Noah Feldman

An op-ed by Noah Feldman. The Black Lives Matter movement may be starting to affect the thinking of federal judges, if a Texas case is any indication. Wednesday, a George W. Bush appointee wrote a dissent that started this way: “Wayne Pratt received the death penalty at the hands of three police officers for the misdemeanor crime of failing to stop and give information.” The opinion was a dissent because the two other judges on the appellate panel thought the officers who killed Pratt during an arrest were entitled to immunity from being sued. So it's not as if the social protest movement has yet won a complete victory. But the Republican appointee’s language was noteworthy and her opinion deserves analysis.

An op-ed by Noah Feldman. The Supreme Court has announced that it will decide a fascinating copyright case about cheerleaders’ uniforms. It's a big deal because the case isn’t just about cheerleaders -- it could determine whether many kinds of fashion designs can be copyrighted. The copyright law seems simple: It says that “useful items” can’t be protected. You can't own exclusive rights to make dining tables or dinner plates. A uniform, like any other piece of clothing or furniture, is useful. But that isn’t the end of the problem. What about designs on useful objects: a pattern on a dinner plate or a stripe on a garment?

An op-ed by Noah Feldman. Justice Stephen Breyer is against the death penalty -- but not because it’s morally wrong. He briefly reiterated his arguments Monday when dissenting from the court’s refusal to hear a California death row inmate’s case. First, he said the death penalty may be unconstitutional in California because it’s applied arbitrarily and unreliably. Those are plausible and unremarkable arguments. They no doubt appeal to the technician in Breyer, who believes that government should do things pragmatically and correctly. But his third reason was most striking. Following a view he has held since the 1990s, Breyer argued that the death penalty is unconstitutional because it takes too long for condemned inmates to be put to death.

An op-ed by Noah Feldman. The Supreme Court has decided a Baltimore Police Department extortion case straight out of "The Wire" on the basis of common sense. It held that the federal bribery statute allows a conviction for conspiracy to commit bribery even when the co-conspirator was also the victim. That's the nature of a kickback, after all: The party that's being extorted is also one of the beneficiaries of the scheme. This holding required the court to go beyond the literal words of the statute and ascertain its true purpose. The late Justice Antonin Scalia, who hated such purpose-driven statutory interpretation, is harrumphing somewhere as his textualism was rejected. You'd expect Justice Clarence Thomas to have dissented, and he did. But in a noteworthy twist, the other dissent in the 5-3 decision was written by Justice Sonia Sotomayor -- and her opinion was joined by Chief Justice John Roberts. Both, it appears, disfavor the extension of conspiracy law, although perhaps for different reasons.

An op-ed by Noah Feldman. The most dramatic moment of my legal education came when Professor Owen Fiss of Yale Law School threw his paperback copy of the Federal Rules of Civil Procedure 25 feet across a classroom into a waiting trash can. It wasn’t just the eminent scholar’s aim that impressed me, but his point: that the federal rules of procedure are basically unconstitutional because of the way they’re adopted. Instead of being enacted by Congress and signed by the president like ordinary laws, procedural rules are written by the unelected Supreme Court, which transmits them to Congress, after which they ordinarily go into effect without change.

An op-ed by Noah Feldman. New York’s Legislature is considering a proposal to give police officers “textalyzers,” gizmos that would enable roadside checks of drivers suspected of using mobile phones behind the wheel. Given the dangers of texting while driving, the technology may be a good idea. But is it constitutional? The answer requires looking at two issues. One is the constitutional status of smartphones. The Supreme Court unanimously held in 2014 that the police need a warrant to search a phone. That implies that using a textalyzer without a warrant would be unconstitutional. The second issue is the comparison between the textalyzer and the Breathalyzer.

An op-ed by Noah Feldman: The U.S. government claims the right to eavesdrop at-will on your e-mail when you're writing to someone who lives abroad. Now it wants to be able to use those e-mails to convict you of a crime. That's what's happening to Aws Mohammed Younis al-Jayab -- and he’s not the only one. The legal basis is the 2008 Amendment Act to the Foreign Intelligence Surveillance Act, which says the government may monitor communications from within the U.S. to foreigners abroad, or vice versa, without first obtaining a warrant to authorize the surveillance.

An op-ed by Noah Feldman:  Dr. James Tracy is certainly a crank and also seems to be a terrible person. But Florida Atlantic University violated his academic freedom when it fired him from his tenured professorship in January, and he should win the lawsuit he’s just brought against the school. Academic freedom isn’t absolute, but it certainly extends to a professor’s outside writing on topics of national importance. The stakes of his case are therefore high -- and not just for professors who (ahem) write about politics while still performing their day jobs as teachers and researchers.

An op-ed by Noah Feldman. Congratulations! At long last, the Supreme Court has made it clear that the government can’t punish you for exercising free-speech rights without speaking. In a decision that should count as a blow for constitutional common sense, the court held that the government’s motive in attempting to suppress free speech is what matters, not whether a "speaker" actually said anything.

An op-ed by Noah Feldman. When is a jury trial over? That's a mildly metaphysical question that the Supreme Court will consider on Tuesday in a case where the judge dismissed the jury and then changed his mind. He caught the jurors before they left the building and called them back to consider their verdict again. On the surface, the question may seem trivial. But it's actually profound -- because the answer reveals whether you think a trial is a magic, quasi-divine roll of the dice, as our ancestors believed, or a pragmatic method to resolve disputes, the modern view.

An op-ed by Noah Feldman. Americans think they have a God-given right -- or least a constitutional one -- to the details of celebrity sex lives. Yet disclosures of private information can be sanctioned by law after the fact, as Gawker learned recently when Hulk Hogan recently won a huge verdict against it for publishing his sex tape. There’s another way to deal with undesirable speech. In the UK, the Supreme Court heard arguments last week in the case of a major celebrity who has used the courts to block publication of an article alleging that his spouse was involved in a threesome outside their well-publicized marriage. The British way shows impressive respect for privacy. At the same time, the Internet has made it seem obsolete because the celebrity’s name can be found online after a few Google searches.

An op-ed by Noah Feldman. The Washington Redskins are headed for the Supreme Court – in the guise of a dance rock band called The Slants. The Department of Justice has asked the court to review a lower court's holding that the Patent and Trademark Office violated the band’s free-speech rights by denying it a registered trademark on the grounds of offensiveness. The justices are likely to take the case – which would mean that next year they will effectively decide whether the National Football League franchise can also be denied trademark registration. It also means that the question of what to do about names that offend some listeners is going to get its day in court.

An op-ed by Noah Feldman: The Supreme Court ruled on Wednesday in favor of terror victims and against the Central Bank of Iran. That came as no surprise. But what’s remarkable about the case, which raised important separation-of-powers concerns, is that the court reached its 6-to-2 decision over a stinging dissent by the conservative Chief Justice John Roberts. And that his dissent was joined by the court’s most liberal member, Justice Sonia Sotomayor.

An op-ed by Noah Feldman: Can you be charged with a crime for refusing to take a Breathalyzer test when stopped on suspicion of drunken driving? It’s hard to think of a constitutional rights question that affects more people. On Wednesday, the Supreme Court will take it up, considering whether the Fourth Amendment right against unreasonable search and seizure protects your breath and your blood from a warrantless search. Two different states involved in the case offer different constitutional reasons for their practices -- a sure sign that something is fishy here. The bottom line is that mandating a search without a warrant violates the Constitution, and the court should say so, regardless of the legitimate importance of combating drunken driving.

An op-ed by Noah Feldman. Rabbi Ben-Zion Gold, a survivor of the Holocaust and director of the Harvard Hillel for some 30 years, has died at 93. His eulogists will emphasize his sociological contribution: Under his guidance, Jewish life became a sanctioned part of a flagship university campus where its presence had previously been tenuous. But what makes Gold’s life most distinctive, and his passing so noteworthy, is his complex connection to the lost world of the pre-war European yeshivas and the way he tried to reconfigure his religious worldview after the Holocaust made him lose his traditional faith in a personal God.

An op-ed by Noah Feldman. Ever wanted to sue the tax man? Usually you can’t -- but Gilbert Hyatt found a loophole, and the Supreme Court gave him a symbolic victory Tuesday while depriving him of most actual damages. Acting out the fantasies of anyone who’s ever been audited, Hyatt sued the California tax authorities in a Nevada court and won a jury verdict of $388 million, later reduced to $1 million. The high court justices split 4-4 on whether his suit should’ve been permitted at all -- a tie that allowed Hyatt’s moral victory to stand. But then they said the Constitution restricted his damages to $50,000, the maximum he could have gotten if he had sued a Nevada official in Nevada court.

An op-ed by Noah Feldman. How should the government police the health-care industry? That question is before the Supreme Court on Tuesday as the justices hear arguments in an important case about the False Claims Act. Under the law as interpreted in most of the country, any time a health-care provider submits a bill to the government -- which is to say, millions of times a day -- the provider can be sued for a false claim if it’s failed to follow any of the myriad state and federal regulations governing the field. The law is meant to encourage citizens to blow the whistle on fraud, so it lets anyone bring a claim with the promise of receiving statutory damages up to three times the cost of the violation.

An op-ed by Noah Feldman:  The much-awaited immigration case challenging President Barack Obama's right to waive deportation for unauthorized immigrants was argued before the Supreme Court today. It looks as though the administration may possibly have a path to win -- even if only on technicalities. The argument was dramatic. Justice Sonia Sotomayor took on the Texas solicitor general in an extended colloquy that made her seem almost like an advocate for immigrants rather than a justice. And U.S. Solicitor General Donald Verrilli said the administration was prepared to forget about granting official legal status to undocumented immigrants as long as they were protected from deportation -- a step that could nullify most objections to Obama's executive order.

An op-ed by Noah Feldman. What’s a religion? The question is fundamental to the legal analysis of religious freedom, yet courts avoid addressing it. The Supreme Court has never given a concrete answer. The result: Courts don’t claim to be able to define religion, but think they know it when they see it. The consequences can be surprising. Ten days ago I wrote about a case in which an appeals court expressed skepticism about whether a religion based on the use of traditional Native American hallucinatory substances was really a religion. And just last week a federal district court rejected a prisoner’s religious-liberty claim on the ground that his faith, Pastafarianism, is a parody of religion rather than religion itself.

An op-ed by Noah Feldman. Now that a U.S. appeals court has declined to strike down Utah’s bigamy laws, it’s reasonable to ask: What does the Constitution, properly interpreted, have to say about the topic? Legally speaking, the issue can be split in two. The first question is whether a state may criminalize marriage to more than one person. The second is whether, in light of the U.S. Supreme Court decision last year to require states to recognize same-sex marriage, there now exists a fundamental right to marry more than one person -- and to make states treat plural marriages on equal terms with marriages between two people.

An op-ed by Noah Feldman. The briefs are in -- and the Supreme Court’s extraordinary effort to bring about a compromise in a contraceptive care case looks like a bust. Instead of finding a mutually agreeable solution, religious groups and the federal government appear to have only hardened their positions. In simultaneous filings late Tuesday night, each side took the opportunity to strengthen their arguments over how religious organizations go about seeking an exemption to the mandate for providing employees contraceptive care under the Affordable Care Act.