After a brutal weekend, I’m ready to offer a couple of thoughts about my friend Dan Markel. So many others have offered moving tributes to Dan since the senseless tragedy of his death, including Steve Vladeck, Orin Kerr, his PrawfsBlawg colleagues, and his home institution. I encourage you to read them all.
During most of our friendship, I was a “+1” at the various law professor conferences and gatherings. I was in private practice, then worked in congressional oversight, then moved into White House Counsel’s Office. At one point, I flew from D.C. to Tallahassee on weekends, where Caprice Roberts and our infant son had moved during a semester visit at Florida State University College of Law. Dan and I had a ton of common friends. We shared delight in our boys and our role as fathers. Over the years, Dan and I also had scores of conversations about criminal and constitutional theory.
Much of what others have written about Dan rings true. He was affectionate: doling out hugs or – as Zak Kramer reminded us on Facebook – offering a dap and a hearty “Bam Bam Bizzle.” Dan was generous at welcoming professors into the academy but unsparing in his critiques of their work. I have a few funny recollections on the unsparing end of the spectrum.
About a decade ago during a group dinner, Dan was pressing Caprice about the thesis of one of her law review articles. Caprice was still thinking through some of the thornier issues in a great paper, but Dan was just all over her. Finally, exasperated, he boomed, “Look, if you aren’t willing to deliver your thesis in a sentence starting ‘I argue…’ then you don’t have something worthy of publication or defense.” Ever since, we routinely go through a What Would Dan Say? analysis of our writing.
After I had taught courses in presidential powers and federal criminal law as an adjunct, I started to entertain thoughts of joining the academy. Dan encouraged me to develop a scholarly agenda and start writing. At the time, I felt overburdened managing work and grad school. Dan was, shall we say, nonplussed. He took ideas so seriously that he would basically tell you to “get back to me when you have a serious job” even when you were one of the President’s lawyers.
Then, I took a tenure-track job. A little over a year ago, Dan and I were playing with our boys at a pool. I had started to write my first law review article for my tenure file and I wanted to share the concept with Dan. As soon as I started into my thesis, Dan put his hand up and said: “Stop. I don’t want to hear anything until you have at least 15 pages down on paper. New scholars need to discipline themselves to write. Then, I’ll be willing to talk.” I was, how shall I say, off-put. I found it irritating that he would decline to have a conversation along the lines we had been doing for years and insulting that he was overtly asserting his academic seniority even though we were friends and contemporaries. As I look back on that conversation, though, I realize that the Mr. Miyagi treatment was a sign of Dan’s respect. To Dan, I had finally gotten a serious job, and that meant ideas were no longer the stuff of poolside idle chit-chat.
So, Dan, in this paper, I argue that you expressed love even when it was tough. I argue that I will do what I can to honor your legacy. I argue that the world was brighter with you in it.