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The Year’s Worst Legal Decision: 2023 Edition
The Year’s Worst Legal Decision: 2023 Edition
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A Red Warning for Justice for Survivors
A Red Warning for Justice for Survivors
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This Is Why I Have Faith in the Future of the United States Despite the Ill Winds of Fascism and Christian Nationalism
This Is Why I Have Faith in the Future of the United States Despite the Ill Winds of Fascism and Christian Nationalism
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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
Permalink to Another Free-Speech Dustup Arising from A Student-Invited-Speaker Event, This One at Pitt, Highlights Recurring Problems at Universities, and in Free Speech DoctrineAnother Free-Speech Dustup Arising from A Student-Invited-Speaker Event, This One at Pitt, Highlights Recurring Problems at Universities, and in Free Speech Doctrine
Another Free-Speech Dustup Arising from A Student-Invited-Speaker Event, This One at Pitt, Highlights Recurring Problems at Universities, and in Free Speech Doctrine
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Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on another free-speech controversy related to a student-invited speaker at the University of Pittsburgh. Dean Amar and Professor Mazzone describe the demand letter sent to Pitt officials by the Alliance Defending Freedom and explain why some of their arguments are on solid legal ground while one is tenuous at best.

Permalink to Fourth Circuit High School Case from Virginia Offers Controversial, and Seemingly Dubious, Definition of “Disparate Impact” in Equal Protection ChallengesFourth Circuit High School Case from Virginia Offers Controversial, and Seemingly Dubious, Definition of “Disparate Impact” in Equal Protection Challenges
Fourth Circuit High School Case from Virginia Offers Controversial, and Seemingly Dubious, Definition of “Disparate Impact” in Equal Protection Challenges
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Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on a recent decision by the U.S. Court of Appeals for the Fourth Circuit involving the admissions policy at a school in Virginia. Dean Amar and Professor Mazzone argue that while it’s not clear whether the U.S. Supreme Court will review this case, the issue the case raises is likely to be one the Court takes up soon.

Permalink to The Court Should Maintain Optionality in Resolving the So-Called “Independent State Legislature” (ISL) Theory by Granting Cert. in Huffman v. Neiman Right Away as the Justices Chew on Whether Moore v. Harper is MootThe Court Should Maintain Optionality in Resolving the So-Called “Independent State Legislature” (ISL) Theory by Granting Cert. in Huffman v. Neiman Right Away as the Justices Chew on Whether Moore v. Harper is Moot
The Court Should Maintain Optionality in Resolving the So-Called “Independent State Legislature” (ISL) Theory by Granting Cert. in Huffman v. Neiman Right Away as the Justices Chew on Whether Moore v. Harper is Moot
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Illinois Law Dean Vikram David Amar and Professor Jason Mazzone argue that, in light of the North Carolina Supreme Court’s “switcheroo” regarding partisan gerrymandering, the U.S. Supreme Court should immediately grant certiorari in Huffman v. Neiman to resolve the question of “Independent State Legislature (ISL) theory. Dean Amar and Professor Mazzone point out that the intense litigation pressure of today’s presidential elections and the shaky stature of the present Supreme Court together strongly support the Court acting quickly to resolve this pressing issue.

Permalink to Friendly Advice for Law Schools Seeking to Inculcate Proper Free-Speech Values and Understandings in Light of the Stanford Episode with Judge Kyle Duncan: Part Two in a SeriesFriendly Advice for Law Schools Seeking to Inculcate Proper Free-Speech Values and Understandings in Light of the Stanford Episode with Judge Kyle Duncan: Part Two in a Series
Friendly Advice for Law Schools Seeking to Inculcate Proper Free-Speech Values and Understandings in Light of the Stanford Episode with Judge Kyle Duncan: Part Two in a Series
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In this second of a series of columns in response to the Stanford Law School controversy involving disruption of a federal judge’s speech, Illinois Law dean Vikram David Amar and professor Jason Mazzone offer additional thoughts about how to design a training session about the freedom of speech and norms of the legal profession should include. Specifically, Dean Amar and Professor Mazzone discuss (1) when and how educational institutions should themselves speak, (2) the best ways to register disagreement with offensive speakers and messages, and (3) what schools should do about students who say they feel genuinely harmed or unsafe when certain kinds of speakers are present.

Permalink to What Law Students Should Take Away from the Stanford Law School Controversy Involving Disruption of a Federal Judge’s Speech: Part One in a SeriesWhat Law Students Should Take Away from the Stanford Law School Controversy Involving Disruption of a Federal Judge’s Speech: Part One in a Series
What Law Students Should Take Away from the Stanford Law School Controversy Involving Disruption of a Federal Judge’s Speech: Part One in a Series
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In response to the Stanford Law School controversy involving disruption of a federal judge’s speech, Illinois Law dean Vikram David Amar and professor Jason Mazzone offer thoughts about how to design a training session about the freedom of speech and norms of the legal profession should include. In this first of a series of columns, Dean Amar and Professor Mazzone focus on two key topics: (1) What, precisely is “shouting down” of a speaker, and why can such activity be prohibited and punished? And (2) What About the Venerable Tradition of “Civil Disobedience”?

Permalink to Vacancy-Filling Wrinkles Created by Ben Sasse’s Expected Departure from the U.S. SenateVacancy-Filling Wrinkles Created by Ben Sasse’s Expected Departure from the U.S. Senate
Vacancy-Filling Wrinkles Created by Ben Sasse’s Expected Departure from the U.S. Senate
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Illinois Law dean Vikram David Amar, professor Jason Mazzone, and Yale College junior Ethan Yan comment on some of the issues created by Ben Sasse’s (R – Nebraska) expected departure from the U.S. Senate. Dean Amar, Professor Mazzone, and Mr. Yan describe the requirements and constraints of Nebraska state law and the U.S. Constitution.

Permalink to Is Justice Kagan Right that Areas of Constitutional Law Should Not Change Quickly on Account of New Membership on the Court?Is Justice Kagan Right that Areas of Constitutional Law Should Not Change Quickly on Account of New Membership on the Court?
Is Justice Kagan Right that Areas of Constitutional Law Should Not Change Quickly on Account of New Membership on the Court?
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Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on recent comments by U.S. Supreme Court Justice Elena Kagan expressing reservations about doctrinal changes attributable to the arrival of new Justices. Dean Amar and Professor Mazzone argue that new Justices have played an important and generally positive role in advancing the constitutional landscape.

Permalink to Where Have All the (Aspiring) Law Profs Gone?Where Have All the (Aspiring) Law Profs Gone?
Where Have All the (Aspiring) Law Profs Gone?
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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.

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

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

Permalink to Ten Thoughts on Illinois’s Unique Process for Filling State Supreme Court VacanciesTen Thoughts on Illinois’s Unique Process for Filling State Supreme Court Vacancies
Ten Thoughts on Illinois’s Unique Process for Filling State Supreme Court Vacancies
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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.

Permalink to 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 SeriesWhy 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
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
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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.

Permalink to 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 SeriesThe 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
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
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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.

Permalink to 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 HintsWhen 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
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
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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.

Permalink to 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 SeriesWhere 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
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
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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.

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

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

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

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

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

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