Dan Mandelker: Valued Treatise Partner

This is not to say that I was unaware of and uninfluenced by the impressive and expansive Mandelker corpus during the first few decades of my career as a teacher and scholar of land-use, property, environmental, and local-government law. Far from it—citations to Dan’s work have appeared in my publications for decades. For example, when I observed in a 2002 article that “[t]oo often, environmental protection and conservation have been a cloak for exclusion of the poor, minorities, students, or the elderly,” the accompanying footnote read: “Prof. Daniel Mandelker addressed this problem in the early 1980s, with the same sharp insights that have typified his scholarship. See Daniel R. Mandelker, Environment and Equity: A Regulatory Challenge (1981).”² For me and for so many other professors, judges, and practitioners, Dan’s writings have been go-to sources for knowledge and insights on a seemingly endless list of topics.

Before I formed a personal bond with Dan, I could be more objective about the originality and persuasiveness of his insightful findings and assertions. In law schools, indeed across university departments and schools, there is a strong tendency toward balkanization of subject matter. Soon after new disciplines are established, professors, department chairs, and deans set up border crossings, making it hard to move from one borough of the academic realm to another. Dan’s scholarship has consistently ignored those artificial boundaries. Yes, zoning is primarily local law, and environmental law is primarily state and federal in nature. Nevertheless, these two sets of controls often interact, influence each other in profound ways, and contribute in positive and negative ways to the common good.³ Similarly, to talk about the acute need for affordable housing without including zoning and other land-use restrictions in the discussion is fruitless.⁴ Thanks to Dan’s leadership, today scholars and practitioners are more comfortable with moving between legal disciplines to the benefit of their clients, students, and society at large.⁵

For decades, I recommended Dan’s Land Use Law as a valuable one-volume treatise for my land-use law students. I admired his clarity, knowledge, and organizational skills. My students were most appreciative of this recommendation and were thankful when the treatise became part of their Lexis law student package. When I took over Powell on Real Property in 2000, I became even more appreciative of Dan and his treatise, so much so that several years ago, I told Nancy Greening, our mutual editor at LexisNexis Matthew Bender, that if Dan were ever in the market for a co-author, I would be very interested. A few years later, Nancy told me that Dan had inquired about my interest and availability. I jumped at the chance, and the Mandelker and Wolf partnership has been productive and, at least on my end, very satisfying. While I take the lead role in supplementing and updating the text and citations, Dan remains actively involved, always making helpful suggestions.

From the beginning, Dan was a generous and deferential partner. He approved my vision for the sixth edition, including my decision to focus on state high-court opinions and to include quotations in new case citation parentheticals rather than paraphrasing, and he has always made very helpful suggestions for improving the book. This was my third experience taking over a treatise or casebook identified with a property law legend. In the 1980s, Charles Haar, my dear friend and long-time collaborator, asked me to join the fourth edition of Land Use Law, and in 2000 I became general editor for Powell on Real Property. I am so appreciative that I can communicate with (and learn from) the original author, seeking his advice and receiving his helpful suggestions. It is a relationship that I cherish, and I would hope that all law professors could find the kind of partnership we have.

Glancing backward, we can perceive that the middle decades of the twentieth century comprised the golden age of American treatises written by full-time law professors. The names of William Prosser, Samuel Williston, Richard Powell, Charles McCormick, and Austin Wakeman Scott are intimately associated with the legal disciplines to which they devoted their energy and intelligence—torts, contracts, property, evidence, and trusts, respectively. This is by no means an exhaustive list.⁶

In the field of land-use law, Dan (whose first edition of Land Use Law was published in 1970) was not the only law professor to craft an influential treatise. In 1968, Robert Anderson first published the American Law of Zoning, now in the very capable hands of Patty Salkin. Norman Williams published his American Land Planning Law in 1986. The inimitable Donald Hagman produced Urban Planning and Land Development Control Law in 1971. Time will tell whether, a decade or more from now, a new generation of law professors will take the reins of these titles or develop a brand-new treatise.

Unfortunately, many younger and less-seasoned law professors, particularly those at schools mindful of rankings, will never have the opportunity to write or revise a treatise. This is because, over the last several years, many senior colleagues have cautioned professors to steer clear of treatises, hornbooks, and casebooks, and many deans have removed research funding for long-form legal titles that are designed, not just for other academics, but for practitioners, judges, and students as well. Because law review articles (and the citations that they generate) are the coin of the realm for those in the legal academy who assess colleagues for internal and external comparisons, and because many law professors are only interested in reaching their counterparts in other schools, I am afraid that, ten years from now, finding a tenured law professor as the author of a leading treatise will be as rare as sighting an endangered species.

Why should we care about who writes and edits our treatises, and why should professors even consider following in Dan Mandelker’s large footsteps? After all, there have been many examples of leading practitioners and judges at the helm of single- and multi-volume treatises that carry great authoritative weight. Of the many reasons why we should continue to encourage law professors to write and revise treatises, four are most salient.

First, treatise authors who bear the responsibility of keeping up with new developments in a discrete field of law on a quarterly or yearly basis gain a broad, comparative perspective on that field that is not shared by the typical legal scholar. Those unfamiliar with the lay of the land will have a harder time spotting emerging trends, notable outliers, and doctrinal shifts. In other words, writing treatises often enhances the quality of “orthodox” academic legal scholarship—that is, law review articles.⁷

Second, treatises keep legal academics grounded in the law as actually practiced by skilled advocates and talented judges. Too many law review articles close with pie-in-the-sky solutions proffered by the author that would require practitioners to abandon long-standing habits, judges to craft opinions that run contrary to their ideology and experience, and gridlocked legislatures suddenly to act creatively and responsively. Treatise authors like Dan Mandelker may dream big, but, grounded in actual law, they propose achievable solutions.

Third, today’s law professors are encouraged to think in national, even international and comparative, terms. They interact daily with colleagues who are experts in other fields and periodically with other specialists at conferences and through their scholarship. Treatises written by academic lawyers who curate diverse content reflect these perspectives, benefiting a wide range of users.

Fourth, law professors who seek to have a broad impact on the legal world can find no better forum for communicating ideas and developments than a legal treatise. A few examples from Land Use Law will demonstrate this point.

Judges are often the target of the treatise author’s efforts, and the impact of those efforts can often be spotted in judicial opinions. In Town of Rhine v. Bizzell,⁸ the Supreme Court of Wisconsin, in considering the relationship between allowing as-of-right zoning and requiring development only by securing a conditional use permit, observed:

Leading zoning treatises support the notion that standard zoning practices contemplate permitted uses as of right that can be expanded upon by the administrative zoning function. Professor Mandelker writes:

The drafters of the Standard Zoning Act clearly contemplated a zoning process in which the uses designated by the zoning ordinance were permitted “as of right,” but they also provided for an administrative zoning function. The Standard Act delegated this function to the board of adjustment. It authorized the board to grant variances from the zoning ordinance in cases of hardship, as defined in the Act, and to grant special exceptions authorized by provisions in the zoning ordinance. Many zoning ordinances use the term “special” or “conditional” use rather than “special exception. . . .”

Mandelker, [Land Use Law,] § 6.39, at 6–44 [(5th ed. 2003)] (emphasis added).⁹

The court sensibly concluded that the zoning ordinance was unconstitutional on its face, as it “does not provide for any uses as of right, and this restriction in the B-2 District is arbitrary and unreasonable in the sense that it does not bear a substantial relation to public health, safety, morals or general welfare.”¹⁰

Law professors, students, and practitioners also include citations to and quotations from leading treatises like Dan’s. In a 2005 article, Professor Alejandro Camacho argued convincingly that “a nuanced conception of public regulation rooted in collaborative governance theory can legitimize negotiated land use regulation by incorporating principles of local and regional equity and deliberative democracy.”¹¹ Land Use Law figured prominently in his footnotes, referencing discussions of public hearings, site plan review, planned unit developments (PUDs), contract and conditional zoning, development agreements, and many more topics.¹²

Practitioners, too, have incorporated concepts and arguments from Land Use Law into their advocacy documents. For example, in their amicus brief in support of the side that ultimately prevailed in City of Monterey v. Del Monte Dunes,¹³ counsel for the National Association of Home Builders and the Building Industry Legal Defense Foundation included this passage:

It should be the impartial fact finder, not the defending government, that decides the “reasonableness” of that government’s actions when a citizen’s constitutional right is at stake in court. The city’s reasonableness argument is particularly mischievous given the extraordinary barriers already facing any citizen trying to get a takings claim before a court, federal or state, on the merits. First, “the lower federal courts have vigorously applied the Supreme Court’s ripeness doctrines to refuse jurisdiction in as-applied taking cases.” Daniel R. Mandelker, Land Use Law § 2.26, at 44 (4th ed. 1997).¹⁴

Dan is a writer for all seasons and for valuable reasons.

Dan’s decision to create a usable and authoritative treatise enhanced his scholarship, teaching, and stellar reputation. Dan’s career is proof that one can do it all and do it well. By choosing to write a treatise, his name and ideas are familiar to many outside the academy—judges and practitioners in particular. Empirical studies that have little to do with the actual formation, practice, and validity of law may wow the new generation of law professors and deans, but, as a practitioner of history, I predict that eventually this phase shall pass and that Dan Mandelker will stand as an icon and model for new generations of law professors who are treatise writers.

Congratulations, Dan, my partner and friend.

Endnotes

1. Joseph Gordon Hylton, Prelude to Euclid: The United States Supreme Court and the Constitutionality of Land Use Regulation, 1900–1920, 3 Wash. U. J.L. & Pol’y 1 (2000).

2. Michael Allan Wolf, Earning Deference: Reflections on the Merger of Environmental and Land-Use Law, 32 Env’t L. Rep. News & Analysis, 11190, 11194, 11194 n.69 (2002).

3. See, e.g., Daniel R. Mandelker, Melding State Environmental Policy Acts with Land-Use Planning and Regulations, 49 Land Use L. & Zoning Dig., March 1997, at 3.

4. See, e.g., Daniel R. Mandelker, The Conflict Between Environmental Land Use Regulation and Housing Affordability, 15 Zoning & Planning L. Rep. 1 (1992).

5. Consider, for example, the reworked title for my casebook with Charles Haar. Charles M. Haar & Michael Allan Wolf, Land Use Planning and the Environment: A Casebook (Env’t L. Inst. 2010).

6. See Amanda Bowles Watson, “The Report of My Death Was an Exaggeration”—The Legal Treatise, 50 J.L. & Educ. 256 (2021). Professor Watson writes,

Over the next few decades, the major works, which became preeminent treatises, were created: Wigmore’s A Treatise on The Anglo-American System of Evidence first written in 1904, Williston’s The Law of Contracts in 1920, Scott on The Law of Trusts in 1939, and Corbin on Contracts in 1950. Wigmore was dean of Northwestern Law School, Williston a professor at Harvard Law School, Corbin a professor at Yale Law School, and Scott a professor at Harvard Law School. At this point treatise writing was not only well established, but it was established as the work of law professors.

Id. at 262–63 (footnotes omitted).

7. A review of Dan’s CV (which will take only about thirty minutes) reveals that the author of treatises and casebooks can have a productive career as the author of influential law review articles.

8. 751 N.W.2d 780 (Wis. 2008).

9. Rhine, 751 N.W.2d at 797.

10. Id. at 802. This is one of many examples of courts turning to Land Use Law as an authoritative source. See, e.g., Montgomery Cnty. v. Butler, 9 A.3d 824, 838 (Md. 2010); Zimmerman v. Board of County Commissioners, 218 P.3d 400, 421 (Kan. 2009).

11. Alejandro Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement and Adaptive Planning in Land Use Decisions Installment One, 24 Stan. Env’t L.J. 3, 7 (2005).

12. Id. at 12 n.26, 17 n.54, 18 nn.60, 64 & 69, 20 n.77, 21 n.80, 25 n.98, (citing Daniel R. Mandelker, Land Use Law 2-51, 6-79 to 6-81, 9-29, 9-27, 6-75, 6-76 to 6-78, 6-25 (5th ed. 2003). Other examples of law review articles citing and quoting Land Use Law abound, such as David L. Callies, Public and Private Land Development Conditions; An Overview, 52 UIC J. Marshall L. Rev. 747, 769–70 (2019).

13. 526 U.S. 687 (1999).

14. Brief for Nat’l Ass’n of Home Builders & the Bldg. Indus. Legal Def, Found. as Amici Curiae Supporting Respondents at 15, City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) (No. 97-1235).