William Eskridge’s Country-Changing Legacy

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By Debra Bruno
June 4, 2018

Bill EskridgeIt’s not an understatement to say that William Eskridge has changed American history. In fact, one might ask which aspect of this country he has affected the most.

Was it introducing statutory interpretation to law schools, a field of study that had only been given slight and outdated attention before he wrote the groundbreaking casebook?

Or forecasting the problems in the housing bubble that led to the financial crisis in 2008?

Or helping to argue in favor of same-sex marriage in a 1996 book and a later amicus brief that served as a foundation for the 2015 U.S. Supreme Court decision Obergefell v. Hodges?

Any one of these achievements could easily be enough to stop a Washington name-dropping conversation dead in its tracks, but Eskridge, the John A. Garver Professor of Jurisprudence at Yale Law School, admits that law wasn’t even his first career choice.

When he graduated from Davidson College with a history degree and then finished nearly all his requirements for a doctorate in history at Harvard around 1974, he says, “the market for Ph.D. historians collapsed.” And since both of his grandfathers were lawyers, he decided to go to law school. “It was basically my fallback career choice, but I had no interest in the law particularly,” he says.

It worked out. In fact, Brian Leiter’s Law School Reports out of the University of Chicago ranked Eskridge sixth among the 10 most-cited law faculty in the United States from 2010 to 2014.

How Eskridge, 66, went from a young man with, as he says, “no employable skills” to a legal star is a tale of his intelligence, hard work, and academic interest in issues of tolerance and exile, themes that led him to some fascinating legal work.

One of his areas of study at Harvard was the political thought of the Marian Exiles, the Protestants who fled an England ruled by the Roman Catholic Queen Mary I in the 16th century. That research expanded his interest in tolerance, which linked to his realization that he was a closeted gay man in college in a time when being gay was considered a mental illness and gay sexual activity was illegal in many states.

It’s another reason he began his work life in Washington. “I could not imagine being a gay person in the rural South where I grew up,” he says.

After serving as a law clerk, he took a job at Shea & Gardner, where he says he learned about international law and statutes from some pretty unconventional clients, including the Islamic Republic of Iran.

One big lesson from his time at Shea, he says, was learning both about procedure and “the ethical practice of law — and how you can be a successful lawyer winning cases but be super ethical.” “It does mean you have to work harder,” he adds, and probably earn less.

Ultimately, though, his goal was to become a law professor. He landed at the University of Virginia School of Law. And even though legislation and statutory interpretation had been a focus of his work life in D.C., he was astounded to learn that few law schools taught it. He and a colleague started a course covering that subject at UVA in 1982, which then led to a book that became one of the original casebooks in that field.

It wasn’t his only important work at UVA. He also realized from his earlier law firm work that home sales transactions were structured in a way to pull potential homebuyers into mortgages with very little investigation into whether the buyers actually qualified to take out a mortgage. “Buyers were being induced into taking on a lot more risk than they would have if they had been thinking rationally,” he says.

It was the beginning of the age of adjustable rate mortgages, sales pressure to convince people to buy homes they could not necessarily afford, and very little regulation to prevent massive foreclosures — which, of course, is what eventually happened. Eskridge tried to strike a warning, writing that consumers were taking on too much risk. He was the only legal scholar to anticipate the housing crisis, he says.

Even with a portfolio like that, Eskridge says he was denied tenure at UVA in 1985. Part of the reason may have had to do with some of his political activity, he says, such as his work to convince the school to end its investments in South Africa, which was operating under apartheid.

But part of it, he suspects, was that he was gay. (In 2009, as Congress deliberated on the pending Employment and Non-Discrimination Act, Eskridge cited in his testimony his denial of tenure at UVA as an example of discrimination in the workplace based on sexual orientation and gender identity. Paul Mahoney, dean of the law school at the time Eskridge made the allegations, said Eskridge was not denied tenure, “but was deferred for future consideration,” and that his sexual orientation played no part in the decision.)

Eskridge left UVA and started teaching at Georgetown University Law Center, where he made it clear he was gay. In fact, he was asked by the Gay and Lesbian Attorneys of Washington (GAYLAW) to represent a gay couple in D.C. seeking the right to marry. He also put together a GAYLAW reading group that has been meeting continuously for more than 26 years. Reviewing Eskridge’s 1996 book, The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment, Judge Richard Posner called Eskridge “a prophet before his time.”

At the same time at Georgetown, Eskridge was also working with now-professor Nan Hunter on writing Sexuality, Gender, and the Law, the first casebook to conceptualize the developing field. An amicus brief Eskridge wrote for the Cato Institute and a law review article were both cited in a majority opinion by the Supreme Court in the 2003 landmark case Lawrence v. Texas, invalidating consensual sodomy laws.

Now at Yale, Eskridge teaches courses in constitutional law, legislation, sexuality, gender and the law, statutory interpretation, and regulation. He’s working on a book about the debate over marriage, with American women as the star.

“Women as decision makers have been the key to gay rights,” he says. He feels even though the Supreme Court decision in Obergefell changed the status of marriage equality, “the conversation continues.” In fact, he says, the U.S. Constitution is always at peril.