting Associate Professor Andrew Horwitz).11. National Security Readiness Act: Hearing on H.R. 1835 Before theHouse Comm. on Resources, 108th Cong. 117-19 (2003) (statement of John C.Kunich, Associate Professor of Law, Roger Williams University School ofLaw).12. See Western Bank v. RaDec Constr. Co., 382 N.W.2d 406, 413 (S.D.1986) (Henderson, J., concurring) ("To an umpire, sometimes it's a strike andsometimes it's a ball. Sometimes it just shaves the plate. You call 'em as yousee 'em.").13. Michael L. Closen & Robert J. Dzielak, The History and Influence ofthe Law Review Institution, 30 AKRON L. REV. 15, 43 (1996).14. See, e.g., Matthew D. Slepkow, Shoring Up the Limits of Rhode Is-land's Public Trust Doctrine: Greater Providence Chamber of Commerce v.State of Rhode Island Makes It as Simple as One, Two, Fee, 1 ROGERWILLIAMS U. L. REV. 183 (1996).15. See, e.g., Symposium, National Fisheries Law and Policy, 8 ROGERWILLIAMS U. L. REV. 1 (2002).2004]324 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 9:321narrow, some broad, and yes, some which are going to be contro-versial, in Rhode Island and abroad.Of course, to publish a piece is not to endorse its content orconclusions. 16 In fact, it is uniquely the role of a law review to pro-vide a forum for such diversity of viewpoint. And all citizens, notleast individual members of a school of law faculty, 17 must be un-afraid to challenge conventional wisdom in order to fully partici-pate in the "marketplace of ideas" upon which our nation wasfounded.' s The same search for truth, though often difficult andhalting, is no mere quaint notion given lip service by ivory-towered academics.' 9 The freedom of faculty to conceive, research16. It is well-established that neither the school of law nor the universitywith which a law review is associated endorse the positions taken by the au-thors whose work is published. See Michael L. Closen, A Proposed Code ofProfessional Responsibility for Law Reviews, 63 NOTRE DAME L. REV. 55, 59-60 (1988).17. See generally Robert R. Kuehn, A Normative Analysis of the Rightsand Duties of Law Professors to Speak Out, 55 S.C. L. REV. 253 (2003).18. See Abrams v. United States, 250 U.S. 616 (1919).[Tihe ultimate good desired is better reached by free trade in ideas -that the best test of truth is the power of the thought to get itself ac-cepted in the competition of the market, and that truth is the onlyground upon which... [the Founders] wishes safely can be carriedout. That at any rate is the theory of our Constitution. It is an ex-periment, as all life is an experiment.Id. at 630 (Holmes, J. dissenting).19. The modern notion of academic freedom has its roots in the 1915Declaration of Principles of the American Association of University Professors(later revised as the 1940 Statement of Principles). These guidelines, nowadopted by virtually all universities and law schools, specifically acknowl-edge, indeed applaud, a trial and error approach to the advancement ofknowledge: "[A true university is an] intellectual experiment station, wherenew ideas germinate and where their fruit, though still distasteful to thecommunity as a whole, may be allowed to ripen until finally, perchance, itmay become a part of the intellectual food of the nation or of the world." Ash-ley Packard, Copyright or Copy Wrong: An Analysis of University Claims toFaculty Work, 7 COMM. L. & POL'Y 275, 287 n.65 (2002) (citing the AmericanAssociation of University Professors, Declaration of Principles (1915), re-printed in ACADEMIC FREEDOM AND TENURE app. A, 157-76, 167-68 (L.Joughin ed. 1969)). See also Rita L. Liberwitz, The Marketing of Higher Edu-cation: The Price of the University's Soul, 89 CORNELL L. REV. 763, 778 (2004)(book review); Donald J. Weidner, Academic Freedom and the Obligation toEarn It, 32 J.L. & EDUC. 445 (2003).Academic freedom is the freedom of a teacher or researcher in higherinstitutions of learning to investigate and discuss the problems of hisscience and to express his conclusions ... without interference frompolitical or eccliastical authority, or from the administrative officialsLOOKING BACK AND LOOKING AHEADand write, without interference from the law school with which heor she is affiliated, is a core value of the institutions that controlthe very fate of law schools - the American Bar Association andthe Association of American Law Schools.20From Distinguished Visiting Professor Robert Kent's RhodeIsland Civil Procedure - Some Problems,21 with its state law focus,to the national law concerns of Professor Diana Hassel's Lawrencev. Texas: Evolution of Constitutional Doctrine,22 this issue of theRoger Williams University Law Review contains convincing evi-dence that there is now an independent academic voice for law re-form that has its roots in Rhode Island and its sights on the nationand, indeed, the world.I hope you are engaged by the fruits of this effort and will joinin the debate.of the institution in which he is employed, unless his methods arefound by qualified bodies of his own profession to be clearly incompe-tent or contrary to professional ethics.Id. at 447.20. See American Bar Association Standards for Approval of Law SchoolsStandard 405(b) ("A law school shall have an established and announced pol-icy with regard to academic freedom and tenure."). The Appendix to Standard405 states: "Institutions of higher education are conducted for the commongood.... The common good depends upon the free search for truth and itsfree expression. ... The teacher is entitled to full freedom in research and inthe publication of the results, subject to the adequate performance of hisother academic duties." See also Bylaws of the American Association of LawSchools 6-lb(ii) ("Core values. The Association expects its member schools tovalue: Scholarship, academic freedom, and diversity of viewpoints."); Section103 of the Roger Williams University School of Law Faculty Handbook ("Thefaculty of the School of Law are entitled to freedom to pursue research and topublish the results of that research.").21. Robert B. Kent, Rhode Island Civil Procedure - Some Problems, 9ROGER WILLIAMS U. L. REV. 429 (2004).22. Diana Hassel, Lawrence v. Texas: Evolution of Constitutional Doc-trine, 9 ROGER WILLIAMS U. L. REV. 565 (2004).32520041

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Reflections on the Tenth Anniversary: Looking Back and Looking Ahead

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