Noah Feldman

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.

An op-ed by Noah Feldman. Can the government block the online publication of files that let anyone make an assault rifle on a 3-D printer? In a defeat for free speech and a win for gun-control advocates, an appeals court has said yes. The court declined to suspend a State Department regulation that treats posting the files as a foreign export of munitions. Although the impulse to block the easy creation of untraceable weapons is admirable, the court got it wrong. The First Amendment can’t tolerate a prohibition on publishing unclassified information -- even if the information is potentially harmful.

An op-ed by Noah Feldman. Plenty of local governments open their meetings with a quick, generic prayer from a member of the clergy. But is it different when the lawmakers themselves say “Let us pray” and then supplicate God to open everyone’s heart to the message of Jesus Christ? Does that violate the Constitution? In a significant defeat for religious liberty, a federal appeals court has upheld a continuous practice of sectarian, public prayer by the members of a North Carolina board of county commissioners. The dissenting judge, the distinguished conservative J. Harvie Wilkinson, said the “seat of government” in the case was made to resemble “a house of worship.” The court’s majority said it was just following Supreme Court precedent.

An op-ed by Noah Feldman. The secrecy rules for grand juries contain no exceptions for cases with historical importance. In an important victory for historians, however, a divided appeals court is unsealing testimony from a 1942 leak investigation after the Battle of Midway. The decision, which was opposed by the Obama administration, sheds some light on the debate about whether the leaks by former National Security Agency contractor Edward Snowden were justified by historic importance or were an inexcusable violation of national security.

An op-ed by Noah Feldman. If Hillary Clinton wins in November, will the lame-duck Republican Senate confirm Judge Merrick Garland to the U.S. Supreme Court? Last week, Clinton said she would look for diversity and wouldn’t feel bound to renominate Garland, which in theory should give Republican senators more reason to confirm Garland, before Clinton can nominate a more liberal candidate. Yet a careful analysis of Republican senators’ incentives in the case of a Democratic win in November points the other way. If Republicans lose the presidency, the party will enter an intense period of self-reflection and disarray. And if they also lose the Senate, the disarray will be greater still. Under those conditions, it seems most likely that Republican senators wouldn’t want the final act of their majority session to be acquiescence to the judicial candidate nominated by President Barack Obama. Instead, looking to future primary challenges, they’ll have reason to reject Garland by denying him a vote -- even if that may lead to a more liberal Supreme Court in the long run.

An op-ed by Noah Feldman. Judges aren't history teachers. Or are they? That question lies at the heart of a deep left-right split over voting-rights laws. One side says that changes in state voting requirements should be assessed in the context of the American civil rights struggle. The other side says that history is irrelevant to the legality of modern voting practices. It's an emotional issue, exposed last week in an unusual dissent by a 94-year-old African-American federal appeals court judge in Ohio. The judge, Damon Keith, gave readers a history lesson complete with photographs and biographies of 36 men and women killed in pursuit of civil rights between 1955 and 1968.

An op-ed by Noah Feldman. Federal law is supposed to protect the privacy of your Social Security number from government inquiries -- but apparently that doesn’t extend to a check on whether you’ve paid back taxes and child support. In a decision with worrying implications for those who oppose a single national identification number, a divided federal appeals court has rejected a lawyer’s refusal to submit his Social Security number along with his renewal of Maryland bar membership.