9th Circuit, Clerkships, Crime, Dan Markel, Deaths, Guns / Firearms, Law Professors, Law Schools, Murder, Violence

Professor Dan Markel: Some Personal Recollections

Dan Markel

As I mentioned in my earlier story about the horrific killing of Professor Dan Markel, I knew Dan since our days working together on the Harvard Crimson. Back then, he was Dan E. Markel ’95 and I was David B. Lat ’96. We both wrote columns and would edit each other’s work. We didn’t often agree — I was even more conservative back then, and he was, well, not conservative — but we respected each other’s thinking and writing.

After graduating from Harvard College (A.B.), Cambridge University (M. Phil.), and Harvard Law School (J.D.), Dan went on to have a tremendous career in law practice and teaching. He clerked for Judge Michael Daly Hawkins on the U.S. Court of Appeals for the Ninth Circuit and worked as an associate at Kellogg Huber, the insanely elite D.C. litigation boutique. He then joined the faculty of the Florida State University College of Law, where at the time of his death he held an endowed chair as D’Alemberte Professor of Law. A prolific scholar in the areas of criminal law and punishment, he published numerous law review articles, pieces for general-interest news outlets like the New York Times and Slate, and a book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (aff. link).

But Dan was much more than the sum of his résumé items. Here are some testimonials and memories, from myself and others who knew him….

Dan’s death came as a shock to his friends and family. The past year or so hadn’t been easy for Dan, in the wake of his divorce from Wendi Adelson, but things seemed to be looking up for him, as reported by the Toronto Star:

New York University law professor Rick Hills, Jr., last saw Markel when the Florida resident stayed with him in New York just two weeks ago.

Markel had not told many of his friends yet, but he told Hills that he was happy in a new relationship with a woman after going through a divorce with the mother of his children in the past two years, Hills said.

“He was rebuilding his life after a really, really difficult period,” Hills said. “I was watching him as he was in my apartment Skyping his kids and saying goodnight on his cellphone … he was so happy.”

I hadn’t spoken with Dan in a while, not since some point last year. But a mutual friend had emailed with him this past Wednesday, and nothing seemed to be amiss. So when the news of his death started spreading like wildfire over the weekend, we were all floored.

Tributes to Dan appear through the legal blogosphere (and Professor Paul Caron has collected many here). This is not surprising, given that Dan was a pioneer in the world of legal blogging. He and I entered the blogosphere around the same time — I started Underneath Their Robes in 2004, he launched PrawfsBlawg in 2005, Above the Law debuted in 2006 — and unlike many other bloggers, who dabbled and then departed, Dan kept at it. He wrote his last post for PrawfsBlawg just this past Wednesday (an analysis of the Jones v. Chappell death penalty opinion).

But it wasn’t just Dan’s blogging that made his loss reverberate so much throughout the blogosphere. It was also his scholarship, his teaching, and his generosity with his time, to both students and colleagues. Here’s what one FSU alum wrote to us:

I was one of his students the first year he taught at FSU. He was a fantastic professor.

Here is what Professor Michael McCann shared with me:

I appreciate you writing on Dan’s death. Your story captured the horror of what’s going on. Like everyone else, I’m stunned and shocked and desperately trying to figure out how this could happen. I’ve known Dan for almost 10 years and we were co-authoring a forthcoming sports law article in the Harvard J. of Sports and Entertainment Law. Thank you for writing about him and bringing national attention to his life. He was a remarkable guy and a true pioneer in both the legal academy and the blogosphere. His legacy will only grow as more and more legal commentary takes place on-line rather than in print.

I like how Professor Dave Hoffman put it at Concurring Opinions:

Dan Markel had many friends.  You, the reader, know that if you have been surfing the law professor blogosphere, which is full of tributes, notes of gratitude and sadness, and a residue of shock and disbelief.  Indeed, Dan Markel knew more legal academics – by which I mean he had more meaningful conversations and was actually friends with more people – than anyone in the country. Everyone knew him or had a story about him. Even in conversations he wasn’t a part of, at conferences he’d never attended, he was a common point of reference. He was our Kevin Bacon.

I’ve been friends with Dan since law school. He gave me comments on my first paper. They were tough (“why are you writing a 25 page literature review that no one, including you, will care to read”) but right. And he gave me tough comments on my second paper. Again, he was right. And my third paper. And my fourth. He didn’t stop when it become obvious that he was also giving hours of time weekly to literally dozens of other people’s work, when he was blessed with two young sons, when he built an active intellectual life at FSU, when he undertook a brutal travel schedule. He gave of himself despite writing scores of articles (and books and op-eds and drafts and more articles) of his own. His unselfishness and rigor were daunting. Where did he find the time? The energy?

Here’s what I like about Hoffman’s tribute: it captures Dan in all his candor and complexity. Death can have a leveling effect, where we speak of the deceased in a blandly uniform way — brilliant, kind, generous, loving. Dan was all of these things, yes. But Hoffman’s tribute preserves the Dan-ness of Dan.

Dan was brilliant, yes, and he was blunt — “tough,” as noted by Hoffman. Dan was opinionated and outspoken. He wasn’t a wallflower, he wasn’t vanilla ice cream, and he was committed to excellence, which he demanded from himself and from others. That rubbed some people the wrong way — but to those of us who could take it, he was an invaluable source of honest perspectives.

Consider, for example, his PrawfsBlawg post reacting to the launch of Above the Law (which, for the record, has evolved a lot in the eight years we’ve been around). Despite our friendship, Dan didn’t pull his punches, calling our site design (long since superseded) “gruesome to the eyes,” and questioning the appropriateness of ATL treating legal-world niche celebrities like bona fide celebrities or all-purpose public figures. You could always count on Dan for honest and insightful comments.

Here are two stories about Dan that show the kind of person he was. One goes back to his days as a law clerk, and one is much more recent.

Dan and I both clerked on the Ninth Circuit, although for different judges at different times. Dan clerked for Judge Michael Daly Hawkins in 2001-2002. Here’s a story about Dan that is now part of Ninth Circuit lore.

With a few notable exceptions (such as Chief Judge Alex Kozinski), judges on the Ninth Circuit generally use a system of pooled bench memos, where one law clerk in one judge’s chambers writes a bench memo that gets shared with the other two judges on the panel hearing the case. Not unlike the Supreme Court “cert pool,” this approach greatly increases efficiency by reducing duplication of work; you don’t end up with three bench memos for the same case. But it can create problems — for example, if the bench memos coming out of one judge’s chambers aren’t up to the standards of the other judges, or if they take an overly political approach to analyzing a case.

When bench memos from other chambers turn out to be subpar, the usual response of clerks on the receiving end is to ignore the shoddy work product and prepare a better analysis to provide internally to one’s own judge. Conventional wisdom is that it’s not the place of a clerk to Judge X to reprimand the clerks to Judge Y for weak work product; that’s Judge Y’s prerogative. But Dan saw things a little differently. After the clerks from another chambers produced bench memos that turned out to be below average, Dan walked up to the clerks from the offending chambers at oral argument and expressed disappointment in them for what he viewed as inadequate bench memos.

Impolitic? Yes. A breach of protocol? Certainly (and Judge Hawkins reprimanded Dan for it after finding out). But the incident also captures the kind of person Dan was: the total opposite of a “that’s not my problem” or “who cares” kind of guy. If someone else had a problem — a student struggling with a difficult concept, a fellow law professor having a hard time placing an article, a blogger going down a misguided analytical path — it became Dan’s problem. He cared — so deeply, maybe even to a fault — about people, and ideas, and the entire world around him. It makes perfect sense that his scholarship focused on justice; Dan simply couldn’t abide injustice.

For the record, this controversy over the bench memos didn’t prevent Dan from winning the respect and admiration of Judge Hawkins. As another former Hawkins clerk told me, Dan “was one of the judge’s favorite former clerks; he spoke of him highly and often.”

I did reach out to Judge Hawkins for comment on Dan. The judge didn’t comment on the bench-memo incident, but did offer these words:

Dan Markel was a fabulous clerk, smart, hard working and very disciplined. He wrote with clarity and purpose. He was the law clerk on a 2002 habeas case arising from the home invasion robbery-murder of a Sacramento area businessman in which the Ninth Circuit found that the state prosecutors had withheld clear exculpatory evidence and granted relief. United States v. Killian (9th Cir. 2002). The case was recently featured on the CNN series “Death Row Stories.” The segment is titled “Ride To The Rescue.” I consider each of my former clerks to be my “favorite” and Dan was no exception. Our chambers family grieves at the loss of this talented young man.

Here’s my second story about Dan. One time he called me because a friend of his was indirectly implicated in a story we were working on and Dan wanted to make sure that his friend, a good guy and an innocent party, did not get unfairly dragged into the embarrassing mess. Dan successfully persuaded me to leave his friend out of the final story. Dan didn’t have to get involved — he had nothing to do with the story, which was about a law firm rather than a law school — but he did, making the case on behalf of his friend, because he wanted to make sure that we did the right thing. He wanted to make sure that people were treated fairly and that justice was done.

That captures who Dan Markel was: someone who wanted to make sure that justice was done. And that’s why his passing is such a great loss — for his family, for the FSU Law community, for the legal academy as a whole, and for those of us lucky enough to call him a friend.

(Flip to the next page for Dan Markel’s FSU bio, which describes his remarkable career and scholarship.)