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Noah Feldman

  • The 229-year-old sentence liberals hope will sink Trump

    November 23, 2016

    An obscure line in the Constitution has become a rallying point for some legal experts and critics of Donald Trump, who fear the president-elect has little intention of making a clean break between his business interests and his new White House role...Trump’s determination to cling to his global empire “creates an ongoing risk that foreign individuals and interests will confer commercial benefits on hotels, golf courses, or other businesses” connected to him, argued Laurence Tribe, a constitutional law professor at Harvard University. The greatest worry, according to Tribe, would be that those benefits might induce a President Trump to make or influence decisions “to the disadvantage of national interests” and in favor of his own. “Trump can’t receive any direct payment of any kind from a foreign government, including a fee for services,” argued Noah Feldman, another professor at Harvard and an expert on constitutional law, in a column for Bloomberg View.

  • Wisconsin Republicans’ Gerrymander Takes Politics Too Far

    November 22, 2016

    An op-ed by Noah Feldman. In a case that could eventually affect the balance of legislatures across the country, a federal court in Wisconsin has for the first time struck down a partisan gerrymander. The U.S. Supreme Court has previously declined to regulate such party-based districting, but this time may well be different. The lower court gave a simple, clear rule for determining whether districting is designed to disadvantage one party systematically. And the growing disparity between Republican and Democratic-controlled state legislatures gives the justices -- especially Anthony Kennedy -- very good reason to intervene.

  • Trump’s Hotel Lodges a Constitutional Problem

    November 22, 2016

    An op-ed by Noah Feldman. President-elect Donald Trump is poised to violate the foreign emoluments clause of the Constitution, at least according to the chief ethics lawyer of the George W. Bush administration. The idea is that when foreign officials stay in a Trump International Hotel to ingratiate themselves with the president, they’ll be giving him an emolument -- that is, a form of payment -- in violation of Article 1, Section 9, Clause 8 of the Constitution. And the Washington Post recently reported that Trump’s Washington hotel actively solicited diplomats with a reception that included a tour of a 6,300-square-foot suite that goes for $20,000 a night. This suggestion prompts three questions, none of which I could have answered without research: What the heck is the foreign emoluments clause? Does it cover Trump’s conduct? And if it does, who, if anyone, can bring a case in court to do anything about it?

  • Portrait of Noah Feldman

    Noah Feldman on HLS’s new Program on Jewish and Israeli Law

    November 21, 2016

    Noah Feldman, director of the newly-established Julis-Rabinowitz Program in Jewish and Israeli Law recently spoke with Harvard Law Today about the scope of Jewish law, his aspirations for the program, and his own background in the subject.

  • So What If Trump Hires His Son-in-Law

    November 21, 2016

    An op-ed by Noah Feldman. Should President-elect Donald Trump decide to appoint his son-in-law, Jared Kushner, to a White House post, there are two potential nepotism problems: one legal and one moral. Neither should block the appointment. The law likely doesn’t cover White House appointments, and the ethical concern is outweighed by the value of transparency among the president’s closest advisers.

  • How Trump Can Reshape the Courts

    November 18, 2016

    An op-ed by Noah Feldman. The Republican Senate has blocked or delayed many of President Barack Obama’s judicial nominees; his Supreme Court pick of Judge Merrick Garland is just the most visible. Now President-elect Donald Trump will be able to capitalize by filling those slots. And because of the Senate Democrats’ 2013 decision to exercise the “nuclear option” and eliminate the filibuster for all judicial nominees except for the Supreme Court, they won’t be able to filibuster Trump’s candidates.

  • Expect the Expected From Trump’s Supreme Court Pick

    November 17, 2016

    An op-ed by Noah Feldman. President-elect Donald Trump hasn’t yet chosen the people whose job it would be to propose a U.S. Supreme Court nominee for him to choose. But that hasn’t stopped speculation about who will be picked to replace the late Justice Antonin Scalia. It would be a mistake to make a projection with any confidence at this stage. Nevertheless, it is possible to identify the parameters and constraints that will go into the decision, which yields some scenarios with names attached. The only thing that can be said with confidence is that Trump’s Supreme Court nominee will be a conservative.

  • Blame the British Empire for the Electoral College

    November 16, 2016

    An op-ed by Noah Feldman. There are two truths about the Electoral College: It ought to be abolished, and it never will be. Calls for changing the constitutional election system abound now that Hillary Clinton has won the popular vote and lost the electoral vote, as Al Gore did in 2000. But it turns out that the same Constitution that enshrines the Electoral College effectively protects the small states from an amendment they don’t want. The problem goes back to the nation's founding -- and short of abolishing the states as effective sovereigns, it basically can’t be fixed.

  • Trump’s Threat to Abortion Rights Isn’t Immediate

    November 15, 2016

    An op-ed by Noah Feldman. Donald Trump’s comments on “60 Minutes” suggest that the president-elect has assimilated a version of the traditional moderate Republican position on abortion rights: call for the repeal of Roe v. Wade, while hoping that in practice, abortions will still be available somehow. The logic of this position is purely political. At least some of the Republican base wants abortion outlawed, but lots of people who voted for Trump would be extremely upset if they or a woman they cared about couldn’t actually get an abortion.

  • 4,000 Reasons to Think Trump’s Power Will Be Restrained

    November 15, 2016

    An op-ed by Noah Feldman. Four thousand: That’s the number of political appointees President-elect Donald Trump’s transition team will have to pick in the next few months for the government to continue running effectively after President Barack Obama leaves office. The challenge is great for any new administration; it’s especially daunting for a political outsider whose staff, according to the Wall Street Journal, was surprised to hear last week that it would have to replace everyone in the West Wing.

  • Supreme Court Never Imagined a Litigant Like President Trump

    November 14, 2016

    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.

  • Two Cases Where Trump Could Rewrite the Rules

    November 14, 2016

    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.

  • Victory Speech Was Part Lincoln, Part Trump

    November 10, 2016

    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.

  • Voting for a Female President Isn’t So Radical Now

    November 9, 2016

    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.

  • The Constitution Is Built to Protect the Losers

    November 9, 2016

    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.

  • Miami Tries to Hold Banks Accountable for Bad Loans

    November 7, 2016

    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.

  • Election Day Is a Turning Point for Supreme Court

    November 7, 2016

    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.

  • When the First Amendment Is the Wrong Weapon

    November 4, 2016

    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.

  • High Court Doesn’t Care If the People Want Brexit

    November 4, 2016

    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.

  • You Have the Right to Give Someone the Finger

    November 3, 2016

    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.

  • Healing Christianity’s 500-Year Rift Is Worth a Try

    November 2, 2016

    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?