Noah Feldman

An article by Noah Feldman:  We don’t know whether the Department of Justice lawyers working on the census case were fired en masse or quit. Either way, Sunday’s announcement was a genuinely shocking development in President Donald Trump’s efforts to add a citizenship question to the 2020 count. It’s bizarre to the point of being unprecedented for the government to change horses like this in the middle of such a highly time-sensitive legal process. The move signals that the Trump administration is very likely on the way to making some doubtful legal claims — claims that will have to be in stark contradiction to what the Department of Justice has already said to the federal courts, including the U.S. Supreme Court, in a lawsuit brought by civil-rights groups trying to scrap the question.

An article by Noah Feldman: The U.S. Supreme Court issued an important decision Wednesday narrowly declining to overrule an important doctrine of administrative law, with Chief Justice John Roberts joining the liberal justices solely on the basis of stare decisis — the principle that precedent should be respected, even if you don’t agree with it. For those who care deeply about the future of the administrative state, the first half of that sentence is the interesting one. The court is now fully engaged in an epic battle over whether to dismantle administrative law as we know it. That battle pits the insurgent, activist Justice Neil Gorsuch against the court’s liberals, who are very much on the defensive. In the case decided Wednesday, Kisor v. Wilkie, Justice Elena Kagan managed to pull off a successful piece of counterinsurgent strategy, persuading Roberts not to go over to the rebel side.

An article by Noah Feldman: Chief Justice John Roberts split the baby — again. In a dramatic and complicated opinion in a much watched census case, he first held that the Trump administration’s decision to add a citizenship question to the 2020 census was constitutionally and statutorily permissible and was supported by sufficient evidence. He was joined by the U.S. Supreme Court’s other conservatives. Then Roberts switched course. In a separate part of his opinion, in which he was joined by only the court’s four liberals, Roberts held that Secretary of Commerce Wilbur Ross had not given his true reasons for wanting to ask about citizenship on the census, but had instead given a “pretext” — lawyer-speak for a lie. In this part of the decision, Roberts upheld U.S. District Judge Jesse Furman’s decision to send the census case back to the Commerce Department to give a new (and presumably honest) explanation for its actions.

An article by Noah Feldman: When the 2018 Supreme Court term began in October, all eyes were on the confirmation of the newest justice, Brett Kavanaugh. By the time the term wrapped up in June, the center of attention was Chief Justice John Roberts. And that’s where the focus is likely to stay as long as the court continues in this configuration. So far, the retirement of Justice Anthony Kennedy last summer has not had the effect of turning the court into a reliable forum for 5-4 decisions with the conservatives on top. Instead, Roberts seems to be embracing the role of the centrist — as he did most prominently in this term’s marquee case, blocking (at least temporarily) President Donald Trump’s administration from adding a citizenship question to the 2020 census. Not every swing voter is the same, however. Roberts is extremely different from Kennedy.

After 15 years trying to connect the world, Facebook Inc. is attempting to set up a better system for providing oversight of its sprawling platform. That effort is proving to be far from simple. The social-media giant on Thursday published a report on its efforts to create an independent content oversight board to examine some of its most controversial content moderation decisions...On Thursday, Facebook released Mr. Zuckerberg’s video discussion with two experts about governance: Noah Feldman, a professor of law at Harvard University who has been advising Facebook on the design of its oversight board, and Jenny Martinez, a human rights lawyer and dean of Stanford Law School.

It’s been roughly six months since Facebook started collecting global feedback on its proposal to create an oversight board for content moderation decisions. This morning, the platform released the findings of that process in an epic report—almost 250 pages of summary, surveys, public comment, workshop feedback and expert consultations...The report begins by outlining the (relatively short) history of the idea of an oversight board: the process began with Harvard Law Professor Noah Feldman pitching the idea to Facebook in early 2018, followed by CEO Mark Zuckerberg first publicly floating the idea of a Facebook “Supreme Court” on a podcast in April 2018.

Every week it seems there is a new controversy about content on tech platforms...In November, Facebook announced the most ambitious and proactive idea of how to deal with these issues and rebuild trust in the way these consequential decisions are being made. It proposed an independent Oversight Board to hear disputes regarding the platform’s Community Standards and give transparent and binding decisions...Though multiple people have called for an appeals process and transparencyin Facebook’s content moderation process for years, the report cites a game-changing white paper by Harvard Law professor Noah Feldman written in March 2018. In remarks made public for the first time in the report, Feldman calls for the creation of a “Supreme Court to protect and define free expression and association on Facebook. Along with a lower appeals court, the court would interpret and apply an iconic, one-sentence values commitment that Facebook would adopt.”

Facebook Inc. appears to be moving ahead with the Supreme Court-like content oversight board it has been discussing for a year. It’s a worthy step but also a 1% solution for a unimaginably vast problem...Facebook has solicited feedback on the structure for this Supreme Court-like body, and Bloomberg News on Monday described some of the company's deliberations to come up with the best structure and policies. (Noah Feldman, a Harvard Law School professor and Bloomberg Opinion columnist, pitched the concept of an independent oversight board to Facebook. I haven’t spoken with him about this oversight body.)

An op-ed by Noah Feldman: The U.S. Supreme Court issued an important decision Wednesday narrowly declining to overrule an important doctrine of administrative law, with Chief Justice John Roberts joining the liberal justices solely on the basis of stare decisis — the principle that precedent should be respected, even if you don’t agree with it. For those who care deeply about the future of the administrative state, the first half of that sentence is the interesting one. The court is now fully engaged in an epic battle over whether to dismantle administrative law as we know it.

An article by Noah Feldman: Amid the flood of opinions the U.S. Supreme Court is releasing in the last two weeks of its term, it would be easy to neglect Gundy v. U.S., in which the court very narrowly upheld a federal law that allows the attorney general to decide whether to require registration by sex offenders who were convicted before the passage of the registration law. But ignoring the Gundy case would be an unfortunate mistake. What matters about it isn’t so much its consequences for sex offenders, or even its unexceptional outcome. What matters is the dissent by Justice Neil Gorsuch, which forms an important bridgehead in the conservative assault on the administrative state. His dissent squarely rejects a foundational constitutional doctrine that underlies almost everything federal agencies do: the doctrine that says Congress can delegate whatever decision-making authority it wants to executive branch agencies provided there is an “intelligible principle” to guide the agencies’ discretion.

An article by Noah Feldman: The U.S. Supreme Court has painted itself into a corner. Two years ago, it held that the First Amendment required the Patent and Trademark Office to register the trademark for a band called the Slants, despite the “offensive” character of the name. Now it has held that the office must register a clothing brand by the designer Erik Brunetti under the name “FUCT,” even though the PTO deemed the mark “immoral” or “scandalous.” Monday’s decision is a big step in the direction of an absolutist conception of free speech. Although several justices wrote separately to say that they thought trademark law could be tweaked so that the government wouldn’t have to give the coveted “TM” designation to pure vulgarities, it’s far from clear that a majority of justices would uphold such a law if Congress adopted it. For now, it’s open season for parties seeking trademark protection for essentially anything.

If the President of the United States opposes a bill passed by Congress, he may veto it. But is he allowed to sabotage through executive action a law passed by Congress and signed by an earlier President? This is the central question in a recently filed lawsuit against the Trump Administration that alleges the Administration has intentionally acted to undermine the signature health insurance reform legislation signed by President Barack Obama...Several scholars have previously taken positions similar to the arguments made by the cities in their challenge to the Trump Administration’s actions. Yale Law School Professor Abbe Glucksuggests that the duty to faithfully execute laws entails ensuring “that our laws are implemented in good faith” and using “executive discretion reasonably toward that end.” Similarly, Harvard Law School Professor Noah Feldman contends that the Constitution “recognizes that the president can’t necessarily enforce every law. But it requires a good faith effort.”

Facebook Inc. appears to be moving ahead with the Supreme Court-like content oversight board it has been discussing for a year. It’s a worthy step but also a 1% solution for an unimaginably vast problem. Mark Zuckerberg, Facebook’s co-founder and chief executive officer, has been talking for more than a year about an independent authority that would become a final arbiter about whether a social network post should stay online or be wiped away for breaching the company’s rules against hate speech, calls to violence or other abuses...(Noah Feldman, a Harvard Law School professor and Bloomberg Opinion columnist, pitched the concept of an independent oversight board to Facebook. I haven’t spoken with him about this oversight body.)

An op-ed by Noah Feldman: In what is destined to become a landmark decision, the U.S. Supreme Court on Thursday upheld the constitutionality of a World War I monument in the form of a large Latin cross in a public intersection in Bladensburg, Maryland. The controlling opinion, by Justice Samuel Alito, flatly acknowledged that “the cross is undoubtedly a Christian symbol.” But that wasn’t the end of the story, because the court also said the cross functioned as a monument, a symbol of the nation and a historical landmark. The opinion in American Legion v. American Humanist Association marks the first time the Supreme Court has squarely held that religious symbols dating back many decades should be evaluated under a different standard than newly erected ones.

An op-ed by Noah Feldman: Increased scrutiny from antitrust regulators represents a meaningful threat for the biggest tech companies. That’s what the market seems to believe: Alphabet Inc., Apple Inc., Amazon.com Inc. and Facebook Inc. 1 all lost value Monday, presumably on the expectation that all have at least some monopolistic features that might be reined in by newly vigilant regulators. But keep in mind that there’s a big difference between President Donald Trump’s administration stepping up regulation and the existential threat of breakup. The way to think of the difference is this: Under existing antitrust law, the big tech companies won’t be broken up. If, however, regulators and the courts decide to reimagine antitrust law in new ways, then the risk of breakup would rise precipitously.

An op-ed by Noah Feldman:  Senate Republicans are learning to rue the day Congress gave presidents extensive authority in the International Emergency Economic Powers Act. The latest nail in the coffin of legislative influence is President Donald Trump’s invocation of his emergency powers to impose a tariff on Mexican products to force the country to crackdown on Central American asylum-seekers trying to reach the U.S.  No Senate Republican has come out in support of Trump’s action, and many are vocally opposed. Yet despite the certainty of legal challenges if the tariff goes into effect as planned Monday, odds are reasonably high that Trump can get away with it.

An oped by Noah Feldman: When the government takes your property, the Constitution entitles you to “just compensation.” But should the value of your property be computed based on market value, which would normally incorporate predictions about future government action? Or should the value of your property be determined without any reference to what the government might do — including take your property?

The Jewish festival of Purim was in full swing: Music was blasting, family and friends were bouncing to the beat, and 6-foot-3 Cory Booker was laughing and dancing while carrying a 5-foot-6 Orthodox rabbi in a clown suit on his back. ... “Within about five minutes of meeting Cory, I went over to someone and said, ‘Let me introduce you to the guy who is going to be the first black president of the United States,’ ” said Noah Feldman, now a Harvard Law School professor.

An op-ed by Noah Feldman: The sphinx finally spoke: But much like his ancient predecessor, special counsel Robert Mueller didn’t resolve any mysteries. At his surprise news conference Wednesday to announce his retirement, Mueller essentially repeated what he had written in his report. He didn’t take questions. He said he didn’t plan to say anything more in public. And he warned Congress that if called to testify, he wouldn’t say anything beyond what was in the report — which he called “my testimony.”

An op-ed by Noah Feldman:  Abortion rights aren’t appreciably more in danger after Tuesday’s U.S. Supreme Court ruling on two Indiana laws than they were before. But it’s clear that the drums are beating — and judicial war over abortion is coming, like it or not. The court upheld an Indiana law that says fetal remains can’t be “incinerated” with other medical waste but may be simultaneously “cremated.” Seven of the nine justices agreed with this judgment, signaling that the court’s liberals (except Justice Ruth Bader Ginsburg) didn’t want a fight over the law. Avoidance was made easier by the fact that abortion-rights activists did not claim the law unduly burdened a woman’s right to choose. At the same time, the Supreme Court refused to reconsider a court of appeals decision that struck down Indiana’s law banning abortion providers from knowingly aborting a fetus for reasons of its race, sex or disability. That means the law will never take effect, and selective abortions will remain legal in Indiana.