Using recent statements from Rutgers University as an example, Illinois Law dean and professor Vikram David Amar describes certain cautionary factors that high-level university administrators should bear in mind before engaging in institutional speech. Dean Amar explains the complexity of institutional speech in higher education and suggests that even well-intentioned speech can lead to unexpected criticism and responses.
Illinois Law dean and professor Vikram David Amar critiques Supreme Court Justice Elena Kagan’s recent use of stare decisis doctrine and reliance interest in her dissenting opinion last term in Ramos v. Louisiana, and again this term in Edwards v. Vannoy. Dean Amar describes the reliance interest theory and explains why Justice Kagan’s reasoning is unusual and dubious.
In this second of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan Brownstein continue their discussion of why the U.S. Supreme Court’s recent “Most Favored Nation” (MFN) approach to the Free Exercise Clause of First Amendment is troubling on a number of levels. Dean Amar and Professor Brownstein point out that an MFN-style approach is virtually guaranteed to cause geographical inequality because it relies upon fortuitous secular analogues.
In this first of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan E. Brownstein discuss the U.S. Supreme Court’s apparent adoption of a “most favored nation” approach to protecting religious liberty under the Free Exercise Clause. Dean Amar and Professor Brownstein describe some of the problems with this approach and point out that the reason religious exercise receives constitutional recognition and protection is not because the Constitution assigns some heightened value to religious belief and practices over secular interests, but because we do not want the state to interfere with religious choice and the autonomy of religious individuals to associate with a religion of their choice.
Illinois Law dean Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein comment on a recent decision by the U.S. Court of Appeals by the Sixth Circuit holding that the First Amendment protects a college teacher who refused to respect student gender-pronoun preferences. Dean Amar and Professor Brownstein argue that the court may have reached the wrong outcome on the facts, and in doing so it unnecessarily decided the extent to which a key Supreme Court case should or should not apply to the public higher education setting.
In this second of a series of columns, Illinois Law dean and professor Vikram David Amar comments on the Kentucky proposal to change the way U.S. Senate vacancies are filled. Dean Amar argues that the Seventeenth Amendment precludes such a proposal, which would allow the state legislature to substantively constrain the governor’s choices in making a temporary appointment.
In this first of a series of columns, Illinois Law dean and professor Vikram David Amar offers four observations about recent calls for reform of the filibuster device in the U.S. Senate. Dean Amar suggests looking at state experiences with supermajority rules, as well as the Senate’s own recent past, and he considers why senators might be reluctant to eliminate the filibuster. He concludes with a comment on President Joe Biden’s suggestion that the Senate return to the “talking filibuster” and praises a suggestion by Senator Tom Harkin (D-IA) that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated.
Illinois Law dean Vikram David Amar and professor Jason Mazzone argue that the U.S. Supreme Court correctly denied review last week of the Pennsylvania Supreme Court decisions handed down before the 2020 election. Dean Amar and Professor Mazzone explain why the majority denied review and point out that the dissenting opinions unwittingly demonstrate the rightness of the majority.
Illinois Law dean Vikram David Amar comments on the apparent increase in the number of law school applications this year and offers some thoughts as to the reasons behind the trend. Dean Amar suggests that increased job opportunities and heightened social awareness might be behind the higher numbers of applications.
Illinois Law Dean Vikram David Amar comments on an unusual move by the U.S. Solicitor General’s office, sending a letter to the U.S. Supreme Court amending the position of the federal government in a case currently pending before the Court challenging the Affordable Care Act. Dean Amar explains why the arrival of a new administration should generally not trigger such position reversals, but he argues that the unusual circumstances—specifically the “exceptional implausibility” of the government’s prior filings—may justify the government’s action in this instance.
Illinois law dean Vikram David Amar and professor Jason Mazzone argue that the constitutional ambiguity over who may preside over former President Trump’s second impeachment trial supports the conclusion that the Senate should ask Chief Justice John Roberts to preside. Dean Amar and Professor Mazzone explain why other people—such as Senate President Pro Tempore, the Vice President, and any other senator—are not ideal options because of real or perceived conflicts.
Illinois law dean Vikram David Amar explains why Georgia’s law allowing persons 75 years and older to get absentee ballots for all elections in an election cycle with a single request, while requiring younger voters to request absentee ballots separately for each election, is a clear violation of the Twenty-Sixth Amendment. Dean Amar acknowledges that timing may prevent this age discrimination from being redressed in 2020, but he calls upon legislatures and courts to understand the meaning of this amendment and prevent such invidious disparate treatment of voters in future years.
In this fifth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone discuss severability in a larger context and explain why, in their view the majority and minority positions are partly right and partly wrong. The authors conclude that if the Court invalidates and enjoins the individual mandate, it should reject the challengers’ substantive express inseverability claim that the entire ACA remainder should be enjoined.
Illinois law dean Vikram David Amar and professor Jason Mazzone describe the increasing importance of courts and lawyers in safeguarding and reinforcing the role of factual truths in our democracy. Dean Amar and Professor Mazzone point out that lawyers and judges are steeped in factual investigation and factual determination, and they call upon legal educators (like themselves) to continue instilling in students the commitment to analytical reasoning based in factual evidence, and to absolutely reject the notion that factual truth is just in the mind of the beholder.
In this fourth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider what the appropriate remedy should be if the challengers prevail on the merits of the case. The authors explain why enjoining the 2017 amendment, which zeroed out the potential tax penalty for failure to maintain the specified health insurance coverage, is a more appropriate remedy than striking down the entire ACA.
Illinois law dean and professor Vikram David Amar describes an underappreciated influence of the late Justice Ruth Bader Ginsburg—her carefully reasoned majority opinion in Arizona Legislature v. Arizona Independent Redistricting Commission. As Dean Amar explains, in that case, Justice Ginsburg rejected nearly identical arguments to those relied on today in asking federal courts to challenge state courts’ and agencies’ rulings protecting the right of their citizens to vote as provided for under state statutes and constitutions.
In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.
In this second of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone comment on the standing issue presented in California v. Texas. The authors explore the Solicitor General’s creative argument and argue that the argument leaves several hurdles unaddressed. The authors point out that even if the plaintiffs in these cases can overcome the hurdles, the Court should consider that embracing the Solicitor General’s broad new theory would open the door to other, even more aggressive, applications.
In this first of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone examine the stare decisis effects of the Supreme Court’s initial blockbuster decision involving the ACA. The authors demonstrate several, perhaps surprising, ways that the earlier decision should shape how the Court views the present challenge.
Illinois law dean and professor Vikram David Amar reflects on three writings by the late Justice Ruth Bader Ginsburg that he finds himself most drawn to. Amar describes these writings as addressing ideas central to our form of democratic government, namely popular sovereignty, equal voting access, and judicial deference to Congress on policies involving the entire nation.