Noah Feldman

An op-ed by Noah Feldman. Only two presidents have had to deal with private lawsuits while in office. One was John Kennedy, who settled a suit involving a car crash that happened during his campaign. The other was Bill Clinton, sued by Paula Jones for making sexual advances toward her when he was governor of Arkansas. President-elect Donald Trump is involved in 75 pending lawsuits. That’s a problem -- potentially a serious one.

An op-ed by Noah Feldman. Vice President-elect Mike Pence has told evangelical leader James Dobson that the next administration will reverse President Barack Obama’s contraceptive mandate rules and transgender bathroom guidance -- both of which it can do without Congress. If Pence speaks for President-elect Donald Trump, both decisions would have major implications for cases now before the U.S. Supreme Court.

An op-ed by Noah Feldman. The financial markets thought Donald Trump’s conciliatory victory speech early Wednesday morning meant something. That interpretation seems plausible. If nothing else, Trump’s tone suggested that he realized the markets were getting volatile and that he wanted to calm the waters by giving the most conventional speech he’s ever delivered.

An op-ed by Noah Feldman. No matter the outcome, this Election Day marks a signal moment in the history of women’s suffrage. The Founding Fathers had a bad conscience about slavery, but no such qualms about women’s rights. The movement for women’s suffrage didn’t begin until the 1840s. And after the Civil War, when the 15th Amendment was proposed to give blacks the vote, women’s groups splintered over whether the denial of voting rights to women was a reason to oppose the amendment. Today, Democratic presidential candidate Hillary Clinton, a moderate, centrist reformer, is the political descendant of the women’s suffrage movement of the late 1800s and early 1900s.

An op-ed by Noah Feldman. It’s all about the Constitution now. Republicans will control the White House and both chambers of Congress. They will be able to pass -- or repeal -- their preferred laws, because that’s democracy. But to the Donald Trump opponents worried about what his presidency will bring, know this: There will still be limits to congressional or executive action, limits dictated by the Constitution and enforceable by the courts. The Constitution is designed to resist the tyranny of the majority. James Madison’s machine of constitutional protection is about to kick into gear.

An op-ed by Noah Feldman:  It’s hard to imagine much work getting done in most offices on Tuesday -- except at the U.S. Supreme Court, which will hear cases, pretending to be blithely oblivious to the history being made in voting booths across the country. As it turns out, one of those cases is actually pretty important. It concerns whether the city of Miami can bring claims against Wells Fargo and Bank of America for racially discriminatory predatory lending under the Fair Housing Act -- or whether the law only allows suits by individuals directly affected by discrimination. The justices may split, 4-4. And the issue is exactly the kind that will be affected by the election results.

An op-ed by Noah Feldman:  Lots of people who don’t otherwise care for Donald Trump or Hillary Clinton say they’re going to vote Tuesday based on which presidential candidate will be best for the U.S. Supreme Court. With the hours ticking away, it’s worth running through the three most plausible scenarios to see what the election outcome will mean for the court. Most desirable for liberals will be if Clinton wins the White House and gets a Democratic majority in the U.S. Senate. If that happens, the lame-duck Republican Senate might or might not confirm the relatively moderate Judge Merrick Garland, President Barack Obama’s nominee to fill Justice Antonin Scalia’s seat.

An op-ed by Noah Feldman: It’s easy to bemoan the Gawker-Hulk Hogan settlement and condemn the Florida courts for not throwing out the verdict. But there’s a deeper point that matters more and shouldn’t be lost: The First Amendment and its values can be thwarted and distorted by private actors with extremely deep pockets.

An op-ed by Noah Feldman: Striking a blow against popular sovereignty by referendum, the U.K. High Court of Justice held Thursday that Britain can’t leave the European Union without an act of Parliament. Because British constitutional thought is so different from its U.S. and European equivalents, the decision will be difficult for the U.K.’s Supreme Court to overturn. It’s now much more likely than not that the courts will save Britain from its ill-conceived Brexit vote. The people may have spoken -- but the court said that wasn’t good enough.

An op-ed by Noah Feldman. Is the middle-finger gesture obscene? Not in Pennsylvania, according to a state appellate decision filed this week reversing a man’s conviction for giving his ex-wife the finger. Decided in the shadow of the First Amendment, the decision raises the ever-intriguing question of what counts as obscenity. It also calls into question the old idea that obscene speech is exempt from the constitutional rules governing freedom of speech.

An op-ed by Noah Feldman. Pope Francis is continuing along his remarkably liberal path, most recently by praising Martin Luther at a ceremony in Sweden beginning a yearlong 500th anniversary commemoration of the Reformation. Yet despite the pope’s openness, and the corresponding good faith of the Lutherans, the two sides were unable to effect a reconciliation. The episode raises two questions: Why try? And how is it that, in this post-theological age, not even Christian believers can get past their own wars of religion?

An op-ed by Noah Feldman. The U.S. Supreme Court agreed Friday to hear the case of a transgender teen who seeks to use the boys’ room at his high school during his senior year. Given that the appeals court had ruled in his favor, it’s unfortunate that the court took up the case. It’s too soon, in cultural terms, for the court to rule definitively on the subtle issue of transgender rights, which poses powerful equality claims against society’s deeply ingrained male-female gender binaries. Transgender rights could benefit from a longer lead time for the lower courts to explore the different aspects of the question -- and for the American people to develop a consensus.

An op-ed by Noah Feldman. Federal prosecutors in Colorado have found a way to use a serious tool against fraud to persecute some fringe political dissenters. The protesters, who deny the legitimacy of the U.S. government, take bills they owe, add notes to the effect of “Thank you for paying this debt,” and send them to government agencies like the U.S. Department of Agriculture. The government doesn’t pay the debts -- it throws the notices in the trash. Yet prosecutors are outrageously charging the protesters under the False Claims Act with the felony of submitting fraudulent financial claims on the government. This serious abuse of power violates the First Amendment -- and verges on prosecutorial misconduct.

An op-ed by Noah Feldman. Under securities law, a publicly disclosed half-truth is worse than no truth at all, according to an appeals court opinion filed this week involving Arena Pharmaceuticals Inc. The decision has an intuitive moral appeal. But it’s not at all clear that it makes sense from the standpoint of investors, who might be misled just as thoroughly by failure to disclose material information as they would be by partial disclosure.

An op-ed by Noah Feldman. As a lawyer, I’m embarrassed that the American Bar Association commissioned a report about Donald Trump’s use of libel threats, then refused to publish it out of fear that Trump, the Republican presidential nominee, would sue the organization for libel. The episode, however, dramatizes how effective libel threats are in chilling speech -- and how they work in real life, driven by the professional caution that lawyers cultivate on behalf of their clients.

An op-ed by Noah Feldman. Two important Guantanamo military commission cases are hovering on the edge of review by the U.S. Supreme Court, and the bad news is, both involve claims of legal overreach by government prosecutors. One defendant says he can’t be tried for the USS Cole bombing in 2000, because the U.S. wasn’t at war with al-Qaeda until Sept. 11, 2001. The other says he can’t be convicted of a conspiracy that didn’t come to fruition because international law doesn’t recognize such a crime. So far, neither defendant has prevailed in the lower courts, and it’s hard to say exactly how the Supreme Court would rule if it takes either of the cases. But what’s noteworthy is that, no matter the outcome, these two Guantanamo trials are going to end up tainted in the eyes of future legal scholars and analysts.

An op-ed by Noah Feldman. The new South Africa has been a bastion of respect for human rights, and its decision to withdraw from the International Criminal Court is a sign that something is terribly wrong with the tribunal. And it’s no secret: Since 2005, when it first issued arrest warrants, the court has indicted 39 people, every one of them African. There are various explanations for this, some of them defensible. But the bottom line is that it was an inexcusable mistake for the court not to pursue other cases. It wouldn’t have been tokenism, because there are, unfortunately, plenty of non-African war criminals. Yet even if it were, the tokenism would have been justified to show that the court is more than the imperialist agent of regime change that many Africans consider it.

An op-ed by Noah Feldman. With Donald Trump’s chances of winning the White House narrowing, it’s not too soon to ask: If Hillary Clinton wins the presidency in November, what attitude should Democrats and Republicans alike take toward Trump voters? It will be tempting to excoriate or patronize them, or to woo them to your cause. But all of these approaches would be mistaken. A much better strategy -- for both parties -- is to engage in selective memory, and to treat Trump voters as though the whole sorry episode of his candidacy never occurred. That may seem counterintuitive, especially because there’s no doubt that Trump’s candidacy shows the system needs fixing. But it’s based on the solid intuition that Trump voters, many of them alienated already from mainstream party politics, will only be further alienated by anything that associates them with a candidate whose brand was victory and who delivered defeat.

An op-ed by Noah Feldman. If Donald Trump loses the election and doesn’t concede, it won’t violate the U.S. Constitution. But it would break a tradition of concession that dates back more than a century and has achieved quasi-constitutional status. And like most enduring political customs, its value goes beyond graciousness: It helps ensure the continuity of government and offers a legitimating assist to democracy itself.

An op-ed by Noah Feldman: Senator John McCain may not have meant to say that a Republican Senate would refuse to vote, either up or down, on any Supreme Court nominee put up by Hillary Clinton. But what if Republican senators just said they would vote down any candidate Clinton nominated? Would the resulting political standoff amount to a constitutional crisis?

An op-ed by Noah Feldman. Compared with the rest of the third presidential debate Wednesday night, the opening conversation about the Constitution was practically Lincoln-Douglas-like as the candidates answered questions and didn't interrupt each other. But the discussion of the seminal gun control case D.C. v. Heller was borderline incomprehensible unless you've recently taken constitutional law. And in giving an answer intended to express moderation on gun rights, Hillary Clinton missed a chance to express support for the original meaning of the Constitution.