Noah Feldman

An article by Noah Feldman:  Democrats are talking seriously about ending the legislative filibuster once and for all, effectively changing the number of Senate votes required to pass a bill from 60 to 51. The result would be a transformation in the way the U.S. Senate has operated for well over a century and a half. This may seem like a terrible idea, robbing the Senate of its traditional role as a moderating influence on legislative enthusiasms. Republican Majority Leader Mitch McConnell seems to think so, writing Thursday in the New York Times that Democrats would “regret it a lot sooner than they think.” But consider that it might be a good idea to make the Senate reflect the will of the public more than it has traditionally done. Entrenching minority veto power can certainly have moderating effects. It also blocks one of the most basic principles of democracy: the idea of majority rule.

An article by Noah Feldman:  A federal appeals court has held that members of the Electoral College have a constitutional right to vote for a different presidential candidate than the one they swore to support — and whom the voting public in their states actually chose. It’s a terrible holding. Inventing a right to be a faithless elector invites chaos, elevates formalism over democracy, and shows how indefensible originalism is when applied to evolving norms of democracy.

An op-ed by Noah Feldman: The decision by the New York Police Department to fire the police officer blamed for the choking of Eric Garner marked a troubling end to the five-year search for justice for the man whose death sparked Black Lives Matter protests. A police department trial found that the officer, Daniel Pantaleo, had not been truthful when he said he had not used a chokehold on Garner. Because both New York state and federal prosecutors declined to bring criminal charges against the officer, and the city settled a civil suit by Garner’s heirs, this is the only “day in court” Garner’s legacy will ever receive. All in all, this outcome shows how important the Black Lives Matter movement remains. The legal system is primarily designed to look backward and assign blame for particular, individual events. Even at that task it performs imperfectly. But the legal system is truly terrible at forward-looking transformation of institutions like police departments. For that you need political will and new cultural attitudes, not courts. In other words, transformative change requires a social movement, not a judicial verdict.

An op-ed by Noah Feldman: If you’re trying to figure out China’s next move in Hong Kong or how India will proceed in Kashmir, here’s a clue: follow the logic of an empire. China and India each inherited control from the British Empire, and are following a script that could have been written a century or more ago. Both governments probably have more legitimacy among their subjects than the British Empire had, but that’s beside the point when it comes to their reasons for acting today. Start with China, which got Hong Kong back from the U.K. in 1997. China promised “one country, two systems,” an arrangement that was supposed to allow a common-law-style judiciary to continue operating in the former British colony. Yet, it’s not as though Hong Kongers enjoyed democratic self-government under the British. The handover of Hong Kong was the exchange of one imperial sovereignty for another. The government of the People’s Republic of China was just much closer at hand, and had a stronger traditional claim to the territory.

A book review by Noah Feldman: This year is a propitious time for Stephen Budiansky’s new biography of Justice Oliver Wendell Holmes Jr. Exactly a century ago, dissenting in the case of Abrams v. United States, Holmes invented the metaphor of the marketplace of ideas, single-handedly laying the groundwork for the modern constitutional protection of freedom of speech. A year later, writing for the Supreme Court’s majority in Missouri v. Holland, Holmes inaugurated the metaphor of the living Constitution. Such a constitution should properly be interpreted “in the light of our whole experience, and not merely in that of what was said a hundred years ago.” Not bad for a man who was already 78 years old in 1919 — and who had been three times wounded in the Civil War, escaping an early death by just inches. When Holmes wrote in the Missouri case that it had cost the framers’ successors “much sweat and blood to prove that they created a nation,” it was his own blood and that of his closest friends that he had in mind.

An op-ed by Noah Feldman:  After the El Paso shooter posted a manifesto on the anonymous message board 8chan, the network provider, Cloudflare, suspended the site’s account, taking it offline — at least for now. Whether you applaud or oppose the action, it raises a fundamental problem for the future of free speech: Should there be some place on the Internet where even the most repellent, vile discussion is allowed? Or would we be better off collectively if we hounded such speech wherever it crops up, driving it ultimately to the dark web, and attacking it even there in the hopes of eliminating it altogether? The case of 8chan seems to provide the basis for the strongest possible case that some speech just shouldn’t be allowed to appear on the Internet.

An op-ed by Noah Feldman: Joaquin Castro’s tweet listing the names of maxed out Trump donors in the San Antonio area has come in for intense criticism, with multiple Republican congressmen sticking to the talking points that by publicizing these names, Castro was “targeting” private citizens. What is fascinating to me is the intuition that there is something inherently wrong with tweeting out information that is already mandated by law to be in the public domain. This feeling transcends partisan politics: Remember when Democrats were upset when Trump tweeted that special counsel Robert Mueller’s investigative team contained “13 hardened Democrats” based on publicly available voter registration information? Is there, in fact, something wrong or worrisome about a public official actively publicizing this kind of information? Federal election law already requires public disclosure of all donations to candidates for federal office.

An op-ed by Noah Feldman:  It’s not often that an act of statutory interpretation says something fundamental about who we want to be as a country. But in the Donald Trump era, the application of immigration law has become a touchstone of our collective identity. And so a decision by Attorney General William Barr that restricts the scope of who can get asylum under the Immigration and Nationality Act has consequences and meaning beyond the people whose lives it will immediately affect.

An op-ed by Noah Feldman:  You can take the letter that the Department of Justice has sent to former special counsel Robert Mueller offering “guidance” on his testimony to Congress as evidence of several interesting things. For one, Mueller seems to have wanted an official document from the Justice Department to help him avoid answering questions. For another, the Trump administration seems worried about questions concerning unindicted persons, such as President Donald Trump and his family.  But whatever you do, don’t take the Justice Department letter as the law. The only legal bars to Congress’s demanding answers from Mueller on Wednesday are the Constitution and federal statutes. Those are invoked in the letter, but without much bite. The core of the guidance focuses on departmental policy.

An op-ed by Noah Feldman:  Questions to former special counsel Robert Mueller from both sides of the aisle in his House Judiciary Committee testimony made one thing clear: The path Mueller took in the section of his report on President Donald Trump’s obstruction of justice was indefensible — from both sides. The most important issue in Wednesday’s hearing was the way Mueller refused to address Trump’s possible guilt based on the legal theory that because the Department of Justice couldn’t indict a sitting president, it would be unfair to conclude that the president had committed a crime. Yet Mueller couldn’t manage a coherent response to either Democratic or Republican criticisms arising from that prosecutorial decision.

An op-ed by Noah Feldman:  There’s been plenty of finger-pointing over the past few days, after Robert Mueller’s testimony before two House committees failed to animate his report on Russian interference in the 2016 election in the way the president’s critics had hoped. But the problem didn’t start with Mueller’s performance, or the lack of attention paid to the report itself, or the efforts made by the attorney general to mischaracterize it. It’s become clear to me that the problems go back even further: The regulations governing the appointment of a special counsel doomed Mueller’s investigation from the start.

An op-ed by Noah Feldman: Questions to former special counsel Robert Mueller from both sides of the aisle in his House Judiciary Committee testimony made one thing clear: The path Mueller took in the section of his report on President Donald Trump’s obstruction of justice was indefensible — from both sides. The most important issue in Wednesday’s hearing was the way Mueller refused to address Trump’s possible guilt based on the legal theory that because the Department of Justice couldn’t indict a sitting president, it would be unfair to conclude that the president had committed a crime. Yet Mueller couldn’t manage a coherent response to either Democratic or Republican criticisms arising from that prosecutorial decision.

An op-ed by Noah Feldman: You can take the letter that the Department of Justice has sent to former special counsel Robert Mueller offering “guidance” on his testimony to Congress as evidence of several interesting things. For one, Mueller seems to have wanted an official document from the Justice Department to help him avoid answering questions. For another, the Trump administration seems worried about questions concerning unindicted persons, such as President Donald Trump and his family. But whatever you do, don’t take the Justice Department letter as the law. The only legal bars to Congress’s demanding answers from Mueller on Wednesday are the Constitution and federal statutes. Those are invoked in the letter, but without much bite. The core of the guidance focuses on departmental policy.

An op-ed by Noah Feldman: The news on Tuesday that the U.S. Department of Justice will not seek civil rights charges against a New York police officer in the death of Eric Garner sounds like grounds for a straightforward controversy. ... Yet there is a less obvious problem lurking in the background here: What should the Department of Justice do about a possible civil rights violation in a close case that also has enormous symbolic importance? Garner’s final words, “I can’t breathe,” became part of Black Lives Matter protests of excessive police force throughout the country. Possibly no more complex, or indeed tragic, problem faces a well-meaning attorney general.

An op-ed by Noah Feldman: The career of Justice John Paul Stevens, who died Tuesday at 99, stands as a reminder of the U.S. Supreme Court of an earlier era, when partisanship was rare, pragmatism reigned, and a moderate Republican like Stevens could evolve into one of the most important liberal justices of the post-World War II era. Even at the height of Stevens’s influence in the late 1990s and early 2000s, when he had become the de facto leader of the court’s liberals, Stevens represented something of a throwback — a connection to a Supreme Court world only dimly remembered or read about in history books.

An article by Noah Feldman:  It’s gratifying when the courts stand up to President Donald Trump’s abuses of executive power. But the federal appeals court that held Tuesday that Trump can’t block users from his personal Twitter account doesn’t fit into that paradigm. Although its decision will be hailed by some as a win for free expression, it’s actually based on a misconception about our social media accounts — one the U.S. Supreme Court is going to have to fix. Here’s the basic problem: The U.S. Court of Appeals for the 2nd Circuit assumed in its opinion that Trump’s Twitter account was either “private” — in effect, Trump’s own property to do with as he wishes — or else “public,” in the sense that the account was a government-controlled space in which the First Amendment should apply...The reality, however, is that Trump’s Twitter account isn’t his private property or a government-controlled space. It’s something else: property controlled by Twitter Inc.

Particular moments in history and strategic breaks with unwritten rules have helped many presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be. [With comments from Noah Feldman, Mark Tushnet, Michael Klarman, Jack Goldsmith, Daphna Renan, and Neil Eggleston].

With Facebook, Twitter, and YouTube facing widespread criticism for the way they manage hateful, abusive, threatening, or fake content posted by users or content partners on their sites, many question whether private tech companies deserve to wield so much power to control what people can and can’t see on social networks....Facebook first established a massive force of content moderators—mostly employed by third-party companies—to help find and remove toxic content. The company said it had 15,000 content reviewers around the world by the end of 2018. Last November, Facebook CEO Mark Zuckerberg announced that Facebook would also, by the end of 2019, form an external, independent oversight board to oversee its content moderation decisions. The board would be “. . . a new way for people to appeal content decisions to an independent body, whose decisions would be transparent and binding” based on the idea that “Facebook should not make so many important decisions about free expression and safety on its own.”...The whole idea for an oversight board came from outside Facebook, from Harvard Law professor Noah Feldman, who is the main architect of Facebook’s plan. I spoke to him by phone about the details of his plan, and about some of the problems it’s likely to face.

An article by Noah Feldman:  President Donald Trump is politicizing the Fourth of July — so say the president’s critics in tones of frank outrage over his plans for a presidential speech accompanied by fighter jet flyovers. It’s not only, they say, that Trump is promoting militarism by parading some tanks through Washington. Rather, Trump is taking the wholesome, politically neutral, family fun of the holiday and using it to advance his own partisan interests. In place of hot dogs and fireworks, Trump is bringing us Republican elephants. There’s just one problem with this line of criticism: The Fourth of July was a partisan holiday from the time it was first celebrated in the 1790s. It became popular as a self-conscious endorsement of Thomas Jefferson, his Declaration of Independence and the first Republican Party — over George Washington, Washington’s Birthday and the Federalist Party.