William Eskridge

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William "Bill" N. Eskridge
Eskridge 1.jpg
Born (1951-10-27) October 27, 1951 (age 65)
Princeton, West Virginia
Nationality United States
Fields Constitutional Law
Legislation
Institutions Yale Law School
Alma mater Davidson College
Harvard University
Yale Law School
Known for Constitution and Legislation Law scholar

William "Bill" N. Eskridge, Jr., (born October 27, 1951 in Princeton, West Virginia[1]) is the John A. Garver Professor of Jurisprudence at Yale Law School.[2] He is one of the most cited law professors in America, ranking sixth overall for the period 2010-2014.[3] He writes primarily on constitutional law, legislation and statutory interpretation, religion, marriage equality, and LGBT rights.

After earning a B.A. in history from Davidson College in 1973, he completed an M.A. in history at Harvard University and then earned a J.D. from Yale Law School in 1978.[4] At Yale he was an editor of the Yale Law Journal, where he worked with future Supreme Court Justice Sonia Sotomayor.[5] After graduating from Yale he clerked for Judge Edward Weinfeld on the U.S. District Court for the Southern District of New York and then joined the D.C. law firm Shea & Gardner.[1] Before joining the Yale Law faculty he was a professor at the University of Virginia School of Law (1982-1987) and Georgetown Law (1987-1998).

In 1994, Eskridge was granted a Guggenheim Fellowship.[6]

Legislation and Statutory Interpretation[edit]

With his Shea & Gardner friend, the late Phil Frickey, Eskridge developed a field-establishing casebook, “Statutes and the Creation of Public Policy,” published by the West Publishing Company in 1987 (now in its fifth edition). The Eskridge and Frickey materials were part of Eskridge’s file for tenure at the University of Virginia, whose tenure committee largely dismissed the contribution, in part because it devoted too much discussion to the canons and theories of statutory interpretation. In the Virginia Law Review, Judge Richard Posner’s review of the Eskridge and Frickey book had a different view. Judge Posner argued that the book essentially established the intellectual bona fides of a new and critically important field (Legislation) and that it ranked among the great landmark casebooks of the twentieth century.[7] Legislation and Statutory Interpretation immediately emerged as a vibrant and important field of study, doctrinal development, and intellectual engagement. Eskridge subsequently published a series of classic articles (usually co-authored with Phil Frickey) developing themes first announced in the casebook. For example, Eskridge's 1990 article titled "The New Textualism" is the 75th most-cited law review article of all time, according to a 2012 study.[8]

In 1994, Eskridge and Frickey published Hart and Sacks’s “The Legal Process” (Foundation Press, 1994), with an historical and critical introduction to the highly influential legal process teaching materials originally developed by Henry Hart and Albert Sacks at Harvard Law School, but never published. In the same year, Eskridge and Frickey were asked to write the Foreword to the Harvard Law Review’s Supreme Court issue,[9] and Eskridge published Dynamic Statutory Interpretation (Harvard University Press).

Sexuality, Gender, and the Law[edit]

Between 1990 and 1995, Eskridge represented a gay couple seeking a marriage license in Washington, D.C. Like all the other early same-sex marriage cases, this one did not prevail, but for the first time in American history, one judge, John Ferren of the D.C. Court of Appeals, wrote an opinion finding discrimination against same-sex couples to be unconstitutional (Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)[10]). Writing in dissent, Judge Ferren was the only judge to agree with Eskridge. The next year, in 1996, a Hawaii trial judge would agree with Eskridge in the case Baeher v. Miike.

In 1996, Eskridge wrote his pathfinding book “The Case for Same-Sex Marriage” (Free Press 1996), which argued that marriage discrimination against LGBT couples violated both their fundamental right to marry and their equal protection right to be free of invidious state discrimination. The book was reviled at the time, with Senator Robert Byrd quoting extensively from it in his speech[11] supporting the Defense of Marriage Act in 1996, an overwhelming, bipartisan rebuke to the marriage movement. Ultimately, many state courts and the U.S. Supreme Court (Obergefell v. Hodges (2015)) adopted these arguments in favor of gay marriage. As Judge Posner put it in a 2015 “re-review” of Eskridge’s 1996 book: “A prophet before his time, William Eskridge has the satisfaction of having finally been vindicated.”[12]

At the same time he was working on marriage rights for LGBT persons, Eskridge was working with Georgetown law professor Nan Hunter on teaching materials for a field they dubbed “Sexuality, Gender, and the Law.” Eskridge and Hunter rejected the idea that the field should be defined as “Sexual Orientation and the Law,” because they considered norms of gender and sexuality inextricably intertwined. Published by Foundation Press, “Sexuality, Gender, and the Law” is now in its third edition, with a fourth being prepared in 2017. Emerging from his work with Hunter, Eskridge published a series of articles on sodomy laws and other discriminatory laws harming gender and sexual minorities. An amicus brief he wrote for the Cato Institute and a law review article titled "Hardwick and Historiography"[13] were cited by the majority opinion in Lawrence v. Texas (2003), where the Supreme Court invalidated consensual sodomy laws. Several paragraphs[14] from the Court’s opinion are virtual verbatim quotes from the Cato amicus and the law review article. Justice Scalia’s dissenting opinion in Lawrence explicitly noted Eskridge’s book, “Gaylaw: Challenging the Apartheid of the Closet” (Harvard Press 1999). Many fans of Justice Scalia were surprised to find approving references to a book he repeatedly cited as “Gaylaw.” Eskridge wrote an authoritative history of the decline and fall of sodomy laws in “Dishonorable Passions: Sodomy Laws in America, 1861-2003” (Viking 2008).

Consumer Law[edit]

Writing in 1984, Eskridge was the first legal scholar to argue that home buyers were taking on too much risk, especially in light of the market’s creation of new kinds of loans, with adjustable rates and other financial gimmicks.[15] Eskridge demonstrated that disclosure requirements did not protect consumers, given the realities of human decision making and the integrated home-sale-and loan market; rather, homebuilders and lenders were able to use disclosures to lure consumers into loans that were excessively risky. Eskridge testified before Congress on this phenomenon, which ultimately contributed to the financial crisis of 2007-2008.

Bibliography[edit]

Books[edit]

  • Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016)
  • Sexuality, Gender and the Law (2011, with Nan Hunter, 3rd ed.)
  • A Republic of Statutes: The New American Constitution (2010, with John Ferejohn)
  • Dishonorable Passions: Sodomy Laws in America, 1861-2003 (2008)
  • Legislation and Statutory Interpretation (2006, 2nd. ed., with Philip Frickey and Elizabeth Garrett)
  • Gay Marriage: For Better or for Worse? (2006, with Darren R. Spedale)
  • Equality Practice: Civil Unions and the Future of Gay Rights (2001)
  • Legislation: Statutes and the Creation of Public Policy (2001, 3rd ed., with Philip P. Frickey and Elizabeth Garrett)
  • Gaylaw: Challenging the Apartheid of the Closet (1999)[16]
  • Constitutional Tragedies and Stupidities (1998, co-authored and edited with Sanford Levinson)
  • The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (1996)[17]
  • Dynamic Statutory Interpretation (1994)[18]

Casebooks[edit]

  • Legislation: Statutes and the Creation of Public Policy (1987; 5th ed. 2014)
  • Statutes, Regulations, and Interpretation: Legislation and Administration in the Republic of Statutes (2014, co-authored with Abbe R. Gluck and Victoria F. Nourse)
  • Cases and Materials on Constitutional Law: Themes for the Constitution's Third Century (1993; 2d ed. 1998; 3d ed. 2004, 4th ed. 2009; 5th ed. 2013) (co-authored with Daniel Farber & Philip Frickey and, with fifth edition, Jane Schacter)

Articles[edit]

  • “The First Marriage Cases, 1970-74,” in Love Unites Us: Winning the Freedom to Marry in America 21-27 (Kevin M. Cathcart & Leslie J. Gabel-Brett, eds., 2016)
  • “Law and the Production of Deceit,” in Austin Sarat ed., Law and Lies: Deception and Truth-Telling in the American Legal System 254-312 (2015)
  • “Original Meaning and Marriage Equality,” 52 Hous. L. Rev. 1067 (2015)
  • “Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967-2011,” 92 Tex. L. Rev. 1317 (2014) (with Matthew R. Christiansen)
  • “Backlash Politics: How Constitutional Litigation Has Advanced Marriage Equality in the United States,” 93 B.U.L. Rev. 275 (2013)
  • “Expanding Chevron’s Domain: A Comparative Institutional Analysis of the Relative Competence of Courts and Agencies to Interpret Statutes,” 2013 Wis. L. Rev. 411
  • “The New Texualism and Normative Canons,” 113 Colum. L. Rev. 531 (2013) (book review)
  • “Marriage Equality: An Idea Whose Time Is Coming,” 37 NYU Rev. L. & Soc. Change 245 (2013)
  • “Nino’s Nightmare: Legal Process Theory as a Jurisprudence of Toggling Between Facts and Norms,” 57 St. Louis U.L. Rev. 865 (2012)
  • “Vetogates and American Public Law,” J.L. Econ. & Org. (April 2012)
  • “Family Law Pluralism: A Guided-Choice Regime of Menus, Default Rules, and Override Rules,” 100 Geo. L.J. 1881 (2012)
  • “Noah’s Curse: How Religion Often Conflates Status, Belief, and Conduct to Resist Antidiscrimination Norms,” 45 Ga. L. Rev. 657 (2011)
  • “Is Political Powerlessness a Requirement for Heightened Equal Protection Scrutiny?,” 50 Washburn L.J. 1 (2010)
  • “Chevron as a Canon, Not a Precedent: An Empirical Study of What Motivates Justices in Agency Deference Cases,” 110 Colum. L. Rev. 1727 (2010) (with Connor N. Raso)
  • “The California Proposition 8 Case: What Is a Constitution For,” 98 Calif. L. Rev. 1235 (2010)
  • “Sexual and Gender Variation in American Public Law: From Malignant to Tolerable to Benign,” 57 UCAL L. Rev. 1333 (2010)
  • “The California Supreme Court, 2007-2008—Foreword: The Marriage Cases, Reversing the Burden of Inertia in a Pluralist Democracy,” Calif. L. Rev. (2009)
  • “A Pluralist Theory of Equal Protection,” U. Pa. J. Const’l L. (2009)
  • Constitutional Horticulture: Deliberation-Respecting Judicial Review, 87 Tex. L. Rev. 1273 (2009) (with John Ferejohn)
  • Vetogates, Preemption, Chevron, 83 Notre Dame L. Rev. 1441 (2008)
  • The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083 (2008) (co-authored with Lauren Baer) (the Ryan Lecture)
  • America's Statutory Constitution, 41 U.C. Davis L. Rev. 1 (2007) (the Barrett Lecture)
  • No Frills Textualism, 119 Harv. L. Rev. 2041 (2006) (book review)
  • Chevron and Agency Norm Entrepreneurship, 115 Yale L.J. 2623 (2006) (essay co-authored with Kevin Schwartz)
  • Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion, 57 Fla. L. Rev. 1011 (2005) (the Dunwoody Lecture)
  • Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 Yale L.J. 1279 (2005)
  • Lawrence v. Texas and the Imperative of Comparative Constitutionalism, 2 Int'l J. Const'l L. 555 (2004)
  • Lawrence's Jurisprudence of Tolerance: Judicial Review to Lower the Stakes of Identity Politics, 88 Minn. L. Rev. 1021 (2004)
  • Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062 (2002)
  • Structuring Lawmaking to Reduce Cognitive Bias: A Critical View, 87 Cornell L. Rev. 616 (2002)
  • Channeling: Identity-Based Social Movements and Public Law, 150 U. Pa. L. Rev. 419 (2001)
  • All About Words: Early Understandings of the Judicial Power in Statutory Interpretation, 1776-1806, 101 Colum. L. Rev. 999 (2001)
  • The Relationship Between Obligations and Rights of Citizens, 69 Fordham L. Rev. 1721 (2001)
  • Super-Statutes, 50 Duke L.J. 1215 (2001) (co-authored with John Ferejohn)
  • Equality Practice: Reflections on the Jurisprudence of Civil Unions, 64 Alb. L.J. 853 (2001) (Sobota Lecture)
  • January 27, 1961: The Birth of Gaylegal Equality Arguments, 58 NYU Ann. Survey Am. Law 39 (2001)
  • No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 NYU L. Rev. 1327 (2000)
  • Destabilizing Due Process and Evolutive Equal Protection, 47 UCLA L. Rev. 1183 (2000)
  • Comparative Law and the Same-Sex Marriage Debate: A Step-by-Step Approach Toward Recognizing Gay Unions, 31 McGeo. L.J. 641 (2000)
  • The Circumstances of Politics and the Application of Statutes, 100 Colum. L. Rev. 558 (2000)
  • Multivocal Prejudices and Homo Equality, 100 Ind. L.J. 558 (1999) (Harris Lecture)
  • Norms, Empiricism, and Canons in Statutory Interpretation, 66 U. Chi. L. Rev. 671 (1999)
  • Hardwick and Historiography, 1999 U. Ill. L. Rev. 631 (Baum Lecture)
  • Relationships Between Formalism and Functionalism in Separation of Powers Cases, 22 Harv. J.L. & Pub. Pol=y 21 (1998)
  • Should the Supreme Court Read the Federalist But Not Statutory Legislative History?, 66 Geo. Wash. L. Rev. 1301 (1998)
  • Textualism, the Unknown Ideal, 96 Mich. L. Rev. 1509 (1998) (book review)
  • Jurisprudence of Coming Out: Religion, Sexuality, and Liberty/Equality Collisions in Public Law, 106 Yale L.J. 2411 (1997)
  • Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 Fla. St. U.L. Rev. 703 (1997) (Mason Ladd Lecture)
  • Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981, 25 Hofstra L. Rev. 817 (1997) (Visiting Scholar in Residence Lecture)
  • Willard Hurst, Master of the Legal Process, 1997 Wis. L. Rev. 1181
  • From the Sodomite to the Homosexual: American Regulation of Same-Sex Intimacy, 1885-1945, 82 Iowa L. Rev. (1997) (Murray Lecture)
  • Steadying the Court's Unsteady Path: A Theory of Judicial Enforcement of Federalism, 68 U. So. Cal. L. Rev. 1447 (1995) (co-authored with Jenna Bednar)
  • Virtual Logrolling: How the Court, Congress, and the States Multiply Rights, 68 U. So. Cal. L. Rev. 1545 (1995)
  • Regulatory Variables and Statutory Interpretation, 73 Wash. U.L.Q. 1103 (1995) (co-authored with Judith Levi)
  • Fetch Some Soupmeat, 16 Cardozo L. Rev. 2209 (1995)
  • The Supreme Court, 1993 Term B Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26 (1994) (co-authored with Philip Frickey)
  • The Elastic Commerce Clause: A Political Theory of American Federalism, 49 Vand. L. Rev. 1355 (1994) (co-authored with John Ferejohn)
  • The Making of The Legal Process, 107 Harv. L. Rev. 2031 (1994) (essay, co-authored with Philip Frickey)
  • From Handholding to Sodomy: The First Amendment and the Regulation of Homosexual Conduct, 29 Harv. C.R.-C.L. L. Rev. 319 (1994) (co-authored with David Cole)
  • The Economics Epidemic in an AIDS Perspective, 61 U. Chi. L. Rev. 733 (1994) (review essay co-authored with Brian Weimer)
  • Gaylegal Narratives, 46 Stan. L. Rev. 607 (1994)
  • Post-Enactment Legislative Signals, 57 Law & Contemp. Probs. 75 (Winter 1994)
  • The Judicial Review Game, 88 Nw. U.L. Rev. 382 (1993)
  • Race and Sexual Orientation in the Military: Ending the Apartheid of the Closet, 2 Reconstruction 52 (1993)
  • The Case of the Speluncean Explorers: Twentieth Century Statutory Interpretation in a Nutshell, 61 Geo. Wash. L. Rev. 1731 (1993)
  • A History of Same-Sex Marriage, 79 Va. L. Rev. 1419 (1993)
  • The Relationship Between Theories of Legislatures and Theories of Statutory Interpretation, in The Rule of Law (Nomos, 1993) (co-authored with John Ferejohn)
  • Gay Constructionist Critique of Posner's Sex and Reason: Steps Toward a Gaylegal Agenda, 102 Yale L.J. 333 (1992) (review essay)
  • Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992) (co-authored with Philip Frickey)
  • The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) (co-authored with John Ferejohn)
  • Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331 (1991)
  • Making the Deal Stick: Enforcing the Original Constitutional Understanding, J.L. Econ & Org. (1991) (co-authored with John Ferejohn)
  • Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 Calif. L. Rev. 613 (1991)
  • The New Public Law Movement: Moderation as a Postmodern Cultural Form, 89 Mich. L. Rev. 707 (1991) (co-authored with Gary Peller)
  • The Case of the Amorous Defendant: Criticizing Absolute Stare Decisis for Statutory Cases), 88 Mich. L. Rev. 2450 (1990)
  • Legislative History Values, 66 Chi.-Kent L. Rev. (1990)
  • Dynamic Interpretation of Economic Regulatory Statutes, 21 L. & Pol'y Int'l Bus. 663 (1990)
  • Gadamer/Statutory Interpretation, 90 Colum. L. Rev. 609 (1990)
  • The New Textualism, 37 UCLA L. Rev. 621 (1990)
  • Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321 (1990) (co-authored with Philip Frickey)
  • Spinning Legislative Supremacy, 78 Geo. L.J. 319 (1989)
  • Public Values in Statutory Interpretation, 137 U. Pa. L. Rev. 1007 (1989)
  • Metaprocedure, 98 Yale L.J. 945 (1989) (review essay)
  • Interpreting Legislative Inaction, 87 Mich. L. Rev. 67 (1988)
  • Overruling Statutory Precedents, 76 Geo. L.J. 1361 (1988)
  • Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 Va. L. Rev. 275 (1988)
  • Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479 (1987)
  • Legislation Scholarship & Pedagogy in the Post-Legal Process Era, 48 U. Pitt. L. Rev. 691 (1987) (co-authored with Philip Frickey)
  • Les Jeux Sont Faits: Structural Origins of the International Debt Problem, 25 Va. J. Int'l L. 281 (1985)
  • One Hundred Years of Ineptitude, 70 Va. l. Rev. 1083 (1984)
  • The Iranian Nationalization Cases, 22 Harv. Int'l L.J. 525 (1981)
  • Dunlop v. Bachowski & the Limits of Judicial Review under Title IV of the LMRDA, 86 Yale L.J. 885 (1977) (student note)

References[edit]

  1. ^ a b Newton, David E. (2010-09-02). Same-Sex Marriage: A Reference Handbook. ABC-CLIO. pp. 144–. ISBN 9781598847079. Retrieved 20 May 2012. 
  2. ^ Eskridge's biography at Yale Law School
  3. ^ "Brian Leiter's Law School Reports". leiterlawschool.typepad.com. Retrieved 2017-03-11. 
  4. ^ Eskridge's CV
  5. ^ Sotomayor, Sonia (2013). My Beloved World. New York: Random House. pp. 178–180. ISBN 978-0-307-59488-4. 
  6. ^ "William N. Eskridge". John Simon Guggenheim Memorial Foundation. Retrieved 20 May 2012. 
  7. ^ Posner, Richard (1988). "Book Review (reviewing Eskridge, William N., J., Cases and Materials on Legislation: Statutes and the Creation of Public Policy (1988)". Virginia Law Review. 74: 1567–1571. 
  8. ^ Shapiro, Fred (2012). "The Most-Cited Law Review Articles of All Time". Michigan Law Review. 110: 1483–1520. 
  9. ^ William, Eskridge (1994). "The Supreme Court, 1993 Term: Law As Equilibrium: Foreword". Harvard Law Review. 108: 26–108. 
  10. ^ "Dean v. District of Columbia, 653 A.2d 307 – CourtListener.com". CourtListener. Retrieved 2017-03-12. 
  11. ^ Congressional Record -- Senate. September 10, 1996. S10108 to S10109. https://www.congress.gov/crec/1996/09/10/CREC-1996-09-10-senate.pdf
  12. ^ Posner, Richard (2015). "Eighteen Years On: A Re-Review (reviewing William N. Eskridge, Jr., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (1996))". Yale Law Journal. 125: 533–542. 
  13. ^ Eskridge, William (1999). "HARDWICK AND HISTORIOGRAPHY". UNIVERSITY OF ILLINOIS LAW REVIEW. 1999: 631–702. 
  14. ^ Lawrence v. Texas, 539 U.S. 558, 569–70 (2003)
  15. ^ Eskridge, William (1984). "One Hundred Years of Ineptitude: The Need for Mortgage Rules Consonant with the Economic and Psychological Dynamics of the Home Sale and Loan Transaction". Virginia Law Review. 70: 1083–1218. 
  16. ^ "Gaylaw: Challenging the Apartheid of the Closet (review)". The Virginia Quarterly Review. April 1, 2000. Retrieved 20 May 2012. 
  17. ^ Lewis, Neil A. (8 September 1996). "A Modest Proposal". The New York Times. p. 14. Retrieved 20 May 2012. 
  18. ^ Henschen, Beth M. (July 1995). "DYNAMIC STATUTORY INTERPRETATION (review)". Law & Politics Book Review, v. 5 no. 7. pp. 195–196. Retrieved 20 May 2012.