Jason Mazzone
Jason Mazzone

Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law at the University of Illinois at Urbana-Champaign and Director of the Illinois Program in Constitutional Theory, History, and Law. 

Professor Mazzone’s primary field of research and teaching is constitutional law and history. He works principally on issues of constitutional structure and institutional design with a particular focus on relationships between structural arrangements and individual rights. His groundbreaking work on the Constitution of the United States has appeared in dozens of prominent legal journals. He regularly advises, on a pro bono basis, litigants in cases before the Supreme Court of the United States and in other courts. A good part of Professor Mazzone’s research involves comparative issues in constitutional law. He has lectured around the world on this topic and he has advised new democracies during their processes of drafting and implementing their own constitutions. Unifying all of this work is a close attention to the role of culture in grounding and shaping formal constitutions, a topic Professor Mazzone first explored in his dissertation at Yale University. Professor Mazzone is currently at work on two books: one a global study of the future of constitutional rights; the other, a study of how the U.S. Constitution serves as both a unifying and dividing force in American society. 

Professor Mazzone works also in the field of intellectual property law. He is the world’s leading expert on overreaching assertions of intellectual property rights. In a famous article published in the NYU Law Review in 2006, Professor Mazzone coined the term, “copyfraud,” to describe claims of copyright in works that are actually in the public domain and cannot be copyrighted by anyone. That article generated scores of studies by other academic researchers and “copyfraud” became the tagline for popular criticism of excessive intellectual property claims. Professor Mazzone’s acclaimed book, Copyfraud and Other Abuses of Intellectual Property Law, was published in 2011 by Stanford University Press. Professor Mazzone’s work on overreaching intellectual property claims has produced legislative reforms in France and other countries; provided the framework for high-profile lawsuits to limit intellectual property rights to their statutorily-designated scope; inspired symposia and conferences at home and abroad; shaped the work of public interest organizations and legal clinics devoted to protecting the public domain; provided guidance to the work of the U.S. Copyright Office and the U.K. Intellectual Property Office; and served as a framework for rethinking key aspects of our system of intellectual property laws. 

Professor Mazzone received his undergraduate and law degrees from Harvard University, a master’s degree from Stanford University, and a master’s and doctorate from Yale University. While a student he worked with Laurence H. Tribe on constitutional cases in the Supreme Court and for Robert D. Putnam on the bestselling book Bowling Alone: The Collapse and Revival of American Community. He served also as Rapporteur to the Saguaro Seminar on Civic Engagement in America, a workshop group whose members included then-Illinois State Senator Barack Obama. Before entering law teaching, Professor Mazzone clerked for Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit and for Judge John G. Koeltl of the U.S. District Court for the Southern District of New York, and he practiced intellectual property law in New York City. 

Professor Mazzone is a member of the American Law Institute and a fellow of the European Law Institute. He is Chair of the Illinois-Bologna Conference on Comparative Constitutional History, a member of the Advisory Board of the Italian Law Journal, and a member of the International Association of Constitutional Law Research Group on Constitutionalism in Illiberal Democracies. He has also served on the Board of Trustees of the Copyright Society of the USA. His scholarship has been cited by many courts, including the Supreme Court of the United States. He is a regular media commentator and he has written about legal issues for The New York Times and other national newspapers. Professor Mazzone blogs at Balkinization.

Columns by Jason Mazzone
Where Have All the (Aspiring) Law Profs Gone?

Illinois Law dean Vikram David Amar and professor Jason Mazzone consider some possible explanations for the ever-decreasing number of applicants for tenured/tenure-track faculty among law schools. Dean Amar and Professor Mazzone propose five possible reasons but point out that whatever the true reason(s), the apparent decline in the demand among talented new legal minds for law-teaching jobs should be a topic of discussion and concern.

If Originalism Is Going to Be Displaced, Critics Must Do Better than Dean Chemerinsky Seems to Be Doing

Illinois Law dean Vikram David Amar and professor Jason Mazzone respond to several points about originalism made by Berkeley Law Dean Erwin Chemerinsky in a recent article published in The Atlantic. Dean Amar and Professor Mazzone explain why three claims in particular—that originalism is an “obscure legal theory” only a few decades old, that judicial review in the federal courts is anti-originalist, and that accurately determining original meaning is “impossible.”

What Does it Mean for Other Institutions to “Defy” or “Check” the Supreme Court? Not What the Court Invites Those Institutions to Do

Illinois Law dean Vikram David Amar and professor Jason Mazzone respond to a recent column by New York Times columnist David Leonhardt, arguing that neither of the recent high-profile developments after the Dobbs v. Jackson Women’s Health Organization decision is an example of “defying” the Court or “checking” judicial power. Dean Amar and Professor Mazzone point out that while neither the abortion vote in Kansas nor the pending federal marriage-equality proposal may fairly be characterized as “defying” or “checking,” some political reactions to Supreme Court rulings in the past arguably have involved defiance or disobedience of the Court.

Ten Thoughts on Illinois’s Unique Process for Filling State Supreme Court Vacancies

Illinois Law dean Vikram David Amar and professor Jason Mazzone offer ten thoughts on Illinois’s unique process for filling state supreme court vacancies. Dean Amar and Professor Mazzone describe some of the advantages and disadvantages of Illinois’s process, and they compare and contrast it to other similar processes in government.

Why the North Carolina Berger Voter ID Case Pending in the U.S. Supreme Court Would Benefit from Certification to the State High Court: Part Two in a Series

In this second of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe the facts and law giving rise to Berger v. North Carolina State Conference of the NAACP, a North Carolina voter ID case pending before the U.S. Supreme Court. Dean Amar and Professor Mazzone argue that the case highlights the importance of the legal procedure of certification and suggest that if the Court’s decision falls back on the traditional model of singular executive-branch representation embraced by the federal system and that of other states, the North Carolina legislature will have only itself to blame.

The Value of Certification of State Law Questions by the U.S. Supreme Court to the North Carolina Supreme Court in the Pending North Carolina Berger Case: Part One in a Series

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe the development of the legal procedure of certification of state-law questions—by which federal courts ask a state high court how state law would apply to specific circumstances. Dean Amar and Professor Mazzone explain why this procedure may be particularly helpful in a case currently pending in the U.S. Supreme Court, Berger v. North Carolina State Conference of the NAACP, which shows the downsides to a state’s (North Carolina’s0 unique refusal to accept certified questions.

When Is Revising Admissions Criteria to Alter the Racial Makeup of a School’s Student Body Constitutionally Problematic? A Recent Case from Virginia on the Court’s “Shadow” Docket May Offer Some Hints

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on a recent case from Virginia that suggests when revising admissions criteria to alter the racial makeup of a school’s student body is constitutional (and when it is not). Dean Amar and Professor Mazzone point out that although some Supreme Court Justices have suggested in dicta and dissents some permissible options, they may very well decide that those options too are impermissible, despite the natural and reasonable reliance on those writings.

Where Things Might Go in the Oklahoma Supreme Court’s Seventeenth Amendment Case Involving Senator Jim Inhofe’s “Irrevocable” Promise to Retire in January: Part Two in a Series

In this second of a two-part series of columns on a Seventeenth Amendment case currently before the Oklahoma Supreme Court, Illinois Law dean Vikram David Amar and professor Jason Mazzone consider whether Senator Jim Inhofe’s promise to resign is enforceable and whether there anything else Inhofe (and the state) could do to vindicate his (and its) wishes.

A Case Pending in the Oklahoma Supreme Court Involving Senator Jim Inhofe Raises Interesting Questions Under the Seventeenth Amendment: Part One in a Series

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone identify and analyze some of the Seventeenth Amendment issues presented in a case pending before the Oklahoma Supreme Court. Dean Amar and Professor Mazzone consider whether a state can hold a special election while the Senate seat is still occupied, and whether the possibility of a substantial lag between a special election and actual replacement matters.

The Fifth Circuit Completely Botches the Federal Constitutional Issues Raised by OSHA’s Vaccine and Testing Requirements for Large Employers

Illinois Law dean Vikram David Amar and professor Jason Mazzone explain why a recent ruling by the U.S. Court of Appeals for the Fifth Circuit egregiously misunderstands the Commerce Clause issues presented in several lawsuits challenging the federal Occupational Safety and Health Administration (OSHA)’s authority to mandate vaccine and testing requirements for large employers. Dean Amar and Professor Mazzone focus on three ways in which the Fifth Circuit gets it wrong and expresses hope that the Sixth Circuit, which is where the lawsuits have been consolidated, does better.

Why September 17 Is Neither the Only nor Necessarily the Best Day to Celebrate America’s True Constitutional Tradition

In light of Congress’s designation of today, September 17, as “Constitution Day,” Illinois Law dean Vikram David Amar and professor Jason Mazzone explain what this date celebrates and what it overlooks. Dean Amar and Professor Mazzone point out that while we should celebrate the drafters at the Philadelphia Convention, we should not disregard the imperfections in their work, or the ways in which Americans have worked to correct those imperfections.

An Update on the Lawsuit Challenging Illinois’s Districting Plan, McConchie v. Illinois State Board of Elections

In this third of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone discuss a recent federal lawsuit b Republican minority leaders in both houses of the Illinois General Assembly, specifically focusing on recent developments in the litigation. Dean Amar and Professor Mazzone explain why they do not expect the Illinois Supreme Court to support doing anything but letting the revised district lines (if they be revised as they expect) go into effect.

New Texas Abortion Statute Raises Cutting-Edge Questions Not Just About Abortion but About the Relationship Between State and Federal Courts

Illinois Law dean Vikram David Amar and professor Jason Mazzone analyze some of the issues presented by a new Texas anti-abortion statute that is to be enforced entirely by private plaintiffs. Dean Amar and Professor Mazzone explore the unusual characteristics of the law and describe some approaches opponents might take—and indeed Whole Woman’s Health (WWH) has already filed a lawsuit in federal court that seems to follow an approach the authors describe.

Can/Should A Federal Court Order the Creation of a Bipartisan Districting Commission in Illinois? Evaluating the Claims for Remedy in McConchie, the Republican Challenge to Illinois’s Recently Adopted Redistricting Plan

In this second of a series of columns commenting on Republican efforts to challenge the apportionment of Illinois state legislative districts that the General Assembly and the Governor recently enacted, Illinois Law dean Vikram David Amar and professor Jason Mazzone argue that a federal court may not be able to grant the relief the plaintiffs are seeking. Dean Amar and Professor Mazzone point out that the Illinois Supreme Court is the proper arbiter of the key legal question whether a commission is required under state law.

Evaluating the Republican Federal Court Challenge to Illinois’s Recently Adopted Redistricting Plan

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe a lawsuit in which Republicans are challenging Illinois’s recently adopted redistricting plan. Dean Amar and Professor Mazzone identify several obstacles the lawsuit may face, which, in their estimation, make it unlikely to succeed.

Why the Supreme Court was Right Last Week to Deny Review of the Pennsylvania Supreme Court Decisions Handed Down Prior to the 2020 Election

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.

Who May/Should Preside Over Former President Trump’s Second Impeachment Trial?

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.

Severability in Larger Constitutional Context: Part Five in our Series on the California v. Texas Challenge to the Affordable Care Act

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.

In (Trial) Courts (Especially) We Trust

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.

If the Challengers Prevail on the Merits of the ACA California v. Texas Case, What is the Appropriate Remedy and What Effect Should the Ruling Have on the Entirety of the ACA? Part Four in a Series

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.