Noah Feldman

An op-ed by Noah Feldman. An extraordinary poll released Wednesday showed Democratic presidential candidate Hillary Clinton and Republican nominee Donald Trump both losing in Utah to Evan McMullin, a conservative Mormon ex-CIA officer only on the ballot in 11 states. The best explanation for the rise of this independent candidate is that Mormons, who tend to have deeply conservative values, are genuinely repulsed by Donald Trump. And not just by the crude comments and allegations of sexual assault that recently came to light, but also by Trump’s anti-Muslim sentiment, which the Church of Jesus Christ of Latter-day Saints implicitly condemned 10 months ago.

An op-ed by Noah Feldman. Is Brexit unconstitutional? That’s the key issue in a suit argued this week before the High Court in London. What makes the question especially piquant is that Britain doesn’t have a single written constitution, but rather a complex tradition of constitutional law made up of principles, precedents and practices accrued over generations. Under those principles, the answer to whether the U.K. can leave the European Union without a parliamentary vote is … maybe. It seems most likely that the High Court -- or the Supreme Court, which will hear an appeal next -- will say that Brexit can be accomplished without it. But to reach that conclusion, the British courts will have to expand existing principles, and grapple with the meaning of the referendum as a political tool. It’s a sad day for the country that arguably invented representative government.

An op-ed by Noah Feldman. The Israeli press and government are in an uproar about a resolution submitted to UNESCO, the United Nations’s cultural agency, by seven Arab states that, they say, denies the connection between the Jewish people and the Temple Mount. The resolution, ratified Tuesday, is hopelessly one-sided, which is not a shock for a UN entity that operates on a majority vote and without a Security Council veto. But what’s fascinating is that the Israelis are treating the resolution as an assault on their religious-historical claims to the site, which the report addresses only obliquely. This is a deepening problem on both sides of the Israeli-Palestinian conflict: the slow transformation from a national struggle into a religious one. And the religious struggle never seems more intractable than when the topic is the Temple Mount.

An op-ed by Noah Feldman. By law, the federal government is supposed to manage the wild horse population in the West. But what happens if, despite an overabundance of the beautiful beasts, the government does nothing about it? The official answer is not much, according to a federal appeals court that turned down Wyoming’s challenge to federal inaction. The decision follows familiar principles of deference to agency action (or, in this case, inaction). But it leaves farmers or others negatively affected by the overpopulation with essentially no recourse, a result that seems at odds with the intent of the law.

An op-ed by Noah Feldman. There’s no need to believe the Russian propaganda that says the U.S. agreed to let 9,000 Islamic State fighters flee Mosul to go fight President Bashar al-Assad in Syria. But the story “reported” Wednesday by Russia Today (on the basis of a single anonymous source) does capture a strategic truth in the run-up to the attack on the Islamic State-controlled city: The fighters have good reason to flee -- and the Iraqis and the U.S. have good reason to let them.

An op-ed by Noah Feldman. Is it unlawful race discrimination for a company to ban dreadlocks in the workplace? In a decision that has become a topic of debate among law professors, a federal appeals court said no last month. The case is so important because the court defined race as biology, emphasizing “immutable characteristics” as the subject of anti-discrimination law. But for more than 75 years, scholars have understood that race is as much or more a matter of culture than it is about biological reality. The decision in EEOC v. Catastrophic Management Solutions is therefore built on quicksand -- and it’s a mistake to embrace it, even if on some level the result might seem like common sense.

An op-ed by Noah Feldman. A Saudi airstrike that destroyed a funeral hall and killed 140 people Saturday in Yemen is a scenario U.S. lawyers have been worried about under international law. Documents obtained by Reuters reveal that State Department lawyers were concerned that arms sales to the Saudis might make the U.S. liable for war crimes the Saudis might commit. The U.S. hasn’t been giving targets to the Saudis but, problematically, it has provided a no-strike list including critical infrastructure. In effect, that may make the U.S. complicit in targeting decisions like the one that tragically hit the funeral hall. Worse, the U.S. has been refueling Saudi warplanes for strikes in Yemen.

An op-ed by Noah Feldman. It takes a lot to turn a publisher of sex ads into a First Amendment hero. But the attorney general of California has managed the feat. By charging Carl Ferrer, the chief executive of Backpage.com, with pimping and sex trafficking in minors, Kamala Harris has seriously breached the constitutional wall meant to protect the free press. Ferrer -- and the two controlling shareholders of the online classified marketplace Backpage -- aren’t charged with actually arranging sex for pay. They’ve been criminally charged based on a claim that Backpage is designed to, and does, publish third-party ads for sex trafficking. On this theory, essentially any publication that sells ads could be outlawed -- and that’s almost any publication on earth.

An op-ed by Noah Feldman. Donald Trump’s threat in Sunday night’s presidential debate to appoint a special prosecutor to go after Hillary Clinton’s use of a private e-mail server is legally empty -- but it’s genuinely dangerous nevertheless. Federal regulations give the appointment power to the attorney general, not the president, precisely to protect us against a president who uses the special prosecutor as a political tool. What separates functioning democracies from weak or failed ones is that political parties alternate in power without jailing the opponents they beat in elections. That sometimes means giving a pass to potentially criminal conduct, but that’s a worthwhile sacrifice for making republican government work.

An op-ed by Noah Feldman. It may not seem that significant to a civilian. But a rule-change that will lower the maximum length of appellate briefs from 14,000 words to 13,000 words , effective Dec. 1, is getting plenty of pushback from the lawyers who specialize in federal appeals. To the readers, a 7 percent reduction in legalese is definitely good news. Yet to the writers, it could mean a 7 percent reduction in billable hours -- and in revenue. That’s no small matter. The economics of appellate law are already pretty tenuous from the standpoint of managing partners who employ appellate specialists, often against their will.

An op-ed by Noah Feldman. The connection between the law of insider trading and the nature of the sibling relationship may not be immediately obvious -- but the U.S. Supreme Court will consider it Wednesday in what may be one of the most interesting cases of a term that the justices have designed to be boring. Salman v. U.S. turns on whether one brother derives “personal benefit” from providing insider information to another brother who trades on it. Regardless of which answer it chooses, the court will essentially have to offer an analysis of brotherly love -- and what it does for the siblings.

An op-ed by Noah Feldman. The first Monday in October this year is also the first day of Rosh Hashana -- so oral arguments for the new Supreme Court term will begin instead on a Tuesday. Chief Justice William Rehnquist, who was reputedly unsympathetic to Justice Ruth Bader Ginsburg’s request to turn the court’s Christmas party into a holiday party, must be spinning in his grave. But Rehnquist’s former law clerk, Chief Justice John Roberts, is apparently more ecumenical -- and it’s a different era, with three Jews on the court and a fourth nominated to it. Nevertheless, the Jewish New Year is two days long (or, one long day according to the rabbis). And perhaps it’s appropriate that on the day when, according to tradition, God sits in judgment of his flock, the court will consider one case about crime and one about punishment. The first is about whether it’s federal bank fraud to rip off a customer rather than the bank itself. And the other, more subtle case is about whether double jeopardy allows charges to be retried when the original jury acquittal was logically irrational.

An op-ed by Noah Feldman. The last Supreme Court term was strange by accident. Justice Antonin Scalia’s death in February left the court with only eight members, and several 4-4 decisions left major issues unresolved. Anticipated decisions on religious liberty, union dues and presidential power over deportation will have to wait for the court to return to nine justices. The big-ticket cases that were decided, on abortion and affirmative action, were products of Justice Anthony Kennedy’s move to the left. The Supreme Court term that starts Monday will be strange by design. The Senate’s refusal to vote or even to hold a hearing on President Barack Obama’s nomination of Judge Merrick Garland means the court enters the term shorthanded.

An op-ed by Noah Feldman. The fate of the Sept. 11 families’ lawsuit against the Kingdom of Saudi Arabia may depend on the Partridge family. The Justice Against Sponsors of Terrorism Act, enacted by Congress on Thursday over President Barack Obama’s veto, is supposed to let the suit go forward. But for the federal courts to have legal authority, the families will most likely have to show that the Sept. 11 attacks were “effects” of actions taken by the Saudi government. And the leading U.S. Supreme Court case governing what counts as effects involved the actress Shirley Jones, known for her role as Shirley Partridge in the 1970s show “The Partridge Family.” Jones sued a writer and editor for the National Enquirer where she lived in California over a libelous article that was written in Florida.

An op-ed by Noah Feldman. A federal appeals court this week upheld an Alabama law that bans political action committees from making donations to other political action committees. That should be good news for Democrats, who generally oppose the Citizens United decision and the flood of political spending it released. But the twist is that the law was devised to interfere with the work of the Alabama Democratic Conference, and it was the losing party in the lawsuit.

An op-ed by Noah Feldman. Strippers have constitutional rights too -- or at least that’s the claim of three New Orleans women challenging a Louisiana law that requires erotic dancers to be 21 to expose their breasts or buttocks. It may sound absurd, but the legal argument is pretty powerful. The law facially discriminates on the basis of sex, and arguably infringes on that classic First Amendment right to express yourself by dancing without clothes.

An op-ed by Noah Feldman. The U.S. Supreme Court didn’t come up Monday in the first presidential debate, and so far, it hasn’t been an important campaign issue. Given the unprecedented vacancy during an election season, that seems weird. But there is an explanation: The election’s consequences for the court are asymmetrical for the two political parties. If the Democrat, Hillary Clinton, is elected, it will change the court’s balance, either through the confirmation of President Barack Obama’s nominee, Judge Merrick Garland, in the lame-duck session or with the appointment of Garland or another liberal after she takes office. If the Republican, Donald Trump, is elected, all he can do is replace the late Justice Antonin Scalia with another conservative. That won’t change the court’s political balance.

An op-ed by Noah Feldman. In a case that evokes a modern-day hangman’s mask, a pharmacy that provides lethal drugs for carrying out the death penalty is arguing that it has a constitutional right to anonymity. The argument should fail, because there’s no right to confidentiality in providing government services. But it shows just how dangerously far the idea of corporate constitutional rights has gone in the era of Citizens United and Hobby Lobby.

History, as a rule, unfolds slowly at the Supreme Court. The Justices serve for decades. The cases take years. The Court’s languorous work schedule includes three months of downtime every summer. But the death of Antonin Scalia, earlier this year, jolted the institution and affirmed, once again, a venerable truism, attributed to the late Justice Byron White: “When you change one Justice, you change the whole Court.”...“There has not been a definitively liberal majority on the Supreme Court since Nixon was President,” Noah Feldman, a professor at Harvard Law School, said. “Ever since then, liberals have sometimes managed to cobble together majorities to avoid losing—on issues like affirmative action and abortion—but the energy and the initiative have been on the conservative side. That stopped, at least for now, this year.”

An op-ed by Noah Feldman. It’s delicious to watch the Saudi outrage at being excluded from a conference in Chechnya to define who counts as a Sunni Muslim. Wahhabism, the Sunni offshoot that dominates Saudi Arabia, has done more than any other movement in Islamic history to read other Muslims out of the faith, and turnabout is fair play. Unfortunately, the conference, organized by Chechen strongman Ramzan Kadyrov, is actually part of Russian President Vladimir Putin's fiendishly clever plan to weaken Saudi Arabia, a U.S. ally. The entire episode shows how ideologically vulnerable the Saudis feel in the age of Islamic State -- and how good Putin is at affecting Middle Eastern politics.

An op-ed by Noah Feldman. Prisoners can be counted in population totals for determining a voting district, even though they can’t cast ballots in the place where they’re being held. That's what an appeals court relying on a U.S. Supreme Court decision from last term has said -- even though that case involved noncitizens who are fully members of the community, not inmates who don’t contribute to the city or use local services. Wednesday’s decision casts some doubt on the theory of virtual representation that the justices used, and raises deep issues about the connection between voting and being represented.