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 Court and a variety of land-use related cases in the California Supreme Court, 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. 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.
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. 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.
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. 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.
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, I researched and wrote an article that I would rely on in practice for the next twenty years. It had to do with the relationship between airport operators and their neighbors and the legal implications that followed. 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. 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) and a number in other states 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. 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” (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.
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. 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 court was—to use the technical term—stupid. 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. 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. 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.
