Noah Feldman

An article by Noah Feldman: California Governor Gavin Newsom’s stay-at-home order may well be necessary as a matter of public health in the face of the new coronavirus — I will leave that to epidemiologists to determine. But viewed as a legal declaration, it’s a total mess. Most worrisome, the order fails to create an exception to the stay-at-home requirement for the free press to function — an exemption that is certainly mandated by the First Amendment. Instead, the order creates exceptions by referring to a federal list of 16 “critical infrastructure sectors” — a list that itself fails to say that a free press is a constitutionally specified form of critical infrastructure, without which we cannot hope to cope with a pandemic like Covid-19. The order is also drafted so badly that it creates contradictions with the state’s own website explaining it; with the governor’s own speech rolling it out; and with common sense. As written, the order does not say clearly that Californians can leave their homes to buy food or medicine or other necessities. It doesn’t say whether they can go out to help family members or friends who are themselves vulnerable or otherwise in need. It is silent on going out for exercise. Although context suggests all these may be permitted, the formal legal implication of the text would be that all are prohibited.

An article by Noah Feldman: One of the weirdest things in this weird historical moment is the hodgepodge nature of the coronavirus responses from different state, county, and local governments throughout the United States. In essentially every other country on earth, central government authorities are directing and running the response to Covid-19. If Italy shuts down, it’s the Italian government that decides to do it. If Germany chooses to end hotel stays, it’s Chancellor Angela Merkel who makes the call. But in the U.S., separate Bay Area counties can go one way, the mayor of New York another, and the governor of Massachusetts yet a third. There’s little if any national coordination. It hardly seems like an optimal arrangement during a global pandemic. The explanation for this bizarre diversity of uncoordinated responses can’t be laid solely at the feet of President Donald Trump, despite his alarming lack of leadership. The deeper explanation is the distinctive, peculiar system of U.S. federalism.

A podcast by Noah Feldman: With restaurants and bars across the country temporarily closing down due to concerns about the novel coronavirus, many of us are finding ourselves cooking for the first time in a long time. So today, Deep Background is taking a quick break from covering the spread of COVID-19 to share this conversation with Mark Bittman, the food writer who taught so many of us how to cook. The author of best-selling cookbooks like How to Cook Everything and Vegan Before 6, Bittman offers some tips on how to cook fish and reflects on what he has learned from over two decades of writing about food.

A podcast by Noah Feldman: Dr. Rebecca Berman, program director for UCSF’s Internal Medicine Residency, discusses the signs and symptoms of COVID-19, what to do if you feel sick, and tips for self isolating safely. Plus, hospital readiness, and the situation on the ground in San Francisco.

An article by Noah Feldman: A “shelter in place” order has been issued for seven counties around San Francisco, and New York Mayor Bill de Blasio is considering issuing one for New York. Leaving aside the degree of public health necessity, the obvious question is: How can and will such orders be enforced? The first point to note is that the Bay Area order doesn’t — at present — contain any criminal sanction for violation. It is, in effect, firm guidance rather than government command backed by the threat of criminal penalties. Some European countries are imposing monetary fines for breaking such orders. The San Francisco order doesn’t do that. The order does “request” that the police “ensure compliance with and enforce this order.” And it declares that violation of the order “constitutes an immediate threat and creates an immediate menace to public health.” But if the police chose to arrest violators, this language would probably not be enough to sustain a criminal conviction. The order is simply too vague, and the punishment for constituting a threat or a public health menace would have to come from some existing statute or ordinance.

A podcast by Noah Feldman: Stefanie Stantcheva, Professor of Economics at Harvard, discusses the economic harms of COVID-19 and measures governments can take to soften the blow of a recession.

A podcast by Noah Feldman: Richard Lazarus, a law professor at Harvard and a leading Supreme Court advocate, discusses where public health stops and our individual liberties begin. Plus, what does it mean that the Supreme Court has postponed oral arguments?

An article by Noah Feldman: It’s good news that the Supreme Court has suspended oral arguments indefinitely. If nothing else, it helps keep Justice Ruth Bader Ginsburg safe. Spry but still a cancer survivor, she celebrated her 87th birthday yesterday. I would say it’s practically a national security imperative to keep the nation’s unofficial favorite Jewish grandmother away from anyone who might give her the coronavirus. Apart from the health of the other justices (such as Justice Stephen Breyer, 79), the court personnel and the lawyers, the suspension of Supreme Court arguments also carries an important lesson for the rest of the justice system: It must respond creatively to the pandemic by maintaining core operations while limiting those aspects of its usual functioning that might endanger public health. At the Supreme Court, it’s relatively easy to eliminate situations that might lead to infection. That’s because the justices in general have relatively little public interaction with the parties who appear before them.

A podcast by Noah Feldman: Siddhartha Mukherjee, physician, researcher, and author of the 2011 Pulitzer-Prize winning book The Emperor of All Maladies, discusses what we know about how coronavirus spreads and what we don’t know.

An article by Noah Feldman: If you’re voting on Super Tuesday, the Supreme Court calendar has a message for you. This week, the court will consider a raft of blockbuster cases on immigration, abortion, and the future of the Consumer Finance Protection Bureau. Today, the court also accepted a case on the fate of the Affordable Care Act. The message could not be clearer: unless Democrats elect a president whose coattails produce a Senate majority, the future of the Supreme Court is going to be intensely conservative, and it’s going to have a major effect on the future of our politics. Traditionally, Democrats have paid less attention to the composition of the Supreme Court as a campaign issue than have Republicans. That’s been a mistake. For decades, liberals won landmark Supreme Court victories on the occasionally liberal tendencies of two Ronald Reagan appointees, Justices Sandra Day O’Connor and Anthony Kennedy. Those days are behind us. President Donald Trump’s Supreme Court nominees, Justices Neil Gorsuch and Brett Kavanaugh, won’t be softening their hardline conservatism in the foreseeable future.

A podcast by Noah Feldman: Marc Lipsitch, an epidemiologist at Harvard University, predicts that between 40 to 70 percent of adults in the world will become infected with the coronavirus.

An article by Noah Feldman: The coronavirus called Covid-19 has spread beyond its origin in Wuhan, China, and has arrived on U.S. shores. I’m a law professor, not an epidemiologist, so my thoughts immediately turned to how the law would shape America’s collective response to a broader pandemic — and what the government’s power will mean for individual rights under the Constitution. It’s a question that could soon become an urgent one — I recently interviewed Marc Lipsitch, the brilliant epidemiologist who runs the Center for Communicable Disease Dynamics at Harvard’s T.H. Chan School of Public Health, for my podcast. Lipsitch told me, very calmly, that based on past pandemics and current information, 40-70% of adults in the world are likely to catch the virus in the absence of strong countermeasures. Between one and two percent of those could die. Those are frightening numbers. A pandemic of this scale, and the efforts taken to contain it, would likely result in fierce debates over civil liberties as well as legal action. There’s already been one lawsuit, and there will probably be more. (After all, it’s the American Way.)

An article by Noah Feldman: Here’s the good news about President Donald Trump’s call for Justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from all future cases involving his administration: It won’t move the two stalwart liberal justices an inch. Better still, questions of any justices’ recusals are decided by — you guessed it — the justices themselves. Sotomayor and Ginsburg can do whatever they want, and that isn’t going to include being pushed around by Trump, or by anyone else for that matter. Nevertheless, it’s serious business that Trump has suggested that there were “obviously inappropriate” things in Sotomayor’s recent dissent criticizing his administration for repeatedly seeking emergency actions from the Supreme Court. Trump is wrong: There’s nothing improper in the dissent. It’s perfectly appropriate for justices to criticize an administration’s legal positions in strong terms. What’s really inappropriate is that the President of the United States is trying to undercut the legitimacy of individual liberal justices — and of the Supreme Court itself. That isn’t normal and it isn’t OK.

An article by Noah Feldman: Don’t let the appearance of a split verdict in the Harvey Weinstein case mislead you: the prosecutors’ decision to charge Weinstein with being a serial sexual predator was a success despite the jury’s decision to acquit on those charges — even as it convicted him of two felony sex crimes, including rape. The strategic advantage of charging Weinstein as a predator was always that it would enable the prosecution to introduce more evidence, including evidence of sexual assaults from women who were not the primary victims in this case. That extra testimony very likely contributed to the jury’s decision to convict Weinstein on two felony charges. It bolstered the primary victims’ testimony, notwithstanding the absence of physical evidence and other challenges associated with their cases. The important legal background here is that, in a criminal case — including in a case of sexual assault — testimony is ordinarily limited to evidence about the specific criminal conduct alleged. If the prosecution wants to introduce evidence of other bad acts by the defendant, it needs to have a valid legal reason to do so — such as a pattern of conduct. We want juries to convict on the actual criminal charge, not because they think the defendant is generally an immoral person or prone to crimes in the abstract.

An op-ed by Noah Feldman: Maybe you’ve heard: Boy Scouts of America is filing for bankruptcy to put an end to the sexual abuse lawsuits it is facing. On one level, it’s business as usual. From makers of IUDs in the 1980s to opioid manufacturers today, it’s become standard for corporations liable for harm on a large scale to take advantage of the protection of bankruptcy. The victims get some compensation while the organization gets legal clarity and finality. Yet on closer examination, there’s something strange, even troubling about using laws designed to resolve business meltdowns to address the social ills caused by nonprofit entities that are meant to do good, yet in fact impose egregious harm.  

An op-ed by Noah Feldman: The president of the United States isn’t a king, and he isn’t above the law — or so constitutional law professors like me keep reminding everybody. But the painful truth is that there is one exception to this truth: the pardon power, exercised this week by President Donald Trump to free or absolve several white-collar criminals. The presidential power to pardon is a holdover from British monarchy. And pardoning by definition goes above and outside the legal system. The pardon power therefore poses a structural threat to the republican character of the U.S. government.

A podcast by Noah Feldman: Stacey Abrams talks about how to create lasting social change, her thoughts on 2020, and her plans for the future.

An article by Noah Feldman: Since Virginia voted to ratify the Equal Rights Amendment in January, there’s been lots of speculative talk about the future of the long-stalled constitutional amendment. The House voted Thursday to remove the deadline for ratification (which came and went decades ago), and the technical questions about that deadline are intriguing — the deadline itself has elicited opinions from, among others, the Office of Legal Counsel and Justice Ruth Bader Ginsburg. But more important is an underlying question: Would it make any real-world legal difference if the ERA were enacted today? Or would the consequences be symbolic at most? The answer turns out to be more complicated than you might think. When the ERA was sent by Congress to the states for ratification in 1972, its passage would certainly have effected immediate change in constitutional doctrine. But in the years since, the Supreme Court has interpreted the Constitution to provide a set of protections against sex-based discrimination that come close to what ERA supporters hoped the amendment would achieve.

Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist, discusses his column: "Trump Has Hijacked Roger Stone’s Sentencing." Hosted by Lisa Abramowicz and Paul Sweeney.

An article by Noah Feldman: Following a presidential tweet, Donald Trump’s Department of Justice is poised to betray Robert Mueller’s independence — after the fact. Reportedly, Justice will retract the sentencing recommendation that was made yesterday to sentence Roger Stone for seven to nine years for lying to Congress and witness tampering. All four prosecutors quickly resigned from the case. The whole point of Mueller’s status as special prosecutor was to protect his investigation from improper White House influence. Now, Stone’s sentencing is being hijacked by direct presidential influence. None of this is normal. It’s not normal for the Justice Department to reverse a sentencing recommendation already submitted to court. It’s especially not normal when the decision follows the president tweeting that the sentence sought was too high. And it’s the trifecta of non-normalness when the person being sentenced was convicted of lying to protect the president in an investigation of whether the president colluded with a foreign power to get elected.