An Additional Post-Mortem on the Ninth Circuit Oral Argument in the Proposition 8 Case
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the recent oral argument regarding Proposition 8 -- California's anti-same-sex-marriage ballot initiative -- that was presented before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. (Professor Michael Dorf also wrote on that argument recently for this site, and Amar contrasts his view with Dorf's on certain points.) Amar comments on a set of key issues: Did the initiative sponsors have standing (that is, the legal right) to defend Prop. 8? Should the Ninth Circuit "certify" the standing question to the California Supreme Court, on the ground that it is a disputed issue of California law? What happens if no party that is currently defending Prop. 8 has standing to do so? How relevant is the U.S. Supreme Court's Romer precedent to this case? Will it -- and should it -- matter to the U.S. Supreme Court, if it takes this case or another gay-marriage case, that more than 40 states still refuse to recognize gay marriage?
Friday, December 17, 2010
Now That the Proposition 8 Appellate Judges Are Known, What Is The Likely Outcome?
FindLaw columnist and U.C., Davis law professor Vikram Amar continues his series of columns commenting on the litigation involving Proposition 8, California's anti-same-sex-marriage initiative. As Amar explains, the identities of the three judges who will make up the panel of the U.S. Court of Appeals for the Ninth Circuit that will hear the case are now known. Amar comments on the political leanings of each of the three panel members; explains the two big questions relating to Proposition 8 that the panel will face; and cites several factors that make the outcome here especially difficult to predict. In addition, he focuses in particular on the role that veteran jurist and old-school liberal Stephen Reinhardt may play.
Friday, December 3, 2010
A Preview of Possible Outcomes of the Upcoming Proposition 8 Argument Before the U.S. Court of Appeals for the Ninth Circuit
FindLaw columnist and U.C., Davis law professor Vikram David Amar comments on the arguments that are expected to be made in the upcoming oral argument before the U.S. Court of Appeals for the Ninth Circuit, in the case involving Proposition 8, California's anti-same-sex-marriage initiative. Amar explains that, in addition to considering the merits of the case, the Ninth Circuit will very likely delve into the issue of standing -- that, the issue of whether the Proposition 8 sponsors had the legal right to defend Proposition 8. Amar also explains the circumstances under which the U.S. Supreme Court likely would -- or would not -- get involved in the Proposition 8 case. In addition, Amar addresses the question of what should occur if the initiative sponsors in fact lacked standing to defend Proposition 8, but California's Imperial County would have had standing to appear in the case to defend the Proposition, as it attempted to do. Finally, Amar notes how the outcome of the still-undecided California Attorney General race may matter to the case.
Friday, November 19, 2010
Putting Politics Aside, One Thing About This Week's Election Is Clear: We Need and Deserve Better Candidate Statements
FindLaw columnist and U.C., Davis law professor Vikram Amar criticizes the quality of the statements that California candidates submitted for voters to review in deciding how to cast their votes in this past Tuesday's election. California's rule is to require candidates to submit statements of no more than 250 words for the State's official voter information guide. Amar faults candidates for either simply failing to submit such statements, or submitting statements that were ungrammatical, confusing, contradictory and/or uninformative. To illustrate his point, he uses two statements as examples, and points out the serious flaws in each.
Friday, November 5, 2010
Does It Matter that the Constitution Never Uses the Phrase "The Separation of Church and State"? The Coons/O'Donnell Debate and the Importance of Constitutional Metaphor
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, comment on an issue related to the famous moment, during the debate between Chris Coons and Christine O'Donnell, when O'Donnell asked, "Where in the Constitution is the separation of Church and State?" Amar and Brownstein note that, in fact, the phrase "separation of Church and State" never does appear in the Constitution -- but the Constitution says that “Congress shall make no law respecting an establishment of religion.” They consider a number of other examples of instances where key constitutional precepts do not actually appear in the text of the document, and comment on the role of constitutional metaphor, as contrasted with that of constitutional text.
Friday, October 22, 2010
The Supreme Court Case of Snyder v. Phelps: Testing America's Commitment to Protecting Even the Speech We Most Condemn
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, comment on one of this Supreme Court Term's leading First Amendment cases. The case asks whether a damages award for intentional infliction of emotional distress and invasion of privacy can constitutionally be based upon the conduct of sign-holding picketers at a military funeral. To answer the question, Amar and Brownstein look at the famous case where American Nazis were allowed to march in a town with a significant Jewish population, including Holocaust survivors; cases that recognize the state's interest in protecting vulnerable individuals; cases that frown at one party's use of the other as an instrument to convey a message with which the second party does not agree; and the compelled speech doctrine.
Friday, October 8, 2010
Do the Ballot Sponsors of California's Same-Sex Marriage Ban, Proposition 8, Have Standing to Defend It In Federal Court? Part Two in a Series
In the second in a series of columns on the appeal regarding the California anti-same-sex- marriage initiative, Proposition 8, FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, continue their analysis as to whether Proposition 8's sponsors had standing -- that is, the legal right -- to defend the measure in court. Here, Amar and Brownstein focus especially on the differences between legislator standing and initiative-sponsor standing, explaining why the latter turns out to be much more problematic than the former. They also suggest that a clear-statement rule should be employed in cases where initiative sponsors are claimed to have standing to defend initiatives; unless clearly appointed, sponsors should not have the power to defend.
Wednesday, September 24, 2010
Understanding "Standing" in the Proposition 8 California Same-Sex Marriage Appeal: Part One in a Series
In the first of a series of columns on the Proposition 8 appeal, FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the crucial issue of whether Proposition 8's sponsors had standing -- that is, the legal right -- to defend the measure in court. Amar and Brownstein focus on the key U.S. Supreme Court case that discusses the standing of initiative sponsors and what that precedent may mean for the standing issue in the Proposition 8 case. They also consider the specific arguments made by the Proposition 8 sponsors as bases for their standing, and the arguments made by the City of San Francisco (which is among the plaintiffs challenging Proposition 8) against the sponsors' having standing.
Wednesday, September 8, 2010
California's Budget Crisis and Its Prop 8 Litigation: What They Reveal About the State's Divided Executive
FindLaw columnist and U.C., Davis law professor Vikram Amar offers an interesting look at the ins and outs of California's divided executive, as it has affected two important issues for the state: the ongoing budget crisis, and the litigation regarding the anti-gay-marriage Proposition 8, which was recently struck down by a federal district judge. Amar focuses, in particular, on the role of California's Controller, and that of its Attorney General -- noting that both have recently broken with Governor Schwarzenegger on various issues. Amar contends that, generally, Attorney General Jerry Brown has made a much better case for his breaking with the Governor than Controller John Chiang has. In particular, Amar explains why the Controller's three main arguments in favor of his independence are unpersuasive. Amar also reflects, more generally, on whether it is a good thing for states' Attorneys General to be independent from their Governors, and compares state Attorney General practice to Solicitor General practice within the federal government.
Friday, August 16, 2010
Musings on Some Procedural, But Potentially Momentous, Aspects of the Proposition 8 Case As it Goes to the Ninth Circuit
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on two procedural aspects of the California federal-court litigation over the anti-gay-marriage Proposition 8. The first issue, as Amar explains, is whether the order Judge Walker issued -- banning the state from enforcing Proposition 8 against any same-sex couples -- was overly broad. Arguably, the order should only have applied to the couples who were plaintiffs in the suit, with state officials having discretion as to whether to apply the principle behind the ruling more broadly. The second issue is whether the Proposition 8 sponsors -- the only parties to defend the measure at trial -- were even properly parties to the suit in the first place, in light of precedent strongly suggesting otherwise.
Friday, August 13, 2010
How The Aftermath of Senator Byrd's Passing Offers Constitutional Lessons About the Senate and the Processes Used to Fill Senate Vacancies
FindLaw columnist and U.C., Davis law professor Vikram Amar considers the constitutional lessons we can learn from situations where a Senator passes away, and the resulting Senate vacancy must be filled. Amar contends that often, Senators facing terminal health issues may best serve their constituencies by eventually opting to resign their seats. Amar examines the example of Senator Robert Byrd as a case in point. He describes the new status quo after Byrd, which has left Democrats short of a filibuster-proof majority; describes the process and political realities related to the selection of Byrd's successor; and contends that this situation shows why temporary gubernatorial appointments should be utilized, and should be made fairly quickly. Amar also calls for further clarity in the relevant law and an acceptance of vacancy-filling as an inherently political process.
Friday, July 16, 2010
What the CLS v. Martinez Ruling Reveals About the Supreme Court's Processes
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on three interesting insights that the Supreme Court's recent ruling in Christian Legal Society v. Hastings provides, regarding the Court's processes. The case pitted Hastings College of the Law -- a public law school that is part of the University of California system -- against the Christian Legal Society (CLS) group at Hastings. CLS sought funding and affiliation from Hastings, but denied non-believers and gay persons the ability to join. The Court held that Hastings could constitutionally withhold affiliation and funding from CLS. Amar explains how the Court's decision illustrates that, at the Court, (1) doctrine truly matters; (2) the concessions parties make in the course of litigation matter, too; and (3) the Court prefers to defer to institutional judgment when it can, and perhaps especially when the institution at issue is a university.
Friday, July 2, 2010
Reflections on the Trial Challenging California's Proposition 8, the Ban on Same-Sex-Marriage
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the recent conclusion of the trial over California's Proposition 8, the state's voter-passed ban on same-sex marriage. Amar cautions that even if the plaintiffs win, we won't soon be seeing same-sex marriages performed in California, because the ruling -- which is expected to issue this summer -- would very likely be stayed pending appeal. He also explains the unique dynamics of review by the U.S. Court of Appeals for the Ninth Circuit, and considers the chances of the ultimate Ninth Circuit decision being reviewed by the U.S. Supreme Court -- noting that if the plaintiffs lose before the Ninth Circuit, and Proposition 8 is upheld, the Court is unlikely to take the case.
Friday, June 18, 2010
What Does It Mean to "Let the People Decide"? California's Proposition 16, Supermajority Rules, and the Unhelpfulness of Political Ads
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on California's Proposition 16, which would impose a supermajority voting rule when municipal officials make decisions to invest money in providing electric service. Amar faults the publicity campaign for the Proposition for leaving out its supermajority component, and presenting the issue as simply one as to whether the public should have a right to vote. Amar also contends that there are only two categories of situations where supermajority voting rules truly make sense, and questions whether Proposition 16 fits into either of them.
Friday, June 4, 2010
Elena Kagan's Confirmation Hearings: Her Lack of Judicial Experience May Not Matter, But a Key Essay She Wrote Might
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the issues that may arise in the upcoming Supreme Court confirmation hearings of Elena Kagan. Amar contends that, while much has been made of Kagan's lack of judicial experience, that argument may well have been given too much weight: He points out that previous nominees have been confirmed (and gone on to make excellent Justices) despite either a complete lack of judicial experience, or judicial experience that was too limited to be a good predictor of their likely performance on the Court. Still, Amar adds, Kagan is likely to face aggressive questioning for another, better reason: She herself has written that Court nominees should face far more searching questions than have been posed in recent confirmation hearings. Having accused prior nominees of "stonewalling," Amar suggests, Kagan cannot very well stonewall questioners herself.
Friday, May 21, 2010
President Obama's Pick to Fill Justice Stevens's Seat: The Valid -- and Wrong-Headed -- Considerations Regarding the President's Choice
FindLaw columnist and U.C., Davis law professor Vikram Amar weighs in on the considerations that President Obama should, and should not, take into account when choosing a new Justice to fill the seat of Justice John Paul Stevens, who is retiring. In particular, Amar discusses how large a role the upcoming congressional elections should play; whether Obama should take gender diversity into account (and if so, now or possibly for the next open seat); and whether the number of Harvard and Yale Law graduates who have served on the Court ought to militate in favor of preferring graduates of other law schools.
Friday, May 7, 2010
Can a Public Law School Constitutionally Require a Christian Student Group Not to Exclude Non-Christians and Gay Persons? The Supreme Court Will Decide
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, weigh in on the issues raised by CLS v. Martinez, an important free speech/free association case in which the Supreme Court held oral argument this week. As Amar and Brownstein explain, the case arose because the Hastings College of the Law in San Francisco, a public law school, refused to grant official recognition to the Hastings chapter of the national Christian Legal Society (CLS), on the ground that it will not allow gay students to become voting members or officers. Amar and Brownstein explore several significant aspects of the case, including the relevance, here, of the difference between discrimination based on status and discrimination based on belief; and how these issues would play out with "religion and" clubs such as, say, a Christian Chess Club. They foresee a "doctrinal trainwreck" if some of the conflicts among the Court's precedents are not sorted out soon.
Friday, April 23, 2010
Why U.S. News and World Report Should Include a Faculty Diversity Index in its Ranking of Law Schools
FindLaw columnist and U.C., Davis law professor Vikram Amar, and FindLaw guest columnist and U.C., Davis Dean and law professor Kevin Johnson continue their series critiquing the highly influential US News and World Report law school rankings. In a previous column, Amar and Johnson contended that the rankings should take student-body diversity into account; here, they argue that faculty diversity, too, should be a significant factor in the rankings' assessment of law schools' quality, as it contributes to both the quality of education a law school provides its students, and the quality of the law school's faculty's scholarship.
Friday, April 9, 2010
A Bill's Text, Its Whole Text and Nothing But Its Text? The Flap Over "Deem and Pass" in the Health Care Debate, and a Look at How a Bill Becomes a Law
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the merits of the constitutional issues that were raised by the controversy over the possibility of using the "Deem and Pass"/Slaughter Rule mechanism to pass the healthcare legislation. Amar expresses the hope that -- since the mechanism was not actually used-- the debate over its constitutionality can now continue in a calmer and less politically-charged context. Accordingly, he carefully notes and evaluates the arguments on both sides, including those from Stanford law professor Michael McConnell.
Friday, March 26, 2010
Why U.S. News and World Report Should Include
A Diversity Index in its Ranking of Law Schools
FindLaw columnist and U.C., Davis law professor Vikram Amar, and FindLaw guest columnist and U.C., Davis Dean and law professor Kevin Johnson contend that the influential US News and World Report law school rankings have a fatal flaw: The rankings fail to account for the extent to which law schools seek and exhibit diversity in their student bodies. Amar and Johnson note that U.S. News has indicated that it might be open to considering altering its rankings to address the diversity issue, and they argue that unless diversity is considered as a factor, schools may actually be punished by U.S. News for seeking diversity, if to do so lowers their mean or median LSATs and GPAs for entering students.
Friday, March 12, 2010
Can The President Expel Non-Disruptive People From A Public Event Based on Their Viewpoint? A Tenth Circuit Case Gets It Wrong
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, take strong issue with a recent decision by the U.S. Court of Appeals for the Tenth Circuit. The court held that it was not clearly established as unconstitutional for two attendees at a speech by then-President George W. Bush to be expelled from the audience because White House Advance Office employees learned that the car they had driven to the speech bore a "No More Blood for Oil" bumper sticker. The exclusion was allegedly made pursuant to a policy of excluding those who disagreed with Bush's views from the audiences at his public appearances. Amar and Brownstein contend that it was clearly established that these actions, and this policy, violated the First Amendment. They also argue that if courts stop their analyses with the application of the clearly established test, and never reach the merits of the constitutional issue, then the ironic result might be that the underlying substantive law can never become clearly established.
Friday, February 26, 2010
Constitutional Musings From California on the Filibuster
FindLaw columnist and U.C., Davis law professor Vikram Amar uses his observations of the dysfunctional California legislature to inform his comments on the similar problems Congress has faced recently. Amar focuses, in particular, on the way in which supermajority rules can paralyze a legislature; the possibility of reforming cloture rules; and the practical reasons why reform, although it is urgently needed, may not occur. Amar also discusses the factors that have cut against moderation both in California's legislature and in Congress.
Friday, February 12, 2010
The Ongoing Proposition 8 Trial: Three Key Points About the Evidence and Arguments
FindLaw columnist and U.C., Davis law professor Vikram Amar comments on the ongoing trial regarding Proposition 8, California's voter-enacted ban on same-sex marriage. Amar makes three key points: (1) The evidentiary record in the litigation so far could support -- but won't compel -- a victory for the Prop. 8 challengers (assuming Supreme Court precedent permits such a victory in the first place); (2) Ultimately, whatever happens in the trial court, this will be appellate courts' call; and (3) This case may not ultimately be headed for the Supreme Court, if the U.S. Court of Appeals for the Ninth Circuit rejects the plaintiffs' challenges to Prop. 8.
Friday, January 29, 2010
Comparing U.S. and UK Courts' Approaches to Racial and Religious Preferences
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis law professors, comment on a recent decision by the Supreme Court of the United Kingdom -- with a particular focus on how the UK Court's approach to alleged discrimination based on religion, race, and/or lineage compares to, and contrasts with, the US Supreme Court's approach to the issue. As Amar and Brownstein explain, the UK Court ruled that a Jewish school violated the UK's anti-race-discrimination statute when it extended a preference to children who are Jewish either by matrilineal descent, or as the result of a conversion satisfying the requirements of Orthodox Judaism.
Friday, January 15, 2010
The Ninth Circuit Forbids Discovery of Proposition 8 Internal Strategy and Organization Documents
FindLaw columnist and U.C., Davis law professor Vikram Amar continues his series of columns providing coverage of the California federal court case relating to Proposition 8 -- California's controversial ban on same-sex marriage. In this column, Amar comments upon the December 11 ruling in the case by the U.S. Court of Appeals for the Ninth Circuit, holding that the drafters and organizers of Proposition 8 -- defendants in the case -- need not reveal, in the discovery process, their "internal campaign communications relating to campaign strategy and advertising." Amar agrees with the court's result, but argues that it should have reached that conclusion via a different path. Specifically, he suggests that internal pro-Proposition 8 campaign communications were not relevant to the constitutional question of whether the voters who approved Proposition 8 possessed unconstitutional discriminatory intent; instead, materials such as public advertisements bear on that question.
Friday, December 18, 2009
Is Monitoring Moslem Religious Services Without Particularized Suspicion Constitutional?
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, comment on the question whether the government can attend and monitor religious services in circumstances where the government has no clear evidence of the incitement of violence or of a conspiracy to engage in unlawful conduct. Amar and Brownstein note that, while the question is a general one, it has been especially relevant recently in light of communications between the accused perpetrator of the murders at Fort Hood and a radical imam. They consider relevant Supreme Court precedents, and reject the easy conclusion that there is no constitutional problem here simply because services are otherwise open to the public.
Friday, December 4, 2009
The Ninth Circuit Errs in Santa Cruz City Council Protester Case
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, contend that the U.S. Court of Appeals for the Ninth Circuit reached the wrong decision in a recent First Amendment case. In the case, the Santa Cruz, California City Council ejected an audience member, Robert Morse, for giving a silent, one-second Nazi salute. Apparently, Norse was protesting the Council's decision to cut off another audience member, whose time to speak had expired. Meanwhile, other persons were causing a disruption in the room. When Norse refused to leave, he was arrested. Did the ejection and arrest violate his First Amendment rights? The Ninth Circuit said no, but Amar and Brownstein raise several important problems with the opinion's constitutional analysis, and especially with its ruling that this case was properly dismissed prior to trial.
Friday, November 20, 2009
Should Summary Judgment Have Been Granted in the Federal Proposition 8 Suit? Part Two
FindLaw columnist and U.C., Davis, law professor Vikram Amar continues a two-part series of columns commenting on the suit brought in federal court to challenge California's anti-gay-marriage Proposition 8, on the ground that it violates the U.S. Constitution. In this column, Part Two, Amar continues his explanation of the defendants' contentions as to why the suit should have been dismissed; and explains why the judge's decision to proceed forward with the case was a plausible one -- despite the fact that a brief Supreme Court ruling, rejecting a similar argument for a right to gay marriage in Minnesota, might arguably control the issue. Amar explores whether this case may raise California-specific questions that justify a trial, and whether it may be advantageous for the federal district court to employ a trial to tee up certain issues for the U.S. Supreme Court.
Friday, November 6, 2009
Should Summary Judgment Have Been Granted in the Federal Proposition 8 Suit? Part One
FindLaw columnist and U.C., Davis, law professor Vikram Amar begins a two-part series of columns commenting on the suit brought in federal court to challenge California's anti-gay-marriage Proposition 8 on the ground that it violates the U.S. Constitution. Here, in Part One, Amar explains why the judge presiding over the litigation rejected a summary judgment motion on behalf of the defendants, who are backers of Proposition 8. Amar argues that the judge was correct that a trial is warranted here. In addition, he analyzes the complex issues regarding what effect a prior Supreme Court ruling, Baker v. Nelson, will have upon this litigation -- and differs with the federal district judge in the Prop 8 suit on certain points regarding Baker's likely effect.
Friday, October 23, 2009
The Supreme Court Faces the Question of Who Can Sue to Challenge a Religious Display
FindLaw columnist and U.C., Davis, law professor Vikram Amar analyzes the issues raised by an important standing case that the Supreme Court will resolve this Term. The case poses the question whether a plaintiff can sue to challenge an alleged Establishment Clause violation -- in the form of a large cross on public land -- despite the fact that, as a Catholic, he does not object to the cross itself, but simply objects to one religion's symbol being displayed alone on government land without other religions having similar access. Another wrinkle in the case, as Amar explains, is that after the case began, the government transferred the public land at issue into private hands -- and now argues there is no remaining Establishment Clause issue.
Friday, October 9, 2009
Further Thoughts on "Getting to 60" and the Kennedy Vacancy
FindLaw columnist and U.C., Davis, law professor Vikram Amar offers additional commentary on the timely issue of how to fill vacated Senate seats -- such as the one in Massachusetts that has been left empty after the passing of Senator Edward Kennedy. In particular, Amar focuses on the possibility that the Massachusetts legislature will empower Governor Duval Patrick to make a temporary appointment to fill Kennedy’s seat, until a special seat-filling election is held in January, but also bar Patrick from appointing anyone who is planning to run in the special election. Amar explains why the proposal -- even if well-intentioned -- raises constitutional problems.
Friday, September 11, 2009
How Should Senator Kennedy's Seat Be Filled? Constitutional Considerations
FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses the constitutional issues raised by the question -- increasingly pressing in the wake of Senator Kennedy's passing -- of how Senate vacancies should be filled. Amar covers the current situation in Massachusetts, and then moves to the broader question of what option might be best for not only Massachusetts, but also all the other states, to address the contingency of an unexpected vacancy. Specifically, Amar considers the advantages and disadvantages of party-consistency statutes -- ensuring that the successor shares the same political party as his or her predecessor -- and a constitutional amendment ensuring that vacancies be filled by election, not appointment.
Friday, August 28, 2009
Legalizing Marijuana in California: Why It Won't Lessen the State's Tax Woes
FindLaw columnist and U.C., Davis, law professor Vikram Amar explains why one possible fix that has been suggested for California's embattled budget will likely be ineffective. Some in the state have argued that marijuana should be legalized and taxed, in order to generate revenue for California. But Amar points out that California proposals to this effect typically assume that Californians will be likely to report their marijuana purchases to state tax officials, despite the fact that serious federal consequences still may ensue, especially if the marijuana is not used medicinally. Amar examines this assumption, and suggests that it may well be faulty.
Friday, August 14, 2009
Using the Gates Arrest as a Comprehensive "Teachable Moment"
FindLaw columnist and U.C., Davis, law professor Vikram Amar recaps some highlights of the Sotomayor Supreme Court confirmation hearings. Amar praises Sotomayor for her effectiveness in rebutting critics' claims by maintaining a cool demeanor and emphasizing context in her responses. However, he criticizes the Senate for continuing its tradition of allowing nominees, including Sotomayor, to evade questions about Court precedents. Amar argues that such precedents are a proper subject for inquiry, and suggests a follow-up question for Senators to use in the future when their questioning along these lines is thwarted. Finally, Amar suggests the hearings overall may have importantly misled the public by suggesting falsely that Justices (and judges) can truly restrict themselves to applying established law, and need never make new law themselves.
Friday, July 31, 2009
The Sotomayor Hearings: The Good, the Bad and the Ugly
FindLaw columnist and U.C., Davis, law professor Vikram Amar recaps some highlights of the Sotomayor Supreme Court confirmation hearings. Amar praises Sotomayor for her effectiveness in rebutting critics' claims by maintaining a cool demeanor and emphasizing context in her responses. However, he criticizes the Senate for continuing its tradition of allowing nominees, including Sotomayor, to evade questions about Court precedents. Amar argues that such precedents are a proper subject for inquiry, and suggests a follow-up question for Senators to use in the future when their questioning along these lines is thwarted. Finally, Amar suggests the hearings overall may have importantly misled the public by suggesting falsely that Justices (and judges) can truly restrict themselves to applying established law, and need never make new law themselves.
Thursday, July 23, 2009
Common Sense Wins in Redding, the School Strip-Search Case
FindLaw columnist and U.C., Davis, law professor Vikram Amar argues that the Supreme Court was right to rule as it did in the controversial case about a public school's decision to perform a search upon a middle-school student suspected of having prescription strength ibuprofen, in light of the fact that the search exposed part of her breasts and pelvic area. Amar places the ruling in the context of a chain of Supreme Court precedents regarding public-school students' Fourth Amendment rights, and lauds the Court for drawing a line showing that students do retain some rights in this area of constitutional law. He also takes to task lower court judges who he argues deferred too much to the school, and thereby abdicated their duty to review the constitutionality of the school's policies.
Monday, July 6, 2009
What is Fair Game for the Sotomayor Hearings?
FindLaw columnist and U.C., Davis, law professor Vikram Amar considers which topics Supreme Court nominee Sonia Sotomayor, previously a judge on the U.S. Court of Appeals for the Second Circuit, can properly be asked about during her confirmation hearings. Amar contends that questions about Sotomayor's substantive legal views are fair game. He also finds questions about her judicial temperament to be legitimate -- but only if they cite specific instances when she is claimed to have been intemperate, so that she has a fair chance to rebut the accusations. Amar argues, too, that it is fair to ask Judge Sotomayor about her famous "wise Latina woman" comment, and that she would be well-advised to modify the view stated there, by retracting the claim that a wise Latina woman's decision would be "better" than that of a white man. However, he notes that her core point -- that one's background influences one's judgment -- is entirely mainstream and legitimate -- and has been accepted by the Supreme Court itself in contexts such as jury diversity, and by Justice Alito in his own confirmation hearing.
Friday, June 19, 2009
An Analysis of the California Court Ruling Upholding Proposition 8
FindLaw columnist and U.C., Davis, law professor Vikram Amar explains several key aspects of last week's California Supreme Court ruling upholding the voter-passed constitutional amendment Proposition 8. First, Amar addresses the key question of why the court reached opposite conclusions about same-sex marriage in 2008 (when it found that the state constitution required marriage equality) and this year (when it held that marriage equality was now not constitutionally-required). Second, Amar covers the reasons why the court upheld the same-sex marriages performed in the interim between its first decision and Proposition 8 as valid. Third, Amar questions why the court characterized Proposition 8 as narrow, because same-sex couples can still enter into a registered partnership, when its prior opinion deemed the label of "marriage" to be highly significant.
Monday, June 1, 2009
Recent Cases Highlight the Importance of States' Protections of Liberties
FindLaw columnist and U.C., Davis, law professor Vikram Amar covers two California cases illustrating that, although most Americans think of the U.S. Constitution when they think of constitutional protections, state constitutions can also play a vital role. The first case involves California's decriminalization of marijuana. Amar explains the precise relationship of federal and state law regarding medical marijuana: Although federal law makes medical marijuana illegal, state entities -- while they cannot violate federal law, or interfere with its enforcement -- are not obliged to reinforce or assist in implementing federal law. The second case involves a California public school's drug-testing policy requiring all students involved in "competitive" activities -- not just athletes -- to be tested; the policy, Amar notes, was enjoined by a California state court.
Friday, May 22, 2009
Why Obama and the Senate Must Ask Specific Questions of Souter's Replacement
FindLaw columnist and U.C., Davis, law professor Vikram Amar considers both the criteria that should be used in the search for a replacement for Supreme Court Justice David Souter, and the questions President Obama should ask of that person before nominating -- and the Senate, before confirming -- him or her. Amar contends that it is reasonable to look at candidates' demographics and personal backgrounds, but that, in the end, we must remember that these factors are relevant only insofar as they will inform the candidate's contribution, as a Justice, to the Court's work of deciding the cases before it. In addition, he argues for a sharp break from the recent practice of shying away from asking candidates questions about their specific views on particular Court decisions. Asking such questions, Amar argues, is not only the best, but the only, way of seeking what kind of Justice a possible nominee will really be.
Friday, May 8, 2009
If California Passes Its Bill Criminalizing the Hanging of a Noose on Someone Else's Property or Public Property with Intent to Terrorize, Would This Anti-Hate Law Be Constitutional?
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, comment on the constitutionality of a bill currently pending in the California Assembly. If the bill becomes law, it will criminalize hanging a noose on another's property or upon the premises of a school, workplace, public park, or college campus, with the intent to terrorize another. Since hanging a noose, in this context, communicates a message -- albeit a reprehensible one -- will the law be struck down as violating the First Amendment? Amar and Brownstein analyze several key Supreme Court "hate speech" precedents -- which are, as they explain, in tension with each other -- in order to predict how the Supreme Court might analyze the California law.
Thursday, April 23, 2009
The Supreme Court's Latest "Exclusionary Rule" Decision: Why Justice Kennedy, the Swing Vote, Was on the Liberal Side Here, But the Conservative Side in a Prior Decision Regarding the Rule
FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses an interesting contrast between two "exclusionary rule" Supreme Court decisions as to which Justice Anthony Kennedy was the swing vote; one decision mandated exclusion of the evidence at issue, while in the other, the Court's majority permitted the evidence at issue to be introduced in court. Amar considers which aspects of the two cases -- one of which, Corley v. United States, was decided just this week -- may have led Justice Kennedy to cast his crucial vote as he did. As Amar explains, the difference in Justice Kennedy's vote may also involve his views on Congressional reversals of prior Supreme Court decisions.
Friday, April 10, 2009
Reforming the Way Senate Vacancies are Filled: A Q&A About the Proposed Constitutional Amendment and the "ELECT Act" Bill
FindLaw columnist and U.C., Davis, law professor Vikram Amar follows up on his recent column -- written with FindLaw guest columnist and attorney Michael Schaps -- regarding proposed ways to address the problems with giving governors the power to temporarily fill Senate vacancies. (As readers will recall, these problems were recently illustrated by several controversies regarding such appointments, and especially by the scandal surrounding former Illinois Governor Rod Blagojevich.) In their prior column, Amar and Schaps covered the pros and cons of two proposed solutions, one via constitutional amendment and one (which they provisionally endorsed) via a proposed statute, the ELECT Act, which would ensure that vacancies will be filled quickly through special elections. In this column, Amar answers frequently-asked questions arising out of the debate over the proposed amendment and statute, including questions about the constitutionality of the ELECT Act.
Friday, March 27, 2009
The Proposal to End Gubernatorial Appointments of Replacement Senators: Reform In This Area May Be Needed, But the Feingold Constitutional Amendment Needs More Thought
FindLaw columnist and U.C., Davis, law professor Vikram Amar and FindLaw guest columnist and attorney Michael Schaps comment on Senator Russ Feingold's proposal to amend the U.S. Constitution to end gubernatorial appointments of replacement senators. Amar and Schaps contend that Feingold is absolutely right about the need to change the process of filling senatorial vacancies -- a process famously abused by Rod Blagojevich, and also controversial in several other cases as well. However, after discussing the relevant constitutional history and other considerations, Amar and Schaps suggest that a statute would be a better remedy for the abuses and issues that have plagued the replacement process, than a constitutional amendment.
Friday, March 13, 2009
If California Voters Approve the Legislature's Proposed "Top Two Candidates Open Primary Act," Will It Survive a Likely Constitutional Challenge?
FindLaw columnist and U.C., Davis, law professor Vikram Amar and FindLaw guest columnist and U.C., Hastings, third-year law student Whitney E. Clark discuss a new California initiative called “the Top Two Candidates Open Primary Act." If approved by voters, the Act would amend the California Constitution as follows: It would mandate a single primary election in which all voters participate and may select any candidate, regardless of the voters’ or candidates’ party identities (if any). For each office, only the top two vote-getters in the primary would advance to the general election ballot, and both would advance even if both identified themselves with the same party. Amar and Clark identify two possible constitutional challenges to the initiative, and assess the merits of each based upon recent, relevant Supreme Court precedents.
Friday, Feb. 27, 2009
The Navajo Nation Case, Which the Supreme Court May Soon Review, and How It Reveals the Complex Balance Envisioned by the Religious Freedom Restoration Act
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein -- both U.C., Davis, law professors -- discuss an interesting case that the Supreme Court may soon review, which involves the interpretation of a federal statute protecting the right to practice one's religion. The case arose when the government allowed artificial snow, including small amounts of human waste, to be placed on the ski slopes of a mountain where Native Americans worship. The Native Americans contended that using the "dirty" snow desecrated their sacred areas. An en banc panel of the U.S. Court of Appeals for the Ninth Circuit ruled in the government's favor, but Amar and Brownstein argue that the panel's test sets too high a threshold -- and will tend to exclude legitimate claims by religious groups.
Tuesday, Feb. 17, 2009
The Supreme Court's Grant of Review in Redding v. Safford -- a Fourth Amendment Case Involving a Search of a Middle-School Student for Drugs: A Chance for the Court to Show Reasonableness Review Has Teeth
When do public schools go too far in searching their students, and thus violate the Fourth Amendment? FindLaw columnist and U.C., Davis, law professor Vikram Amar comments on this issue in the context of a case in which the Supreme Court recently decided to grant review.
There, a school searched a female middle-school student, suspecting she might possess high-dose, prescription-only ibuprofen; the search, although conducted by female personnel, was somewhat invasive. Amar puts the case in the context of prior Supreme Court court public-school Fourth Amendment cases -- one of which he suggests was wrongly decided.
Friday, Jan. 30, 2009
The Senate's Decision to Seat Roland Burris: Some of the Legal Issues the Controversy Raised, and a Lesson It Should Teach Us
FindLaw columnist and U.C., Davis, law professor Vikram Amar explains the legal context of the controversy over whether the Senate should seat Roland Burris, despite the fact that Burris was nominated by Illinois Governor Rod Blagojevich. Blagojevich is facing a federal indictment claiming he tried to gain favors in exchange for the Senate seat. No one is suggesting that Burris was involved in any criminal activity, such as paying for the seat, but other potential candidates may have been excluded because they would not "pay to play." Moreover, Blagojevich -- in addition to having been indicted -- has been impeached (but not yet convicted or removed) by the Illinois legislature, and the Senate has some constitutional power to police whom it will seat. Amar explains how all these factors intersect, and offers a lesson the controversy should teach us for the future.
Friday, Jan. 16, 2009
The California Attorney General’s Brief in the California Supreme Court Case Challenging Proposition 8: The Questions It Raised, and Why It Surprised Many Observers
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, contribute the latest in an ongoing series of columns on the upcoming California Supreme Court decision regarding Proposition 8. (As readers are likely aware, Proposition 8 is the California initiative that purports to amend the California constitution to bar marriage rights to gay couples.) In this installment in the series, Amar and Brownstein examine the arguments put forth by California Attorney General Jerry Brown in the case. They contend that Brown's surprising and interesting arguments raise key questions about the nature of state constitutionalism.
Friday, Jan. 2, 2009
The California Supreme Court’s Delicate Position with Respect to the Challenge to the Anti-Same-Sex Marriage Proposition 8, and the Hurdle for the Challengers: Part Three in a Series of Columns on the Pending Case
FindLaw columnist and U.C., Davis, law professor Vikram Amar continues a multi-part series of columns on the upcoming California Supreme Court case regarding Proposition 8. (As readers may be aware, Proposition 8 purported to reverse the Court's prior decision that the California Constitution extends marriage rights equally to straight and gay couples alike.) In this installment, Amar considers the crucial question of whether Prop. 8 is a valid amendment to the California Constitution, or an invalid revision to it -- posing a number of hypotheticals as to whether other possible propositions targeting certain groups would be amendments or revisions. He also suggests two criteria by which the public is likely to judge the court's eventual decision in the case -- its plausibility based on court precedent, and its persuasiveness in its own right -- and considers how these criteria may apply to the challengers' arguments.
Friday, Dec. 19, 2008
The Core Issues in the Proposition 8 Case Before the California Supreme Court: Was Proposition 8 a Valid Amendment, or an Invalid Revision, to the California Constitution? And Should the Court - Or Governor Schwarzenegger - Make the Decision?
FindLaw columnist Vikram Amar and FindLaw columnist Alan Brownstein, both U.C., Davis, law professors, continue an ongoing series of columns on the upcoming California Supreme Court decision regarding Proposition 8. (As readers may know, Proposition 8 is the California initiative that purports to counteract the Court's interpretation of the California constitution to extend marriage rights equally to gay and straight couples.) In this column, Amar and Brownstein take on a key question: Should the California Supreme Court resolve the question of whether Proposition 8 validly amended the California Constitution, or should the Court hold that that question is one for Governor Schwarzenegger to resolve?
Friday, Dec. 05, 2008
Analyzing the Two Key Arguments in The California Supreme Court Case Regarding the Anti-Same-Sex-Marriage Proposition Eight: Part One in a Series of Columns
FindLaw columnist and U.C., Davis, law professor Vikram Amar begins what will be a series of columns on California's Proposition 8. (As readers may know, Proposition 8 is the initiative that purported to amend the California Constitution to ban same-sex marriage, after the California Supreme Court had held that the Constitution guaranteed marriage equality.) In the series, Amar will address two questions: Was Proposition 8 validly enacted? And, what is the status of same-sex marriages that were entered into after the California Supreme Court held that the California Constitution guaranteed marriage equality, but before 52% of California voters endorsed Proposition 8?
Friday, Nov. 21, 2008
Should Americans Continue to Elect Presidents and Vice Presidents on a Single Ticket - Preventing a McCain/Biden or Obama/Palin Win?
FindLaw columnist and U.C., Davis, law professor Vikram Amar considers the pros and cons of America's current system of electing presidents and vice presidents on a single ticket. Amar notes that picking Sarah Palin as a running mate may have hurt John McCain, and points out that, with a separate-ticket system, voters who preferred McCain over Obama could still have opted for Biden, not Palin, as their Vice President. Amar points out that in other contexts (such as selecting Senators and Members of Congress on Election Day), it's not rare for Americans to split their votes between Democrats and Republicans on a single trip to the ballot box. Accordingly, he asks why the presidency and vice-presidency are inextricably linked on the ballot, and gives reasons why we may, in the future, want to reconsider that choice.
Friday, Nov. 07, 2008
If McCain Wins, A Constitutional Dispute May Follow: Why Arizona's Process to Pick a Senator to Temporarily Fill McCain's Seat Is Unconstitutional
FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses a constitutional clash that is likely to arise if John McCain is elected president. As Amar explains, Arizona Governor Janet Napolitano, a Democrat, would likely seek to appoint a Democrat to temporarily fill McCain's Senate seat and thus become a quasi-incumbent in the subsequent election for a permanent successor to McCain. However, a dispute would likely ensue because an Arizona statute says the state's governor must appoint a same-party successor, but that statute may well clash with the Seventeenth Amendment.
Thursday, Oct. 23, 2008
Is Governor Sarah Palin Right That the Vice President Has the "Flexibility" to Play a Larger Role in the Legislative Branch? Though the Question Is Complex, Palin is Likely In Error
FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses Governor Sarah Palin's claim, during the recent vice-presidential debate, that the Vice President has the flexibility to play a larger role in the legislative branch than just breaking ties in Senate voting. Amar analyzes the relevant constitutional history and text and concludes that Palin is wrong; this evidence suggests that the vice-president's proper role lies in the Executive Branch alone.
Thursday, Oct. 09, 2008
How Should the Law Respond When Health Care Providers' Obligations Conflict with their Religious Beliefs? Two Recent Developments That Illuminate the Issue: Part Two in a Two-Part Series
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, discuss recent, proposed Department of Health and Human Services (HHS) regulations that are intended to protect healthcare workers from being compelled by their employers or by the law to violate their religious beliefs. Amar and Brownstein contrast the HHS regulations with federal "charitable choice" programs that allow entities receiving federal money to hire their co-religionists to perform social-service duties. Amar and Brownstein compare the justifications for the proposed HHS regulations with those for the federal "charitable choice" rules.
Friday, Sept. 26, 2008
How Should the Law Respond When Health Care Providers' Obligations Conflict with their Religious Beliefs? Two Recent Developments That Illuminate the Issue: Part One in a Two-Part Series
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C., Davis, law professors, discuss the tricky question of how the law should respond when a doctor or other healthcare provider refuses to perform a procedure on a patient or group of patients, and the provider cites his or her religious beliefs as the reason he refuses. In a two-part series of columns, Amar and Brownstein will discuss two contexts in which this question is raised. Here, in Part One, they analyze a recent California Supreme Court case that raises the issue of whether a healthcare provider may cite religious beliefs as grounds for refusing to perform a procedure on a patient who is a lesbian and who is seeking fertility treatment.
Friday, Sept. 12, 2008
An Important Upcoming Supreme Court Case Raises Questions About Both the Fourth Amendment and the Weight of Precedent
FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses an upcoming Supreme Court Fourth Amendment case that calls into question whether the exclusionary rule should be applied in a case in which police made an arrest, and carried out searches incident to it, based on their good faith and reasonable -- but also erroneous -- belief that there was an outstanding warrant for the defendant. As Amar explains, the case also calls into question the rule of stare decisis -- which counsels that the Court should follow its own precedents: One strong reason for stare decisis is reliance on prior law, and it is unlikely criminals rely on the Court's exclusionary rule holdings before deciding whether to commit a crime.
Friday, Aug. 29, 2008
The Federal Deposit Insurance Corporation: With Banks Failing or In Peril, It's Especially Important Now to Understand and Reform this Crucial Institution
Many Americans have a simple understanding about FDIC deposit insurance: You can only deposit $100,000 at a particular bank and count on its being insured. However, as FindLaw columnist and U.C., Davis, law professor Vikram Amar explains, that understanding -- which is causing many Americans to do business at multiple banks to make sure all the money they have saved is insured --- is inaccurate in important respects. Through trust accounts and joint accounts, Amar
notes, Americans can insure much more than $100,000 at a single bank; he thus encourages readers to consult and understand the FDIC's complex rules on the subject before deciding where to deposit their savings. Amar also suggests avenues for reforming the FDIC's practices so they can better serve their intended purpose of giving Americans security and the economy stability.
Friday, Aug. 15, 2008
Does Recognition of the Right of Same-Sex Couples to Marry Impose Undue Burdens on People Who Reject Same-Sex Marriage on Account of Religious Convictions? An Evaluation of This Objection to the Massachusetts and California Same-Sex Marriage Decisions
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein -- both U.C., Davis, law professors -- discuss one common objection to the Massachusetts and California decisions recognizing same-sex marriage: that their implications may compromise the rights of those whose religious beliefs hold that homosexuality is immoral. For example, some same-sex marriage opponents fear that religious institutions will now have to extend insurance benefits to same-sex couples, as they do to opposite-sex couples. Amar and Brownstein argue, however, that such concerns are best addressed by seeking legislative exemptions, not by opposing same-sex marriage itself. They also contend that there are strong parallels between laws and doctrines protecting people from discrimination based on sexual orientation, and discrimination based on religious belief, respectively -- suggesting that there is common ground to be found here.
Friday, Aug. 1, 2008
Winning and Losing in the Supreme Court: How the Recently-Concluded Supreme Court Term Bolstered Justice Kennedy's Power, But Undermined John McCain's Constitutional Credibility
FindLaw columnist and U.C., Davis law professor Vikram Amar takes a bird's-eye view of the Supreme Court's recently-concluded term, identifying two important features of the Court's recent decision-making. First, Amar recognizes Justice Anthony Kennedy's continued role as the Court's powerful "swing vote" in every one of its major 5-4 decisions this term. He notes that this role will likely continue if Barack Obama is elected president, but that the key swing-vote position would likely shift to Chief Justice Roberts if John McCain is elected. Second, Amar explains why the outcomes of several of the Court's blockbuster cases were bad news for McCain: Both the Guantanamo detainees decision and the campaign finance decision rejected not only McCain-backed legislation, but also McCain's constitutional vision.
Tuesday, Jul. 8, 2008
The Response to California's Gay Marriage Ruling: How the Losing Side's Tactics Harken Back to the Fight Over Racial Equality
FindLaw columnist and U.C., Davis law professor Vikram Amar discusses the parallel between the fight over racial equality and the fight over gay marriage -- as manifested in the opposition's response to the California Supreme Court decision holding that, under the state's constitution, gay and straight couples must be accorded an equal right to marry. Amar describes the opposition's argument that no gay marriages should be celebrated until Californians choose whether to reverse the Court's decision at the ballot box-- an argument with which not a single California Justice, even the dissenters, agreed -- and parallels it to attempts at foot-dragging on school segregation after Brown v. Board of Education. Amar also parallels some California counties' attempt to not perform marriages at all, with some Southern schools' decision to close rather than desegregate.
Friday, Jun. 20, 2008
A Servicewoman Prevails in Her Bid to Reinstate Her Constitutional Challenge to the "Don't Ask, Don't Tell" Policy: What Are the Implications of the Ninth Circuit's Ruling in Witt v. Secretary of the Air Force?
FindLaw columnist and U.C., Davis law professor Vikram Amar analyzes the issues raised by an important new gay rights opinion from the U.S. Court of Appeals for the Ninth Circuit. The case arose when a longstanding servicemember was discharged under the military's "Don't Ask, Don't Tell" policy. As Amar explains, the Ninth Circuit panel ruled, significantly, that a higher standard of review than mere "rational basis" review applied in the case. Moreover, that ruling brings into question how far the Supreme Court's decision in Lawrence v. Texas -- which invalidated a criminal conviction for homosexual conduct -- reaches, and, specifically, whether it applies in a civi context and to public employees.
Thursday, Jun. 5, 2008
The California Supreme Court's Gay Marriage Opinion: The People of California Have the Power to Undo It By a Ballot Initiative Amending the State Constitution, But How Far Should That Power Extend?
FindLaw columnist and U.C., Davis, law professor Vikram Amar explores three interesting issues regarding the recent, headline-making decision by the California Supreme Court holding that the California Constitution requires that straight and gay couples have access to marriage on equal terms. First, Amar considers the strangeness of a legal situation like this one, in which a decision meant to protect a minority that is the frequent target of discrimination can still be overruled by popular vote. Second, Amar explains why, if California voters do reverse the decision, the U.S. Constitution may come into play, with the Due Process Clause possibly determining whether same-sex marriages performed in the interim will remain valid. Third, Amar explains why -- although formally, in our federal system, the California decision has no effect on the Supreme Court's determination of whether there is a federal right to same-sex marriage -- it's possible that the California decision may have an important informal effect on Justices' reasoning.
Thursday, May. 22, 2008
What the Supreme Court's Recent Decision Upholding Indiana's Voter ID Law Tells Us About the Court, Beyond the Area of Election Law
FindLaw columnist and U.C., Davis, law professor Vikram Amar discusses the larger meaning of the Supreme Court's recent, fractured decision upholding Indiana's voter identification law, in terms of what the decision may reveal about the Court and its Justices. Amar focuses, in particular, on how the decision exemplifies Chief Justice Roberts's difficulty in achieving his stated goal of forging more agreement on the Court, how it illuminates Justice Alito's jurisprudential philosophy, and how it continues a trend in which the Court has proved hostile to "facial challenges" -- that is, challenges that target a law "on its face" and not in the context of a single constitutionally- objectionable application.
Thursday, May. 08, 2008
Does a Minority Religion Have a Right to Join Majority Religions in Placing Its Own Monument in a Public Park? The Supreme Court Opts to Resolve the Question
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C. Davis law professors, discuss a First Amendment case that the Supreme Court recently decided to review. The case raises the question whether, when the government allows a privately-donated religous monument to be placed in a public park, it has created a public forum, such that it must also welcome other religious monuments. Amar and Brownstein critique one possible approach to the question, which would deem parks public forums with respect to instances of transitory speech, such as protests, but not of permanent speech, such as monuments. They argue that the distinction cannot stand because, under some circumstances, it seems clear that a set of permanent additions to a public space should be deemed a public forum for purposes of constitutional analysis.
Friday, Apr. 25, 2008
Should the Size of the U.S. House of Representatives Be Doubled, and Other Major Governmental Changes Be Made? A Set of Interesting Proposals From Political Scientist Larry Sabato
FindLaw columnist and U.C. Davis law professor Vikram Amar discusses some of the key proposals put forth by political scientist Larry Sabato in his new book A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country. Amar focuses especially on Sabato's proposal to double the size of the House of Representatives, so that each individual voter has a greater voice, and notes which proposals might, and might not, require amending the Constitution.
Thursday, Apr. 10, 2008
The National Popular Vote Plan: If Ohio, Virginia and Florida Alone Sign On, They Will Change Primary Politics Profoundly, and Greatly Increase the Chance that the National Popular Vote Winner Will Prevail
FindLaw columnist and U.C. Davis law professor Vikram Amar discusses an interesting variant on the National Popular Vote (NPV) plan. Under this variant, only the anticipated 2008 battleground states of Ohio, Florida, and Virginia would agree to cast their 2008 electoral college votes for president in favor of the candidate who wins the national popular vote. Amar explains why the battleground states alone might, in practice, be able to ensure that the President is the national popular vote winner, and why they might logically choose to do so. He also explains how radically Democratic primary politics could change if an NPV plan adopted by battleground states meant that the Electoral College dropped out of the equation, and all that mattered was winning the allegiance of a majority of voters nationwide.
Friday, Mar. 28, 2008
Why a California Court of Appeal Ruling Threatens to Make Home Schooling Illegal
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C. Davis law professors, discuss a recent ruling by a California appellate court upholding a law that effectively prohibits home schooling. Amar and Brownstein note that the court properly applied the applicable constitutional standard -- which asks only for a "rational basis" for the law. However, they contend that, especially given the magnitude of the liberty interest involved, the distinctions the California law makes are troublingly weak and inconsistent.
Friday, Mar. 14, 2008
Key Question for the Presidential Candidates: Would They Support Replacing the Electoral College with a National Popular Vote System?
FindLaw columnist and U.C. Davis law professor Vikram Amar contends that each of the current Presidential candidates should be asked his or her opinion on shifting from the Electoral College system to a system that would ensure that the President always will be the person who won the votes of the largest number of Americans in the election. Amar explains how this National Popular Vote system could be put into place either by the states (or simply eleven of the most populous) or by the President- and Vice President-elect, who could resign in favor of their popular-vote-winning counterparts
Friday, Feb. 15, 2008
The California Supreme Court's Decision on Whether an Employee Can Be Fired For Testing Positive for Off-the-Job, Doctor-Suggested Medical Use of Marijuana
FindLaw columnist and U.C. Davis law professor Vikram Amar discusses a recent, 5-2 decision by the California Supreme Court affirming a California company's right to fire an employee for testing positive for marijuana. The employee had contended that the firing violated California antidiscrimination law in light of the circumstances: He was a disabled veteran, injured during his military service; he used the drug at a doctor's suggestion, to treat pain arising from his injury; and his use of the drug neither occurred on the job nor interfered with his on-the-job ability to function. Amar contends that the court's decision went astray in a number of ways, and concludes that the employee's argument was much stronger than the majority suggested.
Friday, Feb. 01, 2008
Three Key Developments Relating to the Election and the Constitution: The National Popular Vote Plan, a Mississippi's Court's Special Election Mandate, And the Challenge to Nevada's "At Large" Caucus Site Rules
FindLaw columnist and U.C. Davis law professor Vikram Amar weighs in on three key pre-Presidential election developments. First, Amar notes which states have embraced the national popular vote plan, which Amar himself also supports, and contends that it should not be seen as a partisan issue especially since, in recent elections, it could have cut against either major party. Second, Amar considers how a Mississippi court resolved a case that asked whether the Governor's choice of a special election date was legally permissible. Third, Amar assesses the lawsuit challenging Nevada caucus procedures, and explains why it may be of legal significance that the suit was brought at the last minute.
Thursday, Jan. 17, 2008
The California Property Owners and Farmland Protection Act (CPOFPA): Should California Voters Approve This Initiative?
FindLaw columnist and U.C. Davis law professor Vikram Amar explains an initiative California voters will consider this summer or fall: The California Property Owners and Farmland Protection Act (CPOFPA). As Amar explains, the CPOFPA is, in part, a response to a controversial Supreme Court decision holding that the Constitution's Takings Clause, though restricted to "public use," does not prevent a government from transferring property from one private landowner to another. However, as Amar describes, the CPOFPA also does much more than respond to this controversial case, and in some areas, its potential application is quite uncertain.
Friday, Jan. 04, 2008
California's Proposed Presidential Election Reform Act: New Wrinkles Arising From Its Possible Inclusion on the November, Rather than June, 2008 Ballot
FindLaw columnist and U.C. Davis law professor Vikram Amar discusses the question whether California's proposed President Election Reform Act (PERA), if approved by voters on Election Day in November 2008, could also immediately take effect that same day, to alter California's allocation of electoral votes in the November 2008 presidential election. PERA would replace California's winner-take-all approach with an approach giving two electoral college votes to the candidate who received the most votes statewide, and then awarding one electoral college vote to each candidate for each of the 53 California congressional districts in which he or she received the most votes. If PERA is approved, however, would it first take effect in 2008 or 2010? Amar contends that there is a clear answer.
Friday, Dec. 21, 2007
If Voters See Mitt Romney's Mormonism as a Negative, Are They Violating the Spirit of the Constitution's Ban on Religious Tests?
FindLaw columnist Vikram Amar and FindLaw guest columnist Alan Brownstein, both U.C. Davis law professors, discuss the controversy over voters' potential reaction to the fact that Presidential candidate Mitt Romney is a Mormon. Noting that the Constitution expressly prohibits religious tests for officeholders, Amar and Brownstein consider whether voters may be violating that prohibition if they disqualify Romney from consideration because of his faith alone. Amar and Brownstein also contend that Romney's religious belief may prove to be properly relevant, as Romney himself has suggested, to the extent that it informs his moral and ethical sense, for the law can legitimately reflect morality.
Friday, Dec. 07, 2007
The Eleven-Million-Dollar Judgment Against the Westboro Baptist Church For Protesting At a Funeral: Did It Violate the First Amendment?
U.C. Davis professors Vikram Amar, a FindLaw columnist, and Alan Brownstein, a FindLaw guest columnist, discuss the controversial recent verdict against a church group that protested at the funeral of a soldier who died in Iraq; the group claimed that American soldiers are dying as punishment for Americans' tolerance for homosexuality. The soldier's father successfully sued on claims of invasion of privacy and intentional infliction of emotional distress, receiving almost $3 million in compensatory damages and $8 million in punitive damages from a jury. Should the jury verdict be reversed on the ground that it violates the First Amendment? Amar and Brownstein debate the possibility that to carve out a First Amendment exception for cases like this one may have broader ramifications for other, more sympathetic kinds of protests.
Friday, Nov. 23, 2007
The Clash Between Federal Drug Law and California's "Medical Marijuana" Law: How Two Interesting Recent Events Illustrate Their Interplay
FindLaw columnist and U.C. Davis law professor Vikram Amar discusses a California Supreme Court case and a federal prosecution that both implicate the tension between the federal marijuana ban and California's law permitting the sale of "medical marijuana." The California Supreme Court case concerns an employee who was fired for using medical marijuana; the employee contends that this was illegal, for he needed to use the marijuana to treat a disability. The federal prosecution concerns two brothers who sold about $49 million of what they say was medical marijuana in the San Francisco Bay area over three years.
Friday, Nov. 09, 2007
The U.S. Court of Appeals for the Ninth Circuit's En Banc Rehearing in the Navajo Nation Case: Striking the Difficult Balance Between Religious Liberty and Law
FindLaw columnist and U.C. Davis law professor Vikram Amar discusses a case that an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit will soon rehear, after a three-judge panel ruled that Indian tribes had a right to block a U.S. Forest Service decision under the federal Religious Freedom Restoration Act (RFRA). Amar explains the complex evolution of the related precedents and statutes, and considers the issues raised.
Friday, Oct. 26, 2007
The Fight Over State Laws Favoring In-State Alcohol Purveyors: Do Such Laws Violate the Dormant Commerce Clause? A Federal District Court in New York Says No, But May Well Be Wrong
FindLaw columnist and U.C. Davis law professor Vikram Amar discusses the constitutionality of laws that favor in-state wineries, wine distributors, and wine sellers, respectively. In particular, Amar focuses on a recent decision by a New York-based federal judge upholding a law favoring in-state companies, but notes that the decision may conflict with a Supreme Court precedent on the matter.
Friday, Oct. 12, 2007
Beyond Mending Administrative Fences: The Real Challenges Facing the New UC Irvine Law School and Dean Chemerinsky
FindLaw columnist and U.C. Davis law professor Vikram Amar offers a new perspective on the controversy over the decision to hire, decline to hire, and then once again hire eminent constitutional law professor (and past FindLaw guest columnist) Erwin Chemerinsky as the Dean of the newly-created UC Irvine law school. Amar discusses the legal, political, and economic circumstances that affect the fate and character of all the UC schools, including UC Irvine. In addition, Amar suggests that a Dean's unique role complicates the potential First Amendment issues raised when a school declines to hire a deanship candidate for political reasons.
Friday, Sep. 28, 2007
How An Upcoming Supreme Court Case Illustrates and Continues the Court's Current Interest in "Jurisdictional" Questions
FindLaw columnist and U.C. Davis law professor Vikram Amar discusses an upcoming Supreme Court case, John R. Sand & Gravel Co. v. United States. The case will require the Court to decide whether the statute of limitations period governing certain damage suits against the United States is "jurisdictional" -- that is, whether it relates to the merits of the case or to the court's power to hear it. Amar puts the case in the context of a spate of other recent decisions in which the Court has also opted to confront the jurisdiction/merits divide, but is skeptical as to whether, given the particularities of each such decision, the Court will ever be able to set forth a general theory as to jurisdictional questions.
Friday, Sep. 14, 2007
Assessing the Claim that Law School Affirmative Action May Actually Lead to Fewer Practicing Minority Lawyers: State Bar Data Relating to Claims of a "Mismatch" Effect
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses UCLA law professor Richard Sander's controversial work on affirmative action by law schools. Sander considers the results when, as a result of affirmative action, minority candidates are admitted into law schools whose students' average college GPAs and LSAT scores are significantly higher than their own. Are these "mismatched" candidates ultimately harmed by receiving grades lower than those of their classmates, and lowering their chances of passing the bar? Amar argues that, whatever view one takes, more objective information would be helpful, and thus, state bars should cooperate with Sander and other scholars who have requested statistical information regarding students' college and law school GPAs, LSAT scores, and bar passage rates, and the average GPAs and LSAT scores for their law schools.
Friday, Aug. 31, 2007
The So-Called Presidential Election Reform Act: A Clear Abuse of California's Initiative Process
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a proposed initiative in California that would change the state's winner-take-all system for electoral college votes. Under the proposed system, electoral college votes would be allocated proportionally to each party, based on the split in the state's popular vote. Amar contends that the new proposal is a thinly-veiled partisan gambit, and that while its supporters claim that it will cause candidates to campaign more heavily in California, in reality it will not.
Friday, Aug. 17, 2007
The California Supreme Court Upholds a State Ban on Importing Kangaroo: A Case About State/Federal Legal Conflict that Might Interest the U.S. Supreme Court
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a recent California Supreme Court case holding that federal law regarding endangered species does not preempt California from refusing to accept imports of kangaroo (a species that is no longer designated by the federal government as threatened, but has been in the past). Amar explains the rationale for the California decision, and notes that the U.S. Supreme might not only strongly disagree, but also opt to grant review to reverse the California's courts holding in this matter. As Amar explains, the High Court has not been receptive to states' claims to be able to regulate in areas the federal government has touched upon, even when there is no true conflict between state and federal regulation.
Friday, Aug. 03, 2007
The Supreme Court's Problematic Use of Precedent Over the Past Term: Why Overruling or Refashioning May, In Some Cases, Be Better than Selective Interpretation
FindLaw columnist and U.C. Hastings law professor Vikram Amar looks back over the past Supreme Court term with an eye toward the Court's use of precedent. In particular, he cites instances in which, he argues, the Court read precedent selectively; failed to acknowledge that it was, in effect, overruling past cases; or decided to rely upon past cases that, themselves, failed to be coherent and principled.
Friday, Jul. 20, 2007
The Supreme Court Denies Plaintiffs Standing to Challenge Bush Administration Activities That They Allege Violated the Establishment Clause: What This Decision, and Others This Term, Reveal About the Court
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses both the practical significance of the Supreme Court's recent ruling on taxpayer standing to challenge alleged Establishment Clause violations, and how this ruling and others reflect on the nature of the Roberts Court. Amar considers, for example, both Justice Kennedy's pivotal role at the Court, and what he deems an unfortunate tendency to look to precedent over principle when drawing constitutional lines.
Friday, Jul. 06, 2007
The Supreme Court's Recent Decision Regarding Whether a Car Passenger is "Seized" in a Traffic Stop: What the Court Held, What it Didn't Hold, and Why the Decision Was Unanimous
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the recent Supreme Court decision holding that when a police officer effects a traffic stop of a private vehicle, not only the driver but also the passengers are "seized" within the meaning of the Fourth Amendment. Amar explains why the Justices may have felt comfortable issuing a unanimous decision in this case, and discusses several issues that will still remain to be litigated when the case is remanded to the California courts.
Friday, Jun. 22, 2007
The Wyoming Governor's and the U.S. Senate's Unnoticed Options, Under the Seventeenth Amendment, for Filling the Senate Vacancy Created By Senator Thomas's Death
FindLaw columnist and U.C. Hastings law professor Vikram Amar contends that when it comes to filling the Senate vacancy that has been presented as a result of the unfortunate death of Republican Senator Craig Thomas, the consensus among pundits has ignored important options and possibilities. Wyoming law says that the Governor must choose a same-party successor to replace Thomas, from three candidates offered by the GOP. But Amar raises important questions as to whether this state scheme is in conflict with the Seventeenth Amendment of the U.S. Constitution, and draws on precedents such as Bush v. Gore to suggest what the Supreme Court's view on the matter might be. Amar also considers remedies if the Senate agrees that there is a constitutional violation -- including its potential refusal to seat Thomas's successor.
Friday, Jun. 08, 2007
The California Supreme Court Decides an Important "Prior Restraint" Case, but Misses the Important Judge/Jury Distinction
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a recent decision by the California Supreme Court allowing the imposition of a "prior restraint" -- that is, a court order enjoining a person in advance from speaking in a certain way. Prior restraints are specially disfavored, due to First Amendment considerations, and Amars explains the reasons for this rule. He also argues that the California Supreme Court took insufficient notice of one of these reasons: The difference between a judge's preliminary finding regarding speech, and a jury's eventual verdict on it.
Friday, May. 11, 2007
A California Court Upholds Neighborhood-Based School Integration: A Possible Alternative If, As Many Expect, the Supreme Court Strikes Down More Conventional Race-Based Pupil Assignment
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses an interesting California ruling allowing a public school district to assign pupils to schools based not on their own race, but on the racial mix of persons in their immediate neighborhoods. Amar contrasts this pupil assignment system to two other systems, in Seattle and Louisville, upon which the U.S. Supreme Court will rule this Term. Those systems expressly allow pupils to be assigned to schools based on the pupils' own race -- with the goal of matching the district's diversity in each of its individual schools. Amar considers whether, from the perspective of the U.S. Constitution's Equal Protection Clause, one type of system is more likely to be held constitutional than the other.
Friday, Apr. 13, 2007
An Upcoming Supreme Court Fourth Amendment Decision: Can a Passenger Be Constitutionally Searched After an Unconstitutional Traffic Stop?
FindLaw columnist and U.C. Hastings law professor Vikram Amar analyzes the Fourth Amendment issues raised in a case that the Supreme Court will decide this Term. While the Fourth Amendment rights of a car's driver are well-established -- since it's clear that a driver is "seized" when the police stop his or her car -- the Fourth Amendment rights of a passenger, as Amar explains, are much less clear. Amar contends that a passenger is, indeed, "seized" when the car in which he is riding is stopped, since most passengers would be very wary of attempting to leave when a police officer is questioning the driver, whether or not they are expressly ordered to stay still. He points out, however, that even if the Court recognizes a "seizure," and a Fourth Amendment violation here, it may still be reluctant to apply the "exclusionary rule" that would remove the confiscated drug paraphernalia from the evidence adduced against the passenger.
Friday, Mar. 30, 2007
The Supreme Court Denies Coloradans Standing to Challenge the State's Congressional Districting: Avoiding a Controversial Ruling Through a Jurisdictional Doctrine
FindLaw columnist and U.C. Hastings law professor Vikram David Amar discusses a recent Supreme Court decision that held that four Coloradans lacked the requisite standing to sue to challege the state's congressional districting, on the theory that the state legislature's plan should have superseded that of a state court. Amar discusses both the substantive constitutional issues involved and the basis for the Court's standing ruling -- which is not quite as firmly grounded, he suggests, as the Court's unsigned, unanimous opinion would indicate.
Friday, Mar. 16, 2007
The Supreme Court's Recent Philip Morris Punitive Damages Decision: What It Reveals About How Constitutional Law Gets Made, and How the Court Functions
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a number of interesting aspects of, and lessons from, the Supreme Court's recent decision striking a huge award of punitive damages against Philip Morris. Amar focuses especially on the role of Justice Stephen Breyer, in this case and generally: He argues that Justice Anthony Kennedy is not the Court's only swing vote; Breyer often plays that role, too, and considers how this decision evidences a possible evolution in Breyer's views on procedural and substantive limitations on punitive damages.
Friday, Mar. 02, 2007
The Supreme Court Invalidates California's "Determinate Sentencing" Law:
Part One in a Two-Part Series on Yet More Cases Involving Judicial Factfinding in Sentencing
In the first in a two-part series of columns, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a new U.S. Supreme Court decision invalidating California's "determinate sentencing" law. Amar explains in detail each of the crucial Supreme Court Sixth Amendment sentencing precedents that led to the decision -- each deriving from the key principle that juries, not judges, must find (beyond a reasonable doubt) the facts that determine the length of the sentence imposed in a criminal case.
Friday, Feb. 02, 2007
Why Both Cully Simpson - Who Suggested a Boycott of Firms Representing Detainees Pro Bono - and Some of His Critics Are Off-Base
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the issue raised by recent comments by the Defense Department's Assistant Secretary for Detainee Affairs, Cully Simpson. As Amar explains, Simpson strongly suggested that corporate clients might want to stop retaining law firms whose attorneys are representing Guantanamo detainees pro bono. Amar argues that Simpson's critics are correct that his comments (for which he has since apologized) were indeed inappropriate -- in part because the Defense Department is a litigant in the detainee's cases, and in part because it is inappropriate for the government to urge a boycott of certain law firms. Amar also notes, however, that it can be perfectly appropriate to criticize attorneys based on the clients they choose to represent -- and notes some instances in which he himself might look askance at attorneys opting to represent certain clients.
Friday, Jan. 19, 2007
The Supreme Court Considers a Case Involving the Dormant Commerce Clause, and the Balance of Federal and State Power:
How Will the New Roberts Court Rule In This Area?
FindLaw columnist and U.C. Hastings law professor Vikram Amar makes a difficult area of law very clear -- in addressing a case upon which the Supreme Court is about to hear oral argument. The area is "dormant" Commerce Clause jurisprudence -- which Amar explains, poses the question "whether states and localities are prevented from passing their own laws on a given subject, simply because the Commerce Clause gives the federal government power to regulate the national economy." Amar explains how the "dormant" Commerce Clause doctrine fights state-level protectionist measures, and examines how the Court is likely to analyze the upcoming case.
Friday, Jan. 05, 2007
The Supreme Court Rules that California's Upholding a Conviction, Despite Family Members' Wearing Buttons Bearing the Victim's Picture in the Courtroom, Did Not Violate Its Clearly Established Precedent
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses an interesting recent Supreme Court decision regarding the standard for when a federal court will overturn a state court's criminal conviction. The decision's result was that a murder conviction was upheld even despite the judge's allowing the victim's family to wear buttons with the victim's photo on them in the courtroom. Amar explains why the Supreme Court's Justices, though unanimous as this result, held very different opinions about the reasoning that best explained the outcome.
Wednesday, Dec. 20, 2006
Tips for Students Taking Law School Exams:
Why Students Tend Not to Be Able To Demonstrate the Full Extent of Their Knowledge, and How They Might Do Better
FindLaw columnist and U.C. Hastings professor Vikram Amar offers valuable advice to law students who feel that their exam answers fall short of expressing what they truly have learned from a particular course. In particular, Amar suggests some answers to the question why so many students who excelled in college, receiving top grades, don't do as well in law school, especially in the first year. Providing an invaluable perspective on what professors do --and do not -- want to see when they read exam answers, Amar urges students to read questions carefully, spend the time suggested on each, and make sure to take a stand rather than just outlining various posssible arguments.
Friday, Dec. 08, 2006
Election Day 2006 and Private-Property-Protecting Measures: While Many Proposals Failed, the Movement Is Very Much Alive
FindLaw columnist and U.C. Hastings law professor Vikram Amar takes a close look at the movement to change the law to further protect the rights of owners of private property. After canvassing the state efforts in this direction that were presented to voters on Election Day, Amar gives special focus to the lame-duck House's Private Property Rights Implementation Act of 2005 -- and the constitutional problems it will pose if it enacted into law.
Friday, Nov. 24, 2006
The California Court of Appeal's Same-Sex Marriage Decision: Not the Last Word on the Matter, But Still Revealing In Many Ways
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a recent, important decision on same-sex marriage by the California Court of Appeal. (The state's Supreme Court, of course, is likely to ultimately have the last word here.) Amar explains the court's analysis, and explains, too, the binary choices that tend to determine the results in same-sex marriage cases: whether the standard of review for which the court opts is "strict scrutiny," or if a mere "rational basis" suffices; whether the court's analysis happens under Due Process or Equal Protection guarantees (or both); and whether or not the court finds a legal parallel between discrimination against gay people and other types of discrimination.
Friday, Oct. 13, 2006
The Bill To Move the Country Toward Direct Presidential Elections: Why California's Governor Schwarzenegger, And Other Governors, Should Sign It
FindLaw columnist and U.C. Hastings law professor Vikram Amar argues that California Governor Arnold Schwarzenegger should sign the bill currently on his desk that would commit California to cast its electoral votes for the national (not the state level) popular vote winner. The bill would go into effect, Amar explains, only if enough states passed mirroring bills to make up a majority of the electoral college. (Congressional approval, too, may be required). Amar considers, in turn, several recently-raised counterarguments to this plan to move toward the equivalent of direct presidential election, and finds that none of them hold water.
Friday, Sep. 29, 2006
A Mid-September Meditation: How September 11 Mapped Onto the Framers' Geostrategic Theory of Liberty
FindLaw columnist and Yale law professor Akhil Amar offers an original and provocative take on the significance of September 11 for the U.S. Constitution. Amar argues that the terrorist attacks vindicated the Framers' original belief that a very strong protection for America -- one perhaps even stronger than the Bill of Rights -- was simply its relative oceanic isolation. Now, with America's isolation compromised in an increasingly globalized world, Amar argues, the nation must confront its new vulnerability. He urges that the need for new theories to "secure the Blessings of Liberty" is pressing.
Thursday, Sep. 14, 2006
Advice For the Law School Class of '09: Ten Key Principles That Will Help You Succeed
FindLaw columnist and U.C. Hastings law professor Vikram Amar offers ten key piece of advice for entering law students -- discussing topics ranging from how to work smart, to how to study actively, to the skills you need to practice to become a good lawyer, to how your classmates can help you, to what questions to ask at your professors' office hours. Amar also cautions against using study aids or worrying about exams prematurely.
Thursday, Aug. 17, 2006
Why the "Political Question Doctrine" Shouldn't Necessarily Prevent Courts From Asking Whether a Spending Bill Actually Passed Congress
Part Two in a Series
FindLaw columnist and U.C. Hastings law professor Vikram Amar continues his series on the legal challenge to the Deficit Reduction Act of 2005 -- which reportedly failed to pass both houses of Congress, yet was signed by the President and is being treated as law nonetheless. Given what is apparently a blatant violation of the Constitution's bicameralism requirement, can a federal court direct a remedy? As Amar explains, that depends on whether the case raises a nonjusticiable "political question" -- and that, in turn, depends on two Supreme Court precedents that are in sharp tension with each other.
Thursday, Apr. 13, 2006
The Threshold Hurdles in the Lawsuit Alleging that the President Signed a Budget Bill the House Never Passed:
Part One in a Series
In Part One of a two-part series of columns, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a recent federal lawsuit brought by Jim Zeigler, a lawyer claiming that the so-called "Deficit Reduction Act of 2005" is not a valid law because the House and Senate passed different versions of the measure. Zeigler, who practices elder law, claims it interferes with his ability to advise his clients. Amar examines the obstacles confronting Zeigler's claims, focusing first on whether Zeigler has constitutional standing to bring this lawsuit in federal court.
Friday, Mar. 31, 2006
A Different Take on the Supreme Court’s Recent Decision Concerning Law Schools’ First Amendment Rights and Campus Military Recruitment
FindLaw columnist and U.C. Hastings law professor Vikram Amar, and FindLaw guest columnist and U.C. Davis law professor Alan Brownstein, together offer an interesting take on a recent, controversial Supreme Court ruling. The ruling held that a federal statute forcing law schools to afford equal on-campus recruitment privileges to military and civilian recruiters did not violate the First Amendment rights of law professors or law schools. Amar and Brownstein contend that the ruling reached the right result, but did not persuasively distinguish a number of Court precedents that cut the other way.
Friday, Mar. 17, 2006
The Supreme Court Grants Review on the Constitutionality of Congress' Partial Birth Abortion Ban Act
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses an abortion rights the Court recently opted to review -- a choice that, he predicts, might be the most significant by the Court this year, in this area of law. The case poses the question of whether Congress' Partial Birth Abortion Ban Act is unconstitutional -- and, as Amar explains, the answer will likely force Chief Justice Roberts and Justice Alito to reveal their abortion stances. Amar also explains why the case may put Justice Kennedy in a complicated position -- with various views he holds cutting in different directions.
Friday, Mar. 03, 2006
Why the President's Defense of Executive Power to Wiretap Without Warrants Can't Succeed in the Strict Constructionist Court He Wants
FindLaw columnist and U.C. Hastings law professor Vikram Amar, and FindLaw guest columnist and U.C. Davis law professor Alan Brownstein discuss what might happen if the controversy over the NSA's warrantless wiretapping were to become a case before the Supreme Court. Amar and Brownstein remind readers of President Bush's vow to appoint strict constructionists, and consider how the President's two appointees, Chief Justice Roberts and Justice Alito, might rule if they do, indeed, follow this interpretive method.
Friday, Feb. 17, 2006
Reflections on The Supreme Court Confirmation Process After Roberts and Alito:
Its Virtues and Flaws, and Why Senator Obama's Take is the Right One
FindLaw columnist and U.C. Hastings law professor Vikram David Amar considers the lessons we can learn from the recent confirmation hearings of Chief Justice Roberts and Justice Alito. Amar notes that these hearings have been able to delve into substantive issues, though not as much as he believes to be constitutitionally proper. He also argues that nominees will only feel comfortable discussing substance, if it is clear they will not later be harshly criticized if while on the Court, they change their minds.
Friday, Feb. 03, 2006
Must Public Subway Trains that Feature Advertising Carry Anti-Abortion Ads? What the First Amendment Has to Say
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the controversy in San Francisco over the display of anti-abortion ads on public transportation. Amar answers such questions as: Would it be a First Amendment violation to ban these ads in particular? What if all political ads were banned, more generally? And does it make a difference, from a constitutional perspective, if BART (Bay Area Rapid Transit) riders can argue that they were a captive audience in that they had no practical alternative to public transportation?
Friday, Jan. 20, 2006
Some Practical Advice to Senators Preparing For Judge Alito's Confirmation Hearings
FindLaw columnist and U.C. Hastings law professor Vikram Amar offers key advice for Senators preparing to question Supreme Court nominee Samuel Alito. Amar offers strategies to ensure that Alito's answers will be more specific and revealing than those of past nominees -- and to elicit concrete answers that will reveal what kind of a Justice Alito might really be. He also suggests specific areas of constitutional law on which Senators may want to focus.
Thursday, Jan. 06, 2006
A Holiday Gift Recommendation: America's Constitution: A Biography, By Akhil Reed Amar
FindLaw columnist and U.C. Hastings law professor Vikram Amar offers a David-Letterman-esque list to support his gift recommendation for the holidays -- the much-lauded recent book on the U.S. Constitution by Yale law professor Akhil Amar. Though Vikram Amar admits his bias (he is the author's brother), he also offers a number of highly convincing reasons that this book is a must-read for lawyers and non-lawyers alike.
Friday, Dec. 23, 2005
The TV Drama "Commander in Chief" and the Constitution: Is the Federal Presidential Succession Statute Unconstitutional?
Part Two in a Series
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a key question raised by the TV drama "Commander in Chief" -- in which the federal succession statute governing who accedes to the Presidency (and Vice Presidency) is triggered. The question is: Is this statute unconstitutional? Both the statute and the Constitution speak to succession issues but, Amar says, in conflicting ways -- and, of course, the Constitution trumps.
Thursday, Dec. 08, 2005
The Constitutional and Legal Questions Raised by the Scooter Libby Indictment - And Some Answers
In a revealing Q&A, FindLaw columnist and Yale law professor Akhil Amar explains the constitutional dimensions of the Scooter Libby indictment. Amar covers related historical precedents, as well as the pardon power, resignation and firing issues, separation of powers issues, the consequences if Vice President Cheney is also indicted, political considerations for President Bush and more.
Wednesday, Nov. 23, 2005
"Commander in Chief": A New TV Drama Raises Constitutional Questions Worthy of Discussion
Part One in a Series
In Part One in a series, FindLaw columnist and U.C. Hastings law professor Vikram Amar explores the real constitutional law issues implicated by the fictional premise of the TV show "Commander in Chief": If a President asks his Vice President to resign, must she? Should she? As Amar explains, that depends on the interplay of a number of constitutional provisions and amendments.
Friday, Nov. 11, 2005
May Race Ever Be Used as A "Tie-Breaker" in High School Admissions?
The Ninth Circuit Says "Yes" in a Case That Might Test the New Supreme Court's Affirmative Action Instincts
The Supreme Court has decided the fate of law school affirmative action, but what about the use of race in grades K-12? FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the significance of a Seattle federal case that challenges a school district's ability to use student race as one "tiebreaker" in figuring out which students will get their first choice high school. The school cites an interest in correcting "racial imbalance" in its schools; will that be enough to save the program if it reaches the Supreme Court? Amar analyzes the issue.
Friday, Oct. 28, 2005
The Miers Nomination: Republican Senators Have the Power to Address Their Fears that She Won't Be Reliably Conservative
FindLaw columnist and U.C. Hastings law professor Vikram David Amar discusses the controversy over the Harriet Miers Supreme Court nomination. He argues that Republicans who are worried that she will be another Souter -- a Republican nominee with moderate-to-liberal views -- can easily put their fears to rest. How? By insisting that Miers answer questions about her substantive views on major watershed Supreme Court precedents. Amar also argues that, in reality, these worries are probably overstated -- and worries that Miers lacks relevant competence and experience are probably overstated, too.
Friday, Oct. 14, 2005
The Pledge, Prudence and Precedent: A Comment on Judge Karlton's Recent Ruling on the Words "One Nation Under God"
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses an interesting new wrinkle in the ongoing legal battle over whether the "under God" version of the Pledge of Allegiance violates the Establishment Clause. As Amar explains, the latest news in the battle is a ruling by a federal district court judge holding that while the Supreme Court dismissed an earlier, very similar case for lack of standing, a lower court ruling in that same case -- which holds that, indeed, the Constitution is violated -- still stands. Amar argues taht this holding is in clear error.
Friday, Sep. 30, 2005
The Overlooked Legal Option That Would Let Governor Schwarzenegger Fully Respect Proposition 22 and the Will of the People, Yet Also Sign the Gay Marriage Bill
FindLaw columnist Vikram David Amar, and FindLaw guest columnist Ethan Leib, both U.C. Hastings law professors, discuss California Governor Arnold Schwarzenegger's controversial decision to veto a bill that would legalize gay marriage in California. Schwarzenegger has justified his veto decision on the ground that the bill would conflict with a five-year-old California initiative, Proposition 22, defining marriage as between a man and a woman. Amar and Leib agree with the Governor that there's a conflict, but propose a California-Constitution-sanctioned way to address it that would let the Governor sign the bill.
Friday, Sep. 16, 2005
Getting Down to Cases:
Part Three in a Series on the Kind of Case-Specific Questions the Senate Should Ask John Roberts
FindLaw columnist and U.C. Hastings law professor Vikram Amar continues his series on the types of questions that can, and should, be asked at John Roberts's Supreme Court confirmation hearings. In this installment, Amar lists ten opinions -- three authored by Roberts himself, and seven authored by the Supreme Court -- on which he believes Roberts ought to be closely questioned. Among these seven are four 5-4 decisions -- in the key areas of abortion, church/state separation, and affirmative action -- in which Justice O'Connor, whom Roberts would replace was the swing vote.
Friday, Sep. 02, 2005
More on the Propriety of Asking Judge Roberts to Comment on Specific Past Supreme Court Rulings:
Part Two in a Series
FindLaw columnist and U.C. Hastings law professor Vikram Amar offers Part Two in his series of columns on what questions Supreme Court nominee Judge John Roberts can be asked, and ought to answer, in his confirmation hearings. In Part One, Amar put forth his thesis: As long as no promises as to how Roberts will rule if confirmed are requested or made, he argues, Roberts ought to be asked about specific cases. Here, in Part Two, Amar defends, and elaborates upon, that idea.
Friday, Aug. 19, 2005
It's the Specifics, Stupid. . . .
A Commentary on The Kind of Substantive Questions the Senate Can and Should Pose to Supreme Court Nominees
FindLaw columnist and U.C. Hastings law professor Vikram David Amar argues that Judge Roberts's, and other Supreme Court nominees', confirmation hearings, questions about specific Court precedents ought to be fair game. Although the Senate has recently tended to stay away from -- and nominees have tended to parry -- such questions are, Amar argues, entirely proper. He goes through each objection one might raise to the asking of such questions, and explains why, in his view, none is persuasive.
Thursday, Aug. 04, 2005
The Court's 2004-2005 Term: What the Economic Redevelopment Takings Case Tells Us About the Court, Congress, and Justice O'Connor
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a significant case recently decided by the Supreme Court, Kelo v. New London -- and focuses, in particular, on how it illuminates Justice O'Connor's jurisprudence. The case required the Court to decide whether, under the Constitution's Takings Clause, "economic development" can count as a "public purpose," thus allowing the government to take land from private homeowners for this purpose, as long as it provides just compensation. The Court's decision, in favor of the government, has sparked a number of Congressional proposal that would, in effect, reverse the Court's decision -- as Amar explains.
Thursday, Jul. 21, 2005
What Are the Rules and Standards In the Judicial Appointments Game? With a Supreme Court Nomination on the Horizon, the Stakes Are High
FindLaw columnist and U.C. Hastings law professor Vikram David Amar, and FindLaw columnist and Yale law professor Akhil Reed Amar, discuss the rules and standards that they argue ought to govern the process by which Presidents vet and nominate, and Senators vet and confirm, Supreme Court nominees. They consider the "advice and consent" power in the context of the structure of the entire Constitution to derive the rules by which, they say, the game ought to be played.
Friday, Jul. 08, 2005
An Important Sentencing Ruling from the California Supreme Court:
Despite the U.S. Supreme Court's Recent Sentencing Upheaval, California's System is Held to Be Valid
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses an important recent decision in which the California Supreme Court held the state's sentencing system to be constitutional. The reason the decision is important, as Amar explains, is that the U.S. Supreme Court had struck down as unconstitutional federal and state sentencing schemes that seem similar, in ways, to California's. Is California's system truly different -- and thus, constitutional? Amar discusses that complex question.
Friday, Jun. 24, 2005
The "Charitable Choice" Bill That Was Recently Passed by the House:
The Normative Question of What the Constitution Ought to Require When Such Laws Are Reviewed
U.C. Hastings law professor Vikram David Amar and U.C. Davis law professor Alan Brownstein conclude their series on "charitable choice" legislation -- including H.R. 27, the Job Training Improvement bill that was passed recently by the House, but has not yet been acted on by the Senate. In this final column of the series, they turn from a descriptive question -- "What does Supreme Court precedent require?" -- to a normative question: "What should Supreme Court precedent require?"
Friday, Jun. 10, 2005
The "Charitable Choice" Bill That Was Recently Passed by the House:
Further Commentary on Its Constitutional Problems
U.C. Hastings law professor Vikram Amar and U.C. Davis law professor Alan Brownstein continue their series of columns on the "charitable choice" bill recently passed by the House of Representatives, and awaiting a Senate vote. In this part -- Part Three of the series -- Amar and Brownstein compare and contrast Supreme Court precedents as to what religious institutions can, and cannot do, with private and public funds, respectively.
Friday, May 27, 2005
The "Charitable Choice" Bill That Was Recently Passed by the House:
Why Supreme Court Precedent Renders It Unconstitutional
FindLaw Columnist and U.C. Hastings law professor Vikram Amar and U.C. Davis law professor Alan Brownstein, continue their series of columns on the "charitable choice" bill recently passed by the House of Representatives, and awaiting a Senate vote. In this part -- Part Two of the series -- Amar and Brownstein discuss two Supreme Court precedents, and argue that one ought to govern the fate of the bill, whereas the other is not directly relevant.
Friday, May 13, 2005
The "Charitable Choice" Bill that was Recently Passed by the House, and the Issues It Raises
FindLaw Columnist and U.C. Hastings law professor Vikram Amar, and U.C. Davis law professor Alan Brownstein, argue that the "charitable choice" bill recently passed by the House of Representatives, and awaiting a Senate vote, violates the Establishment Clause. In the first of a series of columns on "charitable choice," Amar and Brownstein discuss several defenses of the bill's constitutionality, and explain why they find them unpersuasive.
Friday, Apr. 29, 2005
Some Possible Arguments In Favor of Testing Lawyers For Speediness of Analysis:
In the third column of a series, FindLaw columnist and U.C. Hastings law professor Vikram Amar evaluates arguments in favor of retaining time-pressured exams relating to the legal profession. Such exams include the LSAT, law school "racehorse" exams that ask students to spot and analyze dozens of issues in a few hours, and bar exams students. In his two prior columns on the topic, Amar considered arguments that suggested such exams should be revised or junked because they wrongly privilege the ability to analyze superficially and quickly, over the ability to analyze well and deeply. Now, Amar considers arguments that suggest time-pressure should be a factor in legal exams, on the ground that it is a factor in legal practice.
Friday, Apr. 15, 2005
Are Time-Pressured Exams on Law, Such as the LSAT, Fair and Useful?
Part Two in a Series on Timed Tests and Legal Education
In Part Two of a series on whether timed tests accurately reflect legal skills, FindLaw columnist and U.C. Hastings professor Vikram Amar discusses more research by Indiana University law professor Bill Henderson on the topic, as well as comments and analysis by those who've weighed in recently. Henderson looked, for example, at whether results on law school "racehorse" exams correlate well with moot court performance generally, and performance on moot court briefs in particular. Amar considers what skills lawyers really need -- whether they advocate by writing (as is typically the case), or orally -- and whether law school exams test for these skills.
Friday, Apr. 01, 2005
Should the LSAT (and Legal Testing More Generally) Be Revisited and Perhaps Retooled?
Part One of a Series
FindLaw columnist and U.C. Hastings law professor Vikram Amar assesses the LSAT (Law School Admission Test), and questions if it ought to count as heavily as it currently does in law school admissions decisions. Drawing on the work of Indiana University law professor Bill Henderson, Amar notes that evidence suggests the LSAT may be testing for speed, not skill, in legal analysis-- and notes, too, that law school "racehorse" exams that ask students to spot dozens of issues in a few hours are vulnerable to the same criticism.
Friday, Mar. 18, 2005
The Supreme Court Expresses Skepticism About a California Policy That Temporarily Segregates Prisoners By Race
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the recent decision by the Supreme Court holding that a California policy of temporarily segregating prisoners by race -- ostensibly to try to prevent clashes between racial gangs -- is unconstitutional. Amar outlines the two lines of precedent that related to the case, and explains why the Court choose the one it did -- despite the fact that the other line of precedent counsels great deference to the judgment of prison officials in many decisions affecting inmates.
Friday, Mar. 04, 2005
Responding to Evidence that Race-Based Law School Affirmative Action May Actually Hurt African-Americans:
Part Two in a Series On a Law Professor's Controversial Claim
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses possible responses to a controversial claim by liberal UCLA law professor Rick Sander: Sander argues that race-based affirmative action, as practiced by American law schools' admissions offices, actually ends up hurting beneficiaries' chances of passing the bar, and of getting an attractive job practicing law. Amar discusses both questions others have raised about Sander's methodology, and his own question about how Sander frames the inquiry: Wouldn't the same analysis likely apply for any student who gets into a law school for any reason but grades and LSAT schools alone -- such as, for instance, legacies; those who provide geographical diversity; and those whose extracurricular activities were a plus?
Thursday, Jan. 20, 2005
Does Race-Based Law School Affirmative Action Actually Hurt African-Americans?:
Part One in a Series On a Law Professor's Provocative Claim
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a controversial claim by liberal UCLA law professor Rick Sander: Sander argues that race-based affirmative action, as practiced by American law schools' admissions offices, hurts the very African-American students who are meant to be its beneficiaries. In particular, Sander suggests that affirmative action ends up hurting beneficiaries' chances of passing the bar, and of getting an attractive job practicing law. Amar considers the basis for Sander's claims.
Friday, Jan. 07, 2005
The California Teacher Whose Superiors Worry His Teaching Is Too Religious:
Does He Have a Strong First Amendment Case?
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the controversial case of California public school teacher Stephen Williams, who has been barred from teaching what he would like to teach, on the ground that it is thought to be too religious. Williams complains that, as a result, he cannot teach material ranging from excerpts from the Declaration of Independence, to excerpts from various state constitutions, to excerpts from George Washington's journal, to excerpts from John Adams's diary. Amar explains why, though he might seem to have a strong First Amendment case, Supreme Court precedent suggests very much otherwise.
Friday, Dec. 24, 2004
How Federalism Doctrine Can Acquire Bipartisan Appeal:
The Constitutional Values That Transcend Political Change
FindLaw columnist and U.C. Hastings law professor Vikram David Amar and U.C. Davis law professor Alan Brownstein contribute another in a series of columns, addressing why certain constitutional doctrines tend to be very stable, despite the changing composition of the Supreme Court. In this column, they discuss constitutional federalism -- and whether it is likely to be stable, or variable. They argue that if the Supreme Court, this Term, embrace a politics-neutral federalism, its federalism doctrines are likely to have longevity. Conversely. if the Court refuses to apply federalism doctrines to cases in which they would yield a liberal result -- such as a case involving medical marijuana, now legal in California -- those doctrines may end up being short-lived.
Friday, Dec. 10, 2004
Constitutional Doctrines that Won't Change, Even If the Supreme Court Does
In Part One in a two-part series on the lessons of the free speech experience, FindLaw columnist and U.C. Hastings law professor Vikram Amar and U.C. Davis law professor Alan Brownstein discuss the areas of constitutional law that are unlikely to see any serious doctrinal change, no matter how many Court appointments are made during the next four years.
Friday, Nov. 26, 2004
The 2004 Presidential Election and the Electoral College:
How the Results Debunk Some Defenses of the Current System
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses how the results of the recent Presidential election play into the debate over whether to abolish the Electoral College. Amar contends that the election results shatter a number of Electoral College myths that are cited in the case against constitutional amendment. After this election, he concludes, the case to abolish the Electoral College is stronger than ever.
Friday, Nov. 12, 2004
Rent Control In Hawaii Goes All the Way to the Supreme Court:
An Interesting Takings Clause Challenge
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses an interesting constitutional case the Supreme Court will resolve this Term. The case involves a unique form of rent control applicable to Hawaii gas stations, by virtue of Hawaii law. It raises the question whether the rent control at issue violates the Fifth Amendment, which requires just compensation when government takes property for public use. As Amar explains, the answer to this question is likely to turn on another question: Which legal standard applies?
Wednesday, Nov. 03, 2004
Should the Rules Used for Picking the President Be Altered?
An Analysis of Two Current Proposals
FindLaw columnist and U.C. Hastings law professor Vikram Amar considers two possible changes to the way we choose a President that have been in the news lately. The first is the proposal to amend the Constitution to allow naturalized citizens to be President -- either immediately, or in a numbre of years. The second is the Colorado initiative to divide the state's electoral votes proportionally, rather than on a winner-take-all basis.
Friday, Oct. 15, 2004
Conduct Unbefitting the Congress:
The So-Called Pledge Protection Act Passed by the House of Representatives
FindLaw columnist and U.C. Hastings law professor Vikram Amar and U.C. Davis law professor Alan Brownstein discuss the Pledge Protection Act, a recent jurisdiction-stripping bill passed by the House of Representatives that would prevent federal courts (and the U.S. Supreme Court) from ever hearing claims that the recitation of the Pledge of Allegiance violates the Constitution.
Friday, Oct. 01, 2004
Are the U.S. Sentencing Guidelines Judicial or Legislative?
And Will the Answer Determine Whether They Survive Supreme Court Review?
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses several key issues that may determine the fate of the U.S. Sentencing Guidelines when they come before the Supreme Court this term. One issue is whether the Guidelines -- promulgated not by Congress, but by an appointed Sentencing Commission -- are properly seen as judicial or legislative. Another, related issue is whether this distinction matters -- or whether the only distinction the Court will find relevant is that between judges and juries.
Friday, Sep. 17, 2004
When -- If Ever -- Can Facts Found By Judges Lengthen Criminal Sentences?
A Key Question Now Facing the Supreme Court
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses two interesting cases that will start off the upcoming Supreme Court Term. In each case, the defendant was convicted of possession of cocaine, with intent to distribute. In each case, a judge's fact findings led to a long sentence -- but, nevertheless, a sentence lower than the statutory maximum. As Amar explains, the question is whether a judge's factfinding can play this kind of sentence-lengthening role -- and if not, what is going to happen to the Federal Sentencing Guidelines?
Tuesday, Sep. 07, 2004
Why the California Supreme Court Repudiated San Francisco's Issuance of Same-Sex Marriage Licenses
Last week, the California Supreme Court weighed in on -- and decided to void -- the marriage licenses San Francisco, at the direction of its mayor, had granted to a number of same-sex couples. FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses why the decision's result was unsurprising to most legal observers -- but its broad reasoning, in places, was quite surprising to many. As Amar explains, the Court avoided a number of questions it did not have to address -- but also reached out to decide several others. The decision leaves for another day the fundamental question of whether denying same-sex couples marriage licenses violates the California Constitution.
Tuesday, Aug. 17, 2004
The Marriage Protection Act Bill Passed by the House of Representatives
Trying to Make Sense of the Nonsensical
FindLaw columnist and U.C. Hastings professor Vikram Amar discusses the constitutionality and wisdom of the Marriage Protect Act (MPA) bill that was recently passed by the House -- but has not yet become law. The MPA's intention is to resolve the same-sex marriage debate by ensuring that the Defense of Marriage Act -- which purports to allow states to refuse to recognize each other's same-sex marriages -- cannot be constitutionally challenged. It tries to achieve its intention by stripping courts of jurisdiction to decide related cases. But Amar contends that far from achieving that intention, the MPA, by its language, would ironically only strip states of some of their defenses in suits that would seek the recognition of same-sex marriage.
Friday, Aug. 06, 2004
More On The Supreme Court's Most Recent Term:
Four Important Federalism Rulings, and What They Mean
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses four rulings from the past Supreme Court term that concern the limits of federal power -- how far can Congress go with respect to civil, and to criminal, law? Amar explains the import of each ruling, and also notes the underlying debate, in several of the cases, regarding whether the Court should look to the whole range of applications of a given statute, or just the type of applications before it in a given case.
Thursday, Jul. 22, 2004
The Supreme Court's Most Recent Term:
A Set of Narrow Rulings Avoids Some Tough Questions, But Provides Interesting Fodder For Discussion
In Part One of a two-part series on the just-concluded Supreme Court Term, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses several cases in which the Court avoided a question, or issued only a narrow holding -- and one case in which the Court issued a very broad ruling that will affect sentencing practices nationwide. Amar also discusses why narrowness and avoidance were some of the hallmarks of this Term.
Friday, Jul. 09, 2004
More on Large Civil Fines for Minor Violations:
Might They Be Limited by the U.S. Constitution's Excessive Fines Clause, and By State Constitutional Provisions
In Part Two of a two-part series, FindLaw columnist and U.C. Hastings law professor Vikram Amar, and FindLaw guest columnist and attorney David Reis, discuss the constitutionality of large civil fines imposed under administrative statutes.
Friday, Jun. 25, 2004
Are Large Civil Fines For Minor Violations Unconstitutional?
Applying Proportionality Standards Outside the Punitive Damages Context
FindLaw columnist and U.C. Hastings law professor Vikram Amar, and FindLaw guest columnist and attorney David Reis, discuss an intriguing legal question: Given that the Supreme Court has imposed a proportionality standard for punitive damages, which cannot be too many times greater than compensatory damages, might it do the same for large civil fines? Amar and Reis discuss, in particular, the proportionality issues raised by a new California law that could lead to the imposition of multi-million dollar fines for minor violations.
Friday, Jun. 11, 2004
The Supreme Court Hands Down a Key Federalism/Disability Law Decision,
And Surprises Some Observers with Its Result
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a recent, surprising 5-4 result in a Supreme Court case, Tennessee v. Lane involving the intersection of disability law and federalism. Amar explains several reasons why a similar case, also involving part of the Americans with Disabilities Act, came out differently when the Court resolved it, and notes why the case underlines how important Justice O'Connor's vote continues to be.
Thursday, May. 27, 2004
The California Legislature Begins to Take Up Gay Marriage:
An Assembly Bill Permitting the Practice Is Approved in Committee
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses an important recent development with respect to same-sex marriage in California: A new bill to permit it that was approved in committee and will now be considered by the full legislature. Amar explains the complex -- and at times ironic -- legal backdrop against which the validity and constitutionality of the bill must be judged, and assesses the arguments of proponents and opponents.
Tuesday, May. 11, 2004
Can States Constitutionally Regulate Video Games, As California Is Considering Doing?
The First Amendment Framework That Would Probably Apply
U.C. Hastings law professor Vikram Amar and U.C. Davis law professor Alan Brownstein consider the constitutionality of proposals -- such as a recent one in California -- that would regulate minors' access to violent video games. Amar and Brownstein survey several different relevant lines of Supreme Court cases, and conclude that such laws, as long as they apply only to minors, would not necessary be struck down as First Amendment violations.
Friday, Apr. 30, 2004
Executive Privilege:
Often Valuable to Protect the Presidency, But Misunderstood By President Bush in the Condoleezza Rice Case
In the wake of Condoleezza Rice's testimony before the 9/11 Commission, FindLaw columnist and U.C. Hastings law professor Vikram Amar puts the decision to have her testify in historic and legal context. Amar explains that while executive privilege -- the reason the Administration cited to support its initial position that she should not testify -- is valuable, in his view, it did not really apply in this case. He also tracks a line of Supreme Court case that have chipped away at executive privilege and similar doctrines over the past few decades.
Friday, Apr. 16, 2004
Same Sex Marriage and the California Constitution
FindLaw columnist and U.C. Hastings law professor Vik Amar discusses the key question at the heart of the California litigation over same-sex marriage: Does current California law, which forbids same-sex marriage, violate the California Constitution? Amar discusses the way both equal protection and right to privacy arguments will likely play out. He also notes an important twist in the legal analysis that derives from the fact that the law at issue is a California statutory initiative that was directly approved by voters.
Friday, Apr. 02, 2004
Must California City Officials Follow Statutes They Believe To Be Unconstitutional?
More on the San Francisco Gay Marriage Controversy
FindLaw columnist and U.C. Hastings law professor Vikram Amar offers a nuanced view of San Francisco Mayor Gavin Newsom's position vis-a-vis gay marriage. Amar contends that in the end, Newsom's position (that he can bypass state statutes that he believes violate federal constitutional rights) is unpersuasive. However, Amar also argues that the reason it's unpersuasive is very different from the reasons Newsom's opponents typically give.
Tuesday, Mar. 30, 2004
The California Constitution and Same-Sex Marriage:
Even if California's Anti-Gay-Marriage Statutes Violate the State Constitution, San Francisco Was Still Wrong Not To Wait for the Courts
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a crucial but sometimes overlooked provision of the California Constitution that relates to the same-sex marriage debate. As Amar points out, this provision suggests that rather than simply begin performing same-sex marriages, San Francisco should have waited for an appeals court decision in its favor. Amar discusses the provision's language and notes why, in his view, it applies -- and ought to apply -- to San Francisco.
Friday, Mar. 05, 2004
More on What's Wrong with the Modern Jury:
How Juror Selection Can Be Improved
In Part Two of a series on the jury, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the ways in which juror selection can be improved. Among Amar's suggestions are the elimination of peremptory challenges -- for which lawyers need not give a reason -- and the restriction of "for cause" challenges. Amar also discusses the need to keep highly educated jurors in the jury pool, and to penalize those who don't show up at the courthouse for jury selection. He also makes the provocatives suggestion that we may want to reconsider the rule of unanimity for criminal juries.
Friday, Feb. 20, 2004
More On President Bush's Proposed Same-Sex Marriage Amendment:
Part Two in a Series on Wise and Unwise Constitutional Amendments
FindLaw columnist and U.C. Hastings law professor Vikram Amar and U.C. Davis law professor Alan Brownstein continue their series on President Bush's proposal to amend the U.S. Constitution to ban same-sex marriage. Having argued in Part One that such an amendment is not appropriate because this political issue is still subject to heated debate, Amar and Brownstein considers possible counterarguments suggesting that, for example, such an amendment is necessary now to preempt a Supreme Court decision on the matter.
Friday, Feb. 18, 2004
What's Wrong With the Modern Jury:
How Our System Can Better Fulfill the Framers' Ideals
In Part One of a two-part series on the jury, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the Constitution's Framers' vision of the jury -- as both a way to protect defendants, and a way to ensure that citizens participated in what the Framers saw as a fundamental institution of democratic self-governance. Amar also discusses the modern evolution of the view that jury service is a political right of the citizen, and summarizes recent perceptions of the jury system that suggest it is in need of repair.
Tuesday, Feb. 10, 2004
President Bush's Proposed Same-Sex Marriage Amendment:
Part One in a Series on Wise and Unwise Constitutional Amendments
In Part One of a series on Constitutional amendments, FindLaw columnist and U.C. Hastings law professor Vikram Amar and U.C. Davis law professor Alan Brownstein, discuss what makes a proposed constitutional amendment wise or unwise. They focus, in particular, on President Bush's proposal of an amendment to the U.S. Constitution that would ban same-sex marriage -- and argue that the amendment would be unwise, in that it would cut off a democratic debate on the issue that is still very much in progress. They also explain why state constitutional amendments and federal constitutional amendments should, in their view, be analyzed differently.
Friday, Feb. 04, 2004
The Controversy Over President's Bush Use of a "Judicial Recess Appointment":
Are Such Appointments Constitutional? Do They Hurt the Nomination Process?
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses President Bush's recent, controversial decision to appoint Charles Pickering to a temporary federal appellate judicial seat while the Senate is in recess. Amar considers the arguments -- both constitutional and prudential -- for and against the use of the recess appointment power under these circumstances.
Friday, Jan. 23, 2004
Previewing The Rest of the Current Supreme Court Term:
The "Pledge of Allegiance" Case
In the first of a series of columns on key cases to be decided this Supreme Court Term, FindLaw columnist and U.C. Hastings law professor Vikram Amar explains little known but important issues raised in the controversial "Pledge of Allegiance" case. Famously, the case asks whether a student's having to listen to "under God," in the Pledge, is an Establishment Clause violation. But as Amar explains, the Court has also granted review of a prior question: Who has standing to bring suit on the theory that such a violation occurred?
Friday, Jan. 09, 2004
The Bush Administration's Biggest Legal Setbacks To Date in the War on Terror,
And What They Tell Us
FindLaw columnist and U.C. Hastings law professor Vikram David Amar explains the meaning of import of two recent federal appellate decisions relating to the war on terror. In one decision, the U.S. Court of Appeals for the Second Circuit held that the President could not deem U.S. citizen Jose Padilla an "enemy combatant" without Congressional authorization to do so. In the other decision, the U.S. Court of Appeals for the Ninth Circuit held that federal courts can entertain habeas corpus petitions filed by the detainees at Guantanamo Bay. As Amar explains, the Supreme Court had already decided to address one of these issues, and is also very likely to address the other.
Friday, Dec. 26, 2003
Comparing and Contrasting Two Recent Church-State Cases
Before the U.S. and California Supreme Courts
FindLaw columnist and U.C. Hastings law professor Vikram Amar and F U.C. Davis law professor Alan Brownstein discuss two recent cases concerning the free exercise of religion. One case is before the California Supreme Court, and concerns the California Constitution; the other is before the U.S. Supreme Court, and concerns the U.S. Constitution. Amar and Brownstein contend that contrasting the two cases -- as they do in this column -- illuminates important issues as to how constitutional religion clauses should be interpreted.
Friday, Dec. 12, 2003
The Partial Birth Abortion Ban Act, Part Two
If it is Enjoined, But Ultimately Upheld, Can Doctors Who Violated It in the Interim Be Punished?
In Part Two of a two-part series, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses an interesting and important question related to the intersection between injunctions and constitutional holdings. Recently, a number of federal districts courts have restrained the Justice Department from enforcing the new Partial Birth Abortion Ban Act, in part because the courts believe the Act will ultimately be struck down as unconstitutional. But what if it's not? Amar considers whether those doctors who performed the kind of abortions described in the Act in the interim between the restraining orders and the ultimate holding, could then be prosecuted.
Friday, Nov. 28, 2003
The Partial Birth Abortion Ban Act
If It is Enjoined but then Ultimately Upheld, Can Doctors Who Violated It While the Injunction Was in Effect Be Punished?
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses an interesting and important question related to the intersection between injunctions and constitutional holdings. Recently, a number of federal districts courts have restrained the Justice Department from enforcing the new Partial Birth Abortion Ban Act, in part because the courts believe the Act will ultimately be struck down as unconstitutional. But what if it's not? Amar considers whether those doctors who performed the kind of abortions described in the Act in the interim between the restraining orders and the ultimate holding, could then be prosecuted.
Friday, Nov. 14, 2003
Why Did Justice Scalia Decline to Participate in the "One Nation Under God" Case?
Recusal Decisions and When They Should, and Should Not, Be Required
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the subject of judicial recusal: When should a judge -- due to the appearance (or the actuality) of bias, remove himself from a particular case? Amar focuses his remarks on a recent decision by Supreme Court Justice Antonin Scalia to recuse himself from a case involving the constitutionality of the words "one nation under God" in the Pledge of Allegiance. Amar argues the recusal was probably unnecessary.
Friday, Oct. 31, 2003
Reflections on the California Recall
The Lingering Questions Over Its Legitimacy, And Its Basis in the California Constitution
FindLaw columnist and U.C. Hastings law professor Vikram Amar looks back on the California recall election. In particular, Amar focuses on a criticism that has been widely made about the recall: That it was illegitimate, for it was merely a "do-over" of 2002 election results that some voters were unwilling to accept. Amar argues that the best interpretation of the California Constitution's recall provision indicates it envisioned recalls not as "do overs" but as mechanisms to correct postelection problems.
Friday, Oct. 17, 2003
The Broader First Amendment Questions Raised by Proposition 54,
the So-Called "Racial Privacy Initiative"
FindLaw columnist and U.C. Hastings law professor Vikram David Amar, and FindLaw guest columnist and U.C. Davis law professor Alan Brownstein, discuss a number of broad, difficult free speech questions raised by Proposition 54, the "Racial Privacy Initiative." The Proposition, if enacted into law, would prohibit the California state government from collecting racial data. It will be on the California recall ballot that voters will soon confront.
Friday, Oct. 03, 2003
The Ruling Postponing the California Recall Election:
Why It Is Questionable, and Why It Was Not Compelled by Bush v. Gore
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the recent, controversial federal appellate opinion postponing the date of the California gubernatorial recall election so that punchcard voting machines can be replaced, where they are currently being used, with more modern voting technology. Amar discusses why he believes the opinion -- though related to Bush v. Gore -- was not compelled by that precedent. He also raises serious questions about the opinion's decision to opt for the remedy of such a long postponment of the election.
Friday, Sep. 19, 2003
California's "Racial Privacy Initiative"
Will It Be Struck Down On the Ground That It Violates Academic Freedom Protected By The First Amendment?
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the constitutional aspects of California's Proposition 54 -- which would prohibit the California state government from collecting racial data. Amar considers whether the law is likely to be struck down on the ground that it violates academic freedom by altering the research agendas of public university professors. Examining relevant precedent, he concludes that because it is public, not private, universities that are involved, the question is a close one.
Friday, Sep. 05, 2003
A Mixed Verdict on the California Supreme Court's Decision:
Part Three of a Series on the Recall
FindLaw columnist and U.C. Hastings law professor Vikram David Amar, and FindLaw guest columnist and U.C. Davis law professor Alan Brownstein, critique the recent opinion of the California Supreme Court rejecting a large set of challenges to the recall process. Amar and Brownstein take issue with the court's decision to discuss the merits of only two of the six substantive issues raised; its decision not to discuss its own jurisdiction; and its failure to offer a sufficient analysis of the issues it did confront.
Friday, Aug. 22, 2003
Governor Davis's Claim to Run as His Own Successor Is Meritless, But the Fear of a "Fringe" Winner Is Serious:
How the Risk Can Be Eliminated in the Future
FindLaw columnist and U.C. Hastings law professor Vikram Amar continues his series on legal issues surrounding the controversial California recall process. In this column, Amar argues that Governor Gray Davis's claim that he should be able to be listed on the very ballot that will select his replacement -- so he can, in effect, replace himself -- is legally wrong. But Amar concedes that Davis has a point about the undemocratic nature of the recall process, and offers a possible remedy for the risk that the recall will result in a win by a "fringe" candidate.
Friday, Aug. 08, 2003
An Important Part of the California Recall Process Is Unconstitutional, According to U.S. Supreme Court Precedent
FindLaw columnist and U.C. Hastings law professor Vikram Amar, and FindLaw guest columnist and U.C. Davis law professor Alan Brownstein, discuss the important constitutional issues that have arisen in the controversy over the California recall process. Amar and Brownstein contend that one constitutional argument that has been made is probably in error, but that another is correct, and may well require invalidation of part of the recall scheme.
Friday, Jul. 25, 2003
The 2002-03 Supreme Court Term in Review:
Landmark Cases Stress the Theme Of Equality
FindLaw columnist and U.C. Hastings law professor Vikram Amar looks back on the past Supreme Court term with an eye towards which decisions were -- and were not -- truly significant and/or surprising, and why. Amar covers the six cases that got the most play in the media; the four that he argues were lost opportunities for the Court; the three that made a splash, but won't have longstanding import; and the two that attracted comparatively little media attention, but will matter greatly to practicing lawyers.
Friday, Jul. 11, 2003
Can the Senate Bind Itself So that Only a Supermajority Can Change Its Rules?
A Key Issue in the Controversial Filibuster Debate
In Part Two of a two-part series, FindLaw columnist and U.C. Hastings law professor Vikram Amar raises an intriguing and complex issue relevant to the current, controversial filibuster debate. The issue is this: The Senate's rule-change rule prevents Republicans from changing the Senate filibuster rule. But is the rule-change rule itself unconstitutional?
Friday, Jun. 27, 2003
With a Potential Supreme Court Nomination At Stake, Questions of The Filibuster's Constitutionality Linger
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the question of whether the filibuster is constitutional. The issue is becoming more and more pressing, for it seems Senate Republicans may seek an anti-filibuster change to Senate rules in order to aid the President in getting approval for his federal judicial nominees, including a possible near-future Supreme Court nominee.
Friday, Jun. 13, 2003
The Missing Piece in the 2002-03 Supreme Court Term:
The Forgotten Fourth Amendment, and Why It Will Matter Greatly in the War on Terror
FindLaw columnist and U.C. Hastings law professor Vikram Amar adds an interesting twist to end-of-Term Supreme Court commentary, by noting what kinds of cases the Court declined to decide. Amar focuses on the dearth of Fourth Amendment "search and seizure" cases, and explains why the Court's omission to make important pronouncements in this area is all the more significant in light of the many searches and seizures the war on terror has required.
Friday, May. 30, 2003
How A Recent Decision of the U.S. Court of Appeals for the Ninth Circuit Regarding Child Pornography Extends the Supreme Court's Federalism Cases
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a fascinating recent appeals court case that tests the reach of the Supreme Court's recent precedents regarding the limits of Congress's power to regulate under the Constitution's Commerce Clause. Amar explores the question of what counts as "commercial activity," and explains how the appeals court interpreted this requirement in a case involving an anti-child pornography law.
Friday, May. 16, 2003
The Importance of Looking to Government Motive and Purpose:
Why Intent Matters Both In the University of Michigan Affirmative Actions Cases, And Iraq War Arguments
FindLaw columnist and U.C. Hastings law professor Vikram Amar and Alan Brownstein discuss the thematic links between President Bush's decision to go to war with Iraq and the Supreme Court oral arguments in the University of Michigan cases.
Friday, May. 02, 2004
Will The Supreme Court Compound Its Ex Post Facto Error?
Part Two of a Two-Part Series on Unconstitutional Retroactive Criminal Legislation
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses the Supreme Court's troubled precedent regard the Ex Post Facto clauses -- the Constitution's prohibition on certain kinds of retroactive criminal legislation. Amar explains why a previous, 5-4 opinion that, he argues, was in error may lead the Court to compound its error in a pending case.
Friday, Apr. 18, 2003
A Pending Supreme Court Case Addresses Ex Post Facto Laws
In Part One of a two-part series on unconstitutional Ex Post Facto laws, FindLaw columnist and U.C. Hastings law professor Vikram Amar considers the issues raised by a Supreme Court case on which oral argument was recently held. The case asks the question whether it is constitutional for California to retroactively extend the statute of limitations with respect to certain cases of alleged child molestation.
Friday, Apr. 04, 2003
Can't Win for Losing -- the Bizarre World of the Eleventh Amendment, Governing Suits in Federal Court Against States
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses two pending Supreme Court cases that will test the bounds of the Constitution's Eleventh Amendment, which governs when states can be sued in federal court. Amar explains the past controversy over the Court's interpretation of the Amendment, and considers how these two new cases fit in.
Friday, Mar. 21, 2003
Is it Appropriate, Under the Constitution, For State and Local Governments to Weigh in on the War on Terror and a Possible War with Iraq?
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses whether, under the Constitution, it is permissible for state and local governments to pass resolutions condemning a unilateral war in Iraq. Los Angeles, San Francisco, Chicago, Detroit, Philadelphia, and close to 100 other cities and towns have voted in favor of such measures. But do they have a constitutional duty to leave foreign affairs to the federal government? Amar explains.
Friday, Mar. 07, 2003
A Crucial Contract Issue May Go All the Way to the Supreme Court:
Are Agreements to Arbitrate Enforceable, Or Do Parties Still Retain the Right to Sue?
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses a contract issue of nationwide importance: Can employees be required by their employer to sign an agreement that they will arbitrate, not litigate, any future employment discrimination claims? Amar explains how this issue has played out in the U.S. Court of Appeals for the Ninth Circuit, and why the Supreme Court may choose to take the case.
Friday, Feb. 21, 2003
The Bush Administration and the Supreme Court's Michigan Affirmative Action Cases:
Narrow Tailoring and Alternative Methods of Ensuring Diversity
FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses one of the major arguments presented in the federal government's "friend of the court" brief in the University of Michigan affirmative action cases. The government claims percentage plans, under which students with a certain GPA are guaranteed admission, are a constitutional way to ensure racial diversity, and that affirmative action is not. Amar discusses the problems with the SG's argument.
Friday, Feb. 07, 2003
THE BUSH ADMINISTRATION'S POSITION IN THE MICHIGAN AFFIRMATIVE ACTION CASES:
DO MICHIGAN'S POLICIES SATISFY BAKKE'S STANDARD?
In Part One of a two-part series on the positions the Solicitor General has taken in the consolidated University of Michigan affirmative action cases currently before the Supreme Court, FindLaw columnist and U.C. Hastings law professor Vikram Amar discusses one of the SG's leading arguments. The argument is that Michigan's affirmative action system is a quota system masquerading as a plus system.
Friday, Jan. 24, 2003
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