Noah Feldman

An op-ed by Noah Feldman: Cockfighting, although practiced around the world, is banned in all 50 states. But is someone who breaks the ban committing a crime of moral turpitude? A federal appeals court has said no, declining to deport an immigrant convicted of facilitating a cockfight. In a line that may outrage animal-rights activists, the court said that a crime of moral turpitude must involve harm to third parties, not just directly to the chickens. The outcome is correct for the immigrant, but not precisely for the reason the court gave. In a society that condones the factory-farm killing of billions of animals, it would be the height of hypocrisy to deport someone for killing just one rooster pursuant to an unfamiliar cultural practice.

An op-ed by Noah Feldman. It’s never the wrongdoing -- it’s the lying about it. Pennsylvania Attorney General Kathleen Kane, who announced her resignation Tuesday in the face of a possible 14-year sentence for her conviction on perjury charges, proves the truth of that adage for public corruption cases. Leaking grand jury proceedings to embarrass a political rival would not have gotten her sent to prison. But lying about it under oath could and will. How could a state’s top law enforcement official be so dumb? Why are perjury charges so serious? And why don’t people, even lawyers, realize it?

An op-ed by Noah Feldman. How much leeway should Marines have to express their religious beliefs? According to Congress, religious liberty laws apply with full force to the military. But last week the highest court in the armed forces put some limits on claims by active-duty personnel. Those limits cut against recent trends in Supreme Court jurisprudence -- but they make a lot of sense in a military context, even if they shouldn’t necessarily be copied by other courts for civilians.

An op-ed by Noah Feldman. A century ago, Donald Trump might have gone to prison for suggesting that “the Second Amendment people” might find a way to stop Hillary Clinton’s agenda as president. Today, the First Amendment protects him -- barely. It’s still a federal crime to threaten the life of the president, and people go to jail for it all the time, despite the apparent abridgment of free speech. But while Trump’s words would probably get him a Secret Service visit if he were an ordinary crazy person, they wouldn’t lead to prosecution.

An op-ed by Noah Feldman. The American Bar Association is considering adding a rule to its canon of ethics that would prohibit lawyers from discriminating in the course of their jobs. The proposal seems innocuous and probably overdue -- but it has encountered a surprising degree of opposition. So it seems reasonable to ask: Why is this even a thing? How can anyone in good conscience think that barring discrimination by lawyers is a bad idea? The answer is that the legal profession is the last bastion of unfettered, unapologetic nastiness, proudly flying the flag of zealous client representation. In some ways, that’s good. The adversarial system calls for a degree of confrontation and aggression that would be inappropriate in almost any other professional context. Yet it should be possible to craft rules to carve out certain kinds of nastiness -- including discrimination on the basis of race, sex, sexual orientation, or other invidious motives.

An op-ed by Noah Feldman. Only Donald Trump knows whether he was serious about asking Russia to hack into Hillary Clinton’s e-mail server, now in government hands, to find 30,000 emails that were erased as private. But let’s assume Vladimir Putin was listening. Did Trump commit a crime by inciting lawless action? Or are his words protected by the First Amendment? Trump was probably making a political statement, trying to change the subject from a possible pro-Trump Russian hack of Democratic National Committee e-mails to Clinton’s own e-mail scandal. Political statements are ordinarily at the core of free-speech protection.

An op-ed by Noah Feldman. Two prominent legal decisions accidentally converged Wednesday, each likely to be deplored by a different political constituency. Baltimore prosecutors dropped all charges against three police officers who had been accused in the death of Freddie Gray, which will frustrate supporters of the Black Lives Matter movement. And a federal judge is allowing John Hinckley Jr., who tried to kill President Ronald Reagan, to move into his mother’s house in a “convalescent release” -- a decision already criticized by Donald Trump, among others. The two decisions have something important in common: They both came from conscientious public officials who were following the laws that govern their jobs. You may not like one or both of them. But if you value the ideal of a government of laws, not men, you should accept the decisions as understandable consequences of the law.

An op-ed by Noah Feldman. Not all gifts to politicians are illegal. But it can be difficult to draw the line between what the Supreme Court has called “access and ingratiation,” which is protected by the First Amendment, and quid-pro-quo corruption, which isn’t. The $160,000 in gifts accepted by Democratic vice-presidential nominee Tim Kaine when he was Virginia governor were completely legal. All the same, they shed a distinct light on the Supreme Court’s decision last month to absolve his successor, Bob McDonnell, of corruption charges. Comparing Kaine’s gifts to McDonnell’s suggest that there was an ethical difference -- and also that the court may have been right to find that the difference would be hard to measure legally.

An op-ed by Noah Feldman. The Obama administration has asked the Supreme Court to wait until it has nine justices and rehear U.S. v. Texas, the case in which a 4-4 court affirmed a lower court’s decision to block the president’s executive action on immigration. The effort is unlikely to succeed, because the court’s rules require a majority to grant rehearing, and right now the court doesn’t have one. But in a more logical world, the court would agree now to reconsider this extremely important case, which would grant temporary legal status to some 4 million people who entered the U.S. illegally, when it is at full strength. That it probably won’t shows just how dysfunctional an eight-justice court really is.

“Western civilization is in a war,” former Republican presidential candidate (and now former Trump-VP hopeful) Newt Gingrich said during a live FOX News interview with Sean Hannity, hours after a man drove a truck into a crowd in Nice, France, and killed 84, while injuring 202...This is not the first time that Newt Gingrich has proven that he knows nothing about Islam and our United States Constitution. ..“In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world,” Harvard Law Professor Noah Feldman once proclaimed in a New York Times Magazine article on the anti-sharia hysteria sweeping across the Republican party today...any mainstream Islamic religious scholar will tell you that there is no sin­gle monolithic definition of Sharia as it exists today any­where in the world. Very generally speaking, the concept of Sharia has come to be defined as “the ideal law of God according to Islamic tradition,” according to Professor Intisar Rabb, director of the Islamic Legal Studies Program at Harvard Law School. But as Professor Rabb has also made clear: “Sharia has tremendous diversity..."

An op-ed by Noah Feldman. In an important decision with immense consequences for data storage services and law enforcement, a federal appeals court has quashed a warrant for e-mails that Microsoft was storing on a server in Ireland. Unless Congress changes the relevant law, this ruling creates the incentive for criminals -- or anyone else who wants privacy protection from government surveillance -- to make sure their data is held outside the borders of the U.S. The reasoning of the 2nd U.S. Circuit Court of Appeals in Manhattan arguably followed from Supreme Court precedent -- but it was probably a mistake nonetheless, and it isn’t really a win for privacy rights.

An op-ed by Noah Feldman. Doesn’t everyone have an outspoken Jewish grandmother? That was my thought on reading the indignant commentary on Justice Ruth Bader Ginsburg’s unflattering assessment of Donald Trump in an interview with the New York Times. To put the point more seriously, there’s nothing wrong with a sitting Supreme Court justice expressing her personal political views when they don’t implicate any case that’s currently before the court.

Noah Feldman, a Harvard law school professor and Bloomberg view columnist, and Steven Sanders, a professor at Indiana University Maurer School of Law, discuss the escalating feud between presumptive republican presidential nominee Donald Trump, and Supreme Court justice Ruth Bader Ginsburg. The conflict has escalated over the last week as Ginsburg doubled down on her anti-Trump views in three interviews, with CNN, the AP and the New York Times, and is leaving legal experts divided on the political place of the Supreme Court. They speak with Bloomberg Law hosts June Grasso and Greg Stohr on Bloomberg Radio’s "Bloomberg Law."

An op-ed by Noah Feldman. Given the horror of the murder of the five police officers in Dallas last Thursday, it may seem absurd or distasteful to ask whether it was a good idea to kill the sniper with a bomb mounted on a robot. Surely anything that stopped the carnage was justified in the moment, and the police seem to have had no clear shot at the sniper. But the issue is more complicated, and it deserves to be considered carefully. There’s a legal difference between targeting a crime suspect and targeting a wartime enemy. There’s also a difference between using a weapon that can be aimed and using one that puts bystanders at greater risk. And a precedent set under emergency conditions can easily expand in future cases. The step from the robot bomb to a drone strike is barely even incremental: morally and technologically, they’re basically the same.

An op-ed by Noah Feldman. A group of high-profile legal minds wants the Supreme Court to eliminate super-PACs, the advocacy groups that can raise and spend unlimited amounts of cash to praise and attack political candidates. But instead of asking the court to overturn the 2010 Supreme Court case that lifted many restraints on political spending, Citizens United v. Federal Elections Commission, they plan to ask the justices to overturn a lower court decision that interpreted Citizens United to open the door to the super-PACs. The strategy is worth pursuing...Why attack SpeechNow instead of challenging Citizens United directly? The answer is subtle, and it reflects the legal expertise of the group, which includes my senior Harvard Law School colleague Laurence Tribe, the unquestioned master of the dark arts of shaping doctrine through litigation.

An op-ed by Noah Feldman. The legal troubles of the father and son executives of an Iowan egg farm could have repercussions for businesses everywhere: In a case involving a 2010 salmonella outbreak, an appeals court has decided that you can get prison time for violating federal regulations, even if you didn’t know you were breaking the rules. It's a unique decision, and one that the Supreme Court should examine.

An op-ed by Noah Feldman. Germany changed several laws this week in direct reaction to the New Year’s Eve attacks in Cologne by a disorganized group of young Muslim men. One change, implementing “no means no” in German rape law, was long overdue. A second, taking criminal history into account in immigration decisions, was probably inevitable and isn’t out of step with other countries. But a third, which creates criminal liability for being part of an amorphous group and tacitly allowing an assault perpetrated by someone else, is more worrisome. It smacks of collective punishment, deviates from European criminal law norms, and threatens the right of assembly.

An op-ed by Noah Feldman. Most states ban felons from voting while in prison, and 10 provide that the prohibition can become permanent. Is this relic of common-law tradition constitutional in the modern age? A reluctant and divided Iowa Supreme Court has declined to overturn felon disenfranchisement. But even the majority opinion managed to suggest that in the future, the constitutional answer should be different. Other courts will be listening. Over time, such bans on those who have served their sentences can and should be overruled.

An op-ed by Noah Feldman. Supreme Court Justice Anthony Kennedy’s vote to reaffirm the validity of affirmative action in higher education admissions and to give bite to abortion rights mark the endpoint of his near-complete transformation into a constitutional liberal. Last year’s gay marriage decision, which Kennedy wrote, was his high-water mark as a creative inventor of new constitutional rights. But Kennedy had expressed skepticism of affirmative action in the past. And while his vote in the 1992 Casey v. Planned Parenthood had blocked Roe v. Wade from being overturned, it weakened Roe’s rights-oriented logic. For Kennedy to write the opinion that will become the new affirmative action precedent, and to join the opinion that makes cost-benefit analysis the new measure of whether state laws violate abortion rights, suggests adherence to a liberal constitutional agenda.

An op-ed by Noah Feldman. Today the Supreme Court upheld the constitutional right to abortion -- and laid down a new framework for how courts should evaluate future legislation limiting it. For the first time, the court expressly held that laws limiting access to abortion must be evaluated on a cost-benefit basis, to see if health benefits to women outweigh the costs in making abortion less available. The cost-benefit scheme gives greater precision to the undue-burden test established in the landmark 1992 case of Casey v. Planned Parenthood. But it also raises the difficult question of how, exactly, costs and benefits should be determined if and when other states pass laws that limit abortion access while purporting to protect women’s health.

An op-ed by Noah Feldman. The Supreme Court ruled Monday that if the police stop you illegally but then find out that there’s a traffic warrant out for you, they can search you and charge you with a crime if you're carrying something illegal. The 5-to-3 decision can be read as an implicit vindication of controversial stop-and search policies. In a blistering dissent, Justice Sonia Sotomayor invoked Ferguson, Missouri, to argue that the court's decision impugns the dignity of the individual. She said that the effects will be felt disproportionately by “black and brown parents” who for generations “have given their children ‘the talk’” out of “fear of how an officer with a gun will react to them.”