AuthorHoffman, Doug
PositionUniversity of South Dakota School of Law, includes 10 testimonials

The Board of Editors of the South Dakota Law Review is pleased to dedicate Volume 67 to Professor Emeritus David S. Day.

David S. Day was born in Iowa in April 1948. He graduated with his Bachelor's Degree in History from the University of Iowa in 1970. A few years later, he returned to his alma mater for law school and graduated with his Juris Doctor in 1977. Upon graduation, he entered the field of litigation as an associate at the founding Los Angeles branch of the prestigious firm Lathan & Watkins. Finding that something was missing, he left Latham & Watkins to join the faculty at the University of South Dakota School of Law. (1) A short six years later, Professor Day became a tenured faculty member. He served the University of South Dakota for thirty-seven years. During that time, Professor Day made a significant impact on South Dakota through his role as an educator, his numerous scholarly publications, and his contributions to critical South Dakota cases.

As an educator, Professor Day taught Constitutional Law, First Amendment Rights, Advanced Civil Procedure, and Employment Discrimination courses, as well as specialized Constitutional Law seminars. He also became involved in extracurricular activities as a faculty advisor. For his dedication to the school and to his students, he received the Jackson Teaching Award three times. The Jackson Award is particularly meaningful as both students and faculty members nominate candidates for this honor. After students and colleagues submit nominations, the committee considers several criteria that demonstrate excellence in teaching law. One criterion is the nominees' legal writing and research, yet another area where Professor Day has excelled.

Professor Day has published over thirty scholarly articles. The topics range from effective teaching methods to Constitutional Law, First Amendment rights, and discovery practices. These works have been cited many times, perhaps most notably in Wright and Miller's famed Federal Practice and Procedure. Alongside his publications in distinguished journals, Professor Day has also published several editions of his Constitutional Law casebook, Cases and Materials on Constitutional Law. Ever dedicated to his students, Professor Day and his family have used the casebook's royalties to fund a scholarship they established to benefit second- and third-year law students at the University of South Dakota.

Due to his numerous publications and reputation as a scholar and litigator, Professor Day served as a member of the Federal Advisory Committee for the Eighth Circuit Judicial Conference and as a reporter for the South Dakota Federal Practice Committee. As a member of the California, Eighth Circuit, and United States Supreme Court bars, he has had a pivotal role in shaping the common law of South Dakota. In this role, Professor Day has shown his expertise in civil rights, dormant commerce clause, and privacy actions. Even as a litigator, Professor Day made time to teach, often lending a helping hand to former students in their litigation practice.

Even as he has retired from the University of South Dakota, Professor Day remains a force. Currently, he is writing another book and multiple articles on subtopics within Constitutional Law and discovery. In addition to his forthcoming scholarly works, Professor Day remains busy as a visiting professor at several law schools. Finally--and arguably Professor Day's favorite post-retirement activity--he now enjoys more free time with his wife, Lynne, and their children, Daniel, Elizabeth, Sara, and David Jr.


Professor for the Generations

David S. Day has been a tour deforce in the South Dakota legal world for thirty-eight years. With this dedication, the South Dakota Law Review commemorates Professor David S. Day's impactful career spanning a generation at the University of South Dakota School of Law.

Professor Day arrived in Vermillion to teach at the University of South Dakota School of Law in the fall of 1983, with a bachelor's degree in history and a J.D. from the University of Iowa and experience as a litigation associate at the prestigious Latham & Watkins firm in Los Angeles. That year I was a 2L at the University of South Dakota and a student in Professor Day's First Amendment Rights class. Literally, a generation later, my son sat in the same building with Professor Day at the lectern, learning First Amendment Rights, as well as Constitutional Law and Civil Procedure. Many hundreds of other students filled those scats in Professor Day's classes during his career at the University South Dakota School of Law from Fall 1983 to Spring 2020, including the majority of the current South Dakota State Bar membership.

Professor Day is a true scholar. His textbook, Cases and Materials on Constitutional Law, (2) co-authored by Professors David Crump and Eugene Grossman, is published by LexisNexis and has been a staple in Constitutional Law didacticism since 1993. In addition, he has over thirty published law review articles, ranging on topics from religious freedom and freedom of speech to Commerce Clause jurisprudence and civil discovery practice, in many respected journals, including Arizona State, Michigan State, Crcighton, Iowa, Toledo, Miami, and, of course, the South Dakota Law Review.

Although his true passion is Constitutional Law, Professor Day has also earned a reputation as a national scholar in civil discovery. His 1985 article, Expert Discovery Under Federal Rule 26(b)(4): An Empirical Study of the South Dakota Judiciary, originally published in the South Dakota Law Review? was later revamped and republished in the John Marshal Law Review. (4) A few years later, his article Expert Discovery in the Eighth Circuit: An Empirical Study (1989) (5) was cited by Wright and Miller's Federal Practice and Procedure, the preeminent research source on federal civil procedure. (6) Moreover, his works Civil Justice Reform Act Advisory Group Report for the District of South Dakota (1992) (7) and Discovery Standards for the Testimonial Expert Under Federal Rule of Civil Procedure 26(h)(4)(A): A Twentieth Anniversary Assessment (1990), (x) were published in West Publishing's Federal Rules Decisions Reporter. A quick search of his name on Westlaw reveals many court decisions citing these various works.

Some professors are known for their great scholarship, others for their didactic skills teaching in the classroom. A select few truly excel in both categories. Professor Day is one of those rare law professors truly gifted in both facets of legal education. His scholarship is erudite, penetrating, and eminently readable. His classroom manner is welcoming, inquisitive, clever, and insightful, but never intimidating. His sharp intellect has always been balanced by his sincere interest in students, his benign wit, and his mentoring spirit. South Dakota law students have been the primary beneficiaries of his gift, and they have thanked him by awarding him the University of South Dakota School of Law's Jackson Teaching Award three times. But he has also shared those talents as a visiting professor at McGeorge Law School, and of course, his beloved alma mater, the University of Iowa.

I had the opportunity to sit in on one of Professor Day's classes with my son during an Accepted Student event at the Law School in 2017. Thirty-four years after my first class with Professor Day, nothing had changed, other than a few subtle lines in his learned visage. A smile on his lips, discerning questions to the class, encouraging demeanor, budding new lawyers expounding their minds in the lyceum, the Socratic method at its finest.

In retirement, Professor Day intends to contribute further to legal scholarship. Among other projects, he is writing a book about expert witness discovery, an article on spending powers jurisprudence after South Dakota v. Dole, (9) and a piece exploring the tension between "hate speech" legislation and free speech. We will anxiously await these portentous works. And, on behalf of the hundreds of University of South Dakota Law graduates who have benefitted in so many ways from his teaching and mentorship, we thank, congratulate, and wish Professor Day Godspeed in all his future endeavors.

DEREK J. HOFFMAN ([dagger])

A Scholarly Practitioner

In early August of 2017, I found myself immersed in both angst and excitement in the hallowed hallways of the University of South Dakota School of Law. Thirty-five years prior, my father and mentor, the Honorable Douglas E. Hoffman, shared the same feelings of unease as a new law student. My father and I were greeted by many of the same faces in both eras of attendance at the University. One of those faces was Professor David S. Day. For nearly four decades, Professor Day has been a cornerstone in the South Dakota legal education system. His specialties include, but arc not limited to, areas of U.S. Constitutional law, First Amendment law, U.S. Federal Civil Procedure, and employment discrimination. Throughout his tenure as a professor, he has helped mold and influence literally hundreds of legal minds. His impact on the South Dakota legal system is immense.

Professor Day holds the unique quality of being both a highly decorated practitioner and a published legal scholar. This combination of attributes is rarely seen in attorneys. His legal career began at the University of Iowa School of Law in Iowa City, IA. There he soared amongst his peers and graduated in 1977 with his Juris Doctorate. Upon graduating, and after a multi-interview process, he took a position with Latham & Watkins, LLP, in Los Angeles, CA. (10) Professor Day worked at Latham & Watkins until 1983, where he specialized in, inter alia, complex commercial litigation and employment discrimination.

In 1983 Professor Day transitioned his professional and personal life to Vermillion, SD, where he began teaching at the University of South Dakota...

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