Prof. Bilder Publishes New Article

Our own BC Law professor Mary Sarah Bilder has published a new article called “Expounding the Law” in the George Washington Law Review, Vol. 78, No. 6 (September 2010). The abstract of this article follows:

Written as a comment on Philip Hamburger’s book, Law and Judicial Duty, this essay explains why the history of judicial review remains a difficult area for scholarship. American judicial tradition espoused that judges had an obligation to declare as void laws repugnant to the constitution. The essay suggests that the source of this duty, as well as the meaning of both the constitution and laws of the land, changed over time. The essay proposes that scholars perceived American judicial review as problematic only when this tradition conflicted with an increasingly rigid belief in separation of powers. The essay concludes by suggesting that Marbury’s significance derives from its status as the last time an American judge could declare that striking down a law as repugnant to a constitution was the simple consequence of expounding the law. The comment ultimately argues for recovering the time-honored meaning of “expounding” as applied to the work of judges.

Professor Bilder teaches trusts and estates, property, and American legal and constitutional history here at BCLS.  She mainly writes about colonial American legal culture and constitutionalism.  This semester she is teaching “Constitutional History and the Philadelphia Convention,” which meets Wednesdays at 10 – 11:50.