People
Noah Feldman
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The Financial Markets and COVID-19
May 13, 2020
A podcast by Noah Feldman: Boaz Weinstein, founder of the hedge fund Saba Capital, discusses why the stock market seems to be doing relatively well when the economy is in shambles.
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Tesla’s Reopening Lawsuit Doesn’t Make Sense
May 12, 2020
An article by Noah Feldman: It’s not exactly the Montgomery bus boycott, and Elon Musk is no Rosa Parks. But Tesla is apparently engaged in a highly unusual act of corporate civil disobedience. Ordered by Alameda County health authorities to keep its Fremont, California mega-plant shuttered, the company opened the factory over the weekend and started making cars. On Monday, its employee parking lot was reported to be almost full, suggesting a near-total reopening. CEO Elon Musk had announced two days earlier that the company would be suing the county in federal court. That lawsuit hasn’t yet yielded any results, however. So far as it’s possible to determine, Tesla is knowingly and intentionally breaking the law. If that sounds extreme, it should. Corporations aren’t supposed to engage in unlawful disobedience. The principles of corporate law treat intentional unlawful conduct as a violation of the corporation’s fiduciary duty to its shareholders. A glance at Tesla’s lawsuit is enough to reveal that the company’s case is not a sure winner. The first and central argument seems to be that because manufacturing cars counts as critical infrastructure exempted from a statewide shutdown under the California governor’s guidelines, Alameda County can’t shut down the plant.
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SPECIAL: Noah’s New Book
May 12, 2020
A podcast by Noah Feldman: Jacob Weisberg, the CEO of Pushkin Industries, interviews Noah Feldman about his new book "The Arab Winter: A Tragedy" which comes out today.
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Judge in Flynn Case Is More Than a Rubber Stamp
May 11, 2020
An article by Noah Feldman: It’s astonishing that Attorney General William Barr’s Department of Justice has “withdrawn” criminal charges against Michael Flynn, the former national security advisor, after Flynn had already pled guilty to two counts of lying to federal investigators. But after you get past the initial shock of Barr once again making partisan criminal prosecution decisions while insisting that he’s doing the opposite, a larger question remains: Shouldn’t there be some kind of check on the executive branch’s capacity to make a guilty plea go away? The answer is yes, for extreme cases like this one. And on paper, there is. It’s not only the Department of Justice’s decision to dismiss the charges against Flynn. The federal judge in charge of the case must agree, too. Ordinarily, that’s a pretty easy decision for a judge. But where a defendant has already admitted to the crime; the executive branch is dismissing charges against a former administration official; and the president encouraged the former FBI director to make the same case go away, that may be the one circumstance where the judge should take a close look at the question. And maybe, just maybe, it would be appropriate for the court to refuse the government’s dismissal.
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An article by Noah Feldman: In the midst of the constant up-and-down of coronavirus news, both from science and the markets, it’s easy to lose sight of the scariest scenario of them all: the one where there’s no magic bullet. In this entirely plausible situation, there would be no effective Covid-19 vaccine or transformative therapy; the combination of testing and contact tracing wouldn’t successfully suppress the outbreak; and herd immunity would come, if at all, only after millions of deaths around the world. Even raising this possibility is a big downer. But the fact that an outcome is terrible doesn’t make it impossible. Since the end of February, I’ve conducted some 20 interviews with epidemiologists and virologists like Marc Lipsitch, Angela Rasmussen, and Carl Bergstrom; economists like Paul Romer, Stefanie Stantcheva and Larry Summers; and leaders at top hospitals and experts on government agencies whose names you may not know, but whose life’s work is preparing for moments like this one. Despite getting expert answers to dozens of my questions, the one question I haven’t been able to get an answer for is this: Who, exactly, is planning for the nightmare scenario in which we never get a vaccine or a breakthrough treatment?
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The Global Fight Against COVID-19
May 7, 2020
A podcast by Noah Feldman: Nader Mousavizadeh, who formerly served in the Executive Office of UN Secretary-General Kofi Annan, explains why international organizations like the WHO and the UN have not been able to effectively coordinate a global response to the pandemic. Plus, is it a good thing or a bad thing that Bill Gates had stepped in to fill that void?
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Why I’m Joining Facebook’s Oversight Board
May 7, 2020
Almost exactly a year ago, back in the days when near strangers could strike up random conversations in Italian bars, I found myself learning about a new initiative on which Facebook was embarking — a kind of independent Supreme Court to help the company rule on the deluge of moral, ethical, editorial, and legal challenges it was facing...I asked lots of questions about this Facebook Oversight Board, an idea Mark Zuckerberg had announced the previous November. It seemed a promising move by a company which was exasperating and alienating so many people by its apparent unwillingness, or inability, to get grips with the torrent of lousy, malign content it was enabling and amplifying. As well as all the good stuff...The idea of the alternative — some form of independent, external oversight — apparently grew out of multiple conversations and a thousand op-eds. One such discussion, in January 2018, involved a Harvard Law Professor, Noah Feldman, who had struck up a dialogue with Mark Zuckerberg. Both men agreed that, whoever should be making some hugely consequential decisions about the information which half the connected people on the planet were plugged into, it probably shouldn’t be Mark Zuckerberg. In the eyes of some, the fruits of those deliberations — the Oversight Board — is one of the most significant projects of the digital age, “a pivotal moment” in the words of Evelyn Douek, a young scholar at Harvard, “when new constitutional forms can emerge that will shape the future of online discourse.” Others are unconvinced. Some, inevitably, will see it as a fig leaf.
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An article by Noah Feldman: Attorney General William Barr has made good on his threat to take legal action against states that restrict religious services during the coronavirus pandemic. The Department of Justice has filed a brief in federal district court in Virginia in support of a church claiming the right to hold socially distanced worship. The lawsuit should not be allowed to be litigated to completion. The governor of Virginia should make a strategic decision to tweak the state’s rules to make it go away. Analyzed precisely, existing First Amendment doctrine should not enable the church to get an exemption from Virginia law. Yet, because the issues here are tricky, and it’s easy to feel sympathy with the worshippers, a judge could make new law at the invitation of the Justice Department and find in favor of the church. That on its own is a good reason for the state to change its rules. The facts of the case create some natural compassion for the church, Lighthouse Fellowship Church. It’s a congregation that ministers especially to people with substance abuse problems; for them, attending church is almost certainly a meaningful part of preserving their mental and physical wellbeing. And although the pastor knew that he was breaking state guidelines when he invited his flock into the church, he restricted the numbers drastically, imposed social distancing, and made sure the church was carefully disinfected before worship.
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When Will We Have a Vaccine?
May 6, 2020
A podcast by Noah Feldman: Akiko Iwasaki, a professor of immunobiology at Yale University School of Medicine, explains what types of coronavirus vaccines are currently being researched and evaluates their chances of success.
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Does Texas Know Something California Doesn’t?
May 5, 2020
An article by Noah Feldman: It’s a tale of two mega-states — and probably of two Americas, each with a nearly opposite approach to Covid-19 restrictions. The governor of Texas allowed his stay-at-home order to lapse and restaurants, theaters and stores to reopen, along as long as they stay below 25% capacity. Meanwhile, California’s governor ordered a “hard close” of the beaches of Orange County. The divergence reflects an increasingly fundamental divide between different states’ attitudes toward the public health science about the coronavirus pandemic. Texas is following the most permissive conceivable interpretation of the evidence; California is deploying what is just about the most restrictive possible interpretation. It isn’t only because of different experiences with the virus. Although California has identified over 55,000 cases, and Texas has only 32,000, California is much larger, with about 10 million more residents. It is surely not a coincidence that their decision to go different ways reflects partisan differences in attitudes toward the coronavirus. This bodes ill for any sort of coherent or consistent national approach in the weeks and months ahead. Some ten states, including Texas, eased restrictions on May 1, with some four more scheduled for this week. Just about all of these are red states. Blue states, including many in the hard-hit Northeast, are maintaining restrictions, with some localities actually tightening their rules.
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Did Murphy have the constitutional power to lock down N.J.? Here’s what the experts say.
May 4, 2020
He’s ordered New Jerseyans to stay home, banned gatherings, closed schools, shuttered nonessential businesses, moved elections, declared authorities can seize medical equipment from private companies. And his administration has frequently issued tickets to those who disobey, publicly naming them in the process. Gov. Phil Murphy says the goal of these temporary yet sweeping orders is to protect residents from the coronavirus, a fast-moving disease that has already killed more than 7,700 Garden State residents — more than any state but New York. But the sheer breadth of it all might have you asking: What gives him the right? ... Numerous legal experts say state laws instill governors with broad powers during crises and courts are likely to define their moves are constitutional as long as they’re narrowly crafted to protect the public’s health in a set period of time. “When a government is restricting liberty — fundamental liberty — a state has to have a very compelling state interest. You need a very, very good reason to do this,” said Noah Feldman, a law professor at Harvard Law School. “Stopping people from dying is a compelling interest.” ... Feldman, the Harvard professor, said to dovetail with the U.S. Constitution, governors’ actions must be “narrowly tailored" and “use the least restrictive means possible” to reach that objective. Given the size of New Jersey’s outbreak, Feldman said, it’s “overwhelmingly likely" a court would uphold Murphy’s stay-at-home order. “In any case of an emergency, courts would probably be pretty deferential to the governors because the court’s not gonna say, ‘We know better than public health officials in emergency circumstances,'” he said.
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An article by Noah Feldman: President Donald Trump’s decision not to renew the federal stay-at-home advisory is the perfect symbol of his approach to the Covid-19 pandemic: Once again, Trump is operating by signal and sign and suggestion, not concrete directives or orders. It’s not so much that the president is not leading at all. It’s that his leadership operates as a kind of shadow play, not as a practical reality. The federal advisory was never anything more than a nonbinding suggestion to the states. Declining to renew it is also nothing but a nonbinding hint that perhaps some states should be able to reopen. Neither has any formal consequences. Both amount to atmospherics. It’s important to remember that the president of the United States does have the power to lead by action, not suggestion. True, existing federal law most probably didn’t authorize Trump to order a nationwide lockdown. But consider what Trump could have done via regulation. He could have directed every agency in the executive branch to devise and issue Covid-19 regulations binding the industries that those agencies regulate. That would have enabled him to shut down large parts of the economy in order to achieve safety and health results. Trump could have invoked the emergency powers of the Defense Production Act more quickly and more completely to focus resources on protective equipment and tests. Trump has used the DPA to target a few individual firms (some of which were already producing the necessary equipment). But the Act gives him the power to marshal entire sectors of the economy, to nationalize the distribution of key resources, and to designate single a federal agency to coordinate all of this activity. So far, he hasn’t used those powers.
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What to Read During a Pandemic
May 1, 2020
A podcast by Noah Feldman: Marta Figlerowicz, an associate professor of comparative literature and English at Yale, discusses classic works of literature about pandemics from Boccaccio's The Decameron to Camus' The Plague. Plus, she psychoanalyzes Noah's love of detective novels.
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A New Strategy in the Fight Against COVID-19
April 29, 2020
A podcast by Noah Feldman: Dr. Louise Ivers, the executive director of the Massachusetts General Hospital Center for Global Health, explains why states like Massachusetts are investing in a strategy called contact tracing to stop the spread of the novel coronavirus.
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William Barr Is Echoing Trump on Stay-at-Home Orders
April 29, 2020
An article by Noah Feldman: Attorney General William Barr has issued a memo threatening to sue states if they infringe on people’s freedoms during the coronavirus pandemic — and encouraging U.S. attorneys to look for cases to bring against the states. Not to put too fine a point on it, but what in the world does Bill Barr think he’s doing? As the memo itself acknowledges, restrictions on movement are necessary public health measures legitimately carried out by states. It’s hard to know for sure, and the memo is so vague and equivocal that it reads almost like some sort of secret code. One interpretation is that Barr is trying to harness the power of the Department of Justice to contribute to Donald Trump’s rhetorical, electioneering efforts to urge the rapid reopening of state economies. Trump has been making life harder for governors by encouraging public protests against their stay-home orders. Barr’s memo now threatens those governors with legal enforcement measures. If and when the states reopen, Trump (and Barr) can then try to take credit for state governors’ decisions by claiming to have forced them into it.
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A Solution to the Covid-19 Liability Problem
April 28, 2020
An article by Noah Feldman: Whenever we’re ready to re-open Covid-closed businesses, we’ll have to resolve some important questions about how to do so safely. One of them: what kind of measures should businesses take to keep employees and customers safe, and how should business owners be held accountable if they play fast and loose with others’ health? This debate over limiting liability has just begun, and it’s already taken a partisan turn. That’s unfortunate, because there’s a straightforward middle-ground solution available. Republicans have called for federal legislation to render businesses immune from lawsuits; Democrats are skeptical of the whole idea. Both sides are on to something important. The risk of being sued — and having to pay outsize damages if people become sick — is real. But so is the risk that complete immunity from lawsuits would lead to lax safety standards that endanger public health. Congress should direct the CDC to issue a specific protocol designed to keep workers and customers safe. Businesses that follow these federal rules should have a safe harbor from liability, even if some people get sick on their premises. Those who break the rules should be able to be sued for breaches that lead to infection.
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Pay Attention. The Supreme Court Is Talking About Abortion.
April 23, 2020
An article by Noah Feldman: It was easy to miss in the middle of our Covid-19 madness — but this week, the Supreme Court issued its most interesting decision of its current term so far. At issue was whether it’s constitutional for a state to allow for criminal conviction on a 10-2 jury verdict instead of requiring unanimity. But that wasn’t what made the case interesting. Rather, the case, Ramos v. Louisiana, featured heated disputes that, for once, split the court not along squarely ideological lines — but across them. One argument was about whether a law’s racist historical origins are relevant to its constitutionality when there are modern, nonracist reasons for it. The other was about when the principle of judicial precedent should lead the court to uphold a prior decision even if it considers the decision weak or wrong. Both disputes will have long-term consequences — and the latter sheds some light on the perennial question of whether and when the court might overturn Roe v. Wade, the 1973 decision that recognized a legal right to abortion.
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The Way out of the Pandemic? Generosity.
April 23, 2020
A podcast by Noah Feldman: Pardis Sabeti, a computational biologist at Harvard and the Broad Institute, discusses when and how to re-open colleges and universities, why the US is behind other countries when it comes to containing the spread of coronavirus, and a plan to stop pandemics in the future.
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Can Trump Ban All Immigration? The Supreme Court Will Decide
April 22, 2020
An article by Noah Feldman: It’s not an exaggeration to say that the total ban on immigration that President Donald Trump announced by tweet is among the most extreme acts of unilateral executive authority attempted by any president since World War II. It will generate immediate legal challenges, and the ensuing litigation will reach the Supreme Court sooner rather than later. “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens,” Trump tweeted at 10pm last night, “I will be signing an Executive Order to temporarily suspend immigration into the United States!” An actual order hasn’t yet been issued yet, and without one, it’s tough to predict what the legal result of any challenges to it will be. But the court’s Trump v. Hawaii decision upholding the president’s Muslim ban provides some guidance. Federal law authorizes the president to “suspend the entry of all aliens” into the United States whenever he “finds” that their entry “would be detrimental to the interests of the United States.” To suspend all immigration now, the Trump administration will have to explain why allowing any immigrant into the country would be detrimental to U.S. interests. In practice, that means the government will have to provide a reason for the ban that is based on facts, not mere presidential fiat expressed in under 240 characters.
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The Roadblocks to Mass Testing
April 22, 2020
A podcast by Noah Feldman: Omai Garner, the director of clinical microbiology testing at UCLA Health, explains why more Americans have not been tested for COVID-19.
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Trump Is Breaking the Presidency to Save His Re-Election
April 21, 2020
An article by Noah Feldman: President Donald Trump’s encouragement of protests against states’ stay-in-place orders is un-presidential in the colloquial sense: it’s unbecoming of a president. But Trump’s latest gambit is un-presidential in a much deeper sense, too. It contradicts the very constitutional justification for why we have a president in the first place. The whole point of the presidency is to have an elected official who represents the interests of the entire country, not of a specific state or electoral district. That is, the purpose of the presidency is unification. Trump’s goal, to the contrary, is to drive state-by-state division. He’s undermining the very ideal of a unified United States in pursuit of electoral advantage. To understand why we have a president, it’s useful to consider why we don’t have a prime minister. After all, the founding fathers were creating a republic, in which all officials would be elected and nobody would be above the law. If the United States of America was not to have a king, it would have made logical sense for its executive to be a member of the legislature, first among equals. But the framers of the Constitution wanted to create a different version of the separation of powers than Britain’s.