Vikram David Amar

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Amar served as the Senior Associate Dean for Academic Affairs and a Professor of Law at the University of California, Davis School of Law, whose faculty he rejoined in 2007 after teaching at UC Hastings for a decade. He has also taught regularly as a visiting professor at UC Berkeley School of Law and at UCLA School of Law.

He received a bachelor's degree in history from UC Berkeley and his J.D. from Yale, where he served as an articles editor for the Yale Law Journal. Upon graduating from law school in 1988, Professor 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.

Professor Amar writes, teaches and consults in the public law fields, especially constitutional law, civil procedure, and remedies. He is a co-author (along with William Cohen and Jonathan Varat) of Constitutional Law: Cases and Materials (Foundation Press, 12th ed. 2005), 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 in a variety of journals, including the Yale Law Journal, the Stanford Law Review, the Cornell Law Review, the Virginia Law Review, the Vanderbilt Law Review, the California Law Review, the William and Mary Law Review, the Hastings Law Journal, Constitutional Commentary, the Hastings Constitutional Law Quarterly, and the Green Bag Journal.

Columns by Vikram David Amar

Why The U.S. Supreme Court Should Not Fear That Denying the Proposition 8 Sponsors Federal Standing Will Weaken The Initiative Device (And a Few Other Thoughts on the Oral Argument in Perry v. Hollingsworth)

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the standing issues, as well as some other issues, that were discussed by the U.S. Supreme Court’s Justices in their recent oral argument regarding Proposition 8, the California measure that bans same-sex marriage. In particular, Amar discusses whether the proposition’s sponsors are the ones who should defend it in court, concluding that they are not. He adds, as well, that denying the sponsors standing will not weaken the initiative device. Moreover, Amar notes that state law could authorize sponsors to defend initiatives in the future, but the authorization must be done carefully, clearly, and in a way that is visible to voters. Amar also considers the possibility that the Proposition 8 case will ultimately be dismissed by the Supreme Court as having been improvidently granted.

(Unpersuasive) Challenges to the National Popular Vote Plan: Part One in a Series of Columns

Justia columnist and U.C., Davis law professor Vikram Amar defends the National Popular Vote (NPV) Compact against challenges raised by Willamette law professor Norman Williams, contending that each of those challenges lacks merit. As Amar explains, the NPV Compact seeks to move America toward making it ever more likely that the President who is elected is the candidate who obtains the most voter support nationwide, by getting various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garners a plurality of popular votes in that state, but rather for the candidate who wins the most popular vote nationally.

The First of Many Expected Five-Four Rulings at the Supreme Court this Term: Clapper v. Amnesty International USA Rejects Plaintiffs’ Standing to Challenge Foreign Surveillance

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the recent Supreme Court ruling in the Clapper case, which raised the question whether Amnesty International USA and other plaintiffs had standing to go to court to challenge a law passed by Congress in 2008 that permits the federal government to undertake additional surveillance and information-gathering with respect to persons outside the United States. In a 5-4 ruling, the Court held that the plaintiffs lacked standing to challenge that law; Amar explains the reasoning of the majority and that of the dissent, respectively.

Does BLAG Have Standing in the Defense of Marriage Act (DOMA) Case in Front of the Supreme Court?

Justia columnist and U.C., Davis law professor Vikram David Amar discusses the question whether BLAG, the Bipartisan Legal Advisory Group of the House of Representatives, has standing in the same-sex marriage cases now before the Supreme Court. Amar details the argument made by professor Vicki Jackson, who was appointed by the Supreme Court to brief questions as to whether BLAG has standing, and also whether the case is justiciable. Amar notes the role of the key precedent of INS v. Chadha, which concerned a legislative veto, and other important precedents that may prove significant to the Court.

The No Budget, No Pay Bill, the Twenty-Seventh Amendment and the Debt Ceiling

Justia columnist and U.C. Davis law professor Vikram David Amar comments on a bill that purports to withhold salary from all members of a House during the time the House has failed to produce a budget. Amar contends that such a bill violates the Constitution’s Twenty-Seventh Amendment, which states that “No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election for Representatives shall have occurred.” The bill itself purports to comply with the Twenty-Seventh Amendment, but Amar is deeply skeptical about that claim.

Do Special Legislative Protections for Labor Picketing Violate the First Amendment? The California Supreme Court in the Ralphs Grocery Case Says “No,” Disagreeing with the D.C. Circuit and Setting Up a Split Only the Supreme Court Can Resolve

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the possible First Amendment issues that could arise from the application of laws that especially favor labor picketing, above other kinds of picketing. Amar covers a recent California Supreme Court ruling on the issue, and the relevant U.S. Supreme Court precedents as well. Amar critiques the California Supreme Court's analysis, but also concludes that, in the end, the California Supreme Court's result was the right one. Amar also notes the reasons why this important First Amendment/labor rights issue may ultimately land at the U.S. Supreme Court in the coming years.

The Constitutional Problems With the Hawaii Law By Which Senator Schatz Was Appointed to Replace the Late Senator Inouye

Justia columnist and U.C., Davis law professor Vikram David Amar argues that there are serious Seventeenth Amendment issues plaguing the Hawaii law that resulted in the temporary appointment of Senator Schatz, after Hawaii Senator Inouye had passed away. More specifically, Amar explains, Hawaii law provides that its Governor shall make a temporary appointment to fill a Senate vacancy by selecting a person from a list of three prospective appointees submitted by the same political party to which the prior incumbent had belonged. Amar questions the constitutionality of Hawaii's procedure with respect to the three-prospective-appointee list and how it is composed.

How a Case About Decriminalization of Marijuana Has Substantial Implications for the Rights of Gay and Lesbian Persons

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the connection between a case about decriminalizing marijuana, and another case about gay and lesbian rights—and in particular, about sexual orientation change efforts (SOCE), which are now prohibited in California where those under 18 are involved. Amar and Brownstein describe SOCE methods, and the two cases, with very different judicial results, which confronted the question whether barring SOCE violates the First Amendment, and particularly the right of doctors to communicate with their patients. They then explain the central importance of the marijuana-decriminalization precedent when it comes to the SOCE cases, which may well end up before the U.S. Court of Appeals for the Ninth Circuit.

Equal Access to the Tools of Political Change; The Sixth Circuit’s Coalition to Defend Affirmative Action Case Is Destined For the Supreme Court

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a closely watched affirmative action case that the Supreme Court will very likely resolve. As Amar notes, the case concerns how a state that tries to abolish affirmative-action programs may, in doing so, violate the Constitution. As Amar explains, such programs are never constitutionally required to be initiated, but their abolition may be constitutionally problematic—for instance, if programs that benefit minorities are abolished in a way that leaves all programs that benefit other groups untouched, and that makes reenactment of the programs that minorities prefer especially difficult; or when minorities are subjected to greater political obstacles in the adoption (or re-adoption) of the programs they might support than are other groups.

The Establishment Clause and the Free Speech Clause in the Context of the Texas High School Cheerleader Religious Banner Dispute

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on an interesting lawsuit that involves both the Free Speech Clause and the Establishment Clause of the First Amendment. The suit was brought by a group of public high school cheerleaders against the school district that told them to stop displaying religious-themed banners bearing bible verses and proclaiming things like “If G-d is for us, Who Can Be Against Us?” at football games. Does the Establishment Clause forbid what they are doing? And does the Free Speech Clause come into play? Amar and Brownstein address the complex constitutional issues that the case presents.

An Update on the National Popular Vote Movement and Other Election Reform As the 2012 Presidential Election Looms

Justia columnist and U.C., Davis law professor Vikram David Amar comments on developments relating to the National Popular Vote (NPV) movement and other election reform proposals. The essential idea of NPV is to get various states to sign an agreement requiring each signatory state to cast its electoral college votes not for the candidate who garnered a plurality of popular votes in that state, but rather for the candidate who won the most popular votes nationally. This system, with enough signatories, would ensure that the winner of the Presidential contest would always be the person who had won the largest number of votes from individual voters nationwide. It would thus solve the problem of candidates’ focusing almost exclusively on “battleground states” in their campaigns, and would ensure that each American’s vote truly had equal weight in presidential elections. The importance of the issue is underlined by the fact that Gore won more votes in 2000, but lost the election, and this year, Romney may do the same.

Was Justice Scalia Right That Many Contentious Constitutional Issues Are “Easy” to Resolve?

Justia columnist and U.C., Davis law professor Vikram Amar takes strong issue with Justice Scalia’s recent remark that certain constitutional questions are “easy”—including questions relating to the constitutionality of the death penalty, laws restricting abortions, and limits on the rights of gays and lesbians to engage in homosexual activity. Amar argues that even if one uses Scalia’s own interpretive method of originalism, the answers to such constitutional questions are far less easy than Scalia claims them to be; and Amar cites a number of interesting examples to prove his case. Amar also contends that a full approach of originalism would go much further than the examples Scalia gives, would destroy important and basic contemporary Court precedents, and thus would seriously disrupt constitutional law as we know it. Finally, Amar contends that the counterarguments that Scalia might make to the objections that could be raised regarding his views would only get him into deeper trouble analytically.

Assessing California’s New Law (And Others Somewhat Like It) That Tries to Regulate Funeral Demonstrations Without Violating the First Amendment

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on California’s law attempting to regulate demonstrations at funerals, as well as similar efforts by the federal government and other states. Amar and Brownstein consider whether such laws are consistent with the First Amendment. As they note, the issue has arisen due to the activities of the Westboro Baptist Church, a Kansas-based family group that has shown up to picket near the sites of funerals—including, often, military funerals. One of the group’s messages is that America is too tolerant of homosexuality. The group’s activities, Amar and Brownstein note, have already been the subject of a Supreme Court ruling, Snyder v. Phelps. In addition to analyzing the Snyder case, Amar and Brownstein discuss another analytical framework that they argue would better suit such cases than the one the Court invoked, and consider related questions such as how broad a no-picketing zone can be imposed to protect mourners’ privacy, and how long that zone can last, before and after a funeral.

An Interesting Takings Case on the Supreme Court’s October Argument Calendar: Arkansas Game & Fish Commission v. United States

Justia columnist and U.C., Davis law professor Vikram Amar comments on an upcoming Supreme Court case that raises a Takings Clause issue. (The Takings Clause, as Amar explains, is that part of the Fifth Amendment that forbids the federal government from taking private property for public use without just compensation.) In the case before the Court, Amar explains, the key question is as follows: In the context of the facts at issue, does temporary incremental flooding, caused by the federal government, onto other lands (which are subject to some flooding in any event) amount to a taking for which compensation is required under the Fifth Amendment’s Takings Clause? Amar explains the competing arguments, and notes the reasons why it will be very interesting to see what law the Supreme Court chooses to make in this case.

Does the Diversity Justification for Affirmative Action (Mis)Use Minority Students? Reassessing the Supreme Court’s Decision in Grutter

Justia columnist and U.C., Davis law professor Vikram David Amar considers whether one common justification for affirmative action in education—to allow white (and other) students to have a more diverse educational experience—is improperly using, instrumentalizing, and commodifying minority students. The challenge to this justification, Amar notes, has lately been the subject of academic commentary. Amar discusses the Supreme Court’s seminal Bakke case, which concerned affirmative action; the later Supreme Court Grutter and Gratz affirmative action decisions; and the upcoming Fisher case on the same topic. In addition, Amar explains three reasons why he isn't as concerned about the instrumentalization/commodification issue in affirmative action as some other law professors are.

Teaching (and Learning) About United States v. Alvarez, the Stolen Valor Act Case

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, discuss the Supreme Court’s decision in United States v. Alvarez. As they explain, the case concerned the Stolen Valor Act, which imposes criminal penalties on those who falsely claimed to have been awarded the Congressional Medal of Honor or another medal granted by the United States. The Court had to decide whether the Act violated the First Amendment. Amar and Brownstein offer a subtle analysis of the various doctrinal moves that were made, in the case, by the Justices who joined the plurality opinion, the concurrence, and the dissent in the case, respectively. They focus especially on a search for a limiting principle that goes just far enough, but not too far, in the case, and target their analysis especially toward law professors who seek to teach the case, and students who seek to better understand it.

What a Recently Released Study Ranking Law School Faculties by Scholarly Impact Reveals, and Why Both Would-Be Students and Current/Prospective Professors Should Care

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the recent study ranking law schools by scholarly impact that was conducted by University of Chicago professor Brian Leiter, who also contends that the most well-known law-school-ranking system, that of U.S. News & World Report, is seriously flawed. Amar covers ranking methodology; describes what the most recent Leiter rankings show; and explains why the U.S. News rankings tend to differ somewhat from the Leiter rankings. Amar also addresses a key underlying question for any law school ranking: How much should a school’s scholarly productivity count, as opposed to other possible ranking factors?

Can A Lower Federal Court Effectively Provide Protection Against Prosecution? A Mississippi Abortion Law Raises the Question

Justia columnist and U.C., Davis law professor Vikram David Amar comments on an interesting and important issue regarding the power of federal courts. Specifically, Amar addresses the question whether a federal court can issue an injunction against future prosecution: If a district court tells you that the actions you are about to take are immune from prosecution, should you be able to rely on that immunity, even if it turns out that the district judge had provided it based on a flawed legal premise? As Amar points out, the Supreme Court precedent on this question is far from clear, and at least one of the Court’s liberals has suggested that reliance by a party on immunity that is wrongfully accorded to that party by a district court may be foolhardy. Amar also explains how this issue has arisen in a current controversy about Mississippi abortion services.

The Top 10 Things to Take Away From Last Week’s Supreme Court Obamacare Ruling

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the ten key takeaways from last week’s Obamacare opinion. Some of the lessons Amar suggests that the opinion teaches are not just about the Supreme Court, but, interestingly, also about the media, and about Intrade users. Moreover, when it comes to the Court and its Justices, Amar points out lessons that we might learn about Justice Kennedy and Chief Justice Roberts, respectively, from the opinion. Amar also points out lessons that we might learn from the opinion about Commerce Clause doctrine and doctrines regarding constitutional federalism.

Under What Circumstances Can a State Compel a Pharmacy to Provide “Morning After” Drugs Against the Religious Objections of Pharmacists? A Case From Washington State Illustrates Modern Free Exercise Doctrines and Dilemmas

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on a recent Washington State controversy that raises the issue whether a pharmacy must provide the emergency contraceptive known as “Plan B” if the pharmacy’s owner objects to doing so, based on his or her own religious beliefs. (Such pharmacy owners believe that life begins at conception, meaning fertilization; Plan B prevents the implantation of a fertilized egg.) Amar and Brownstein note that the case is important and interesting not just in itself, but also because it illustrates many of the unanswered questions that concern the First Amendment’s Free Exercise Clause. The federal judge who heard the case ruled in favor of the pharmacy owners, but was he right to do so? Amar and Brownstein consider the arguments on both sides, focusing especially on the Supreme Court case of Church of Lukumi Babalu Aye v. Hialeah, in which a church sought to sacrifice animals in its rituals even though doing so was against the law. They also consider variations of the fact pattern in the Washington State case itself, and consider whether they might yield different results.