On January 28, 2011, the recently retired Chief Justice of the New Hampshire Supreme Court, John Broderick, became the Dean and President of the University of New Hampshire School of Law. The new UNH School of Law is the law school formerly known as Franklin Pierce Law Center, renowned around the world for its intellectual property program. On January 31, 2011, I had the opportunity to chat with Chief Justice Broderick, who prefers to go by his first name these days.
While to many Franklin Pierce Law Center is not a household name, in the intellectual property world Franklin Pierce is indeed a brand name that has achieved lofty distinction as a result of the great successes of the alumni. The unique spirit of Franklin Pierce has not been lost, and neither will the name be lost either. The University of New Hampshire has established the Franklin Pierce Center for Intellectual Property, which should certainly help keep the name and tradition within the intellectual property community.
I am a proud alumnus of Franklin Pierce Law Center. It was sad in some respects to see the independent law school I went to undergo change. Change is frequently scary, but certainly not always bad. After speaking with Broderick I left with the sense that the affiliation with the University of New Hampshire will be a good thing. There will be joint degree programs and resources greater than an independent law school could muster. The alumni will no doubt be engaged and keep a watchful eye, but having a distinguished jurist and distinguished litigator at the helm will no doubt serve the institution well.
Without further ado, here is the first part of my interview with Chief Justice John Broderick, Dean of the University of New Hampshire School of Law.
QUINN: First I want to thank you very much for taking the time to chat with me. I really appreciate it.
BRODERICK: Pleased to do it.
QUINN: And one of the things, as you know, I’m a member of the New Hampshire Bar Association, and to me you are Chief Justice Broderick, and you probably always will be, I suppose. So I wonder how should I address you and how do you have folks around the law school address you? Is it Dean Broderick, is it Chief Justice Broderick? What do you prefer?
BRODERICK: You know, it’s funny. I’ll tell you this brief story. When I first came here, Gene, the people were asking how they should address me? And I said, well, I was the Chief Justice, I’m not yet the Dean and my first name would sound pretty good. So you can call me John, and I would say the same to you. You can call me Dean Broderick or you can call me John Broderick, it’s totally up to you. But I’m really in search of my first name again.
QUINN: Well, that’s good to hear. One of the things about Franklin Pierce that I have always really liked is that there is this very collegial atmosphere where the professors and students and administration are all on fist name basis.
BRODERICK: Yes. Well, you know in my time in the court system, although I couldn’t train people there to call me other than Chief Justice, what I did learn, Gene, is if you want real progress, which is usually a group sport, if you are leading the team because you have a certain number on your jersey and you have to keep reminding people that you have the lowest number, progress isn’t easy. The best way to lead any organization is to be embedded in it. That’s my view and maybe to encourage and inspire, and oftentimes to learn yourself. So I think progress is a group sport, and I think will be true here.
QUINN: All right. Substantively, let’s start with your letter to Governor John Lynch when you decided that it was time for you to step down and move on. There was a couple interesting things in the letter that caught my attention. One was you said, and I’m going to quote, “My life has taught me that change is good and the time is right.” And then you went on to say, “It was never my intent to stay too long.” Could you maybe elaborate on that? What made you realize or feel that this was the right time to step down and move on?
BRODERICK: Well, I think we all have an internal rhythm. I had been on the Supreme Court for 15 years. It was a phenomenal privilege. I could have stayed on as Chief Justice for another seven years. But I thought, well, I’ve done much of what I had come to do, at least administratively. And I had never defined myself by my job title. I loved the job, but the title I always found a list intimidating, even to me. But mostly I had other things that I knew I wanted to do and accomplish. And if I stayed there for another seven years I might not have that opportunity. During my time as a lawyer I worked at one firm initially for 17 years. I became head of its trial department. They were talking to me about becoming managing partner. And then I left. Not because I didn’t enjoy them, but because I wanted to be in a smaller boat for a while. So I started what some would describe as a boutique trial firm. I started it with a friend who later became Governor. I loved being a trial lawyer, I really did. Later the Governor asked me if I would like to go on the Supreme Court. I couldn’t image why anyone would want to do that, because I loved what I was doing. But my life had taught me up to that point that you take opportunities when they arise because they often don’t come back. And so I took the judicial position never having aspired to it. I loved that job, too. I was privileged to have it. But I also knew deep down inside that there were other parts of my life I wanted to reconnect with and I wouldn’t be able to do that if I stayed on the bench. I had some unfinished business on the court, but realized I would have unfinished business even if I stayed another seven years. The only mistake I think people make in their lifetime, in their professional lifetime, is to believe that they’re somehow indispensible. That belief can trap you. Someone pointed out to me one day that the cemetery is filled with indispensible people. So I felt comfortable leaving.
QUINN: So when you stepped down were you planning on going to become dean at the law school or maybe explore other options? Or how did the timing work?
BRODERICK: It’s difficult when you’re Chief Justice to look for a job. So I intentionally decided I would not look but I just announced I was leaving in November. I then received several inquires from law firms, for example, who did not have a conflict, or felt they didn’t, to inquire whether I had the interest in joining them or at least talking to them. So I double checked, but it was more focused, I found no conflicts and I talked to a number of firms. I received a number of offers. Somewhere in that time-frame I also learned of the opening here at the law school, and someone suggested I should explore it. And I thought that was an interesting idea. The more I explored the option the more interested I became. Ultimately I had the opportunity to either accept one of several law firm offers or to do something here at the law school. And in the final analysis I thought this was a better use of my experience and my 15 years as an appellate judge. And so I chose this. I was delighted to have the opportunity. So when I announced I was leaving the court, I didn’t know what I’d be doing, which at one level seemed rather irresponsible. On the other hand, it was almost impossible to look for a job that had not been looking for me.
QUINN: I suppose that that is true. I never really thought about that. But I guess now, the Court probably has guideline for folks who are clerks when their time is nearing end and they’re looking for other work. Did those guidelines assist you in navigating any ethical waters?
BRODERICK: No, the law clerks are not — I mean, if you’re looking for a job with a certain firm, obviously, you’re not going to hear their cases. By the time I announced in June we were almost done argument for the summer. I decided that I wouldn’t sit on cases in September no matter whose they were because I wasn’t certain they would be released by the time I left. I don’t always control when the draft leaves the building or whether people dissent. So I thought it prudent not to sit. So my real concern was: does anyone whose approaching me have a case currently pending here on which I sat. Or did they have a case that I would have to recuse myself from. So the law firms that approached me were firms that did not have any pending cases. So I felt I had to safe harbor.
QUINN: Interesting. I’ve interviewed Chief Judge Michel, who’s now retired from the Court of Appeals for the Federal Circuit. And he’s talked about just how restrained a judge needs to be in their day-to-day life. And one of the things he told me is he wanted to move on. In part, because he wanted to be able to voice his opinion on certain issues that he otherwise couldn’t do. I understand why that is, but it strikes me as interesting in a way. The people, like you, who have seen the ins and outs and are probably in the best position to really comment are not allowed to comment.
BRODERICK: Well, I think it goes ultimately, Gene, not to a Judge’s impartiality, but to something equally important, and that is the appearance of impartiality. So if judges were to comment on what was happening in the marketplace and in the town square, I think their impartiality might reasonably be questioned. It’s a very restrictive existence, but I don’t say that as a complaint. I don’t mean it that way. It’s an extraordinary privilege, and an even greater responsibility. I think to be able to participate in deciding how other people or businesses will structure or organize their lives is a pretty amazing power. And so I think it has to be used with some humility and restraint. And so I think anything you do that would cast doubt upon the integrity of your decision does real damage. And so whether you’re on the bench or you’re trying to leave the bench, and in my case I wasn’t leaving it to retire, I was leaving it to reengage, I had to be very careful. And I think I was.
QUINN: Yeah, and just to follow up with maybe one more question. If you could speak, because I know you as the Chief Justice had some responsibility to testify in front of the Legislator or make written comments, or at least make requests with respect to the administration of the Court.
QUINN: How does that whole process work out? I know on the one hand you need to be very careful and restrained with what you say, but on the other hand you need to convey the information about what’s really going on in the court system. It almost seems like you need to be a little bit like the Fed Chairman in speaking.
BRODERICK: Well, yes and no. I think one of the things Judges are free under the code to write and discuss are issues involving the administration of justice. And so I read that in my job as an opportunity to explain and in a sense to advocate for the administration of justice, particularly with our funders, but more generally throughout the State. Sometimes I spoke to newspaper editors, boards and sometimes civic organizations telling them what was happening in the Courts. I thought for sometime that the Courts were in jeopardy and at risk. So I took every opportunity I had to speak. I was proud to do it. And I think, sadly in 2011, almost everyone overseeing the administration of a State Court System has the same need to speak up. Not because they’re being politicians, but because they’re fulfilling their obligations to ensure that justice is fairly dispensed.
QUINN: Now, let me jump back for a second to something we touched on a little bit earlier. You were talking about the timing in terms of when you were showing interest or making application to Franklin Pierce Law Center, a couple questions. How did that present itself? And how did you actually make an application or — I mean, I guess what I’m trying to get at was it you reaching out to them or did they reach out to you, or how did that work?
BRODERICK: Well, I’ll tell you what happened. I knew John Hutson was leaving in June of 2011. He sent a letter out I think in June of 2010 advising of his departure. I had just given my own notice. I knew John and liked him a lot, but was not then thinking about applying to be a law school dean. And also knowing that even if I had thought about it, it wouldn’t be open until the summer of 2011, I was leaving in November. And so I didn’t want to wait for eight months, I wanted to get back out in the world. So that’s why I didn’t jump on it even after I announced. And then subsequently a very dear friend of mine, whom I had known for years asked me if I had given the dean opening any thought? And I said, well, I haven’t really because it’s not open for another eight or nine months. Well, then the word came back that if they decided I was the right candidate and they really wanted me, maybe they wouldn’t have to wait till next summer. And I said, well, if that’s on the table, if I turned out to be the right candidate, then, sure, I think I would be interested in the job. It was a very unusual opportunity, I thought. I had taught for 11 years at Dartmouth and I had taught multiple seminars when I was a practicing lawyer. And I loved teaching and being around students. I have a great respect for the profession of law and a great concern for its future. So there were a lot of things here that interested me. And so that was the premise under which I applied under. Obviously, no guarantees. They were going to do a national search. And so there was no guarantee they’d ever come back to me. But if they did, and if they offered me the job I was very clear with them that I couldn’t wait until the summer of ’11. So I didn’t want to mislead them in any way.
QUINN: Right. Well, as you may or maybe you don’t know, I am a Franklin Pierce Law School graduate.
BRODERICK: I do know that.
QUINN: Well, hopefully in a good way you know that.
BRODERICK: Yes, I do know that in a good way, absolutely.
QUINN: So obviously, I stay in touch with Franklin Pierce alum. And it’s no longer Franklin Pierce, it’s now the University of New Hampshire School of Law.
QUINN: And to be honest, there’s been at least some folks who have been a little skeptical about the FPLC-UNH merger. What can you tell us about the merger itself and how it’s progressing and what efforts are underway to not lose the association with Franklin Pierce Law Center?
BRODERICK: My sense is there’s a fair amount of misinformation, or perhaps, a lack of information about what’s going on here. First of all, I hope people aren’t nervous about it because I think it will enhance the law school if we achieve the success that I think we can. What’s happened here is that the law school, formerly Franklin Pierce, has an affiliation agreement with the University. And during this time of affiliation the law school remains totally autonomous, totally independent. It manages its own curriculum, it runs its own revenue stream, it pays its own bills. There’s no comingling, no veto power in the university. So we’re really operating as we always have. Over the several years as this affiliation agreement goes forward, every year the University president has an opportunity to appoint a few more directors to the board of trustees here. But the board of trustees still remains autonomous. If this goes to a full merger, which could happen I suppose, but it can’t happen any earlier than two years from now. More likely if it happens, it will be three to four years down the road. If that were to take place then the law school would have a board of advisors, not a board of trustees and we would be part of the University itself. Now, between now and then there are a lot of things that have to be worked out. And not the least of which we expect is joint degree programs of which there will be four or five a year from now. There will also be integrated curriculum at multiple levels. And so I think at this point we are walking down the aisle together but no one I totally committed to marriage yet. And so I hope that we either get to the point where we are merged, or that we get to the point where we have a strong affiliation agreement without the need to merge. And I think the jury’s still out on how that should be resolved. I think the University was attracted to this school in large part because of it’s IP notoriety. But also because any great University, they believe, needs a law school. And they had great respect for what was going on here. I understand that from their point of view. From our point of view I think part of the realistic assessment is that if we’re a small independent law school in a somewhat cold northern climate in a small capital city. So I think the affiliation was mutually beneficial. The challenge now I think is to take mutual opportunities to enhance what each of these institutions does and to find out whether or not a full merger is in our joint interest, or whether a very strong affiliation agreement where this law school would have more autonomy and entrepreneurial ability makes the most sense. So I think people should understand that even though the name has changed, and even though the degrees come from UNH, we are not yet to the point of a full merger which would not happen, if it happens, for several more years. But whatever happens, whether it’s a merger or a strong affiliation, it will enhance the capacity of this school to attract students and to expand its global reach. The University is a great partner, I think, and the president of the University, Mark Huddleston, is a visionary leader who has a very global view of the University and it’s fingerprint in the 21st Century, which is entirely consistent, I think, with kind of the entrepreneurial ethos of this school when it was Franklin Pierce.
The other thing we’re doing to ensure that the Franklin Pierce name is not lost is building, as we speak, a Franklin Pierce Center for Intellectual Property and, the name will be prominently displayed on that structure. It will be opened this fall, early fall. And so we will keep the name there and I think it will help us a great deal. But I think without the University engaged with us at some level, maintaining our long term prominence in IP would be more complicated.
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