Noah Feldman

A podcast by Noah Feldman: During the pandemic, we’ve been looking at our screens more than ever before. As the country starts reopening, what do we do about our kids’ extreme attachment to their devices? How should we think about it and do we need to do anything about it? Parenting expert Dr. Wendy Mogel joins us to discuss these deep questions about pandemic parenting. Dr. Mogel is the author of “The Blessing of a Skinned Knee” and host of the podcast Nurture vs. Nurture.

Facebook’s Oversight Board, otherwise known as Facebook’s supreme court, could soon come back with a decision on whether or not to reverse Trump’s ban from the platform. The Oversight Board was created in 2019 to review appeals around free speech. Plus, the Fortnite fight with Apple. And, the push to remember the Tulsa Race Massacre 100 years later. Guests: Harvard University constitutional law professor Noah Feldman and Axios' Ina Fried and Russell Contreras.

An op-ed by Noah Feldman: Democrats in Congress are using the Congressional Review Act to reverse a Trump-era regulation on methane leaks at the Environmental Protection Agency. Republicans previously used the unusual law to revise an Obama-era EPA regulation on methane, as well as other federal agency rules — in fact, the GOP used the law 14 times at the beginning of Trump’s term in office. This marks the first time Democrats have followed suit. Tighter methane rules are sensible. But the CRA is a terrible law. Typically, legal requirements make it hard to reverse agency regulations without a clear analysis and explanation because it’s understood that the rules are based on expertise and detailed cost-benefit analyses. The CRA invites politicians to sideline agencies’ research and reasons and make snap political decisions by a bare majority in Congress. It encourages a seesawing of regulatory policy — which is not a helpful to anyone. The Republican use of the CRA in Trump’s presidency was an outrage. Democrats should not get into the same habit.

An op-ed by Noah Feldman: “Cheerleader” and “Supreme Court” are not concepts you often see juxtaposed. But they are now, as Supreme Court considers the case of Brandi Levy, who was punished by her school for a profane Snapchat post. The facts of Levy’s case, Mahanoy School District v. B.L., are simple. In the spring of 2017, Levy, then 14, tried out for the varsity cheer squad at Mahanoy Area High School, but only managed to make the JV team. She expressed her reaction on Snapchat in a post that read “F--- school f--- softball f--- cheer f--- everything.” (Our version is expurgated; hers was not.) The post went up on a Saturday, reached some 250 of her friends and, like all other posts to the social media platform, disappeared after 24 hours. Nevertheless, a classmate showed a screenshot to her mother, who happened to be one of the cheer coaches. The coaches disciplined Levy by suspending her from the team for a year. She had broken two team rules, they said. One prohibited “foul language” — although only at “games, fundraisers, and other events.” The other said that “there will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.” For good measure, the school district said she’d also violated school rules stating that members of teams must “conduct themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.”

An op-ed by Noah Feldman: On Monday, the Supreme Court grappled with a genuinely tough First Amendment issue: Should California be able to make charities that speak on matters of public concern disclose to the state the names of their big donors? The issue reveals something about the way that conservatives and liberals currently differ on free speech issues. On the one hand, states might need the information to combat fraud. Moreover, California says that it will keep the information confidential. The IRS already gets this information from tax-exempt charities, and has so far done a good job of protecting it. On the other hand, the Supreme Court has long held that the names of members of civic organizations like the NAACP are confidential, protected by the freedom of association. It isn’t implausible to think that if the justices uphold the California law, other states might pass laws requiring that donors be made fully public. When the justices were deciding whether to hear the case, Trump’s Department of Justice filed a friend of the court brief saying it thought the law was unconstitutional. This matched the instinct of most legal conservatives, who today tend to support a First Amendment that is highly protective of absolute free speech, including protection of anonymity.

An op-ed by Noah Feldman: Manhattan District Attorney Cyrus Vance’s decision to stop prosecuting people for taking money in exchange for sex marks a turning point in the long and fascinating history of sex work in New York City. The city once considered “the prostitution capitol of the United States” and “the Gomorrah of the New World” has now followed the lead of a few other major American cities in adopting what’s sometimes called the “Nordic model” — continuing to outlaw paying for sex but not punishing the sex workers themselves. This change largely stems from two factors: changing moral beliefs about who the victims of sex work are, and the new realities of Manhattan real estate. Start with morality. Without a transformation in public perceptions of what is wrong with sex work and who is to blame for its social costs, it would have been impossible for an elected official like a district attorney to announce a policy of no longer enforcing anti-prostitution laws that have, in some cases, been on the books for centuries. Sexual morality from the early modern period into recent decades tended to condemn the people — especially women — who accepted money in exchange for sexual services, depicting them as morally corrupt.

An op-ed by Noah Feldman: A group of House conservatives have been discussing an “America First Caucus” that would aim to protect and advance what they call “Anglo-Saxon political traditions.” On the surface, the words “Anglo-Saxon” seem like a euphemism for “White.” Read this way, the words aren’t a racist dog whistle that can be heard only by some. They’re just a plain old whistle, obviously racist to anyone who has ears. But as it turns out, the idea of specifically Saxon political traditions also has a deeper history. This one is connected to an enduring myth about the American constitutional tradition: that it ultimately traces its roots to an ancient Saxon — that is, German — tradition of hardy self-government by unruly tribes. In the 19th century, the idea of the Saxon constitution acquired a shameful association not only with so-called scientific racism but also with anti-Catholic and anti-immigrant xenophobia. It is true that English constitutional development after the Norman conquest of England in 1066 had some continuity with what came before. For centuries, scholars have debated how much of medieval constitutional thought survived the major political changes that accompanied Norman rule by French speakers.

A podcast by Noah Feldman: Noah Feldman has a lot of questions about cryptocurrency. Is it currency or is it an asset? How should governments regulate it? Is it sustainable? Crypto pioneer Bobby Lee, co-founder and former CEO of China’s first bitcoin exchange and current CEO of Ballet, a startup that helps people securely store their crypto assets, weights in on the most pressing questions about crypto.

An op-ed by Noah Feldman: The jury that convicted Derek Chauvin of murdering George Floyd got it right. In the wake of a verdict like this one, it is almost instinctual to suggest that the jury spoke on behalf of the American people, striking a blow for racial justice. But although jury verdicts are often infused with meaning, this kind of interpretation ought to be approached with caution. We won’t know whether this moment marks a turning point for many years to come. The temptation to treat a jury verdict in a big case as symbolic stems, I think, from our powerful human tendency to use individual stories as metaphors in order to make sense of the world around us. Faced with a nationally prominent incident like the murder of George Floyd, our inclination is to say that the jury’s decision is a leading indicator of where our nation is going. And it’s true that as an institution, a jury can be understood to express popular sentiment. Yet any specific jury isn’t a cross-section of the American public. It’s just 12 people, asked to render a verdict on the facts and law presented to them.

A podcast by Noah Feldman: Dr. Jeannine Bell, law professor at Indiana University who has studied hate crimes for more than 20 years, discusses the complex process of defining and charging someone with a hate crime. She also explains the larger significance of hate crime legislation and how police departments can expand prosecution of hate crimes.

An op-ed by Noah Feldman: The consensus among legal experts seems to be that states have the right to mandate vaccine passports. The main basis is a 1905 Supreme Court case, Jacobson v. Massachusetts, which held that the Constitution wasn’t violated when the city of Cambridge required all adults to get the smallpox vaccine. Following the same logic, courts have upheld state laws mandating vaccines for schoolchildren. But we should not assume that this deference to state power would continue under the current Supreme Court. For one thing, the constitutional tests for infringements on personal liberty have been refined in the last half century. For another, the current court is deeply sympathetic to religious exemptions. If large numbers of people decline vaccination on religious grounds, it would effectively undermine the power of any passport system. The Jacobson precedent is certainly well established. It was written by Justice John Marshall Harlan (the first of two justices of that name), who established his place in the court’s pantheon by dissenting in the shameful case of Plessy v. Ferguson, which upheld racial segregation.

An op-ed by Noah Feldman: Over a veto by the state’s Republican governor, Arkansas has passed a bill, known as the SAFE Act, prohibiting range of gender transition medical treatments for people under 18, with some minor exceptions. It covers hormone therapies known as puberty blockers that can prescribed to transgender children to inhibit the sex hormones that drive the onset of puberty. The law is morally repugnant, overriding the decisions of medical professionals, parents, and transgender teens and kids. Nevertheless, forthcoming legal challenges, which the ACLU has said it will bring, face an uphill battle. States ordinarily have the authority to prohibit medical treatments. There is a federal statute, Section 1557 of the Affordable Care Act, that prohibits sex-based discrimination in a healthcare program that gets federal funds. But that provision may not be enough to stop a state from outlawing treatments of which it disapproves — especially if those same treatments would not be prescribed for cisgender children. Thus, in a weird and counterintuitive twist, state law barring transgender girls from participating girls’ sports are likely to be struck down by the courts as unlawful; but laws prohibiting giving hormone therapy to transgender kids may be upheld.

An op-ed by Noah Feldman: The Supreme Court has ruled that Google did not violate Oracle’s copyright when it copied 11,500 lines of JAVA code for its Android operating system. The 6-2 decision followed a long-term trend by reversing a ruling by the U.S. Court of Appeals for the Federal Circuit, a specialized body that tends to protect intellectual property more aggressively than does the Supreme Court. Although written narrowly and aimed at the specific facts of the case, the Supreme Court opinion nonetheless sends a message that copyright law shouldn’t stand in the way of innovations that serve the needs of consumers. Justice Stephen Breyer, who wrote the court’s opinion, is the court’s oldest justice, but that doesn’t mean he’s the least comfortable talking about computer code. To the contrary, Breyer built his career in part on his ability to assimilate technical information and make it comprehensible to lawyers. The fact that the technocratic Breyer wrote the opinion — and was joined by the court’s liberals as well as conservative justices John Roberts, Neil Gorsuch and Brett Kavanaugh — suggests the decision doesn’t reflect ideology so much as pragmatism.

A podcast by Noah Feldman: A case currently before The Supreme Court presents the single largest legal battle the NCAA has ever faced. The case, which comes after years of player activism, argues that the current limits on athlete compensation constitute a violation of antitrust law. It’s a case that could challenge the entire college sports system. Dr. Eddie Comeaux, professor at UC Riverside who studies the student athlete experience discusses the history, current structure and power imbalances within the NCAA. Dr. Comeaux also offers radical re-imaginings for a more equitable, student-centered college athletics system.

An op-ed by Noah Feldman: Across the country, a series of laws are being proposed that would restrict transgender girls from participating in girls’ sports. The proposals are part of a concerted effort by a number of conservative organizations to turn transgender rights into a wedge political issue. The laws are cruel and alarming — and would almost certainly be found unconstitutional, even at a very conservative Supreme Court. That’s because less than a year ago, the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII anti-discrimination law protects transgender employees from workplace discrimination. Under the logic of that precedent, the proposed restrictions on girls’ sports may well violate an analogous federal law, Title IX, that prohibits discrimination on the basis of sex in schools. The Bostock decision, issued by the Supreme Court in June 2020, was authored by Justice Neil Gorsuch with the support of the court’s liberals and, crucially, Chief Justice John Roberts. Even now that Justice Ruth Bader Ginsburg has been replaced by Justice Amy Coney Barrett, Bostock won’t be overturned anytime soon.

An op-ed by Noah Feldman: The “For the People Act” currently being proposed by House Democrats would transform the way the U.S. runs federal elections. Known as H.R. 1, the bill would make it substantially easier to vote. It would also counteract restrictive legislation enacted by Republican state legislatures in recent years. One provision stands out from the rest: the one that would end state-level gerrymandering by requiring that all legislative districts be set by independent, nonpartisan commissions, rather than by the state legislatures. The good news is that this provision would do more to restore election fairness than all the rest of the act taken together. Its benefits would be worth the cost of breaking the filibuster. The bad news is that a conservative Supreme Court might hold that it is unconstitutional for Congress to prescribe a system for states to design districts. That would undercut the legislation and allow gerrymandering to continue. The framework for assessing what Congress can do about state electoral districting is Article I, section 4 of the Constitution, which says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

A podcast by Noah Feldman: Alec MacGillis, award-winning ProPublica journalist and author of the new book “Fulfilment: Winning and Losing in One Click America,” explains Amazon’s role in deepening America’s regional wealth disparities. He also discusses the recent efforts to unionize some Amazon fulfillment centers and the threat that unionization poses to the company.

An op-ed by Noah Feldman: House Democrats are poised to vote for Washington, D.C. statehood. As in the past, the proposal is being met with total Republican opposition. What’s different this time is that a growing number of Democrats aren’t ready to accept the Republican “no” as final. If Senate Democrats kill the filibuster, the party could admit D.C. as a state and thus seat two new, presumably Democratic senators. The filibuster lets Republicans block D.C. statehood even if, as Senator Joe Manchin has suggested, the rule is tweaked so that a senator actually has to keep talking — like Jimmy Stewart in “Mr. Smith Goes to Washington.” The prospect of D.C. statehood would certainly motivate Republicans to new levels of verbal stamina. That means that for D.C. to become a state, either Manchin would have to drop his opposition to eliminating the filibuster entirely, or Democrats would have to pick up more seats in 2022. Say one of those things happened, and D.C. became a state. What’s to stop Republicans from seeking to add Senate seats when they return to power — for example, by sub-dividing solidly red states? If it sounds crazy, it shouldn’t. The admission of new states has a turbulent history in the U.S.

An op-ed by Noah Feldman: Sidney Powell, one of Donald Trump’s former lawyers, is being sued by Dominion Voting Systems for defamation. Her lawyers have entered a truly astonishing defense: that her statements alleging the Democratic Party stole the election using the company’s vote counting software can’t be defamation because no reasonable person would have believed them. The defense is legally wrong. Her statements were clearly assertions of fact — and they were believed by many members of the public. Nevertheless, it is a fascinating argument — an acknowledgement that any claim associated with Trump could be considered mere bluster, even when framed in factual terms. In short, Powell’s defense is to throw Trump under the bus. The basic idea: He is such a known liar that any assertion made on his behalf in an election can’t be taken as remotely plausible. Under U.S. Supreme Court precedent, for statements to count as defamation, they must be susceptible of being proven true or false. Opinion statements are protected by the First Amendment from being made subject to libel law. Political opinion is especially protected.

A podcast by Noah Feldman: Britney Spears’ former lawyer Adam Streisand goes deep into the details of Britney’s conservatorship. He discusses his role in her case and his concerns about how her conservatorship. He also explains the potential conflicts inherent to the conservatorship system and ways it can be misused.

Jury selection is now proceeding for the upcoming trial of Derek Chauvin, the former Minneapolis police officer charged with killing George Floyd, in a horrific incident that touched off nationwide protests against racism and police brutality. Many aspects of the process seem calculated to exclude not only potential jurors who have strong feelings about the specific case (and thus might be biased), but also those who have any kind of relevant background knowledge about criminal justice, scientific evidence, chokeholds, and other matters. In recently published articles, both Harvard Law School Professor Noah Feldman and The Week columnist Bonnie Kristian argue that this situation highlights the need to change selection policies that have the effect of dumbing down juries by excluding those with the greatest potential knowledge and insight...Feldman explains how this tendency undermines a key function of jurors in the Anglo-American legal tradition, which was in part to bring to bear the collective knowledge and insight of the community: “The logic [of current practices] is understandable. We don't want jurors to have made up their minds before hearing the evidence presented at trial. But the result is all too often the selection of jurors who are nominally neutral because they have their heads in the sand. Choosing jurors with no meaningful knowledge of public affairs has consequences. Among other things, it entails selecting jurors who might not be able to draw upon the moral intuitions of the community that we want jurors to embody.”