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 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

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Wednesday, Feb. 16, 2005

Can States Constitutionally Regulate Video Games, As California Is Considering Doing?
The First Amendment Framework That Would Probably Apply
FindLaw columnist and U.C. Hastings law professor Vikram Amar, and FindLaw guest columnist 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

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

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

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

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