Noah Feldman

An op-ed by Noah Feldman. After the Supreme Court’s landmark gay marriage decision, can a constitutional right to plural marriage be far behind? It seemed that way in 2013, when a federal district court in Utah followed the Supreme Court ruling by striking down part of the state’s bigamy law in a case involving the family featured in the television show “Sister Wives.” But on Monday a federal appeals court reversed the decision. It said that the case was moot because Utah prosecutors had shelved prosecution of the Sister Wives family and announced a new policy to prosecute polygamists only if they were also suspected of fraud or abuse.

The University of Massachusetts’ Judaic and Near Eastern Studies department and College of Humanities and Fine Arts welcomed author Noah Feldman and Felix Frankfurter, professor of law at Harvard Law School, for a discussion titled “Violence, Politics and Religion: Can Israel Remain Jewish and Democratic?” on Wednesday at Goodell Hall. An audience of over 50 students and community members gathered for the event, which focused on solutions for democracy in the Middle East, specifically in respect to the Israeli-Palestinian conflict. “A lot of people think they know what the morally correct answer is,” Feldman said, “but that is radically different from knowing an answer that will satisfy you morally, while simultaneously working in practice.” Feldman gave two main proposals to developing democracy in Israel that he concluded as both unlikely, but not impossible. These proposals included both a one and two state solution. The one state solution Feldman offered varied depending on the ideals of the state. Within Palestine an egalitarian secular democracy was envisioned, whereas Israel envisioned a democracy that would be fixed to remain nationally Jewish. Feldman believed these conflicting views of democracy inhibit the creation of a singular state between Israel and Palestine. “I don’t think it would be very easy to pull off, but do I think it is impossible? No,” Feldman stated.

On Monday, the Supreme Court is set to hear oral arguments in the high stakes legal battle over President Obama’s executive actions on deportations, which could impact the fates of millions of immigrants and has set in motion one of the defining political fights over the proper extent of executive power of the Obama era. The Obama administration submitted its final argument this week, and a decision is expected in June. But for all the noise that will attend all of these legal proceedings, they may not end up mattering that much in practice...“If Hillary Clinton is elected president, she will nominate a justice, and then once that justice is confirmed, she will seek a do-over before the Supreme Court, at which she will probably prevail, and the program would then go forward,” Harvard law professor Noah Feldman tells me. “In this scenario, the election will resolve it ultimately, but it might take a long time.”

An op-ed by Noah Feldman. What good is winning a reprieve from life without parole if the court just turns around and resentences you to 59 years in prison? For juvenile offenders, that question was partially answered Monday when an appeals court reversed the new sentence given by a lower court to a defendant convicted of committing rape and murder when he was 16. Kids grow up, and the appeals court said the sentencing judge should have considered how much the defendant might have matured in the decade between his crime and resentencing.

An op-ed by Noah Feldman. Google just scored a win by losing a Mississippi case. On the surface, a Friday ruling by a federal appeals court appears to support a campaign by that state’s attorney general to hold the Internet titan accountable for copyright infringement. Look again. On a close reading, the court’s opinion is promising for Google and doesn’t bode well for Attorney General James Hood III’s aggressive enforcement actions. The company had initially lucked into a very sympathetic federal district court judge who issued an injunction to block the attorney general. Now, by ruling against Google and reversing the injunction, the more cautiously sympathetic U.S. Court of Appeals for the Fifth Circuit has set the lower court right.

An op-ed by Noah Feldman. In an important decision on the rights of campus dissidents, a U.S. appeals court has held that free speech protections won’t excuse acts of harassment. But it also held that a student who has been disciplined can sue the university if the punishment was for expressing political views. The two parts of the ruling last week by the U.S. Court of Appeals for the Ninth Circuit cut in opposite directions. The first will encourage administrators; the second will hearten student activists. But the more important win is for the activists, who can get a day in court after being disciplined under university procedures that are often opaque.

An op-ed by Noah Feldman. If I tell you a California judge struck down the addition of a Christian cross to the Los Angeles County seal, that probably sounds like a good example of the separation of church and state. If I tell you that the cross was going to be added to an image of the San Gabriel mission to reflect the real-life, cross-topped church, the same decision begins to sound like judicial overreach. When it comes to religion, framing is everything -- at least under current law.

An op-ed by Noah Feldman. A U.S. appeals court says that the federal law protecting religious liberty doesn't shield a Hawaiian church that uses cannabis in its rituals. That's pretty outrageous. The decision’s perverse logic relies on a cartoonishly rigid idea of religious obligation. And it suggests that the religious-freedom law only protects mainstream religious groups like the Catholic Church, not smaller denominations.

An op-ed by Noah Feldman. The administration of President Barack Obama just won a big legal victory for its decision to let some children of illegal immigrants remain in the country. On the surface, that might seem to augur well for the administration's efforts to ease other immigration restrictions in the face of Congressional opposition. Don't count on it. The federal court decision that backed Obama was based on precarious legal reasoning that's vulnerable to reversal by the Supreme Court.

An op-ed by Noah Feldman. The prosecutor offers a deal. The defendant agrees. What right does a judge have to object? It's a salient question on Wall Street in recent years, as a number of federal judges have rejected plea deals and settlements, saying prosecutors and regulators were being too lenient on the corporate defendants. One such judge, Jed Rakoff, has even waged a parallel critical campaign in the media, pressuring the Securities and Exchange Commission to be tougher on corporate defendants. On Tuesday the U.S. Court of Appeals for the D.C. Circuit weighed in -- on the other side from Rakoff. In an opinion by Judge Sri Srinivasan, who was seen as a contender for the Supreme Court, the court said that federal judges can’t reject deferred prosecution agreements, a standard plea bargain technique. The opinion reflects a highly passive version of the judicial role, which is good news for defendants, but bad news for the public.

An op-ed by Noah Feldman: Law and tradition say that a jury verdict shouldn't be overturned on the basis of something jurors say in their deliberations, no matter how ignorant or offensive. But what if there’s strong evidence that the jury deliberations were racially biased? Does the defendant’s right to a fair trial supersede the tradition of letting the verdict stand? The Supreme Court has agreed to hear this fascinating question in a sexual assault case where one juror, a former cop, told the others that Mexican men "do whatever they want" with women.

An op-ed by Noah Feldman: Dog bites man may not be a news story -- but in nine western states, it’s grounds for a constitutional case. The U.S. Court of Appeals for the 9th Circuit has allowed a lawsuit by a woman who fell asleep in her office after a hard night’s drinking, accidentally tripped a burglar alarm, and was bitten in the lip by a San Diego police dog responding to the alarm. What makes the case so interesting is that the San Diego Police Department trained Bak, a service dog, to enter a room and bite the first person she saw. Her training was to hold the bite in place until her handler ordered her to release her grip.

An op-ed by Noah Feldman: In a victory for both noncitizens and common sense alike, the U.S. Supreme Court on Monday rejected the argument that state election districts must be drawn equally based on eligible voters rather than population. The court’s decision staves off a xenophobic push to discount noncitizens, which is a good thing. But almost equally noteworthy was an opinion by Justice Samuel Alito, who was joined by Justice Clarence Thomas in saying that states could use eligible voters to redraw their districts if they wish.

An op-ed by Noah Feldman. When the first act of a new legislature is to circumvent its country’s written constitution, it’s usually a bad sign. Not so in Myanmar, where the democratically elected parliament moved last week to create the post of “state counselor” and give the job to Aung San Suu Kyi, the leader and symbol of Myanmar’s long struggle against military dictatorship. She’s banned from serving as president by the constitution enacted under the military government that preceded hers, under a provision meant to prevent her from taking the office. Getting around it is a triumph of constitutional creativity and respect, not a worrisome undercutting of the rule of law.

An op-ed by Noah Feldman. Finally, someone's standing up for the rich. The Supreme Court struck a blow for wealthy criminal defendants today, holding that before trial the government can freeze only those assets that are demonstrably tainted, not all assets up to the value of the wrongdoing alleged. It's a distinction that doesn't matter to very many people, but matters a lot to a few. One result will be to make it a bit easier for rich defendants to use their (unfrozen) money to pay for lawyers of their choice, instead of getting by with an appointed public defender. But the court’s cautious plurality opinion, the result of a very strange voting lineup, relied on some seriously doubtful economic logic to get to the desired outcome.

An op-ed by Noah Feldman. It’s happening: The Supreme Court is getting desperate. With a 4-4 tie looming over whether religious organizations have to file a form with the government requesting an exemption from the mandatory contraceptive care provisions of the Affordable Care Act, the justices took an extreme step. They issued an order that basically told the federal government and the religious entities to reach a compromise -- and described what the compromise would look like. Federal district court judges will sometimes tell the parties that they’d better compromise, or else they might not like the results that will follow. The Supreme Court essentially never does, both because it lacks leverage and because it gets involved in cases with the intention to make new law, not to resolve particular disputes. But we’re in new territory here. The Supreme Court is trying to figure out how to do its job with eight justices -- a situation that might persist not just through this Supreme Court term, but through the next one as well.

An op-ed by Noah Feldman. This was supposed to be the year when the Supreme Court would deal a major blow to labor unions, reversing a 1977 precedent that says nonunion members can be required to make payments in lieu of dues to the union. In 2014, the court came close to doing exactly that in a 5-to-4 opinion that telegraphed its intention to do so in the near future. But the death of Justice Antonin Scalia was a game-changer, taking away the fifth vote that would’ve been necessary to repudiate the precedent. Today the court issued a one-sentence opinion that proved both that there were briefly five votes to overturn the precedent, and that Scalia’s death has saved unions from constitutional disaster. The court said simply that it was divided 4-4, and that the lower court’s opinion based on the precedent would therefore be upheld.

An op-ed by Noah Feldman. When was the last time you actually read the terms of service before clicking “I agree” on a website? Unless your answer is “never,” I don’t believe you -- and I don’t think it’s your fault, either. But the U.S. Court of Appeals for the 7th Circuit has a subtler view than mine. On March 25, it held that you’re not bound by a contract if it wasn’t made clear that you were supposed to read it. But if it is made clear, the contract binds you, whether you read it or not.

An op-ed by Noah Feldman. The Constitution grants people accused of crimes the right to a speedy and public trial. Does that include a right to speedy sentencing after conviction? The Supreme Court takes up that question on Monday in Betterman v. Montana, the case of a defendant who had to wait 14 months in a county jail to be sentenced after pleading guilty. Then the court refused to include that period as time served. What’s most remarkable about the case is that not only Montana but also the federal government maintain that the speedy-trial right doesn’t include sentencing at all. The court has never said so before – although to be fair, it also hasn’t said that sentencing is part of the trial either.

Senator Ted Cruz, a candidate for the Republican presidential nomination, has proposed surveilling Muslim neighborhoods. His chief rival, Donald J. Trump, says he would deport millions of undocumented immigrants and allow the use of torture. The campaign has also produced calls for carpet bombing in Syria and steps to rein in the press at home. But you have to wonder: If elected, could a new president intent on pushing or exceeding the boundaries of the Constitution or the law actually follow through?...Noah Feldman, a Harvard law professor, said the greatest bulwark against presidential overreach would be the huge number of people needed to carry out the work. Political appointees and career civil servants could refuse directives. Congress could refuse to pass and finance policies. The Justice Department’s Office of Legal Counsel could declare initiatives unconstitutional. But, Mr. Feldman added, another crisis — say, something like the Sept. 11 attacks — could change the dynamic. Officials might back down. A president could invoke President Lincoln’s suspension, over the objection of the Supreme Court chief justice, of habeas corpus, the foundational right to protest one’s detention. “Could a president unilaterally suspend habeas corpus? Well, all you can say is: It happened once,” Mr. Feldman said.

An op-ed by Noah Feldman. The Supreme Court looks like it's going to split 4-4 on whether religious organizations are entitled to have even their health insurance providers exempted from providing contraceptive care under the Affordable Care Act. That much was clear from the justices comments at oral arguments on Wednesday. That will leave unresolved the vexing legal questions at the heart of a challenge to Obamacare brought by the Little Sisters of the Poor: What is religious freedom and what does it mean for a law to impose an unacceptable burden on religious practice?