Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois in 2015, Amar served as the Senior Associate Dean for Academic Affairs and a Professor of Law at the UC Davis School of Law. He has also had teaching stints at three other law schools affiliated with the University of California: the UC Berkeley School of Law; the UCLA School of Law; and Hastings College of the Law.

He received a bachelor's degree in history from UC Berkeley and his JD from Yale, where he served as an articles editor for the Yale Law Journal. Upon graduating from law school in 1988, Dean Amar clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit, and then for Justice Harry A. Blackmun of the United States Supreme Court. After that he spent a few years at Gibson, Dunn & Crutcher, devoting half of his time to federal white-collar criminal defense and the other half to complex civil litigation.

Dean Amar writes, teaches and consults in the public law fields, especially constitutional law, civil procedure, and remedies. He is a co-author (along with Jonathan Varat) of Constitutional Law: Cases and Materials (Foundation Press, 15th ed. 2017), and is a co-author on a number of volumes of the Wright & Miller Federal Practice and Procedure Treatise (West Publishing Co.). In addition, he has published articles and essays in a variety of journals, including the Yale Law Journal, the Stanford Law Review, the Virginia Law Review, the California Law Review, the Cornell Law Review, the Vanderbilt Law Review, the William and Mary Law Review, the Minnesota Law Review, the UC Davis Law Review, the Hastings Law Journal, Constitutional Commentary, the Hastings Constitutional Law Quarterly, and the Green Bag Journal.

Columns by Vikram David Amar

English Language Proficiency and Elective Office in the Southwest: An Arizona Ballot-Access Case Poses Important Questions

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Justia columnist and U.C., Davis law professor Vikram David Amar comments on an interesting Arizona case involving the question whether candidates for office can be required to be proficient in English. As Amar explains, the case arose from a dispute in San Luis, Arizona, a small southwestern city where the vast majority of the inhabitants are Mexican-American and where the Spanish language is pervasive. There, the Mayor has challenged the eligibility of a candidate for City Council, Alejandrina Cabrera, and has sought to block her name from the ballot on the ground that she is not proficient in English. In so doing, the Mayor invoked longstanding Arizona law. After an expert found Cabrera not to be sufficiently proficient in English, her name was removed from the ballot. She now seeks relief from the Arizona Supreme Court. Amar considers precedents and analogies that are relevant to whether Cabrera should win her case.

The Lower Court Rulings in Nordyke and Heller II Highlight Judicial Confusion Over Gun Rights: Part Two in a Two-Part Series on the Ways in Which Lower Courts and the Supreme Court Will Need to Flesh Out Second Amendment Doctrine

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Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, continue their series of columns on the Second Amendment and how courts have recently interpreted it, with a special focus on the Supreme Court’s decision in District of Columbia v. Heller, which—while it left many questions unresolved—did establish that there is an individual right to bear arms in certain circumstances. In this column, Part Two in the series, Amar and Brownstein comment on several recent right-to-bear-arms opinions from the U.S. Courts of Appeals. In a Ninth Circuit opinion, Nordyke, the judges agreed on the proper result, but very significantly disagreed on the analysis that should be applied—with each borrowing analogies from other areas of constitutional doctrine, such as free speech doctrine, to give just one example. But Amar and Brownstein question whether these analogies can really work, especially in light of the diversity of fundamental rights doctrine. In light of that diversity, they contend, the choice, in a gun rights case, among all the possible analogies to other rules relating to other rights must be well justified. To make matters even more complicated, moreover, Amar and Brownstein point out that in a D.C. Circuit opinion, Heller II, a totally different framework for reviewing gun regulations than the one the Ninth Circuit panel used, was employed.

What Will the Right to Keep and Bear Arms Mean in the Coming Years? Part One in a Two-Part Series on the Ways in Which Lower Courts and the Supreme Court Will Need to Flesh Out Second Amendment Doctrine

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Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, begin their series of columns on the Second Amendment and how courts have interpreted it, with a special focus on the Supreme Court’s decision in District of Columbia v. Heller. One of their key points is that Second Amendment doctrine needs to be developed and particularized in a number of ways, but that the Supreme Court has not given lower courts much guidance in this area of constitutional law. Though the Court has twice addressed the Second Amendment in recent years, it has left many questions open. With Election 2012 coming up, moreover, Amar and Brownstein point out that Second Amendment doctrine may become a political, as well as a constitutional-law, issue. In Heller, they explain, the Supreme Court made clear that there is an individual constitutional right to keep and bear arms, at least under some circumstances, but it is quite unclear where the Supreme Court and lower courts will go from there. Describing Second Amendment doctrine as a work in progress, Amar and Brownstein provide guidance on some of the questions that are likely to arise in the future.

The “Americans Elect” Movement to Reform Presidential Elections: How Will It Work? And, Is It a Wise Idea?

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Justia columnist and U.C., Davis law professor Vikram David Amar describes and comments on the “Americans Elect” movement. As Amar explains, the movement is striving to put a “nonpartisan” presidential/vice-presidential candidate slate—determined by citizens around the country who will participate in an “online convention” next year—on the ballot in all 50 states before next November’s presidential election. The slate will be “nonpartisan” in that the top online vote-getter, who will be the presidential candidate, must choose a vice-presidential candidate from another party. As Amar notes, nominees can be members of any political party, and indeed could (judging from the organization’s website) presumably be candidates in the Democratic or Republican primary processes. He raises several issues regarding “Americans Elect,” including its potential for its candidate to act as a spoiler by not having enough votes to win, but having enough votes to tip the balance between two major-party candidates—recalling Ralph Nader’s controversial role in Florida in Election 2000. In addition, Amar contends that while Americans Elect’s idea of requiring the top vote-getter to pick an opposite-party running mate is well-intentioned, it seems to rest on some misconceptions about whether mandating lack of party uniformity will turn out to be a good idea.

The California Supreme Court Rules that Prop. 8’s Proponents Have Standing to Defend the Initiative: What Does That Mean in the Ninth Circuit and U.S. Supreme Court?

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Justia columnist Vikram David Amar, and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the latest ruling in the litigation regarding Proposition 8, the California anti-gay-marriage initiative. Amar and Brownstein begin by noting that this ruling holds that the initiative’s proponents have the authority to defend the initiative in California state court, now that elected representatives have declined to do so. They then summarize all the Prop. 8 litigation that has occurred thus far. In addition, they explain what may happen if this case reaches the U.S Supreme Court based on the standing issue it presents (that is, the issue of whether the parties at issue are legally able to bring this case). They cover a reason why the Supreme Court might decline to find federal standing: until now, initiative proponents have not been elected or specifically deputized by the people. Finally, they briefly discuss some other troubling questions regarding the Prop. 8 litigation that the California ruling did not address.

The Supreme Court’s First Ruling of the New Term, Cavazos v. Smith: Supreme Court Annoyance, The Ninth Circuit, and Summary Reversals

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Justia columnist and U.C., Davis law professor Vikram David Amar comments on a recent, rare Supreme Court summary reversal. A summary reversal occurs when the Court summarily grants review and then reverses the federal circuit court’s decision without the benefit of full written briefs and oral arguments. In this instance, Amar suggests that the Court may have opted for summary reversal in light of its apparent annoyance with the U.S. Court of Appeals for the Ninth Circuit. In a criminal case in which a grandmother was accused of shaking her grandson to death, her defense was that the child died, instead, of Sudden Infant Death Syndrome. The Ninth Circuit sided with the grandmother, and reversed the conviction. The Supreme Court then twice directed the Ninth Circuit to reconsider its reversal, but the Ninth Circuit twice reaffirmed that reversal. Amar suggests that Supreme Court annoyance with the Ninth Circuit, which is the subject of a disproportionate number of summary reversals, may have led the Supreme Court, this time, to opt for summary reversal in this case, as well.

An Update on the Fisher v. University of Texas Affirmative Action Case, and the Procedural Issue That Might, But That Need Not, Complicate Things For the Supreme Court

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Justia columnist and U.C. Davis law professor Vikram David Amar comments on an interesting case about affirmative action, in which U.S. Supreme Court review is being sought. As he explains, the case asks the question whether a rejected applicant who challenges an affirmative-action program as unconstitutional must prove that, without the affirmative-action program, he or she would have been admitted. Focusing on two key prior Supreme Court cases, Amar notes that there is another possible standard to be applied here—one under which the applicant would not need to show that he or she would have been admitted under the program, but would simply need to assert that he or she had applied, and thus that he or she had been harmed by being considered under an unconstitutional set of rules. Carefully parsing the Court’s precedents, Amar considers whether ambiguous prior decisions are best seen as involving substantive or jurisdictional issues.

An Upcoming Case About Israel, Jerusalem, and Presidential Power Offers the Supreme Court the Chance to Clarify the Rules About “Political Questions”

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Justia columnist and U.C. Davis law professor Vikram David Amar comments on a case that the Supreme Court will take up this November. As he explains, the case potentially raises thorny questions regarding two important topics: (1) the relationship between Congress and the President with respect to American foreign policy in the Middle East; and (2) the power (or lack of power) of federal courts to weigh in on such matters, pursuant to the Court’s “political question” doctrine. The case, MBZ v. Clinton (that is, Secretary of State Hillary Clinton), involves a 2002 law passed by Congress that, among other things, requires the Secretary of State, upon the request of a citizen or the citizen’s legal guardian, to record the place of birth for U.S. citizens born in the city of Jerusalem “as Israel.” President Bush signed the law into effect, but issued a signing statement to disclaim the legal effect of part of the law he was signing—on the ground that forcing the State Department to record Jerusalem births as being in Israel would impermissibly interfere with the President’s constitutional power to formulate and speak on behalf of American foreign policy. The plaintiffs in the M.B.Z. lawsuit seek to force the executive branch to follow the terms of the statute, notwithstanding the signing statement’s disclaimer. Whether they can do so, Amar explains, depends on whether the case at issue triggers the political question doctrine, under which there are some questions on which even the U.S. Supreme Court cannot rule, on the ground that they are properly resolved by one of the U.S. government’s political branches, rather than by the Court.

Why Pennsylvania and Nebraska Proposals to Alter Those States’ Electoral College Allocations Are UnAmerican, If Perhaps Not Unconstitutional

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Justia columnist and U.C. Davis law professor Vikram David Amar comments on Pennsylvania and Nebraska proposals to change the allocation of those states’ electoral college votes. Amar expresses concern that, while the proposals may not be illegal, they are nevertheless deeply problematic and antithetical to basic principles underlying American democracy. The Pennsylvania proposal would alter the winner-take-all approach to the states’ electoral college votes, and instead would allocate the lion’s share of those votes based on how many congressional districts a given candidate won. Meanwhile, in Nebraska, another proposal suggests the opposite change: from a district-by-district approach to winner-take-all. Amar points out that each of these proposals, authored by Republicans, has been put forward now for a plainly partisan reason: to reduce President Obama’s chances of re-election. Amar contends that this partisan motive should make us skeptical of the proposals, which would take effect immediately, much more so than if they were to take effect at a time in the future when their authors could not so easily determine what their partisan effect might be. Finally, Amar also considers whether Bush v. Gore ought to be deemed relevant to the controversy over the Pennsylvania and Nebraska proposals.

Is Rick Perry Right That the Seventeenth Amendment Was a Mistake?

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Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, assess the claim of Texas governor and presidential candidate Rick Perry that the U.S. Constitution’s Seventeenth Amendment—which provides for the direct election of U.S. Senators—was a mistake. Amar and Brownstein explain the original Constitution’s provision for state legislative election of Senators, and the thinking behind it, and the genesis of the Seventeenth Amendment. They also assess the Amendment’s costs, but note that if it were repealed, there would be costs to that decision, as well.

An Affirmative Action Case That May Illustrate Justice Kennedy’s Power on the Supreme Court and Reshape the Law of Race-Based Admissions Programs

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Justia columnist and U.C. Davis law professor Vikram David Amar comments on an affirmative action decision from the U.S. Court of Appeals for the Fifth Circuit in which the Supreme Court may well grant review. Amar explains why, if the High Court does indeed take the case, its decision may substantially alter constitutional law relating to affirmative action in the context of educational admissions. In addition, Amar notes that this case, if taken up by the Court, may illustrate the very considerable power that Justice Anthony Kennedy now wields. Amar also provides thorough background to allow the reader to put this case, and the issues it raises, in the context of prior precedents relating to affirmative action in admissions, such as Bakke, Hopwood, Grutter, and Gratz.

Assessing the Reasoning of the Eleventh Circuit Opinion Striking Down Obamacare

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Justia columnist and U.C. Davis law professor Vikram David Amar comments on the recent decision by a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, striking down Obamacare’s “individual mandate” provision, which requires each person to obtain health insurance coverage or pay a sum of money to the U.S. Treasury. Amar considers and responds to the most important Commerce Clause arguments that the panel majority invoked: (1) the unprecedented nature of the mandate in federal law; (2) the lack of a requirement in the mandate provision that each regulated individual be doing anything that affects the economy; (3) the related problem that if Congress could mandate purchase of healthcare, there would be no stopping point to federal power; and (4) the fact that insurance and healthcare are matters of traditional state concern.

The National Popular Vote Bill Proposal in California, and Ultimately (Perhaps) in Washington D.C.

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Justia columnist and U.C., Davis, law professor Vikram David Amar argues in favor of America’s adoption of the National Popular Vote (“NPV”) proposal. As Amar notes, California may soon adopt the proposal, and if it does so, that would be a major development in the movement towards a direct national popular election for the Presidency. The essential idea, he explains, is to get states that, together, possess a sufficient number of electoral votes to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who may have prevailed in that state, but rather for the candidate who won the most popular votes nationally. Amar points out that this idea could be put into effect without a constitutional amendment, considers the details of how the NPV proposal might work, addresses some possible criticisms, and notes that requiring Congressional approval for the proposal to take effect might be wise.

The Sixth Circuit’s Big Rulings on Obamacare and Affirmative Action: The Second in a Two-Part Series of Columns

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Justia columnist and U.C. Davis law professor Vikram David Amar completes his two-part series of columns on two key decisions from the U.S. Court of Appeals for the Sixth Circuit. His last column focused on the Circuit’s Obamacare ruling; this one focuses on the Circuit’s ruling on an issue relating to affirmative action. Amar describes two different lines of Supreme Court precedent that offer different ways of analyzing affirmative action cases, and considers the possibility that the Court will take the opportunity—by reviewing this or another lower-court decision—to clean up apparent tensions between these two lines of High Court cases.

The Sixth Circuit’s Big Rulings on Obamacare and Affirmative Action: The First in a Two-Part Series of Columns

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Justia columnist and U.C., Davis law professor Vikram Amar begins a two-part series on two important recent rulings by the U.S. Court of Appeals for the Sixth Circuit, both of which may end up before the Supreme Court. In this first column, Amar comments on the Sixth Circuit ruling that upheld Obamacare—citing a number of factors that make the decision noteworthy. These factors include a conservative judge's vote to uphold Obamacare; that same judge's use of broad reasoning in doing so; the fact that the dissenter was a district court judge; the decision's timing; and the arguments the two judges in the majority could have made, but declined to make, in support of the statute.