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The Modern Law Library

Yale Law’s Owen Fiss talks about threats to democracy and ‘Why We Vote’

By Lee Rawles

January 31, 2024, 8:47 am CST

After 50 years as a professor at Yale Law School, Owen Fiss says his students are still idealistic and passionate about the rights won in the Civil Rights Act of 1964 and Voting Rights Act of 1965.

As a young lawyer in the late 1960s, Fiss worked with the Department of Justice to implement those laws. A classroom discussion in spring 2020 prompted him to draw upon his legal expertise and decades of experience to produce Why We Vote, his new book.

In this episode of The Modern Law Library podcast, Fiss speaks with the ABA Journal’s Lee Rawles about the paradox of the court system—the least democratic branch of government—having the responsibility of safeguarding the right to vote.

He looks back on his work with the DOJ in southern states and his time as a clerk for then-U.S. Supreme Court Justice Thurgood Marshall (then on the 2nd U.S. Circuit Court of Appeals in New York) and then-Justice William J. Brennan Jr.

Rawles and Fiss also discuss recent threats to the electoral system and the right to vote, including the insurrection at the U.S. Capitol on Jan. 6, 2021. Fiss shares his thoughts about Section 3 of the 14th Amendment and whether former President Donald Trump should be removed from the ballot on that basis.

While every book that he writes is for his students, Fiss says, he hopes Why We Vote can impress upon a broader audience the privilege and duty of voting and participating in a democracy.

In This Podcast:

Owen Fiss

Owen Fiss is a Sterling professor emeritus of law and professorial lecturer in law at Yale University. He was educated at Dartmouth College, Oxford University and Harvard University. He clerked for then-U.S. Supreme Court Justice Thurgood Marshall (when Marshall was a judge on the 2nd U.S. Circuit Court of Appeals in New York) and later for then-Justice William J. Brennan Jr. Fiss also worked in the Civil Rights Division at the Department of Justice from 1966 to 1968. Before coming to Yale, Fiss taught at the University of Chicago. Fiss is the author of many articles and books, including The Civil Rights Injunction, Troubled Beginnings of the Modern State, The Structure of Procedure (with Robert Cover), and Liberalism Divided: Freedom of Speech and the Many Uses of State Power. His most recent book is Why We Vote.