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Noah Feldman

  • Democrats’ Methane Rule Reversal Smells a Little Trumpy

    April 30, 2021

    An op-ed by Noah FeldmanDemocrats in Congress are using the Congressional Review Act to reverse a Trump-era regulation on methane leaks at the Environmental Protection Agency. Republicans previously used the unusual law to revise an Obama-era EPA regulation on methane, as well as other federal agency rules — in fact, the GOP used the law 14 times at the beginning of Trump’s term in office. This marks the first time Democrats have followed suit. Tighter methane rules are sensible. But the CRA is a terrible law. Typically, legal requirements make it hard to reverse agency regulations without a clear analysis and explanation because it’s understood that the rules are based on expertise and detailed cost-benefit analyses. The CRA invites politicians to sideline agencies’ research and reasons and make snap political decisions by a bare majority in Congress. It encourages a seesawing of regulatory policy — which is not a helpful to anyone. The Republican use of the CRA in Trump’s presidency was an outrage. Democrats should not get into the same habit.

  • Cheerleader Free Speech Case Puts Liberals in a Bind

    April 29, 2021

    An op-ed by Noah Feldman“Cheerleader” and “Supreme Court” are not concepts you often see juxtaposed. But they are now, as Supreme Court considers the case of Brandi Levy, who was punished by her school for a profane Snapchat post. The facts of Levy’s case, Mahanoy School District v. B.L., are simple. In the spring of 2017, Levy, then 14, tried out for the varsity cheer squad at Mahanoy Area High School, but only managed to make the JV team. She expressed her reaction on Snapchat in a post that read “F--- school f--- softball f--- cheer f--- everything.” (Our version is expurgated; hers was not.) The post went up on a Saturday, reached some 250 of her friends and, like all other posts to the social media platform, disappeared after 24 hours. Nevertheless, a classmate showed a screenshot to her mother, who happened to be one of the cheer coaches. The coaches disciplined Levy by suspending her from the team for a year. She had broken two team rules, they said. One prohibited “foul language” — although only at “games, fundraisers, and other events.” The other said that “there will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.” For good measure, the school district said she’d also violated school rules stating that members of teams must “conduct themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.”

  • Supreme Court Should Be Wary of California Donor Law

    April 27, 2021

    An op-ed by Noah FeldmanOn Monday, the Supreme Court grappled with a genuinely tough First Amendment issue: Should California be able to make charities that speak on matters of public concern disclose to the state the names of their big donors? The issue reveals something about the way that conservatives and liberals currently differ on free speech issues. On the one hand, states might need the information to combat fraud. Moreover, California says that it will keep the information confidential. The IRS already gets this information from tax-exempt charities, and has so far done a good job of protecting it. On the other hand, the Supreme Court has long held that the names of members of civic organizations like the NAACP are confidential, protected by the freedom of association. It isn’t implausible to think that if the justices uphold the California law, other states might pass laws requiring that donors be made fully public. When the justices were deciding whether to hear the case, Trump’s Department of Justice filed a friend of the court brief saying it thought the law was unconstitutional. This matched the instinct of most legal conservatives, who today tend to support a First Amendment that is highly protective of absolute free speech, including protection of anonymity.

  • New York City’s New Sex Work Policy Isn’t Only About Changing Morals

    April 23, 2021

    An op-ed by Noah FeldmanManhattan District Attorney Cyrus Vance’s decision to stop prosecuting people for taking money in exchange for sex marks a turning point in the long and fascinating history of sex work in New York City. The city once considered “the prostitution capitol of the United States” and “the Gomorrah of the New World” has now followed the lead of a few other major American cities in adopting what’s sometimes called the “Nordic model” — continuing to outlaw paying for sex but not punishing the sex workers themselves. This change largely stems from two factors: changing moral beliefs about who the victims of sex work are, and the new realities of Manhattan real estate. Start with morality. Without a transformation in public perceptions of what is wrong with sex work and who is to blame for its social costs, it would have been impossible for an elected official like a district attorney to announce a policy of no longer enforcing anti-prostitution laws that have, in some cases, been on the books for centuries. Sexual morality from the early modern period into recent decades tended to condemn the people — especially women — who accepted money in exchange for sexual services, depicting them as morally corrupt.

  • The Myth of America’s Anglo-Saxon Political Traditions

    April 22, 2021

    An op-ed by Noah FeldmanA group of House conservatives have been discussing an “America First Caucus” that would aim to protect and advance what they call “Anglo-Saxon political traditions.” On the surface, the words “Anglo-Saxon” seem like a euphemism for “White.” Read this way, the words aren’t a racist dog whistle that can be heard only by some. They’re just a plain old whistle, obviously racist to anyone who has ears. But as it turns out, the idea of specifically Saxon political traditions also has a deeper history. This one is connected to an enduring myth about the American constitutional tradition: that it ultimately traces its roots to an ancient Saxon — that is, German — tradition of hardy self-government by unruly tribes. In the 19th century, the idea of the Saxon constitution acquired a shameful association not only with so-called scientific racism but also with anti-Catholic and anti-immigrant xenophobia. It is true that English constitutional development after the Norman conquest of England in 1066 had some continuity with what came before. For centuries, scholars have debated how much of medieval constitutional thought survived the major political changes that accompanied Norman rule by French speakers.

  • Is Crypto B******t?

    April 21, 2021

    A podcast by Noah FeldmanNoah Feldman has a lot of questions about cryptocurrency. Is it currency or is it an asset? How should governments regulate it? Is it sustainable? Crypto pioneer Bobby Lee, co-founder and former CEO of China’s first bitcoin exchange and current CEO of Ballet, a startup that helps people securely store their crypto assets, weights in on the most pressing questions about crypto.

  • It’s Too Soon to Call the Derek Chauvin Verdict a Turning Point

    April 21, 2021

    An op-ed by Noah FeldmanThe jury that convicted Derek Chauvin of murdering George Floyd got it right. In the wake of a verdict like this one, it is almost instinctual to suggest that the jury spoke on behalf of the American people, striking a blow for racial justice. But although jury verdicts are often infused with meaning, this kind of interpretation ought to be approached with caution. We won’t know whether this moment marks a turning point for many years to come. The temptation to treat a jury verdict in a big case as symbolic stems, I think, from our powerful human tendency to use individual stories as metaphors in order to make sense of the world around us. Faced with a nationally prominent incident like the murder of George Floyd, our inclination is to say that the jury’s decision is a leading indicator of where our nation is going. And it’s true that as an institution, a jury can be understood to express popular sentiment. Yet any specific jury isn’t a cross-section of the American public. It’s just 12 people, asked to render a verdict on the facts and law presented to them.

  • Understanding Hate Crime Laws

    April 14, 2021

    A podcast by Noah Feldman: Dr. Jeannine Bell, law professor at Indiana University who has studied hate crimes for more than 20 years, discusses the complex process of defining and charging someone with a hate crime. She also explains the larger significance of hate crime legislation and how police departments can expand prosecution of hate crimes.

  • This Supreme Court Isn’t Going to Like Vaccine Passports

    April 14, 2021

    An op-ed by Noah FeldmanThe consensus among legal experts seems to be that states have the right to mandate vaccine passports. The main basis is a 1905 Supreme Court case, Jacobson v. Massachusetts, which held that the Constitution wasn’t violated when the city of Cambridge required all adults to get the smallpox vaccine. Following the same logic, courts have upheld state laws mandating vaccines for schoolchildren. But we should not assume that this deference to state power would continue under the current Supreme Court. For one thing, the constitutional tests for infringements on personal liberty have been refined in the last half century. For another, the current court is deeply sympathetic to religious exemptions. If large numbers of people decline vaccination on religious grounds, it would effectively undermine the power of any passport system. The Jacobson precedent is certainly well established. It was written by Justice John Marshall Harlan (the first of two justices of that name), who established his place in the court’s pantheon by dissenting in the shameful case of Plessy v. Ferguson, which upheld racial segregation.

  • Medical Ban for Trans Kids Is Morally Repugnant, Yet Likely Legal

    April 9, 2021

    An op-ed by Noah FeldmanOver a veto by the state’s Republican governor, Arkansas has passed a bill, known as the SAFE Act, prohibiting range of gender transition medical treatments for people under 18, with some minor exceptions. It covers hormone therapies known as puberty blockers that can prescribed to transgender children to inhibit the sex hormones that drive the onset of puberty. The law is morally repugnant, overriding the decisions of medical professionals, parents, and transgender teens and kids. Nevertheless, forthcoming legal challenges, which the ACLU has said it will bring, face an uphill battle. States ordinarily have the authority to prohibit medical treatments. There is a federal statute, Section 1557 of the Affordable Care Act, that prohibits sex-based discrimination in a healthcare program that gets federal funds. But that provision may not be enough to stop a state from outlawing treatments of which it disapproves — especially if those same treatments would not be prescribed for cisgender children. Thus, in a weird and counterintuitive twist, state law barring transgender girls from participating girls’ sports are likely to be struck down by the courts as unlawful; but laws prohibiting giving hormone therapy to transgender kids may be upheld.

  • Google’s Supreme Court Win Sends Pro-Consumer Message

    April 7, 2021

    An op-ed by Noah FeldmanThe Supreme Court has ruled that Google did not violate Oracle’s copyright when it copied 11,500 lines of JAVA code for its Android operating system. The 6-2 decision followed a long-term trend by reversing a ruling by the U.S. Court of Appeals for the Federal Circuit, a specialized body that tends to protect intellectual property more aggressively than does the Supreme Court. Although written narrowly and aimed at the specific facts of the case, the Supreme Court opinion nonetheless sends a message that copyright law shouldn’t stand in the way of innovations that serve the needs of consumers. Justice Stephen Breyer, who wrote the court’s opinion, is the court’s oldest justice, but that doesn’t mean he’s the least comfortable talking about computer code. To the contrary, Breyer built his career in part on his ability to assimilate technical information and make it comprehensible to lawyers. The fact that the technocratic Breyer wrote the opinion — and was joined by the court’s liberals as well as conservative justices John Roberts, Neil Gorsuch and Brett Kavanaugh — suggests the decision doesn’t reflect ideology so much as pragmatism.

  • The Future of the NCAA

    April 7, 2021

    A podcast by Noah FeldmanA case currently before The Supreme Court presents the single largest legal battle the NCAA has ever faced. The case, which comes after years of player activism, argues that the current limits on athlete compensation constitute a violation of antitrust law. It’s a case that could challenge the entire college sports system. Dr. Eddie Comeaux, professor at UC Riverside who studies the student athlete experience discusses the history, current structure and power imbalances within the NCAA. Dr. Comeaux also offers radical re-imaginings for a more equitable, student-centered college athletics system.

  • Efforts to Ban Trans Girls From Sports Are Unconstitutional

    April 5, 2021

    An op-ed by Noah FeldmanAcross the country, a series of laws are being proposed that would restrict transgender girls from participating in girls’ sports. The proposals are part of a concerted effort by a number of conservative organizations to turn transgender rights into a wedge political issue. The laws are cruel and alarming — and would almost certainly be found unconstitutional, even at a very conservative Supreme Court. That’s because less than a year ago, the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII anti-discrimination law protects transgender employees from workplace discrimination. Under the logic of that precedent, the proposed restrictions on girls’ sports may well violate an analogous federal law, Title IX, that prohibits discrimination on the basis of sex in schools. The Bostock decision, issued by the Supreme Court in June 2020, was authored by Justice Neil Gorsuch with the support of the court’s liberals and, crucially, Chief Justice John Roberts. Even now that Justice Ruth Bader Ginsburg has been replaced by Justice Amy Coney Barrett, Bostock won’t be overturned anytime soon.

  • Does Congress Even Have the Power to End Gerrymandering?

    April 2, 2021

    An op-ed by Noah FeldmanThe “For the People Act” currently being proposed by House Democrats would transform the way the U.S. runs federal elections. Known as H.R. 1, the bill would make it substantially easier to vote. It would also counteract restrictive legislation enacted by Republican state legislatures in recent years. One provision stands out from the rest: the one that would end state-level gerrymandering by requiring that all legislative districts be set by independent, nonpartisan commissions, rather than by the state legislatures. The good news is that this provision would do more to restore election fairness than all the rest of the act taken together. Its benefits would be worth the cost of breaking the filibuster. The bad news is that a conservative Supreme Court might hold that it is unconstitutional for Congress to prescribe a system for states to design districts. That would undercut the legislation and allow gerrymandering to continue. The framework for assessing what Congress can do about state electoral districting is Article I, section 4 of the Constitution, which says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

  • Amazon and Inequality

    March 31, 2021

    A podcast by Noah Feldman: Alec MacGillis, award-winning ProPublica journalist and author of the new book “Fulfilment: Winning and Losing in One Click America,” explains Amazon’s role in deepening America’s regional wealth disparities. He also discusses the recent efforts to unionize some Amazon fulfillment centers and the threat that unionization poses to the company.

  • D.C. Statehood Could Backfire on Senate Democrats

    March 25, 2021

    An op-ed by Noah FeldmanHouse Democrats are poised to vote for Washington, D.C. statehood. As in the past, the proposal is being met with total Republican opposition. What’s different this time is that a growing number of Democrats aren’t ready to accept the Republican “no” as final. If Senate Democrats kill the filibuster, the party could admit D.C. as a state and thus seat two new, presumably Democratic senators. The filibuster lets Republicans block D.C. statehood even if, as Senator Joe Manchin has suggested, the rule is tweaked so that a senator actually has to keep talking — like Jimmy Stewart in “Mr. Smith Goes to Washington.” The prospect of D.C. statehood would certainly motivate Republicans to new levels of verbal stamina. That means that for D.C. to become a state, either Manchin would have to drop his opposition to eliminating the filibuster entirely, or Democrats would have to pick up more seats in 2022. Say one of those things happened, and D.C. became a state. What’s to stop Republicans from seeking to add Senate seats when they return to power — for example, by sub-dividing solidly red states? If it sounds crazy, it shouldn’t. The admission of new states has a turbulent history in the U.S.

  • Trump’s Election Lawyer Throws Him Under the Bus

    March 24, 2021

    An op-ed by Noah Feldman: Sidney Powell, one of Donald Trump’s former lawyers, is being sued by Dominion Voting Systems for defamation. Her lawyers have entered a truly astonishing defense: that her statements alleging the Democratic Party stole the election using the company’s vote counting software can’t be defamation because no reasonable person would have believed them. The defense is legally wrong. Her statements were clearly assertions of fact — and they were believed by many members of the public. Nevertheless, it is a fascinating argument — an acknowledgement that any claim associated with Trump could be considered mere bluster, even when framed in factual terms. In short, Powell’s defense is to throw Trump under the bus. The basic idea: He is such a known liar that any assertion made on his behalf in an election can’t be taken as remotely plausible. Under U.S. Supreme Court precedent, for statements to count as defamation, they must be susceptible of being proven true or false. Opinion statements are protected by the First Amendment from being made subject to libel law. Political opinion is especially protected.

  • Britney Spears’ Former Lawyer on Her Conservatorship

    March 24, 2021

    A podcast by Noah FeldmanBritney Spears’ former lawyer Adam Streisand goes deep into the details of Britney’s conservatorship. He discusses his role in her case and his concerns about how her conservatorship. He also explains the potential conflicts inherent to the conservatorship system and ways it can be misused.

  • Derek Chauvin Jury Selection Process Highlights Need to Stop Dumbing Down Juries

    March 19, 2021

    Jury selection is now proceeding for the upcoming trial of Derek Chauvin, the former Minneapolis police officer charged with killing George Floyd, in a horrific incident that touched off nationwide protests against racism and police brutality. Many aspects of the process seem calculated to exclude not only potential jurors who have strong feelings about the specific case (and thus might be biased), but also those who have any kind of relevant background knowledge about criminal justice, scientific evidence, chokeholds, and other matters. In recently published articles, both Harvard Law School Professor Noah Feldman and The Week columnist Bonnie Kristian argue that this situation highlights the need to change selection policies that have the effect of dumbing down juries by excluding those with the greatest potential knowledge and insight...Feldman explains how this tendency undermines a key function of jurors in the Anglo-American legal tradition, which was in part to bring to bear the collective knowledge and insight of the community: “The logic [of current practices] is understandable. We don't want jurors to have made up their minds before hearing the evidence presented at trial. But the result is all too often the selection of jurors who are nominally neutral because they have their heads in the sand. Choosing jurors with no meaningful knowledge of public affairs has consequences. Among other things, it entails selecting jurors who might not be able to draw upon the moral intuitions of the community that we want jurors to embody.”

  • Trial in George Floyd’s Death Shows Jury System’s Flaws

    March 18, 2021

    Αn op-ed by Noah FeldmanJury selection in the criminal trial of Derek Chauvin for the murder of George Floyd is highlighting one of the legal system’s absurdities: its aspiration to choose jurors who are not only neutral but actively uninformed about major public events. The logic is understandable. We don’t want jurors to have made up their minds before hearing the evidence presented at trial. But the result is all too often the selection of jurors who are nominally neutral because they have their heads in the sand. Choosing jurors with no meaningful knowledge of public affairs has consequences. Among other things, it entails selecting jurors who might not be able to draw upon the moral intuitions of the community that we want jurors to embody. When you come across something in the legal system that genuinely appears to make no sense, the reason is usually history. The criminal jury in the Anglo-American tradition used to have a very different purpose, as I learned from the legal historian John Langbein. The medieval purpose of a jury of peers drawn from the vicinity was to make sure that the jury was full of local people who already knew the facts of the cases they would hear.

  • Top Russian Journalist on Alexei Navalny

    March 17, 2021

    A podcast by Noah FeldmanDid January’s pro-Navalny protests have a lasting impact in Russia? Russian investigative reporter Diana Kachalova, editor-in-chief of the St. Petersburg bureau of Novaya Gazeta, an independent Russian newspaper, joins us to discuss covering the aftermath of Alexei Navalny’s case and the status of investigative journalism in Putin’s Russia.

  • Stop Telling Stephen Breyer to Retire

    March 16, 2021

    An op-ed by Noah Feldman: Friends, Romans, countrymen, law professors: Please stop telling Justice Stephen Breyer to retire. Yes, Breyer is a (healthy) 81. Yes, the Democratic Senate majority is wafer-thin, and it would likely be impossible for President Joe Biden to replace Breyer with another liberal if the Democrats lose even one of their 50 votes in the Senate. But here’s the thing: Breyer knows these facts already. But here’s the thing: Breyer knows these facts already. He is the one of the great pragmatist justices ever to have sat on the Supreme Court, following in the footsteps of Justice Louis Brandeis. Breyer also knows Capitol Hill, having worked there three separate times: once on the Watergate investigation and twice for the Senate Judiciary Committee. He can be trusted to do the right thing – provided liberal law professors don’t box him in by declaring that he “must” resign.

  • Trump Actually Has a Point About the RNC’s Ads

    March 11, 2021

    An op-ed by Noah FeldmanFormer Republican president Donald Trump is trying to block the Republican National Committee from using his image in their fundraising efforts. He has no legal case: Trump is a public figure and can’t stop anyone from using his image in the course of political speech. But if you think of it in terms of U.S. campaign finance customs rather than in terms of free speech, Trump has a point. And that is very rare indeed. First Amendment principles are clear: public figures really are different when it comes to image control. It’s one thing for an ordinary person to be able to control the use of her image. That makes both legal and economic sense, because as a private person you should be able to choose who gets to display and make a profit from what you look like. But when you have run for president and won and dominated the political conversation for the last five years, you should not be able to control the use of your image in a political context. Such censorship would detract too much from the valuable exchange of political ideas. Imagine if the Democratic National Committee, not the RNC, were using Trump’s image to convince voters to donate money to discourage Trump from returning to politics. We would all have the instinct that this should count as protected political speech. It would be bizarre if Trump could use his own image to promote his own candidacy but the other side couldn’t use his image to take the opposite position.

  • Bigger Than Texas

    March 11, 2021

    A podcast by Noah FeldmanAlice Hill, former Special Assistant to President Obama and Senior Director for Resilience Policy on the National Security Council, explains what Texas’ electrical grid collapse means for our country’s infrastructure at large. She also makes recommendations on how we can start preparing infrastructure now for extreme weather events.

  • Is a Long-Dismissed Forgery Actually the Oldest Known Biblical Manuscript?

    March 10, 2021

    In 1883, a Jerusalem antiquities dealer named Moses Wilhelm Shapira announced the discovery of a remarkable artifact: 15 manuscript fragments, supposedly discovered in a cave near the Dead Sea. Blackened with a pitchlike substance, their paleo-Hebrew script nearly illegible, they contained what Shapira claimed was the “original” Book of Deuteronomy, perhaps even Moses’ own copy...In a just-published scholarly article and companion book, Idan Dershowitz, a 38-year-old Israeli-American scholar at the University of Potsdam in Germany, marshalls a range of archival, linguistic and literary evidence to argue that the manuscript was an authentic ancient artifact. But Dershowitz makes an even more dramatic claim. The text, which he has reconstructed from 19th-century transcriptions and drawings, is not a reworking of Deuteronomy, he argues, but a precursor to it, dating to the period of the First Temple, before the Babylonian Exile...When Dershowitz outlined his theory to Noah Feldman, a professor at Harvard Law School and chairman of Harvard’s Society of Fellows, where he was about to begin a fellowship, the older scholar warned him off. “I said, ‘You’re crazy, I don’t want to hear it, you’re going to destroy your career, go away,’” Feldman recalled. “He would keep emailing me details, and I would reply TGTBT — too good to be true.” (Feldman was eventually persuaded enough to help fund Dershowitz’s research, through the law school’s Julis-Rabinowitz Program on Jewish and Israeli Law.)

  • Voting Rights Cases Make This Supreme Court Squeamish

    March 4, 2021

    An op-ed by Noah FeldmanYesterday’s  Supreme Court arguments in a major voting rights case portend what appears to be the future of election law: The continuing withdrawal of the court from the role of policing elections for racial fairness. Call this the Roberts Doctrine. The chief justice has been pushing the agenda of judicial disengagement from voting rights issues since 2012, when he wrote a landmark decision in the case Shelby County v. Holder, striking down section 5 of the Voting Rights Act of 1965. The new case, out of Arizona, addresses Section 2 of the same act. The court may well be poised to weaken that part of the law to make it harder to challenge a state’s voting practices as racially discriminatory. If it does, this will continue the judicial pullback from a role the courts have played since 1964, when the Supreme Court established the principle of one person, one vote. The Roberts Doctrine reflects the chief justice’s particular jurisprudence, one profoundly influenced by the thinking of the late Justice Felix Frankfurter, who retired from the court in 1962 and died in 1965. Frankfurter was the father of the modern doctrine of judicial restraint. When Roberts follows Frankfurter in declining to strike down legislation, as he partly did in the Affordable Care Act case, liberals like it. When he follows Frankfurter in restraint around election law challenges, as he did in rejecting former president Donald Trump’s judicial challenges to the 2020 election results in Pennsylvania, liberals applaud that, too.

  • Who Is a Jew? Israel’s Supreme Court Expands the Answer

    March 3, 2021

    An op-ed by Noah FeldmanIn a stunning, generation-defining decision, Israel’s Supreme Court has unanimously ruled that people who became Jews through Conservative and Reform conversions must be considered as Jews for purposes of the country’s Law of Return, allowing them a fast-track to citizenship. Israel’s legislature, the Knesset, has the authority to reverse the decision and restrict the Law of Return to Orthodox converts. That may well happen — but if it does, it would represent a serious blow to relations between American Jews, most of whom are not Orthodox, and the state of Israel. The Law of Return is foundational to Israel’s self-concept as a Jewish democratic state. It establishes the principle that Jews may become citizens of Israel simply by showing up in the country and declaring their intention to become citizens. As written, the law defines a Jew as “one who was born to a Jewish mother or converted, while not being a member of another religion.” The case before the Supreme Court involved the vexed question of the meaning of the word “converted”: Which conversions count as qualifying a person for citizenship under the law? The answer has massive implications for the nature of Israeli identity.

  • “Drug Use for Grown Ups” with Dr. Carl Hart

    March 3, 2021

    A podcast by Noah FeldmanDr. Carl Hart, neuroscientist and author of the provocative new book “Drug Use for Grown Ups: Chasing Liberty in the Land of Fear” questions the way we understand, regulate, and police drugs in America. Dr. Hart argues that most drugs are safer than we realize, and the negative effects of drugs are overstated and misunderstood. His research raises larger questions about policing, race, poverty, and mental health.

  • Federalism failing to meet 21st century needs

    March 1, 2021

    An essay by Noah Feldman: There wasn't much President Joe Biden could have done about this month's Texas energy disaster. Ditto the slow-moving vaccine rollout. The reason is the same: federalism, a system dating to the 1780s and only seriously overhauled once. Although federalism still has some benefits, its obsolescence is increasingly obvious when the U.S. faces crises that, like climate change and COVID-19, don't respect state boundaries. Energy and health care are only two of the crucial infrastructure systems that remain state-regulated or state-run. And many of those systems are in need of updating everywhere − not piecemeal, as federalism tends to support. Federalism was, in important ways, an American invention, the brainchild of James Madison. It was a product of political necessity for 13 states that had been separately administered as British colonies and that had already tried and failed to function as a loose confederation between 1776 and 1787.

  • The Most Powerful Legal Organization in the Country

    February 25, 2021

    A podcast by Noah Feldman: Six of the nine Supreme Court Justices are members of a club called the Federalist Society. Noah Feldman speaks to Eugene B. Meyer, the president of the Federalist Society, about the organization’s goals, how it is funded, and how it operates. They also discuss Noah’s new audiobook about the organization called “Takeover: How a Conservative Student Club Captured the Supreme Court.”

  • Federalism Shows Its Age Fighting Covid-19, Climate Change

    February 24, 2021

    An op-ed by Noah FeldmanThere wasn’t much President Joe Biden could have done about this month’s Texas energy disaster. Ditto the slow-moving vaccine rollout. The reason is the same: federalism, a system dating back to the 1780s and only seriously overhauled once. Although federalism still has some benefits, its obsolescence is increasingly obvious when the U.S. faces crises that, like climate change and Covid-19, don’t respect state boundaries. Energy and health care are only two of the crucial infrastructure systems that remain state-regulated or state-run. And many of those systems are in need of updating everywhere — not piecemeal, as federalism tends to support. Federalism was, in important ways, an American invention — the brainchild of James Madison. It was a product of political necessity for 13 states that had been separately administered as British colonies and that had already tried and failed to function as a loose confederation between 1776 and 1787. Unifying into a single nation would have been practical for the early United States. At the Philadelphia constitutional convention, big-state representatives, including Madison, favored a heavily national model of government to replace the failing decentralized system created by the Articles of Confederation.

  • Civil Suit Against Trump Will Be a Rare Test of Free Speech

    February 19, 2021

    An op-ed by Noah FeldmanFormer president Donald Trump’s lawyers defended him during his second impeachment trial in part by arguing that his January 6 speech was protected by the First Amendment. That defense was legally irrelevant to the high crimes and misdemeanors charge, and wasn’t settled by his acquittal. But Trump’s free-speech defense may now get its day in court. Representative Bennie Thompson, a  Democrat from Mississippi, has filed a civil lawsuit against Trump, Rudy Giuliani, the Oath Keepers and the Proud Boys for unlawfully conspiring to interfere with Congress in the Capitol attack in violation of the Ku Klux Klan Act of 1871. And while the First Amendment doesn’t apply to impeachable offenses, it does apply in cases of civil liability. Trump’s best argument to get the case dismissed would be that he can’t held liable for conspiring with those who attacked the Capitol if all he did was express his First Amendment-protected political views. To decide that, a federal court would have to determine whether Trump’s speech was protected under the standard set by Brandenburg v. Ohio, the controlling precedent in incitement cases. The statute that forms the basis of Thompson’s lawsuit establishes liability when two or more persons conspire “by force, intimidation, or threat” to prevent any officer of the U.S. from the “lawful discharge of the duties of his office.” On its face, the law covers the January 6 attacks. There is no doubt that the rioters forcefully interfered with Congress’s discharge of its duties, and that Thompson was one of the people who was affected.

  • The Impeachment Era

    February 18, 2021

    A podcast by Noah FeldmanWhy are presidential impeachments happening more often? Are impeachments futile if they don't end in a conviction? What did Hamilton and Madison overlook about the impeachment and the transition of power? To discuss these questions, political journalist and CEO of Pushkin Industries Jacob Weisberg joins the conversation. Jacob and Noah were two of the early voices on impeachment, starting in 2017 when they co-authored an article laying out Trump’s early possible impeachable offenses for The New York Review of Books. Noah would later testify at President Trump’s first impeachment trial. Today, Jacob and Noah bookend the conversation on impeachment.

  • Pennsylvania’s Awful Plan to Gerrymander Judgeships

    February 18, 2021

    An op-ed by Noah FeldmanNot content with a gerrymandered state legislatures and gerrymandered congressional districts, Pennsylvania Republicans are now moving to gerrymander judicial elections in the state — not only for local trial judges, but up to and including the state supreme court. It’s a terrible prospect, especially in the light of the state’s legal fight over the 2020 presidential election. And it points to a deeper problem, one that plagues many state judiciaries: Electing judges is a terrible idea. Born in the nineteenth century as a reform mechanism, the practice of electing judges has outlived its usefulness. In our current era of dangerous Trumpian populism, it is clearer than ever that we want judges to be sober, reasonable, and immune from the political pressures of the moment. Judicial elections come in three flavors: partisan elections, which 18 states use; non-partisan elections, found in 21 states; and retention elections after appointment, used in 21 states, several overlapping with the other two models. Only seven states have no judicial elections of any kind. At the most basic level, the idea of electing judges — which almost no other country on earth does — is based on the goal of making judges responsible to the public. The leading history of judicial elections, by Professor Jed Shugerman, tells the complicated story of how we got here. Some reformers worried that judges would be chosen as patronage appointments and therefore beholden to the governors who appointed them. Others feared judges unaccountable to the public would do the bidding of wealthy elites, a phenomenon known as judicial capture.

  • A Crazy Debt Repayment Rule Just Cost Revlon $900 Million

    February 17, 2021

    An op-ed by Noah FeldmanFederal district court judge Jesse Furman has issued his ruling in the Citigroup-Revlon lawsuit involving a $900 million mistake. Due to human error, Citigroup employees made debt payments to Revlon’s creditors that Revlon didn’t intend for them to make. Remarkably, Furman ruled in favor of the creditors, who won’t have to give back the money it received in error. Citigroup and Revlon will now have to eat the costs of the bank’s mistake. The outcome is fascinating as an instance of strict judicial rule following. As Furman framed his opinion, the legal rule was clear: Under New York law, a creditor can keep a mistaken payment as long as he has “no knowledge” that it was sent in error. The case then came down to a question of fact: whether the creditors knew they were getting paid by mistake at the moment they got the payment. After hearing witness testimony, Furman concluded they did not. From there, it followed that they could keep the money. Seen from the perspective of common sense, the result is (I think) absurd. But the fault lies not in the judge’s application of the binding legal rule. It lies in the rule itself, at least as applied to sophisticated financial institutions. It makes almost no sense to focus on the magic moment of receipt of funds in deciding whether the courts should be able to rectify a mistake. The New York State courts, who adopted the rule, should re-think it.

  • Inside the Making of Facebook’s Supreme Court

    February 12, 2021

    On a morning in May, 2019, forty-three lawyers, academics, and media experts gathered in the windowless basement of the NoMad New York hotel for a private meeting...Since its founding, in 2004, Facebook had modelled itself as a haven of free expression on the Internet. But in the past few years, as conspiracy theories, hate speech, and disinformation have spread on the platform, critics have come to worry that the company poses a danger to democracy. Facebook promised to change that with the Oversight Board...The idea for the Oversight Board came from Noah Feldman, a fifty-year-old professor at Harvard Law School, who has written a biography of James Madison and helped draft the interim Iraqi constitution. In 2018, Feldman was staying with his college friend Sheryl Sandberg, the chief operating officer of Facebook, at her home in Menlo Park, California. One day, Feldman was riding a bike in the neighboring hills when, he said, “it suddenly hit me: Facebook needs a Supreme Court.” ... Currently, users can appeal cases in which Facebook has removed a post, called “take-downs,” but not those in which it has left one up, or “keep-ups.” The problem is that many of Facebook’s most pressing issues—conspiracy theories, disinformation, hate speech—involve keep-ups...“This is a big change from what you promised,” Evelyn Douek, a Harvard graduate student who consulted with the team, fumed, during one meeting. “This is the opposite of what was promised.” Users also currently can’t appeal cases on such issues as political advertising, the company’s algorithms, or the deplatforming of users or group pages. The board can take cases on these matters, including keep-ups, only if they are referred by Facebook, a system that, Douek told me, “stacks the deck” in Facebook’s favor.

  • Noah Feldman: GOP clinging to a bad argument

    February 11, 2021

    Constitutional law scholar and Harvard Law professor Noah Feldman says Republicans are clinging to the constitutionality argument to avoid convicting Trump.

  • Trump’s Lawyers Are Helping Advance Impeachment’s Purpose

    February 11, 2021

    An op-ed by Noah FeldmanThe opening of former President Donald Trump’s impeachment trial highlighted three realities: The breach of the Capitol on Jan. 6 was a horrific episode that both mainstream political parties reject. Trump’s lawyers are woefully unprepared. And enough Republican senators will claim the trial is unconstitutional to assure that Trump won’t be convicted. So, what’s the point of the rest of the trial? The trial still matters because the theater of impeachment has a deadly serious purpose. In fact, Trump’s lawyers have already begun to fulfill one of its central functions: They are admitting, in a way that Trump himself has not, that the Jan. 6 attempt to disrupt the democratic process was a serious threat to democracy itself. Impeachment is designed to color in the red lines on the map of constitutional democracy. The lines have a purpose and a message: Stay inside them, and you may be voted out of office or otherwise held accountable by the voters. Cross them, and the system is supposed to stand up and take extraordinary steps to punish you. If it doesn’t, the system itself is profoundly weakened. Seen for what it is, the impeachment is an object lesson in delineating the fundamental, unbreakable rules of democracy. It offers civic education in the deepest sense to the entire country, and indeed the world.

  • Inside Facebook’s Decision to Ban Trump

    February 10, 2021

    A podcast by Noah FeldmanMonika Bickert, Vice President of Content Policy at Facebook, takes us inside the decision to indefinitely suspend former President Donald Trump’s account. Host Noah Feldman details what this move means for free expression in the United States and what it tells us about Trump’s second impeachment trial.

  • Impeachment Doesn’t Violate Trump’s First Amendment Rights

    February 9, 2021

    An op-ed by Noah FeldmanThe extended trial brief filed by Donald Trump’s lawyers advances three defenses: that Trump did not incite the Jan. 6 attack on the Capitol; that the Senate can’t try a president who is no longer in office; and that the First Amendment protects Trump from being impeached for words that, they say, don’t meet the requirements for criminal incitement conviction laid down by the Supreme Court. The factual defense is highly unconvincing, as anyone who watched Trump’s speech on Jan. 6 and saw the attack can attest. The argument that the Senate lacks jurisdiction over a president who is out of office is disproven by history and Senate precedent. The free speech argument is also wrong in a basic sense: The First Amendment prohibits Congress from making any law abridging freedom of speech. But this doesn’t apply in impeachments any more than the Sixth Amendment right to a jury trial would apply to the Senate impeachment trial. Yet the First Amendment defense requires deeper engagement than the other two, if only because it is less absurd. If it did apply to impeachments, the Supreme Court’s incitement jurisprudence contained in the famous 1969 case of Brandenburg v. Ohioprobably would have protected Trump’s speech.

  • Trump’s Impeachment Filing Contains a Bizarre Legal Argument

    February 4, 2021

    An op-ed by Noah FeldmanThe impeachment defense brief of former president Donald Trump mostly consists of three elements, each of which I’ve addressed (and rejected) in previous columns: the purported unconstitutionality of trying the president once he is out of office; his supposed First Amendment rights; and his denial that he incited the attack on the Capitol. But there is something new in the brief: the astonishing assertion that if the Senate tries Trump, it will have violated the constitutional rule against bills of attainder. What’s a bill of attainder? Funny you should ask! A bill of attainder, prohibited explicitly by the Constitution in Article 1, section 9, is a law adopted by the legislature that singles out a particular individual or class of people for punishment without trial. The category has been analyzed and defined by the Supreme Court over the years, starting in the aftermath of the Civil War and most recently in a 1977 case involving Richard Nixon’s papers. It’s got nothing to do with the situation faced by Trump in his Senate trial. To start with, a bill of attainder is, as its name suggests, a bill — the kind of legislative act that only has effect when it is adopted by both houses of Congress and signed into law by the president. Impeachment and removal, by contrast, can be accomplished by Congress alone. So it’s legally wrong for Trump’s lawyers to say that conviction by the Senate counts as a bill of attainder. The Senate isn’t voting on any such bill; it’s trying Trump. And President Joe Biden has no role whatsoever in the process.

  • GameStop Is Just The Beginning

    February 4, 2021

    A podcast by Noah FeldmanAlexis Goldstein, a former Wall Street trader and senior policy analyst at Americans for Financial Reform, discusses why GameStop’s wild ride is not actually a David vs. Goliath story. She discusses the underlying conditions revealed by the GameStop saga, and imagines alternative ways to regulate the markets.

  • The Courts Aren’t Coming to Save Voting Rights

    February 3, 2021

    An op-ed by Noah FeldmanLegislatures across the U.S. are considering more than 100bills aimed at restricting voter access, according to a report by the Brennan Center for Justice. The bills represent a direct, partisan reaction to the Democrats’ success in the 2020 election, when high turnout and mail-in voting powered blue victories in closely divided states like Georgia, Arizona and Pennsylvania. How likely are these bills to pass, and how likely are the ones that become law to survive legal challenges? Unfortunately, I don’t have good news for liberals on either of these questions. Where partisan gerrymandering favors Republicans in state legislatures, there is little to stop these bills from passing, or voters from punishing legislators for enacting them. In states where Republican legislators have used sophisticated computer technology to draw districts that systematically favor Republicans, Republicans can expect to keep control of many state legislatures even where the state’s overall voting is trending Democratic. Democrats’ only failsafe is veto by state governors, who are elected statewide. But in closely divided states, governors are as likely to be Republican as Democratic. In Arizona and Georgia, both the legislature and governor are Republican.

  • President Biden’s border challenges

    February 2, 2021

    President Biden has vowed to reverse many of the immigration policies put in place by his predecessor. It’s a process that could take months or even years, but he’s starting with a number of executive orders expected today. Plus, is it constitutional to impeach a former president? And, the ominous sign when a country cuts its people off from the Internet. Guests: Axios' Stef Kight and Dave Lawler, and Noah Feldman, Harvard Law professor and host of Deep Background.

  • Biden Didn’t Deserve to Lose That Immigration Case

    January 28, 2021

    An op-ed by Noah FeldmanIt didn’t take long for the Texas attorney general to sue President Joe Biden’s administration over its immigration policy – nor for a federal judge to issue a nationwide injunction freezing Biden’s 100-day pause on certain deportations. If this movie sounds familiar, it should. Starting at the beginning of President Donald Trump’s administration, federal courts repeatedly struck down Trump’s executive orders, including a large number related to immigration, often using the tool of nationwide injunctions. The big question that emerges from the Texas ruling is this: Will the new, more skeptical legal standards that courts developed over the last four years to combat Trump’s lawlessness now be used by the courts to constrain Biden? Liberals (including me) spent a good part of the Trump era celebrating the judicial system as a bulwark against executive action that was expansive, aggressive — and lawless. Now we may have to confront the shadow side of judicial review of executive action: judicial overreach by conservative judges, many put in place by Trump, who have the ability to block progressive policies using some of the same tools. The order in question was issued by the Biden administration on its first day in office from the desk of the acting secretary of the Department of Homeland Security. The order specified a 100-day moratorium on most removals of non-citizens who were in the U.S. as of Nov. 1, 2020. It contained exceptions for noncitizens suspected of terrorism or espionage. And it also allowed for the removal of anyone whom the director of ICE, in consultation with the agency’s chief lawyer, individually determined to be required by law to be removed.

  • The New Coronavirus Strains

    January 27, 2021

    A podcast by Noah FeldmanHarvard epidemiologist Marc Lipsitch shares his concerns about the emerging COVID variants from the UK, South Africa, and Brazil. He also discusses how these new variants could impact vaccine rollout worldwide, and his cautious predictions for when we might return to something resembling normal.

  • Dominion’s Libel Case Against Giuliani Will Be Hard to Prove

    January 26, 2021

    An op-ed by Noah FeldmanDominion Voting Systems is suing Rudy Giuliani, President Donald Trump’s former lawyer, for libel, citing Giuliani’s false claims that the company was part of a conspiracy to steal the presidential election. The case isn’t a slam dunk, mostly because of First Amendment protections that make it hard to prove libel where public figures are concerned. But the suit is strong enough that Giuliani should hire a good lawyer — which is to say, a better one than Rudy Giuliani. The strongest claims in Dominion’s 107-page libel complaint arise from comments Giuliani repeated on Twitter, on Lou Dobbs Tonight, and on his own radio show and podcast. In those comments, Giuliani said that Dominion was owned by another company called Smartmatic (in fact, they are unrelated competitors) and that Smartmatic was founded by Venezuelans close to former dictator Hugo Chavez in order to steal elections. On the podcast, Giuliani went a bit further, saying that Dominion had stolen the election “technologically.” There’s no question that the statements were false and that they were defamatory to Dominion. When the person being libeled is a private citizen, that’s enough to prove libel. And if Dominion were a private citizen, it would almost certainly win its suit.

  • Trump Wants Back on Facebook. This Star-Studded Jury Might Let Him.

    January 25, 2021

    They meet mostly on Zoom, but I prefer to picture the members of this court, or council, or whatever it is, wearing reflective suits and hovering via hologram around a glowing table. The members include two people who were reportedly on presidential shortlists for the U.S. Supreme Court, along with a Yemeni Nobel Peace Prize laureate, a British Pulitzer winner, Colombia’s leading human rights lawyer and a former prime minister of Denmark. The 20 of them come, in all, from 18 countries on six continents, and speak 27 languages among them. This is the Oversight Board, a hitherto obscure body that will, over the next 87 days, rule on one of the most important questions in the world: Should Donald J. Trump be permitted to return to Facebook and reconnect with his millions of followers? ... The board will seriously examine the Trump question, guided by Facebook’s own rules as well as international human rights law. If Facebook accepts its rulings, as it has pledged to do, as well as the board’s broader guidance, the company will endow this obscure panel with a new kind of legitimacy. “Either it’s nothing, or it’s the New World Order,” said a lecturer at Harvard Law School who studies content moderation, Evelyn Douek, who pushed Facebook to send the Trump case to the Oversight Board...Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, who first brought the notion of a Facebook Supreme Court to the company, said he thought conservatives dismayed by the recent crackdown might be surprised to find an ally in this new international institution. “They may come to realize that the Oversight Board is more responsive to freedom of expression concerns than any platform can be, given real world politics,” he said.

  • Congress Has Been Losing Power for a Hundred Years

    January 25, 2021

    An op-ed by Noah FeldmanThe storming of the U.S. Capitol on January 6 was a real lowlight for Congress. At least during the sacking of Washington in the war of 1812, the White House burned alongside the Capitol. But on January 6, 2021 the head of the executive branch urged his followers to interfere with the operation of the legislative branch. The entire sequence of events is a reminder that congressional power has been receding relative to the executive branch for almost a century. Now is the time for Congress to stand up for its rights as a coequal branch of government. It’s not only that the January 6 attack has drawn public attention to the importance of the legislature. It’s that President Joe Biden is the first career legislator to occupy the White House in nearly 50 years. Biden’s experience and instincts will guide him into pursuing major legislation, not just governing by executive order. If Congress can find bipartisan issues on which to pass laws, and if a significant bloc of congressional Republicans chooses not to be absolutely obstructionist, we might begin the process of restoring some of the governmental balance envisioned by the Constitution. Congress’s downward slide should matter to Democrats and Republicans alike.

  • The Inaugural Episode

    January 20, 2021

    A podcast by Noah Feldman: Presidential historian Douglas Brinkley shares his predictions and warnings for writing historical narratives about the end of the Trump presidency. He also discusses Trump’s decision to not attend the inauguration and how we should apply the 25th Amendment in the 21st century. This is the first installment in a new Deep Background series focusing on power in different fields and forms.