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Noah Feldman

  • Illustration Lincoln in the center surrounded by symbols of government with the words of the U.S. constitution

    Preserve, Protect, and Defend

    February 8, 2022

    In his new book, Noah Feldman offers a fresh perspective on the decisions Abraham Lincoln made regarding the U.S. Constitution — many of which he describes as legally indefensible.

  • image of blind folded woman holding scales and sword

    Faith in the Law

    January 31, 2022

    Four distinct programs pursue research and address current topics linked to the intersection of religion and law

  • Conservative Justices Are Walking Into Their Own Trap

    January 31, 2022

    An op-ed by Noah Feldman: The conservative majority on the U.S. Supreme Court is ushering in a new era of judicial activism. But if it overturns the 1973 abortion-rights precedent Roe v. Wade, as it seems poised to do, the same majority is walking into a conceptual trap. The case against Roe rests on nearly 50 years of conservative argument that the landmark decision was the culmination of a liberal generational failure to exercise judicial restraint, of creating constitutional rights unsupported by constitutional principles. Hence the contradiction: Today’s conservative majority appears ready to issue an epoch-making decision endorsing restraint as it enters a period of aggressive activism.

  • Breyer’s Supreme Court Pragmatism Will Be Missed

    January 27, 2022

    An op-ed by Noah Feldman: The news on Wednesday of Justice Stephen Breyer’s retirement from the Supreme Court at the end of this blockbuster term marks an historical transition point. One of the great pragmatists in the court’s history, Breyer is the last of President Bill Clinton’s appointees to still be serving. Only Justice Clarence Thomas, appointed by President George H.W. Bush in 1991, now remains from the centrist court that sat together for longer than any other configuration of justices in history.

  • This Supreme Court Won’t Uphold College Affirmative Action

    January 25, 2022

    An op-ed by Noah Feldman: A revolution in university admissions appears to be at hand. The Supreme Court has agreed to hear two cases on affirmative action in higher education, raising the likelihood that it will strike down the practice in the near future. The only thing surprising about this development is the timing, in the same Supreme Court term that already promises blockbuster conservative judgments on abortion and guns.

  • Gorsuch v. the Administrative State Is Really Heating Up

    January 19, 2022

     An op-ed by Noah Feldman: In the shadow of Thursday’s Supreme Court ruling against a sweeping federal vaccine mandate, another crucial legal battle is playing out: a fight about whether and how much to dismantle the regulatory apparatus of the U.S. government. The latest skirmish unfolded in a concurrence to the mandate decision by Justice Neil Gorsuch, who has emerged as the point man of an attack on existing constitutional doctrine governing administrative agencies like the Occupational Safety and Health Administration. Joined by Justices Clarence Thomas and Samuel Alito, Gorsuch seized the opportunity to advance his cause through the legal challenge to OSHA’s authority to regulate vaccine requirements.

  • The Republican Axis Reversing the Rights Revolution

    January 3, 2022

    The great divergence is rapidly expanding—and President Joe Biden’s window to reverse it is narrowing. Since the 1960s, Congress and federal courts have acted mostly to strengthen the floor of basic civil rights available to citizens in all 50 states, a pattern visible on issues from the dismantling of Jim Crow racial segregation to the right to abortion to the authorization of same-sex marriage. But now, offensives by red-state governments and GOP-appointed federal judges are poised to retrench those common standards across an array of issues. The result through the 2020s could be a dramatic erosion of common national rights and a widening gulf—a “great divergence”—between the liberties of Americans in blue states and those in red states. ... The movement toward more uniform national rights has hardly proceeded in a straight line, particularly since appointments by Republican presidents have established a conservative Court majority since the 1970s. But the expansion of rights has been the general movement of federal policy since at least the height of the civil-rights era. That trajectory included the landmark civil-rights and voting-rights acts of the mid-1960s; the approval of Title IX barring sex discrimination in higher education; and the Court decisions invalidating state bans on contraception, inter-racial marriage, and abortion, as well as the Court’s rulings establishing the principle of “one person, one vote” in redistricting. “The civil-rights movement underscored the idea that there is a baseline of rights that should be available to everybody in every state,” Noah Feldman, a constitutional scholar at Harvard Law School, told me.

  • On GPS: America’s racial reckoning

    January 3, 2022

    Watch: Harvard law professors Randall Kennedy and Noah Feldman join Fareed to examine the conversation around critical race theory in America today.

  • Will U.S. Democracy Survive? Here’s How to Figure That Out.

    January 3, 2022

    An op-ed by Noah Feldman: Are we living in 1858 or 1968? That is, are America’s divisions so profound and political institutions so crippled that we are poised for a breakdown akin to the Civil War? Or is the current polarization the product of conflicting social forces that can be gradually reconciled or redirected into more healthy electoral competition? In this more hopeful scenario, even if we undergo 1970s-style economic malaise and the odd trauma like Watergate, we re-emerge and enter a phase of comparative national health and even greatness.

  • Newsom Is Wrong to Mimic Texas’ Disrespect for the Constitution

    December 14, 2021

    A column by Noah Feldman: If you can’t beat ’em, join ’em. That’s the spirit of the law proposed by California Governor Gavin Newsom to empower private citizens to sue anyone who makes or sells assault rifles in the state. The law violates the Second Amendment as interpreted by a federal district court in California. The idea is to circumvent the constitutional ban for a time — just as the Texas legislature has circumvented Roe v. Wade by empowering private citizens to sue abortion providers. Now that the Supreme Court has limited the abortion providers’ ability to get the Texas law frozen in protection of their constitutional rights, Newsom wants to send the message that what is sauce for the conservative goose is also sauce for the liberal gander. Beyond the legal detail, which I’ll explain in a moment, is a serious, deep question: Should liberals stoop to the level of conservatives in circumventing federal courts’ authority? Is this one of those situations where when one side is playing hardball, it’s foolish to bring a whiffle bat? Or is the Constitution in this instance an arena of principle, in which meeting constitutional disrespect with more constitutional disrespect will only erode the rule of law?

  • Lincoln Broke the Constitution. Let’s Finally Fix It.

    December 6, 2021

    A column by Noah Feldman: As Republicans develop a strategy for the 2022 and 2024 elections, expect them to borrow at least one trick from the playbook that Glenn Youngkin used to win the 2021 Virginia governor’s race: tar Democrats with the brush of “critical race theory.” Almost no one can say exactly what CRT is, but that doesn’t seem to have mattered last month in the northern Virginia suburbs, where the Republican made inroads among Democrat-leaning voters. The attack on CRT is a proxy for a vulnerability that Republicans correctly see Democrats as having. The consciousness-raising of Black Lives Matter and a new focus on the legacy of slavery has left the party flailing. Democrats — and progressives and liberals more generally — find themselves without a coherent narrative about race in American history, or one that Americans of all races can embrace.

  • Roe v. Wade hangs in the balance

    December 2, 2021

    The Supreme Court heard arguments Wednesday in a challenge to Mississippi’s law that bans abortion after the 15th week of pregnancy. It’s the most significant abortion case in years and a direct challenge to Roe v. Wade. Plus, Stacey Abrams announces a run for Georgia governor in 2022. And, putting high gas prices in perspective. Guests: Harvard University constitutional law professor Noah Feldman and Axios' Emma Hurt and Ben Geman.

  • The Supreme Court Seems Poised to Overturn Roe v. Wade

    December 1, 2021

    A column by Noah Feldman: Chief Justice John Roberts is searching for a compromise to preserve some basic right to abortion while moving it earlier in pregnancy, perhaps as early as 15 weeks. But based on today’s oral argument, it seems unlikely that any of the other justices is interested. Justice Brett Kavanaugh, in particular, seemed to telegraph a willingness to overturn Roe v. Wade altogether.

  • Coffee cup with whipped cream and open book on a window sill.

    On the bookshelf

    November 30, 2021

    Here are some of the latest from HLS authors to add to your reading list over the holiday break.

  • 9 New Books We Recommend This Week

    November 19, 2021

    THE BROKEN CONSTITUTION: Lincoln, Slavery, and the Refounding of America, by Noah Feldman. (Farrar, Straus & Giroux, $30.) Abraham Lincoln, Feldman contends, embraced a new, “moral Constitution” by purging the country’s original sin of slavery and re-establishing the nation on a more noble foundation. A professor at Harvard Law School, Feldman is “a lucid, provocative stylist” as well as “a prolific scholar and commentator on current affairs … well equipped to assess Lincoln’s constitutional record,” Sean Wilentz writes in his review. “‘The Broken Constitution’ displays its author’s usual brilliance and boldness in his contrarianism, and a passionate engagement with the past.”

  • Portrait of Abraham Lincoln

    In a conflict between justice and the Constitution, ‘why should the Constitution prevail’?

    November 16, 2021

    Can, or even should, Americans break the U.S. Constitution when, in their view, justice demands it? As Noah Feldman and Nikolas Bowie discussed at a recent Harvard Law School Library Book Talk, that question is very much alive today.

  • ‘The Broken Constitution’ Review: A House, and Its Plans, Divided

    November 12, 2021

    Two days after he issued the Emancipation Proclamation, in September 1862, Abraham Lincoln suspended the writ of habeas corpus throughout the United States, subjecting all Americans to the threat of military arrest and indefinite imprisonment without trial. These steps—one toward a “new birth of freedom,” the other toward a military dictatorship—are at the heart of Noah Feldman’s “The Broken Constitution: Lincoln, Slavery and the Refounding of America.” The Constitution itself became a casualty in the war Lincoln waged to defend it, Mr. Feldman argues. “Civil war is the very definition of a failed constitution,” he writes. As Lincoln came to terms with this fact, he transformed the war into a struggle to establish an entirely new constitution on the moral principle of liberty for all.

  • Is the Supreme Court on Its Way to Becoming a Conservative Bastion?

    November 9, 2021

    A book review by Noah Feldman: Linda Greenhouse’s new book on the Supreme Court opens in October 2020, with the drama of Justice Amy Coney Barrett’s appointment by Donald Trump. By rights it should have started in 2009, when Barack Obama was president, Democrats controlled the Senate and Justice Ruth Bader Ginsburg was diagnosed with pancreatic cancer — her second cancer diagnosis in a decade. Ginsburg lived another 11 years, spectacularly beating the odds even after a third diagnosis in 2018. But in retrospect, nothing is clearer than that she should have resigned expeditiously after learning she had a cancer that has an average five-year survival rate of 10 percent.

  • This Is the Story of How Lincoln Broke the U.S. Constitution

    November 3, 2021

    An op-ed by Noah Feldman: Who created the Constitution we have today? As a law professor, I’ve always thought the best answer was “the framers”: James Madison, Alexander Hamilton and the other delegates who attended the Philadelphia convention in the summer of 1787. The Constitution they drafted has since been amended many times, of course, sometimes in profound ways. But the document, I’ve long reasoned, has also exhibited a fundamental continuity. We’ve always had one Constitution. I no longer think this conventional understanding is correct. Over the course of several years of research and writing, I’ve come to the conclusion that the true maker of the Constitution we have today is not one of the founders at all. It’s Abraham Lincoln.

  • Maybe Florida Really Can Muzzle Its College Professors

    November 2, 2021

    An op-ed by Noah Feldman: The University of Florida struck a blow against academic freedom last week by prohibiting three professors from testifying in a lawsuit claiming the state’s new election laws are discriminatory. But that doesn’t necessarily mean that the university’s action is a violation of the professors’ free speech rights. A court should find the decision unlawful, but might not. There’s a difference between academic freedom and free speech. As explained by former Yale Law School Dean Robert Post in a classic work, these two freedoms are based on different principles, and involve freedom from different kinds of constraints.

  • Was the Constitution Pro-Slavery? Jefferson Davis Thought So. Abraham Lincoln Didn’t.

    November 2, 2021

    Book Review of Noah Feldman’s The Broken Constitution: Lincoln, Slavery, and the Refounding of America: Over the course of two days in February 1850, amid the debates in the U.S. Senate that would lead to the famous congressional compromise over slavery later that year, Jefferson Davis of Mississippi delivered a florid floor speech that lamented the impending ruin of the nation. (Exactly 11 years later, Davis would take office as the president of the Confederate States of America.) A flood of antislavery fanaticism and sectional hatred, Davis declaimed, had opened a “moral crevasse” that endangered America’s very foundations. The framers, Davis pronounced, had enshrined in the Constitution the right to hold property in humans, but frenzied antislavery Northerners undermined the law of the land; and now the flood was surging, pouring “turgid waters through the broken Constitution.” Davis’s pro-slavery remarks provide Noah Feldman with both the epigraph and the title of his new book about Jefferson Davis’s nemesis, Abraham Lincoln, which seems a very odd choice. Unlike Davis, Lincoln never believed that the Constitution had been broken, even after the slaveholders began their rebellion in 1860-61. Instead, Lincoln charged that the insurrection Davis helped to lead was “the essence of anarchy.”

  • If the Court Reverses Roe, Its Very Legitimacy May Be at Risk

    October 25, 2021

    An op-ed by Noah Feldman, Felix Frankfurter Professor of Law: If a conservative majority of the Supreme Court votes to overturn Roe v. Wade, it won’t only be a disaster for people who need abortions. It will be a watershed moment in the history of the court. A body that has gained public legitimacy in the post-World War II era by making Americans freer would suddenly be making them less so.

  • The Wild Card That Could Put Court Packing Back on the Table

    October 20, 2021

    An op-ed by Noah Feldman: It should be no surprise to anyone that the Biden administration’s commission on Supreme Court reform seems poised to offer recommendations that will not endorse packing the court. After all, the commission was born of Joe Biden’s desire during the presidential campaign not to commit himself to adding new justices. It was populated with distinguished legal scholars and members of the bar, most of whom share a meaningful commitment to the preservation of our legal institutions. But it doesn’t follow that court packing is permanently off the table. That’s because of the wild card introduced by the Mississippi antiabortion law that the Supreme Court will consider this fall and decide next spring.Put bluntly, if the court overturns Roe v. Wade, all bets are off.

  • Neil Gorsuch Is Channeling the Ghost of Scalia

    September 27, 2021

    An op-ed by Noah Feldman:Neil Gorsuch has big ambitions. Every Supreme Court justice wants to do good work, write good opinions and influence the trajectory of American law. Justice Gorsuch wants more: intellectual leadership of the conservative legal movement. That would make him the heir to the late Justice Antonin Scalia, whom he replaced in 2017 after the Senate refused to vote on President Barack Obama’s nomination of Judge Merrick Garland. Gorsuch’s aspiration to intellectual leadership fairly bursts from his votes and opinions and seems to have formed early in his career. He might accomplish it if emerging splits within the close-knit family of conservative legal thinkers break his way.

  • Court Opens a Libel Door and Bruises Free Speech

    September 24, 2021

    An op-ed by Noah Feldman: Retweets are not endorsements, goes the formula. But is a tweet linking to an existing article a republication of the article, legally speaking? A federal appeals court said last week that the answer may be yes, and on that basis revived a libel lawsuit filed by U.S. Representative Devin Nunes against the journalist Ryan Lizza. The consequences are significant, opening the door to a raft of lawsuits against people who post links on social media platforms or anywhere else.

  • ‘Am I scared? Absolutely,’ a Capitol Police officer says before Sept. 18 rally

    September 16, 2021

    A Sept. 18 rally outside the Capitol in support of those arrested in connection with the Jan. 6 insurrection is the first major test for law enforcement authorities since that infamous date. ...The rally comes as a bitter partisan divide has emerged over Jan. 6: Republicans have sought to discredit the work of the Jan. 6 select committee and some House Republicans have gone so far as to prop up and support the accused insurrectionists. ...Conversations with constitutional experts and lawyers with whom the Jan. 6 committee staff has consulted point to several potential obstacles to the investigation — the biggest one being Trump himself. ...But even with potential stonewalling by Trump, investigators will still be much less constrained when pursuing documents compared to when Trump was in office, according to Noah Feldman, a constitutional law professor at Harvard Law School who testified in the first public impeachment inquiry into Trump. “It's a lot simpler when you have an administration in office who is not the one you are investigating,” said Feldman.

  • Freedom of Religion Means Freedom to Say No to Vaccines

    September 15, 2021

    An op-ed by Noah Feldman: When people say they are motivated by conscience, even implausibly, employers and government have no morally defensible choice but to take their word for it.

  • Is the Supreme Court Ready to Overturn Roe? We Don’t Know

    September 2, 2021

    An op-ed by Noah FeldmanA day after the Constitution-flouting Texas antiabortion law went into effect, a divided Supreme Court ruled on Wednesday that it won’t block the law before it can grapple with a concrete case that tests it in practice. The five most conservative justices agreed to an unsigned, one-and-a-half-page opinion that said the law might or might not be unconstitutional, but that given its unusual form, which delegates enforcement to private citizens instead of state authorities, it was too legally complicated to issue an emergency injunction blocking the law. In four separate dissents, the three liberals plus Chief Justice John Roberts said the law should have been blocked anyway. Every nonlawyer on the planet — and no doubt a few lawyers, too — is likely to read this outcome as prefiguring a 5-to-4 vote to overturn Roe v. Wade, the 1973 precedent that made abortion a constitutional right. Later this year, the court will address a Mississippi antiabortion law that lacks the cleverly diabolical enforcement mechanism of the Texas law but is equally unconstitutional. Indeed, the day after the law went into effect and before the Supreme Court ruled, many non-lawyers who were so unfamiliar with court procedures that they didn’t know it would eventually issue a ruling on the Texas law had already concluded that they knew how the upcoming Mississippi case would come out.

  • Losing Afghanistan Was Inevitable. Losing Tunisia Is Not.

    August 30, 2021

    An op-ed by Noah FeldmanAfghanistan wasn’t the only majority Muslim country that the Joe Biden administration lost in the last week. Establishing a functioning democracy in Afghanistan was hard — so hard it turned out to be impossible. Tunisia, which on Monday passed from the status of functioning democracy to effective autocracy, would have been an easy win for Biden’s nominal commitment to sustain democracy around the world — if the administration had bothered to pay meaningful attention to it. Instead, the administration stood by and did nothing while the elected president of the Arab world’s only democracy suspended parliament in violation of the Tunisian constitution and announced that the members of the parliament would henceforth be subject to arrest.

  • Interior of United States Supreme Court

    Harvard Law School experts testify before the Presidential Commission on SCOTUS

    August 9, 2021

    As part of ongoing analysis, the 36-member Presidential Commission on the Supreme Court of the United States, 16 of whom are Harvard Law School faculty or alumni, recently solicited testimony from scholars across the political spectrum to weigh in on Court reform.

  • Illustration showing Pinocchio caught in a spider's web with social media icons

    Oh, what a tangled web we weave

    July 7, 2021

    Deception spreads faster than truth on social media. Who — if anyone — should stop it?

  • Books aligned on window sill with a seaside sunset background.

    Harvard Law faculty summer 2021 book recommendations

    July 1, 2021

    Looking for a new book to enjoy at the beach, park, or on your couch? Six HLS faculty members share what they’re reading this summer. 

  • Why the Supreme Court Just Expanded Police Powers — Unanimously

    June 4, 2021

    An op-ed by Noah Feldman: American Indian tribes have won a small victory at the Supreme Court. In the case, U.S. v. Cooley,  justices held that tribal police on a reservation can arrest and search people who are not Native American when there is probable cause to suspect them of a federal or state crime. The decision was unanimous, almost certainly for a quirky reason: The court’s liberals favor tribal sovereignty on reservations and the court’s conservatives favor expansive police power to stop and search. Conservatives also hate throwing out convictions on procedural grounds.

  • No, Covid Vaccine Mandates Don’t Violate the Nuremberg Code

    June 3, 2021

    An op-ed by Noah FeldmanA lawsuit in Texas is challenging a hospital’s requirement that its employees get vaccinated against Covid-19 before returning to work. The case isn’t going anywhere, legally speaking. But the central claim is worth examining because it’s at the core of a lot of vaccine hesitation. The Texas plaintiffs, either working in concert or in parallel with a New York-based law firm that is in turn linked to the anti-vaccination movement, claim that administering mRNA vaccines now should be treated as a form of experimentation. And they maintain that requiring employees to be vaccinated eliminates their capacity to consent. This, they insist, amounts to a violation of the Nuremberg Code, a guideline developed in the post-World War II trial of Nazi doctors for crimes against humanity that says humans should not be subject to medical experiments without their consent. The Texas hospital is not violating that principle, because the vaccines at issue aren’t experimental — they have already gone through a series of clinical trials with voluntary subjects. Another reason the Texas plaintiffs’ argument has little legal purchase is that the Nuremberg Code isn’t the law, either under the Texas state statutes or federal law. The word “code” is a bit of a misnomer. Usually in legal context, a code is a body of law that has been authoritatively deposited or laid down by some responsible authority. The Nuremberg Code isn’t that.

  • Why Merrick Garland Is Protecting William Barr

    May 28, 2021

    An op-ed by Noah FeldmanAttorney General Merrick Garland is contesting a court order that would require disclosure of an internal Department of Justice memo sent to former AG Bill Barr. The subject: Why not to prosecute Donald Trump. Garland’s decision is a Rorschach test for anyone interested in restoring normalcy and credibility to the Department of Justice after the institutional bloodbath of the Trump years. From the standpoint of transparency and openness, the public should see the memo to better understand what went wrong in Trump’s DOJ. But from the standpoint of returning to the department’s traditional norms — including the norm of depoliticizing criminal prosecution decisions — the refusal to disclose is weirdly reassuring. It’s a sign that the Biden Department of Justice will reaffirm the department’s commitment to confidentiality and not use the DOJ, as Trump tried to, to score political points. I realize this second way of seeing the inkblot is counterintuitive and, to some, frustrating. So I’m not going to urge it on you. I’m just going to explain it, even while acknowledging the validity of the first, disclosure-oriented interpretation.

  • Is This A Breaking Point for Palestinian Israelis?

    May 27, 2021

    A podcast by Noah FeldmanPalestinian Israeli human rights lawyer Rabea Eghbariah explains why violence erupted in Israel this month and what it might mean for the future of Palestinian Israelis.

  • Florida’s New Social Media Law Violates the First Amendment

    May 27, 2021

    An op-ed by Noah FeldmanFlorida’s new law punishing social media platforms that ban politicians for violating their terms of service is obviously unconstitutional, violating the companies’ free speech and free association rights. But the law is a good opportunity to think about how the First Amendment applies to for-profit corporations, and suggests reasons to think more deeply about the infamous 2010 Supreme Court decision, Citizens United v. FEC. The key provision of the Florida law states that “a social media platform may not willfully deplatform a candidate for office” — and imposes a $250,000 per day fine for violations. It’s obviously aimed at the deplatforming of former president Donald Trump by Twitter, Facebook and others. (Disclosure: I advise Facebook on free expression issues and helped design the oversight board that recently upheld the Trump deplatforming; the opinions expressed in this column are, as always, altogether mine and not at all Facebook’s.) The law almost certainly violates Section 230 of the Communications Decency Act, which gives platforms a safe harbor against lawsuits for their content moderation decisions. For that reason, a federal court might invalidate the law on statutory grounds without ever ruling on its First Amendment problems.

  • Texas Abortion Ban Is Both Devious and Doomed

    May 26, 2021

    An op-ed by Noah FeldmanWhen a state adopts a flatly unconstitutional anti-abortion law, as Texas did last week, it ordinarily never takes effect. Activists immediately ask a federal court to order state officials not to enforce it, and the court does. What’s unusual — and scary — is that this time, Texas is trying to get around this hurdle through legal trickery. Its efforts are likely to fail, but seeing how and why requires going through a bit of detail. Start with Texas’s goal. The law just enacted makes abortion unlawful after a fetal heartbeat can be detected. Because that can happen as early as six weeks of pregnancy, the law effectively outlaws abortion — a direct violation of the constitutional right to choose established in Roe v. Wade. The Supreme Court has agreed to consider a case out of Mississippi in which it might overturn part of Roe. But until that happens, Roe is the law, and the Texas statute is certainly unconstitutional. Texas knows its law violates the Constitution. And it knows the federal courts would ordinarily block it from taking effect. So the legislature devised a trick. Instead of seeking a criminal ban, enforced by the state’s prosecutors, it made abortion a civil violation for which physicians, clinics and anyone else abetting abortion could be sued for monetary damages. Then, the Texas law authorized any private citizen, even someone with no connection to the abortion in question, to bring the civil lawsuit and keep the damages.

  • Supreme Court Abortion Case Is Part of a Historic Shift

    May 24, 2021

    An op-ed by Noah FeldmanOver the next year, you’re going to hear a lot about the Mississippi abortion case that the Supreme Court has agreed to hear. It’s called Dobbs v. Jackson Women’s Health Organization — and the key word at the center of the discussion is going to be “viability.” If the Supreme Court sides with the pro-life side, you can expect to see more state bans on early abortion like the one Texas Governor Greg Abbott just signed into law, which bars abortions after week six of pregnancy. That’s because since the 1973 Roe v. Wade decision, the Supreme Court has held that there exists a fundamental constitutional right to terminate a pregnancy before the fetus would be viable — that is, able to survive outside the womb. Currently, medical consensus puts viability at 23 to 24 weeks gestation. The Mississippi law prohibits abortion after 15 weeks, long before viability. In taking the case, the Supreme Court said it would consider “whether all pre-viability prohibitions on elective abortions are unconstitutional.” To understand the nature of the debate, we need to begin with a simple fact about Roe that is often forgotten: The ruling was a compromise. The Supreme Court did not say that a woman had an absolute right to choose whether and when to end her pregnancy. Nor did it permit states the unfettered capacity to limit abortion.

  • Trump Criminal Probe Could Backfire on Prosecutors

    May 21, 2021

    An op-ed by Noah FeldmanNew York Attorney General Letitia James is playing major league poker with former president Donald Trump — and she just raised the stakes. The AG’s office announced that its civil investigation of the Trump Organization for filing false tax returns has now become an active criminal investigation. In response, Trump issued a 900-word statement denouncing the investigation as politically motivated. Trump despisers may be tempted to take some heart from the news of the investigation, which will proceed alongside the until-now separate criminal investigation being conducted by the district attorney of New York County, Cyrus Vance Jr. But this is a high-risk move by James. Trump’s opponents would do well to remember the sizable risk that would come with prosecuting the one-term president: He could be acquitted. And if that happened, Trump could use the bounce-back as a highly effective tool to support a presidential bid in 2024. The announcement by James’s office was brief and opaque — and it didn’t mention the president by name. It said simply that the AG’s office had “informed the Trump Organization that our investigation into the organization is no longer purely civil in nature” and that it was “now actively investigating the Trump Organization in a criminal capacity, along with the Manhattan D.A.”

  • Should Vaccination Be A Choice?

    May 20, 2021

    A podcast by Noah FeldmanDr. Heidi Larson, founding director of the Vaccine Confidence Project, discusses the complicated relationship between vaccine hesitancy, choice, and democracy. Dr. Larson is the author of the recent book, “Stuck: How Vaccine Rumors Start and Why They Don't Go Away.”

  • Psychedelic Drugs Will Follow Pot’s Path to Legalization

    May 17, 2021

    An op-ed by Noah FeldmanHere come the psychedelics. A striking new study published in Nature Medicine argues that MDMA-assisted psychotherapy represents “a potential breakthrough treatment” for post-traumatic stress disorder. Other studies are in the works considering the potential therapeutic applications of psilocybin (the active ingredient in magic mushrooms), LSD and cannabinoids. These follow well-received books on different forms of psychedelic use by such mainstream figures as food writer Michael Pollan, novelist Ayelet Waldman, and columnist Ezra Klein. If you’re a reader of mainstream news media, expect to hear more and more about this topic over the next few years. And even if you are a buttoned-down rule-follower, expect to hear an increasing number of your friends and acquaintances expressing interest in psychedelics — and maybe even experimenting with them. None of this is happenstance. It’s the product of a sophisticated, loosely coordinated effort to encourage the gradual re-legalization of psychedelics via medicalization and cultural normalization. The movement doesn’t seem to be motivated mainly by money, although there is doubtless money to be made. Instead, the psychedelic community is broadly motivated by a genuine belief that these substances — “medicines,” as many refer to them — contribute meaningfully to human well-being and are not addictive or dangerous when properly used.

  • Big Cyberattacks Should Be Handled by Nations, Not Lawyers

    May 14, 2021

    An op-ed by Noah FeldmanOn New Year’s Eve of 1879, Gilbert and Sullivan’s Pirates of Penzance premiered, featuring lovable corsairs relegated to the eponymous Cornish seaside resort. It marked quite an image makeover from the beginning of the century, when — in 1801 and again in 1815 — the U.S. fought two naval wars in the Mediterranean against piracy, known as the Barbary wars. How piracy went from menacing seaborne threat to charming comic opera over the course of the 19th century should give policymakers some clue about how to prevent attacks by cyber pirates, like the ransomware attack that crippled the Colonial Pipeline this week. Whether the pirates are in Russia or North Korea or elsewhere, the U.S. is going to have to engage in some old-fashioned hard-power geopolitics to change those government’s incentives. It’s no exaggeration to say that ransomware attacks have quietly become an industry. But it’s one that’s managed to maintain a low profile until now, because neither victims nor pirates are eager to share information on the scale or frequency of hacks. (That reticence could be one reason the FBI reports numbers that are almost laughably low.) Now, with the latest attack causing a pipeline shut-down and raising east coast gas prices, the national security side of the phenomenon is front and center.

  • Defining a hate crime

    May 13, 2021

    The man accused in the Atlanta spa shootings was indicted on murder charges, yesterday. The prosecution says it will be pursuing a hate crime penalty. We recently sat down with our resident legal scholar, Harvard Law professor Noah Feldman, to help us understand the complexity of defining and prosecuting hate.

  • The Future Without Herd Immunity

    May 12, 2021

    A podcast by Noah FeldmanDr. Marc Lipsitch explains why it’s unlikely the United States will hit the threshold for herd immunity, and what that might mean for the future of the pandemic. He also weighs in on the possibility of lab-grown COVID variants and the surging variants abroad.

  • Understanding the Facebook Oversight Board Decision

    May 7, 2021

    A podcast by Noah FeldmanNoah Feldman comments on the Facebook Oversight Board's decision about Trump's account.

  • Did Facebook’s Oversight Board get the Trump decision right?

    May 6, 2021

    In a decision announced Wednesday, Facebook’s new Oversight Board sustained the social media giant’s initial decision to deplatform President Donald Trump in the wake of the January 6 Capitol insurrection. But the panel also criticized the company for imposing “the indeterminate and standardless penalty of indefinite suspension,” and demanded it review that decision within six months. Harvard Law School Professor Noah Feldman first proposed the idea of the Oversight Board to Facebook, helped design it, and continues to advise the company on issues related to free expression. Harvard Law Today spoke to Feldman about the panel’s ruling, the board, and the criticism both have received.

  • Screenshot of Facebook's main webpage.

    Did Facebook’s Oversight Board get the Trump decision right?

    May 5, 2021

    Professor Noah Feldman, who first proposed the idea of the Oversight Board to Facebook, weighs in on its decision to deplatform President Donald Trump following the Jan. 6 Capitol insurrection.

  • Are the Kids Alright?

    May 5, 2021

    A podcast by Noah FeldmanDuring 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 big free speech test

    May 3, 2021

    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.