I am delighted to be here honoring Dan Mandelker because he played such an important—I might even say pivotal—role in my professional life. My major problem with talking about Dan is figuring out where to begin. So, I guess I will just go back to the beginning. Dan and I go back more than fifty years, to the mid-1960s when I was a student and research assistant of his at Washington University Law School. During the succeeding fifty-plus years, I have built a career as an appellate lawyer, with a strong focus on land-use and takings cases. I have, to date, managed to argue four significant regulatory takings cases in the United States Supreme Court1 and a variety of land-use related cases in the California Supreme Court,2 something I did not dare dream of when I first sat down in Dan’s land-use class. The idea that I would spend a professional lifetime studying, litigating, and teaching cutting-edge constitutional law was hard to imagine.3 It is hard to convey the joy of the practice that I landed in, largely because of Dan, although neither of us knew it at the time.4
November 08, 2023 Feature
Dan Mandelker—As I Have Known Him over the Years
Michael M. Berger
When people ask how I got to where I am in the profession, my usual response is “dominoes.” I would like to say that it was carefully planned out, but it was largely accidental, and Dan was the first domino to fall. I was minding my business as a hard-pressed 2L, checking out the bulletin board at the law school, when I saw a note from a professor I did not know who said he needed a research assistant for a subject I knew little about. A match made in heaven. At that point, I cannot say I knew much about land use or even had a serious interest in it, but the gig sounded interesting to a law student since the professor was working on a law review article and was asking for help with the research. It is what law students (and, eventually, lawyers) do. So, I pulled the note off the board and went off to meet Dan. It was the best accident I ever had. I did not realize it at the time, but the serendipity of finding that little note was the start of a wonderful career.
I spent the next two years working for Dan on book chapters and articles and taking his land-use class. Taking the class, by the way, was a prerequisite to getting the research job—but I was never sorry he made me take that class. Like I said: dominoes. Dan’s class was what set me up for a very satisfying professional life. By the way, one of the nice things about working for Dan, as several others at this conference have mentioned, is that he never shied away from sharing credit. If you do the research, you will find an old law review article about redevelopment from 1967 that Dan wrote and in which I was given footnote credit for contributing to it.5 By sheer coincidence, I recently received an email from a former student (both mine and Dan’s from seven or eight years ago at Washington University School of Law) who was a former researcher for Dan who—with no knowledge of what I was about to say here—attached two law review articles in which Dan gave her footnote credit for her assistance.6
I ended up really enjoying that course in land-use law. I have told others, and will share with you now, that I think I learned more constitutional law from Dan in that class than I did in my constitutional law class where, as is still often typical, regular constitutional law professors have little interest in the last clause of the Fifth Amendment.7 No aspersions on my constitutional law professor, but I simply found the issues more interesting the way they popped up in Dan’s land-use class and the way he discussed them.8
Dan gave me the next bump in my career when, after passing the Missouri Bar Exam, I found that there were virtually no jobs in St. Louis for young lawyers even though, if I may say (with all humility), the Washington University Law class of ’67 was stunningly good. I had grown up in St. Louis and gone to law school there, so it seemed only natural to pursue my legal career there. But it was not to be.
Next domino: Dan introduced me to another heavyweight in the land-use field: George Lefcoe at the University of Southern California. It turned out that George had an LLM fellowship available (that, coincidentally, paid about as much as a St. Louis law firm was willing to pay a first-year associate in those days—an important issue for a young lawyer). When George offered it to me, I immediately got on a plane and headed for Los Angeles—and never looked back. During that fellowship,9 I researched and wrote an article that I would rely on in practice for the next twenty years.10 It had to do with the relationship between airport operators and their neighbors and the legal implications that followed.11 The bicoastal nature of my fellowship was particularly useful for my chosen topic, as litigation was flaring in both California and Connecticut because of airport noise.
The Los Angeles law firm that I joined was one that I had interviewed during my thesis work because that firm was heavily involved in suing airports on behalf of their neighbors. It was too obvious a match for either of us to pass up.12 As I mentioned, I ended up using the research in my thesis for at least the first two decades of my practice, as I handled much of the appellate litigation involving airport noise in California (including all but one of the cases that reached the California Supreme Court)13 and a number in other states14 as well.
Dan and I stayed in touch over the years. We participated in conferences together (several times at Washington University, at his instigation, I am pleased to say), and when I eventually became adjunct faculty at Washington University, we spent time together when I came back to St. Louis to teach.15 He always found time to have dinner with my wife and me. But we were a strange pair. Early on, Dan had described himself as a “police power hawk”16 (as some of you may know), meaning (as I understood it from the other side of the fence) that anything the government wanted to do was OK, although I think he has mellowed somewhat in more recent days.17
But I was, as it turned out, on the other side of the fence. I had joined a small firm in Los Angeles that specialized in eminent domain and land-use law, only from the property owners’ side. As I said, Dan got me started in the field, and then the dominoes kept falling. My firm almost never represented the government, unless it was to sue some other government agency.18 But Dan and I remained friends anyway. We actually found it possible to jointly author a semi-scholarly article on the one subject that we found we could agree on: we both thought that the ripeness rule requiring regulatory takings plaintiffs to sue and lose in state court before they could seek compensation in federal court19 was—to use the technical term—stupid.20 Dan felt so strongly about the issue that he even testified before Congress in two successive sessions, trying to find a legislative solution to the judicially created morass.21 I was pleased to see that, although we appeared to be a bit ahead of our time, the Supreme Court finally got rid of that abomination—albeit it took them thirty-five years to do so.22 I filed a brief of amici curiae in that case in support of burying the rule. My clients were two non-profit organizations . . . and Dan Mandelker.
So, Dan, it has been an incredible pleasure to know you and work with you for more than half a century (man, that makes us both sound old). Although we have had some substantive disagreements over the years, the profession will be a less interesting place without you. I hope you enjoy your retirement although, from what some of the other participants said at the live version of this program, you may continue to be dragged into interesting land-use issues in the future.
Endnotes
1. First Eng. Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987); Preseault v. I.C.C., 494 U.S. 1 (1990); City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999); Tahoe-Sierra Pres. Council v. Tahoe Reg. Plan. Agency, 535 U.S. 302 (2002).
2. Metro. Water Dist. v. Campus Crusade for Christ, 41 Cal. 4th 954 (2007); Mt. San Jacinto Cmty. College Dist. v. Superior Court, 40 Cal. 4th 648 (2007); Regency Outdoor Advert., Inc. v. City of Los Angeles, 39 Cal. 4th 507 (2006); People ex rel. Dept. of Transportation v. S. Cal. Edison Co., 22 Cal. 4th 791 (2000); City of Manhattan Beach v. Superior Court, 13 Cal. 4th 232 (1996); County of Los Angeles v. Berk, 26 Cal. 3d 201 (1980); S. Coast Reg’l Comm’n v. Gordon, 18 Cal. 3d 832 (1977).
3. Albeit a bit of a constitutional niche practice, it has continued to grow and flower during the years since I started.
4. In fact, when I was asked to write an essay for a collection of thoughts in celebration of Washington University’s 150th birthday, my title reflected that feeling. See Michael M. Berger, The Joy of Takings, 53 Wash. U.J.L. & Pol’y 189 (2017).
5. If you don’t want to do the work, here it is: Daniel R. Mandelker, The Comprehensive Planning Requirement in Urban Renewal, 116 U. Pa. L. Rev. 25, 41 (1967); Daniel R. Mandelker, Litigating Land Use Cases in Federal Court: A Substantive Due Process Primer, 55 Real Prop., Tr. & Est. L.J. 69 (2020), where Dan acknowledged my reviewing assistance.
6. Daniel R. Mandelker, Zoning Barriers to Manufactured Housing, 48 Urb. Law. 233 (2016); Daniel R. Mandelker, Spot Zoning: New Ideas for an Old Problem, 48 Urb. Law. 737 (2016).
7. See Michael M. Berger, Supreme Bait & Switch: The Ripeness Ruse in Regulatory Takings, 3 Wash. U. J.L. & Pol’y 99, 99 n.1 (2000); Berger, Joy, supra note 4, at 189 n.1.
8. I actually had a summer associate a number of years ago—not from Washington University, Dan—who was supposed to be helping me prepare the briefs in a takings case, which was then pending in the California Supreme Court. As I tried to explain the case to her and the issues that needed researching, she looked at me with the classic wide-eyed look of a deer in the headlights. When I asked whether she had yet taken the course in constitutional law (which she certainly should have at that point in her legal education), she explained a bit shame-facedly that her constitutional law professor told the class that he did not intend to “waste” any time on the Takings Clause and that the students could study it on their own if they liked. (Who would bother with such a thing if the professor had already told you, in effect if not precisely in words, that it was not worth his time and would not be on the final exam?)
9. It was a rather unusual fellowship. Professor Lefcoe had already wrangled a visiting professorship at Yale for the second semester. As he had fellowship money from the University of Southern California for an entire year but would only be there for one semester, he asked the administration if he could have two students for one semester. No problem. Then, he approached Yale, which has always been awash in funding, and asked if he could bring his two research assistants along with him. No problem there either. So, we spent the first semester in Los Angeles and the second in New Haven, a very well-rounded year (although leaving sunny southern California and driving to New Haven in January was no treat).
10. How many graduate students can say that?!
11. Michael M. Berger, Nobody Loves an Airport, 43 S. Cal. L. Rev. 631 (1970). The article researched and analyzed virtually every such case decided in the country, thus providing a base for arguing almost every issue that arose in my eventual practice. This was followed by a slew of others based on my practical experiences, but I will not bore you with more citations here. They are easy to find if you are interested.
12. As I heard one of the partners comment to the others, “This guy was built to our specifications!”
13. See Nestle v. City of Santa Monica, 6 Cal. 3d 920 (1972); City of San Jose v. Superior Court, 12 Cal. 3d 447 (1974); City of Los Angeles v. Decker, 18 Cal. 3d 860 (1977); Britt v. Superior Court 20 Cal. 3d 844 (1978); Greater Westchester Homeowners Ass’n v. City of Los Angeles, 26 Cal. 3d 86 (1979); Baker v. Burbank-Glendale-Pasadena Airport Auth., 39 Cal. 3d 862 (1985) (amicus curiae). Citations to additional cases in the California Court of Appeal are too numerous and would needlessly bulk up this footnote. See also Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115 (9th Cir. 1980). There had only been one such case in the California Supreme Court before I started my practice (and it dealt with noise liability as between airport owner/operator and airline owner/operator), an issue already decided by the U.S. Supreme Court, so that left the field pretty open. See Loma Portal Civic Club v. Am. Airlines, Inc., 61 Cal. 2d 582 (1964).
14. E.g., City of Romulus v. County of Wayne, 634 F.2d 347 (6th Cir. 1980); Murty v. Lexington-Fayette Urb. Cnty. Airport Bd., 612 S.W.2d 765 (Ky. App. 1981).
15. I taught a course in takings law. We managed to fit an entire one-credit course into four sessions over the space of a week so that I could come from Los Angeles to teach it. The students loved it because they thought they could pick up an entire credit for a simple week’s worth of work. Little did they imagine how excruciating takings law can be.
16. Daniel R. Mandelker, Land Use Law v (1982).
17. For our substantive disagreements, compare, for example, Norman Williams, Jr., R. Marlin Smith, Charles Siemon, Daniel R. Mandelker & Richard F. Babcock, The White River Junction Manifesto, 9 Vt. L. Rev. 193 (1984), with Michael M. Berger & Gideon Kanner, Thoughts on The White River Junction Manifesto: A Reply to the “Gang of Five’s” Views on Just Compensation for Regulatory Taking of Property, 19 Loy. L.A. L. Rev. 685 (1986). For Dan’s more recent views, see Daniel R. Mandelker, Litigating Land Use Cases in Federal Court: A Substantive Due Process Primer, 55 Real Prop., Tr. & Est. L.J. 69 (2020).
18. One of my favorite cases, in fact, was representing the City of Inglewood in a class action suit against the City of Los Angeles over the noise and other nasty byproducts of Los Angeles International Airport, which showered down on Inglewood’s residents. We won and obtained a ruling that, when Los Angeles made promises to the federal government as part of applications for federal fiscal assistance (including a promise to take into account the impact of its actions on its neighbors [see 49 U.S.C. §1716(c)(3)]), the residents of Inglewood became third-party beneficiaries of those agreements and could sue to enforce them. See City of Inglewood v. City of Los Angeles, 451 F.2d 948 (9th Cir. 1972).
19. For probably the first article written that criticized this preposterous rule, see Michael M. Berger, Anarchy Reigns Supreme, 29 J. Urb. & Contemp. L. 39 (1985).
20. See Daniel R. Mandelker & Michael M. Berger, A Plea to Allow the Federal Courts to Clarify the Law of Regulatory Takings, 42 Land Use L. & Zoning Digest 1 (1990).
21. See John J. Delaney & Duane J. Desiderio, Who Will Clean Up the “Ripeness Mess”? A Call for Reform So Takings Plaintiffs Can Enter the Federal Courthouse, 31 Urb. Law. 195, 234 (1999) (attaching a transcript of Dan’s testimony on H.R. 1534 before the House Judiciary Committee).
22. Knick v. Township of Scott, 588 U.S. ___, 139 S. Ct. 2162 (2019), overruling in significant part Williamson Cnty. Reg. Plan. Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).