William Eskridge

Legislation and Statutory Interpretation

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. 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.

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, and Eskridge published Dynamic Statutory Interpretation (Harvard University Press).

Sexuality, Gender, and the Law

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)). 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 West Virginia U.S. Senator Robert Byrd quoting extensively from it in his speech 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.”

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" were cited by the majority opinion in Lawrence v. Texas (2003), where the Supreme Court invalidated consensual sodomy laws. Several paragraphs from the Court’s opinion are virtual verbatim quotes from the Cato amicus and the law review article. Justice Antonin 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

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. 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.