Noah Feldman

An op-ed by Noah Feldman. There’s no question that President Barack Obama suffered a significant loss today when a deadlocked Supreme Court left in place a lower court freeze on his signature immigration reform. It’s also true that the Republican Senate played a major role in this defeat by refusing to confirm -- or even vote on -- Obama’s nominee, Judge Merrick Garland, who surely would have voted to lift the stay. But it’s also worth remembering that Obama would have been defeated anyway if Justice Antonin Scalia had lived to vote against the reform, assuming the eight other justices split 4-4. And that would’ve been worse for the Democratic Party, because it almost certainly would have resulted in an opinion blocking such unilateral executive action in the future. Now, if Hillary Clinton is elected president, the issue can be revisited without a binding judicial precedent to preclude her from doing something similar.

An op-ed by Noah Feldman. In a major victory for affirmative action on Thursday, the Supreme Court has upheld the use of race by the University of Texas as part of its admissions policy aimed at educational diversity. The relatively compact decision by Justice Anthony Kennedy makes no mention of the eventual disappearance of affirmative action, as Justice Sandra Day O’Connor did in 2003, the last time the court issued an important decision on the topic. So long as universities carefully articulate why they must consider race to achieve a diverse student body, it would seem that affirmative action in higher education is here to stay. And Kennedy’s opinion will now replace O’Connor’s as the go-to precedent on the subject.

An op-ed by Noah Feldman. Unless you followed professional wrestling in the 1980s, you might be tempted to confuse Hulk Hogan with Jesse “The Body” Ventura. To make matters even more confusing, both have been involved in high-profile defamation suits. But while a Florida court’s $140 million verdict for Hogan against Gawker still stands, Ventura hasn’t fared so well in his lawsuit against the estate of Chris Kyle, the former SEAL who wrote the book “American Sniper” and was depicted in the movie of the same name. On Monday, a federal appeals court overturned the jury’s judgment in Ventura’s favor.

An op-ed by Noah Feldman. In what has become a U.S. Supreme Court ritual in recent years, the justices Monday smacked down a patent-law precedent created by the U.S. Court of Appeals for the Federal Circuit, the unusual appellate court that specializes in patent law. The high court’s decision makes it easier for patent holders to get higher damages against willful patent infringers.

An op-ed by Noah Feldman. Last week the Supreme Court insulted Puerto Rico by saying its people aren’t sovereign. This week the court added injury to the insult, denying Puerto Rico access to federal bankruptcy laws that would have created a path to recovery for its struggling utilities.

An op-ed by Noah Feldman. Gun-rights advocates have been on a roll, as lower courts building on Supreme Court jurisprudence have subjected gun control laws to heightened scrutiny. But last week, the trend stalled. One appeals court upheld laws against carrying concealed guns in two California counties. Another stayed the judgment of a lower court that had struck down Washington, D.C.’s concealed-carry restrictions, signaling it would probably reach a different result. The changed momentum suggests that localities may not lose the ability to regulate concealed handguns -- at least for now. But last week, the trend stalled. One appeals court upheld laws against carrying concealed guns in two California counties. Another stayed the judgment of a lower court that had struck down Washington, D.C.’s concealed-carry restrictions, signaling it would probably reach a different result. The changed momentum suggests that localities may not lose the ability to regulate concealed handguns -- at least for now.

Brian Miller, a shareholder at Rogers Joseph O’Donnell and writer for Bloomberg BNA, and Noah Feldman, a Harvard Law School professor and Bloomberg View columnist, discuss a partial Supreme Court Victory for Universal Health Services and other government contractors, in which the Court limited the reach of a whistle blower law that was designed to prevent fraud under the U.S. False Claims Act. They speak with Bloomberg Law host June Grasso on Bloomberg Radio’s "Bloomberg Law."

An op-ed by Noah Feldman. A judge shouldn't be allowed to vote in a case involving a capital sentence when he was formerly the prosecutor who sought the death penalty in the same case. That sounds obvious, and the Supreme Court said so on Thursday. But three justices dissented, suggesting that the answer might not have been obvious after all. The dissents show how deeply divided the court really is over the death penalty – and how far the conservative justices are prepared to go in its defense.

An op-ed by Noah Feldman. In a decision that begs to be characterized as “First Amendment gone wild,” an appeals court has all but struck down a 1988 law that requires pornographers to maintain records showing that actors aren’t underage. For good measure, the court said it violated the Fourth Amendment to require the documents to be available anytime for government inspection. These twin holdings are both plausible applications of recent Supreme Court doctrine. But the results are so absurd that they call out for review by the highest court itself.

An op-ed by Noah Feldman. Donald Trump’s claim that a Mexican-American judge would be biased against him has put the topic of judicial ethnicity front and center. So it’s worth pausing to consider the most important -- and controversial -- discussion of the significance of a judge’s ethnic or religious background in the history of Supreme Court opinions. That would be this declaration by Justice Felix Frankfurter in 1943...Before you get excited about using Frankfurter’s oratory as a rebuttal to Trump, consider this: He prefaced the statement with a profession of his Jewishness that his colleagues tried to suppress. And he did all this in a dissent that argued that Jehovah’s Witnesses shouldn’t be exempt from pledging allegiance to the flag.

An op-ed by Noah Feldman. Are teachers entitled to free speech in the classroom? As a teacher of free-speech law, I've got a particular interest in this broadly important question. Yesterday a federal appeals court said the answer was no -- at least at public schools below the university level. The decision makes some sense in light of existing precedent. But the Supreme Court has never directly addressed the issue. When it does, it should consider the possibility that the whole law of public workplace free speech has gone awry -- and that teachers as well as other public employees should be given greater latitude to express their opinions.

An op-ed by Noah Feldman. I've been generally sympathetic to the military prosecutors seeking to convict the 9/11 planners in Guantanamo. My take has been that they are honorable people trying to accomplish a task that may be impossible, namely making the tribunal into something more than a show trial. But now the prosecutors have made a serious misstep in the form of a foray into public relations. They’re asking the court to allow public testimony by ten elderly, sick relatives of 9/11 victims this October -- before the guilt-or-innocence phase of the trial has begun. Such testimony is legally unnecessary before the sentencing phase, when it's potentially plausible to allow victim-impact statements.

An op-ed by Noah Feldman. One Louisiana county accounts for half the state’s death sentences – even though it has just 5 percent of the state’s population and 5 percent of its homicides. On Tuesday, Justice Stephen Breyer cited this fact about Caddo Parish, Louisiana, in a dissenting U.S. Supreme Court opinion arguing that the death penalty is unconstitutional. The “arbitrary” factor of geography, Breyer proposed, is a reason to think that the death sentence is cruel and unusual punishment prohibited by the Eighth Amendment. Is Breyer right?

An op-ed by Noah Feldman. In a major development for the history of democracy in the Muslim world, Tunisia’s successful Islamic democratic party separated its political wing from its social-religious movement last week. This isn’t a move to secularism, exactly. But it is a move in the direction of dividing the world into two spheres, one of politics, the other of faith.

An op-ed by Noah Feldman. Your credit card company can make you agree to arbitrate disputes as a condition of getting the card. But can an employer require workers to arbitrate rather than suing collectively as a condition of employment? In recent years, all the federal courts of appeals to address the question have said there’s no difference between your credit card issuer and your employer: Both can make you give up legal remedies. This week that changed, when for the first time an appeals court said an employer can’t require employees to waive collective legal action. By creating a circuit split, this important opinion will almost certainly push the Supreme Court to consider the issue, and soon.

An op-ed by Noah Feldman. Can the police detain and search you on the suspicion that your car might be parked illegally? A federal appeals court has said yes, upholding a felon-in-possession conviction for a man who was searched after Milwaukee police surrounded the parked car he was sitting in and handcuffed its four occupants -- because the car was parked within 15 feet of a crosswalk. The outraged dissenting judge said that the defendant had been stopped for “parking while black,” and insisted that the holding went beyond anything the Supreme Court ever authorized.

An op-ed by Noah Feldman. Chicago squared off against the First Amendment this week -- at Wrigley Field, of all places. An appeals court upheld a city ordinance that bans all peddling, including printed matter, on the blocks immediately around the stadium. But at the same time, the court insisted that the rules must apply to everybody, including the Cubs. The home team is accustomed to selling team merchandise in this area. The First Amendment is as American as baseball, and it was at the heart of this interesting and important case.

An op-ed by Noah Feldman. Historians of the future will want to know why almost no one went to jail in connection with the collapse of mortgage-backed securities that triggered the 2007-8 financial crisis. Monday’s appeals court decision reversing a $1.2 billion fraud judgment against Bank of America will be an important part of the answer. To put it bluntly, the law failed -- because the law as it existed didn’t properly anticipate or cover the events that occurred.

An op-ed by Noah Feldman. On a sunny day in Warsaw, it’s difficult to understand why the city’s well-kept streets simmer with anger and discontent over the European vision. The economy has been growing at 3.6 percent, roughly twice the overall European rate. And there’s little or no influx of Syrian or Afghan refugees: Warsaw must be whiter than any other major city in Europe, including Budapest. Yet the far-right Law & Justice Party, led by Jaroslaw Kaczynski and known as PiS, bitterly denounces the European Union for invading Polish “sovereignty” -- language reminiscent of the advocates of British exit from the EU.

An op-ed by Noah Feldman. As law professors go, I’m pretty sympathetic to Clarence Thomas’s constitutional jurisprudence. It’s not that I agree with him, which I almost never do. But I think he genuinely tries to apply originalism using historical methods. And when it comes to the law of race, where again I disagree with Thomas, I respect his effort to give voice to a distinctive form of conservative black nationalism that insists on colorblindness because it’s better for blacks.

An op-ed by Noah Feldman. It's complicated to sue for discriminatory firing when you haven't actually been fired. But it's doable. The lesson from the Supreme Court on Monday is that timing matters. The justices weighed in on the important question of when the clock starts for plaintiffs who have been “constructively discharged” -- that is, effectively fired because of discriminatory treatment. Seven of the eight justices agreed that if someone quit a job and alleges discrimination was the reason, his claim starts when he quit, not when the discriminatory treatment against him is said to have occurred.