Noah Feldman

An op-ed by Noah Feldman. One of Justice Antonin Scalia’s chief policy concerns -- some might call it an obsession -- was class actions, which he saw as excuses for plaintiffs’ lawyers to make money by aggregating small individual claims to the detriment of corporate defendants. On Tuesday the U.S. Supreme Court hinted that, in Scalia’s absence, class-action law might not continue to be interpreted narrowly. It cautiously upheld the use of representative sampling as evidence for common claims among plaintiffs -- a small but meaningful victory for class actions in a decision that, under the precedent established by Scalia, might’ve gone the other way.

An op-ed by Noah Feldman. Before Tuesday, I’d have said that Puerto Rico had no chance to win its legal fight to let its municipalities and utilities declare bankruptcy. That's how the island hopes to resolve its overwhelming debt problems, but the federal bankruptcy code says that it can't. That's what the U.S. Court of Appeals for the First Circuit held last summer, unanimously. The statute seemed so clear that even Judge Juan Torruella, the appellate court’s only Puerto Rican member, concurred in an outraged separate opinion criticizing the federal law. Then Sonia Sotomayor stepped in. Oral arguments before the Supreme Court rarely change the outcome of a case, yet Tuesday's session may turn out to be the exception. In a fascinating and unusual argument, Justice Sotomayor, who is herself of Puerto Rican descent, spoke by my count an astonishing 45 times. Sotomayor left no doubt that she was speaking as an advocate.

You could almost hear the gasps from media-industry insiders last week when a Florida court handed down a mammoth $115 million judgment against Gawker Media in a privacy suit by former wrestling star Hulk Hogan. But despite the headline-grabbing nature of the award, there are plenty of good reasons to believe the decision should be—and likely will be—overturned. ...As Harvard law professor Noah Feldman pointed out in a recent piece for Bloomberg, a public figure like Hulk Hogan is assumed to have a somewhat more restricted right to privacy than a non-celebrity, thanks in large part to the Supreme Court’s decision in New York Times vs Sullivan. And whatever protection the wrestler might have had was likely watered down even further by the fact that Hogan routinely talked about his sex life on talk shows.

An op-ed by Noah Feldman. The epic patent-infringement battle between Apple and Samsung will go to the U.S. Supreme Court. The court announced Monday that, sometime in the term that begins in October, it will consider the $548 million in damages Samsung paid to Apple last year after the U.S. Court of Appeals for the Federal Circuit lowered the jury’s original $1 billion-plus verdict. Without reading too much into the tea leaves, it seems highly likely that the court took the case in order to change the law of damages in patent-infringement suits.

An op-ed by Noah Feldman. The late Supreme Court Justice Antonin Scalia was best known for his philosophy of originalism, a method of interpreting the Constitution that relies on analyzing the original meaning of the text. On Monday, the court gave its first hint about the fate of originalism on the post-Scalia court: Its survival isn’t assured. In a two-page, unsigned opinion, the court unanimously reversed a ruling by the top court of Massachusetts that stun-gun ownership isn't protected by the Constitutional right to bear arms. The Massachusetts Supreme Judicial Court had taken the originalist view that stun guns aren't covered by the Second Amendment because they didn’t exist when the amendment was enacted and aren’t weapons used by the militias mentioned in the famously eccentric text.

An op-ed by Noah Feldman. In recent years, the Supreme Court has been loath to apply U.S. law abroad, fearing that becoming an international sheriff would alienate other nations and interfere with foreign policy. But what if foreign countries ask U.S. courts to step in? That's what is happening in European Community v. RJR Nabisco, a case that was argued Monday. The European states that are plaintiffs in the underlying case want the Supreme Court to apply the Racketeer Influenced and Corrupt Organizations (RICO) law to a drug enterprise that took place outside the U.S. and caused injury in Europe. The basis of their argument is that RJR participated in money laundering within the U.S. -- and that they, America’s loyal allies, want the law to apply in this case.

An op-ed by Noah Feldman. Last week I had to defend Donald Trump’s free-speech rights. Now that a Florida jury has awarded Hulk Hogan $115 million in his suit against Gawker, I have to defend the original snark-site’s free-press right to have shown a sex tape of the retired wrestler and his erstwhile best friend’s wife. This First Amendment stuff is sometimes a serious drag.

An op-ed by Noah Feldman. Tennessee State Representative Martin Daniel stirred up some outrage when he said this week that the First Amendment should give Islamic State the right to recruit on state campuses. He's wrong about the First Amendment, which doesn't prevent bans on coordinated recruitment. But the bill he was defending, which would create designated zones for free speech at state-funded Tennessee universities, isn't such a bad idea. The law governing free speech on campuses is much more restrictive than the law that applies on a street corner or in a park. We may be approaching a time where there would be a benefit to designating safe spaces for free speech, protected from the regulatory requirements of the Department of Education and the norms of campus life.

Supreme Court nominee Merrick Garland is a graduate of both Harvard University and Harvard Law School. Harvard Law professor Noah Feldman spoke with WGBH All Things Considered host Barbara Howard about Garland's reputation at Harvard and the chances of his nomination to the nation's highest court being confirmed.

An op-ed by Noah Feldman. Can a judicial decision be both tragic and correct? Yes, as the U.S. Court of Appeals for the First Circuit showed yesterday when it upheld the dismissal of claims by underage girls who were victims of sex trafficking facilitated by the website Backpage.com. The court acknowledged that the young women had made “a persuasive case” that the company “tailored its website to make sex trafficking easier.” Yet it applied the federal Communications Decency Act that essentially shields apps or websites from liability for third-party material published using their platforms. The court concluded that the suit against Backpage couldn’t continue.

An op-ed by Noah Feldman. Merrick Garland is the safest possible pick for President Barack Obama. Extraordinarily well-qualified, moderate and often pro-prosecution, Garland has been considered a potential Supreme Court nominee almost since Bill Clinton put him on the U.S. Court of Appeals for the D.C. Circuit, in 1997. But if he isn’t confirmed, it isn’t a permanent loss for Democrats. Sri Srinivasan, his much younger near-clone, will still be waiting in the wings as a confirmable moderate Democratic back-up.

An op-ed by Noah Feldman. Russian President Vladimir Putin had his “mission accomplished” moment Monday, announcing that Russia would withdraw its main forces from Syria after they turned the tide in President Bashar al-Assad’s struggle against Syrian rebels. The announcement partly explains why Putin has been supporting a cease-fire and truce talks over the last month: His goal is to consolidate the gains he and Assad made together. From a purely cynical perspective, the operation has been a fairly impressive success for Putin: Bomb intensely to create a humanitarian crisis while your troops advance, then negotiate peace to look like a good guy while assuring that the other side can’t fight back without violating the truce. And accomplish all this while strengthening your bargaining position vis-à-vis the U.S. and Europe.

An op-ed by Noah Feldman. North Carolina offers drivers a license plate with the slogan “Choose Life,” but for years has refused to offer a pro-choice plate. If you think that sounds like the state is unlawfully choosing between the two viewpoints, you’re not alone. In 2014, the U.S. Court of Appeals for the 4th Circuit said the state had to play fair under the First Amendment and allow both. Last week, the appeals court reversed itself -- and not by choice. It was following orders, by applying the U.S. Supreme Court’s 2015 decision that upheld a Texas license-plate program in which the state refused to allow a plate featuring a Confederate battle flag.

An op-ed by Noah Feldman. The melee at the Donald Trump rally Friday night in Chicago raises a fundamental First Amendment question: When a speaker, such as the Republican presidential candidate, is confronting angry protesters, whose speech rights come first: the speaker’s or the protesters’? The U.S. Supreme Court’s answer to this question has evolved over the years. At one time, the court was ambivalent, sometimes favoring the speaker and sometimes willing to shut down the speaker to avoid public disorder. Today, however, the norm is clear: Protesters who disrupt a rally can be removed by police so that they don’t exercise what’s called a heckler’s veto over the rally’s organizer.

An op-ed by Noah Feldman. The circumstances of the birth of Republican presidential candidate Ted Cruz put constitutional citizenship into the headlines. Also in the news: A federal judge in Puerto Rico ruled last week that the U.S. Supreme Court’s gay-marriage decision doesn’t follow the flag to the island. What would happen if you mashed the two issues together, mixing birthright citizenship with the Constitution’s applicability to U.S. territories? The answer to this otherwise random-seeming question is in fact before the Supreme Court right now. At issue is whether it’s constitutional for Congress to deny birthright citizenship to people born in American Samoa, which has been a U.S. territory since 1900.

An op-ed by Noah Feldman. A federal judge in Puerto Rico ruled Tuesday that the Supreme Court’s decision in favor of gay marriage doesn't apply on the island, which is a commonwealth with a unique constitutional status. The ruling will eventually be reversed on appeal. But its effect is meaningful nonetheless, because it functions as a double protest: against the high court's support for gay marriage and against the unresolved constitutional status of the island.

An op-ed by Noah Feldman. Filing a friend-of-the-court brief to the Supreme Court sounds like an act of spontaneous intellectual generosity meant to help the justices see all sides of a case. Or maybe an exercise in lobbying by interest groups. Actually, it's neither. A new article by two law professors shows that an organized business they dub the “amicus machine” generates hundreds of amicus curiae briefs, planned and coordinated by the specialized guild of lawyers who argue before the court. Surprisingly, the authors think the machine is a good thing.

An op-ed by Noah Feldman. Europe can’t build a wall to keep out Syrian refugees. But today European Union leaders did the next best thing from their perspective, announcing an agreement with Turkey to repel and return all those trying to come illegally into Greece by boat from Turkey. The plan represents a major shift for the EU in dealing with the Syrian refugee crisis. In place of a generous legal approach that rejected mass returns of asylum seekers, Europe is now adopting a much more hard-line attitude that distinguishes sharply between migrants seeking illegal entry and refugees who’ve already been processed within Turkey and may be granted legal settlement rights and asylum.

An op-ed by Noah Feldman. A Senate committee report has charged that U.S. President Barack Obama “bowled over” the independent Federal Communications Commission when he urged it to regulate net neutrality last year. An influential commentator went so far as to say that the White House “broke the law.” But a clear understanding of executive power and the relevant law indicates that these claims are misguided. It’s perfectly appropriate for the president to try to influence an executive agency, even one that’s independent in the sense that its leadership can only be removed for good cause. Nothing in the Senate report even vaguely suggests that Obama or his aides broke any law.

An op-ed by Noah Feldman. Can the government limit nasty political ads on public buses? Great question. Just not one the Supreme Court will be answering this year. On Monday the justices refused to address it in a case arising from ads considered Islamophobic by the Seattle public transit authority. Justice Clarence Thomas, joined by Justice Samuel Alito, dissented from the court's refusal to hear the case. His reasoning -- and the implicit logic behind the denial of certiorari by the court -- sheds light on a truly fascinating and important problem in free-speech law.

An op-ed by Noah Feldman. You’ll be forgiven for chuckling at the story that a former law student is suing her law school because she didn’t get a job she liked after graduation. What could be more measure for measure? The Thomas Jefferson School of Law in San Diego taught Anna Alaburda to sue. Now she’s suing it. Alaburda’s suit essentially alleges false advertising: She says the school misrepresented the employment record of its graduates, inducing her to attend and amass debt.