Christopher L. Eisgruber

John Marshall's Judicial Rhetoric

The modern judgment upon John Marshalls judicial opinions is paradoxical. On the one hand, Marshalls work is regarded as the greatest the American judiciary has produced: forcefully written resolutions to some of the most difficult constitutional problems facing a new nation. On the other hand, Marshall is held to have committed technical errors that would shame a first-year law student: he omitted crucial premises and neglected applicable precedents, even when those precedents were cases he himself had decided.1 Marshalls opinions are frequently praised but rarely, if ever, emulated. Scholars have attempted to explain the supposed weaknesses in Marshalls otherwise great opinions by reference to his circumstances or personality. Some commentators have pointed to the absence of a well-developed reporter and citation system,2 to fail-