Noah Feldman

An article by Noah Feldman: The news that Elizabeth Holmes’s lawyers plan to present an insanity defense in her federal trial for criminal fraud is frankly astonishing. Maybe the evidence against her is so strong that her lawyers are desperate. Or maybe they are hoping to follow a strategy of making the jury feel sympathy for her, giving them an excuse to acquit. But the reality is that it is extremely difficult for a defendant to prove insanity in federal court. The criteria are extremely difficult to satisfy. A tougher test was adopted after outrage about the successful insanity defense of John Hinckley, the man who shot President Ronald Reagan. The statute says that a defendant can be found not guilty by showing that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” This is an affirmative defense, which means that the defendant has to prove it to the jury by clear and convincing evidence. The federal version of the insanity defense is sometimes called a “cognitive” test. That means it asks about the defendant’s mental state. And it bifurcates mental state into two parts: whether the defendant knew what she was doing, and whether she knew it was wrong. The first question allows an acquittal for a defendant who literally did not know what she was doing when she committed the crime. For example, a defendant who fired a gun while believing she was actually waving hello would count as being unable to appreciate the “nature and quality” of her act. She could be acquitted under the federal definition. I can think of no conceivable way this part of the defense could apply to Holmes. She was running a company and making public statements about her product, and certainly knew that those were the activities in which she was engaged.

An article by Noah Feldman: You’d think it would be easy to determine whether Kyle Rittenhouse can successfully plead self-defense after killing two people and injuring a third during protests in Kenosha, Wisconsin. Turns out that it’s actually pretty complex. Here’s why: When gun rights get involved, the law tends to depart radically from common sense. The legal framework on its own is relatively straightforward. In Wisconsin, as in many other states, you can use deadly force in self-defense if you reasonably believe it’s necessary to prevent imminent death or great bodily harm to yourself or others. You can’t avail yourself of the self-defense argument if you’ve provoked other people into attacking you. Some states have a rule that says before you use lethal force in your own defense, you have a “duty to retreat” — in other words, you have to try to run away before killing your assailant. Wisconsin does not impose this duty. The jury is, however, allowed to consider whether it was possible for you to run away as part of its determination of whether you acted reasonably. The trouble begins when you start applying the legal rules to someone in Rittenhouse’s situation, namely, someone who has carried an AR-15-style weapon to what is intended to be a peaceful protest. In a commonsense universe, this act itself would appear to be a provocation. Yet under Wisconsin law, adults are entitled to carry around their licensed firearms in public places. An open-carry law means that prosecutors would have a tough time convincing a jury that simply carrying an assault rifle counts as a provocation. True, Rittenhouse was only 17, and the law bars minors from gun possession. But there is no reliable way that bystanders could have known that Rittenhouse was underage just by looking at him.

An article by Noah Feldman: The news that Justice Department lawyers are taking over the defense of Donald Trump against a lawsuit by E. Jean Carroll, who says Trump raped her in the 1980s, is even worse than it sounds. On the face of it, it’s outrageous that government lawyers should expend taxpayer dollars to defend Trump against charges that he defamed Carroll by saying he had never met her and that she is a liar. But underneath, in the legal nitty-gritty, the harm is greater still. The Justice Department isn’t just defending Trump. It’s poised to argue that Carroll’s suit should be treated under a federal law that protects government employees from being personally sued for acts taken within the scope of their official duties. This is a gross misconstruction of federal law. Trump’s denial that he ever met Carroll had literally nothing to do with his job as president. If a court were to find otherwise, it would effectively insulate presidents from a range of private lawsuits, undercutting the Supreme Court precedent that says the president may be sued civilly because he isn’t above the law. To understand why what’s going on here is so bad, you have to start with Carroll’s lawsuit. It doesn’t seek damages arising from the rape that she alleges, which she says happened long before Trump was president. There would be no conceivable way for the government to allege that Trump was acting in an official capacity then. Rather, Carroll’s core claim is that Trump falsely and maliciously smeared her when, on several occasions, he denied knowing her and said she was lying for personal gain, “to get publicity … or sell a book.” Carroll is represented by a brilliant and effective cause lawyer, Roberta Kaplan, who gained national attention for representing Edith Windsor in her successful challenge to the Defense of Marriage Act. Kaplan’s legal briefs in Carroll’s case made sure to specify that Trump was being sued only in his personal capacity, not for any conduct he might have committed as president.

A podcast by Noah Feldman: Adrian Hon, the CEO of the gaming company Six to Start, says the conspiracy theory QAnon is compelling to believers because it operates a bit like a virtual quest.

An article by Noah Feldman: With each passing day, there is more reason to think that President Donald Trump’s Food and Drug Administration may issue an emergency use authorization for two or more Covid-19 vaccines in late October. In an ideal world, this would be terrific news. We are, after all, in the grip of a major global emergency. Roughly 1,000 Americans die from the virus every day, or roughly one every 80 seconds. A vaccine would save lives. Yet an emergency use authorization, or EUA, is likely to be met with pervasive skepticism by many Americans, and not only Democrats. The reason isn’t hard to see. Trump has tried over the last four years to politicize nearly every aspect of independent judgment by government officials. He has delegitimized agencies like the Department of Justice and the FBI, which he sees as threats, and attacked institutions from the judiciary to the post office when it has suited his political purposes. Now, Trump (and the rest of us) are about to inherit the whirlwind. At precisely the moment when we could benefit massively from public trust in independent agency judgment, our trust is shot. Trump critics have become accustomed to distrusting Trump’s agencies, much as Trump himself has somewhat successfully convinced his own supporters that there is no such thing as governmental objectivity or independence, but only politics all the way down. Even if there is good reason for the EUA to be issued and for people who have the opportunity to receive the vaccines to do so, some — perhaps many — rational people aren’t going to trust the FDA enough to make that choice.

An article by Noah Feldman: Lawyers for Kyle Rittenhouse, the seventeen-year old charged with murdering two peaceful protesters in Kenosha, Wisconsin, say they are going to raise a Second Amendment defense to one of the six criminal charges he faces — that of unlawful possession of a firearm by a person under the age of 18. As reported in some outlets, the defense would claim that the law doesn’t apply to Rittenhouse because he was a member of a “well regulated militia” under the Second Amendment. Framed that way, the defense is genuinely wacko. The militias contemplated by the Second Amendment were state-controlled units, not armed vigilantes. Ever so slightly more plausible, however, is the related argument that the right to bear arms should treat 17-year olds the same as 18-year olds. Although this argument won’t win in court, it does raise the issue of which constitutional rights should belong to underage teenagers and which kick in at the age of majority. To dispense with the truly crazy part first, rest assured that no court has ever found or will ever find that self-organized vigilante militias are specifically protected by the second amendment. The amendment reads: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” What the framers had in mind was their deep, small-r republican distrust of standing armies. Drawing on the example of ancient Rome, the framers feared that the generals at the head of standing armies would use their troops’ loyalty as a tool to subvert elected leaders and become dictators. Instead of a standing army, they preferred citizen-militias: official, state-organized and controlled military units made up of ordinary people who held day jobs, ideally as hearty yeoman farmers. The right to “keep and bear arms” in the Second Amendment was, in the original understanding, a collective right of the “people” to belong to these state-run units.

An article by Noah Feldman: It’s big news that an El Al flight carrying Israeli officials, Jared Kushner, and his negotiating team flew from Tel Aviv to Abu Dhabi in three hours and forty minutes. The reason it didn’t take seven hours is that Saudi Arabia allowed the Israeli flight to go through its airspace- the first time that has ever happened. On its own, the overflight is a signal that the Saudi kingdom is prepared to give some more-than-passive validation to the Israel-united Arab Emirates peace deal that is close to being inked. On a deeper level, the subtle Saudi signal raises two all-important questions about the peace deal: Will other Arab states sign on? And will the Gulf states’ willingness to consider peace with Israel without movement toward an Israel-Palestine peace agreement lead to changes in the Palestinian strategy for trying to get a functioning state? To be clear, the Israel-UAE deal is a meaningful foreign policy achievement even if no other Arab state follows the lead of the Gulf confederation. This is the first peace deal between Israel and any Arab state in a diplomatic generation. Achieving it took skill and persistence, especially against the backdrop of the constant drumbeat of criticism that Kushner’s initiative in the region would never bear fruit. Yet it is also true that the UAE is uniquely positioned to make a deal with Israel. Roughly 10 million people live spread out across the seven members of the confederated monarchy, and of these perhaps as few 1.4 million are citizens. That means that Emirati citizens aren’t a cohesive popular force capable of exerting significant influence on the rulership. Put more simply, the rulers can do pretty much what they want regarding Israel without worrying about it making them too unpopular. The conditions in other Arab states, even Saudi Arabia, require rulers to be more attuned to public opinion, which tends to favor the Palestinian cause.

A podcast by Noah Feldman: Dr. Walid Gellad, the Director of the Center for Pharmaceutical Policy and Prescribing at the University of Pittsburgh, discusses a misleading statement from the FDA about convalescent plasma as a treatment for COVID-19. Plus, he lays out a worrisome vaccine announcement scenario.

An article by Noah Feldman: It’s too soon to say with any confidence that Joe Biden will be the next president of United States. But it’s not too soon to start determining what he needs to do on day one if he is elected. Once you get beyond addressing the coronavirus pandemic, it’s pretty clear that the highest priority Biden should have is reversing the disastrous direction that the Department of Justice has taken under President Donald Trump. To regain its credibility, the department needs leaders who will publicly and systematically demonstrate that they are committed to restoring the values, norms and practices established in the nearly half-century since Watergate. The near-total failure of the Justice Department to engage the pressing concerns raised by the Black Lives Matter protesters is only the most recent and dramatic manifestation of how rudderless the once-great department has become. Looking at the violent clashes between federal agents and protesters this summer, you would hardly know that the Department of Justice once worked to desegregate schools and prosecute civil rights violations in the South. Trump’s Department of Justice has taken its cues from a president who ran for office by directing the “lock her up” chant at his opponent. It has increasingly undermined the all-important principle that enforcement, investigation and prosecution should be removed from partisan politics. Trump’s project of delegitimizing the department through politicking goes back to his extended efforts to paint the Russia investigation as politically motivated. His goal was to convince ordinary people that the FBI and DoJ were already completely partisan, in order to undercut any evidence implicating him or his campaign. Hence Trump’s pressure on Attorney General Bill Barr to break Department of Justice norms and reveal the progress of his investigation of the Russia investigation. The very existence of this investigation is a terrible sign of how Trump has successfully turned the initial investigation of Russian interference in the 2016 election into a political football.

Today, Kate Klonick is back as the guest host. She is an assistant professor at St. John’s Law School, a fellow at the Information Society Project at Yale Law School, and researcher of the intersection between law and tech. She’s also co-host of a daily YouTube series called In Lieu of Fun. On the Gist, in 2020, every online company has a community of standards and manually reviews user content. In the interview, Kate talks to Harvard law professor Noah Feldman about his idea for Facebook to create a Supreme Court to adjudicate disputes over speech. They discuss how he came up with the idea and pitched it to Sheryl Sandberg and Mark Zuckerberg, the influences it draws from political systems, and the size of the case it should choose as its first. Feldman hosts the podcast Deep Background. In the spiel, Facebook’s oversight board could be the start of something revolutionary within big tech.

A podcast by Noah Feldman: Elaine Kamarck, a senior fellow at the Brookings Institution who studies the post office and electoral politics, discusses whether the agency can handle a pandemic election.

An article by Noah Feldman: The lawsuit filed by Bytedance, the parent company of TikTok, is a bit of a long shot. Faced with President Donald Trump’s executive order effectively making it impossible for TikTok to do business in the U.S., the platform has few options. Yet, even a long-shot lawsuit may have some strategic value as the parent company tries to figure out whether it will have to sell TikTok to keep the lucrative business alive. The arguments in the lawsuit are not without legal logic. They might conceivably convince a lower court that is unsympathetic to Trump to decide that the executive order should be put on hold until the court can investigate the claims more closely. And even if that legal ploy doesn’t work, the lawsuit at least gives the company the opportunity to identify Trump’s order for what it is: a politicized, election-year effort to play up anti-China sentiment. TikTok’s legal claims can be divided into three groups. The first is the argument that Trump violated due process of law by effectively taking away TikTok’s property right to do business without giving TikTok fair notice and the opportunity to have its arguments heard. This due process claim sounds pretty logical — if you’re not a lawyer. It’s certainly true that the executive order effectively blocks TikTok from doing business. The trouble is, the provision of law on which the executive order relied, known as the IAEE, allows the president to take steps to block foreign businesses that he deems to be national security threats from operating in the U.S. Because Bytedance, the parent company of TikTok, is a Chinese company, it almost certainly does not enjoy a due process right to be heard in court before the IAEE provision is activated against it. This is why the executive order took the form of a prohibition on commercial transactions involving Bytedance.

An article by Noah Feldman: A new narrative is gradually emerging around the balance of power on the Supreme Court. Chief Justice John Roberts may be the nominal boss and the swing vote; Justice Ruth Bader Ginsburg may be the unlikely octogenarian pop icon; and Justice Neil Gorsuch the newest conservative maverick. But according to this story, the real power on the court isn’t any of these headline-grabbing justices. It’s Justice Elena Kagan, the moderate former law school dean and solicitor general. To conservatives, who are the ones pushing the narrative right now, Kagan is a silent strategic genius, tempting and manipulating pliant conservatives like Roberts and now Gorsuch to betray their Federalist Society origins. After Gorsuch and Roberts voted in June to extend antidiscrimination protections to LGBTQ people, the Wall Street Journal editorialized, “Congratulations to Chief Justice Elena Kagan on her big win Monday at the Supreme Court on gay and transgender rights.” The Journal’s editorial board said that Kagan “might as well be” the chief justice and that her ideas were “all over” Gorsuch’s opinion. Writing about a religious liberty opinion that Kagan joined in July, a conservative commentator wrote that she was “a master tactician.” Offering his “rueful praise,” he bluntly stated, “I wish she were on my side.” A right-wing think tank also condemned “the Kagan court” after the court’s refusal to overturn precedent in 2020’s big abortion case. On the surface, this analysis of Kagan’s rule not only sounds insulting to Roberts and Gorsuch, who doubtless believe that they formed their views entirely on their own. It also sounds paranoid: How could carefully vetted conservatives be deviating from conservative orthodoxy if not for the secret influence of a liberal? It’s also possible to hear some hint of sexism in the suggestion that Kagan has tempted the conservative men of the court to tread the unholy path of centrism.

An article by Noah Feldman: President Donald Trump is pressuring Attorney General William Barr to announce the results of the ongoing Russia probe, which would violate Department of Justice guidelines designed to prevent the department from influencing elections. Of course, influencing the election is exactly what Trump wants Barr to do. Trump is once again using the unique power of the presidency to gain an unfair advantage in the 2020 election. The pattern is by now eerily familiar. It’s the same impulse manifest in Trump’s undermining of the U.S. Postal Service at just the moment it faces the responsibility of handling a surge of mail-in ballots. And it’s identical to the conduct for which Trump was impeached by the House of Representatives. Although it may seem like eons ago, it was only last December that Trump was impeached for abusing the power of the presidency to distort the 2020 election by harming the candidacy of Joe Biden. That was, the House determined, the purpose of Trump’s call to Ukrainian president Volodymyr Zelenskiy. And in Trump’s Senate trial, which ended with Republicans declining to remove him from office, the president’s supporters all but admitted to the pattern. As you’ll remember, their main defense was not that the president hadn’t used his office to try to gain an advantage, but that even if he had, the abuse of power didn’t count as an impeachable offense. The latest Barr affair is about as explicit an abuse of presidential power as you can imagine. Long-standing Department of Justice guidelines issued under the authority of the attorney general say explicitly that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” The guidelines are implemented via a norm that the department should not make disclosures about politically sensitive investigations in the 60 days before an election.

A podcast by Noah Feldman: Dr. Sean O'Leary, a professor of pediatric infectious diseases at the University of Colorado and the vice chair of the American Academy of Pediatrics’ Committee on Infectious Diseases, discusses what factors school officials should consider when deciding whether or not to reopen schools for in-person learning.

The opening words of Noah Feldman’s latest book, The Arab Winter, are in Arabic: Al-sha‘b Yurid Isqat al-nizam! The people Want The overthrow of the regime! As he explains in his first sentence, “These words, chanted rhythmically all over the Arab-speaking world beginning in January 2011, promised a transformation in the history of the Middle East.” In English, “the people” are plural and take plural verbs: “We the People of the United States,” begins the preamble to America’s fundamental law, “do ordain and establish this Constitution for the United States of America.” In modern Arabic, Feldman goes on, “the people”—sha‘b—is singular and “the collective noun takes the singular verb.” “If it did not sound awkward in English,” he writes, “I would translate it as ‘the people wants.’” From a verse of the Qur’an in which “peoples”—shu‘ub—is plural, the noun morphed to the singular as a result of the movement for Arab nationalism of the late-nineteenth and early-twentieth centuries. The movement, social as well as intellectual, envisioned a single nation of all speakers of Arabic spanning the Mediterranean Sea—3,000 miles “from Morocco in the west to Iraq in the east.” The Arab Winter is about the consequences of the Arab Spring. The series of populist surges between the Decembers of 2010 and 2012, in 10 to 20 countries (depending on how you count), promised to end dictatorship and bring self-government to countries in Northern Africa and the Middle East. But other than in Tunisia, which toppled its repressive dictator and embraced constitutional democracy, the uprising led to civil war, rampant terrorism, or redoubled dictatorship—or to all of them combined. Despite the collapse of the movement, Feldman argues that it should not be judged a failure.

An article by Noah Feldman: The theory that Kamala Harris is ineligible to be vice president because her parents were not U.S. citizens is xenophobic and false. But it's not exactly the same as the birther conspiracy theory that said President Barack Obama wasn't born in the United States at all. Birtherism was a conspiracy theory based on a factual lie. Even debunking that kind of theory can be a bad idea because it tends to help the falsehood reach more people — some of whom then believe the lie. The anti-Harris theory, in contrast, is based on a fringe constitutional claim about the meaning of the words of the 14th Amendment. When it comes to constitutional claims, even extreme ones, it's important to explain why they are wrong in order to refute them. It’s therefore both valuable and necessary to explain carefully why this theory is incorrect as a matter of constitutional law. To do that, you need to start with the theory itself. It starts with the constitutional provision of Article II that says, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” (To be vice president, you have to meet the eligibility requirements to be president.) According to the attack theory, the meaning of “natural born” should be derived from the 14th amendment, which says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The attack on Harris’s eligibility focuses on the words “subject to the jurisdiction thereof.” The basic idea is supposed to be that those words modify the words “born in … the United States.” The theory asserts that children of non-citizens aren't subject to the jurisdiction of the U.S. If that is so, runs the argument, they aren't citizens.

An article by Noah Feldman: Joe Biden has fulfilled his promise to choose a woman as his running mate. Let’s turn our attention to another promise he made: to name a Black woman to the Supreme Court. A number of women with different kinds of legal experience have been suggested by NGOs and journalists. But to legal insiders, Biden’s options narrow down very quickly to two names: Justice Leondra Kruger of the California Supreme Court, and Judge Ketanji Brown Jackson of the federal district court in Washington, D.C. Both are extremely accomplished, with gold-plated resumes that are reminiscent of the justices picked by President Barack Obama, and for that matter by President Donald Trump. Both are also super-smart and well-liked. And realistically, they are the only two Black women who are young enough to serve for the long haul and have the relevant judicial experience to make their confirmation straightforward, even boring — which is just what a nominating president wants. To be clear, there are many more than two Black women qualified to sit on the court. They include legal activists, law professors, judges and government officials with experience at all levels. And in prior decades, it wasn’t unheard of for justices to come from the Senate, the cabinet, or even private corporate law firms. They didn’t all have fancy educational backgrounds, either. But that’s changed in recent years, partly as a product of bruising confirmation battles and partly as an effect of elite consensus on what a nominee’s record should look like. Today’s nominees tend to have attended an Ivy League law school; clerked for a Supreme Court justice themselves; and served as a high-level judge by a relatively young age. That’s one reason the possible Biden nominees are, in reality, so few. There are just not that many Black women who both fit that incredibly narrow mold. With a Democratic Senate — likely the only way Biden could get any nominee confirmed — Biden could try to change the norms and push through someone with a different resume. Yet that sort of risk-taking seems unlikely from Biden, who has just made his VP pick according to the most conventional of conventional wisdom.

A podcast by Noah Feldman: Nadine Strossen, a former president of the ACLU and author of the book HATE: Why We Should Resist it With Free Speech, Not Censorship, explains what the left needs to know about free speech.

A podcast by Noah Feldman: Eugene Volokh, a professor of law at the University of California, Los Angeles, discusses workplace harassment, racial discrimination, and the First Amendment.

An article by Noah Feldman: In June, you’ll recall, the U.S. Supreme Court held that the Title VII prohibition on workplace discrimination “because of sex” covers transgender people. You might think that, as a result, this form of discrimination would now be more broadly illegal for the government or for people in many scenarios outside the office. It turns out things aren’t that simple. Since the landmark ruling in Bostock v. Clayton County, President Donald Trump’s administration has enacted rules that allow discrimination against transgender people by hospitals and homeless shelters. And its ban on trans troops remains in place. All this is possible because the Supreme Court’s opinion interpreted just one particular statute regarding the workplace. It wasn’t based on the U.S. Constitution. So there isn’t yet a recognized constitutional ban on government discrimination against transgender people. Statutes that are similar or identical to Title VII ought to be interpreted to prohibit transgender discrimination. But that leaves room to debate what happens if a statute is different or where no statute applies. In other words, we’re in one of those weird periods of time where some discrimination against a particular group has been rendered unlawful, while other forms of discrimination are in a confusing twilight zone. There was a similar situation between June 2013, when the Supreme Court struck down the federal Defense of Marriage Act in U.S. v. Windsor, and June 2015, when the court established a constitutional right to gay marriage in Obergefell v. Hodges. In the interim, it was hard for gay couples to know their legal status when they were married in some states but arguably not married in others. The Department of Health and Human Services rule stripping Obama-era protections for transgender hospital patients, which became final in June and was written before the Bostock ruling, is the most legally vulnerable of the Trump administration efforts.