Noah Feldman

Before he died Saturday at age 79, Supreme Court Justice Antonin Scalia was the longest-serving member of the current court, a towering figure in the legal community who now leaves a historic legacy. That’s how he’s being remembered. But just what was that legacy, exactly? ... That’s the portrait that emerges here from the 19 top legal thinkersPolitico Magazine asked to reflect on his life and death. ...Laurence H. Tribe ...Noah Feldman,

An op-ed by Noah Feldman. The Department of Justice must’ve expected that the Ferguson, Missouri, City Council would stall in accepting the terms of a consent decree over allegations that the city’s police and courts have violated black residents’ civil rights. The department had a 56-page complaint for a lawsuit at the ready, and filed it just a day after the council demanded several changes to the negotiated draft. Presumably, Ferguson won’t want the embarrassment or the expense of fighting a federal lawsuit. The department is using force as a negotiating tactic, and Ferguson will have to fold. Yet the episode raises a problem with roots in the history of civil-rights enforcement. What should the Department of Justice or the courts do if a city like Ferguson won’t accept a deal, and insists on litigating alleged civil-rights violations to completion?

An op-ed by Noah Feldman:  There’s no mistaking the message of the U.S. Supreme Court’s 5-4 decision to stay the Barack Obama administration’s Clean Power Plan regulation while it’s being challenged before the U.S. Court of Appeals for the D.C. Circuit. Before Tuesday, the court had never granted a regulatory stay in such circumstances, where the lower court hasn’t ruled and has itself declined to block the regulation while it’s considering the case. It’s understandable that environmental advocates are upset. What’s less obvious is why the Supreme Court hasn’t done this sort of thing before, and what’s wrong with them doing it now, if anything. Evaluating the competing values at stake should help us understand whether the court got it right -- and whether we should expect more such stays in the future.

An op-ed by Noah Feldman: The civilians fleeing Aleppo don’t prove definitively that, with Russian backing, President Bashar al-Assad will win the Syrian civil war. But it’s certainly time to game out that scenario and ask: What would victory look like to Assad? And what will happen to the other regional actors engaged in this fight? The decisive element to consider is whether Assad needs to defeat Islamic State to be a winner. If the answer is yes -- and if Assad could do it -- the world would probably breathe a sigh of relief, and accept Assad’s victory, despite its extraordinary human costs and egregious violations of human rights.

An op-ed by Noah Feldman. The U.S. Court of Appeals for the 4th Circuit has struck down Maryland’s law regulating assault weapons, creating a split with the 2nd Circuit, which upheld similar laws in New York and Connecticut. That split could, and probably should, lead the U.S. Supreme Court to take up and decide the issue. It’s time therefore to ask: How should the justices treat the question? In particular, what does the right to bear arms, created to preserve a “well-regulated militia,” say about assault weapons today?

An op-ed by Noah Feldman. The Phoenix City Council has voted to no longer to begin its meetings with a public prayer. Sounds like a victory for the separation of church and state, right? Maybe even the influence of Justice Elena Kagan’s dissent in the Town of Greece case, in which the court’s majority allowed such prayers to continue? Think again. The Phoenix City Council is banning prayer so that self-described Satanists won’t have a chance to give one. The decision isn’t about tolerance but intolerance. In the end, that’s a good thing, a sign of the establishment clause working -- and of James Madison’s First Amendment logic in action.

Bloomberg Law hosts June Grasso and Michael Best discuss a human rights lawsuit against Yusuf Abdi Ali, a former colonel in the Somali National Army, who is accused of presiding over the deaths of hundreds of people in northern Somalia in 1984. They speak with Noah Feldman, a law professor at the Harvard Law School.

An op-ed by Noah Feldman. Can a payday lender’s contract require all borrowers’ disputes be subject to an arbitration process in which decisions are exempt from federal law? In a decision announced this week with potential consequences for millions of contracts signed every day, the U.S. Court of Appeals for the 4th Circuit has said no. The decision shines a light on a particularly disreputable instance of the generally worrisome phenomenon of payday loans. Its importance, however, touches on broader issues, including the sovereignty of Indian tribes.

An op-ed by Noah Feldman. In an astonishing report, the United Nations Working Group on Arbitrary Detention has accused Sweden and the U.K. of arbitrarily detaining Wikileaks founder Julian Assange because of a sexual-assault investigation against him in Sweden. To be sure, it’s unknown whether he’s guilty of the charges. Likewise, it’s impossible to know whether Assange criminally conspired with U.S. Army Private Chelsea Manning (then known as Bradley) to steal classified material, or whether Assange and Wikileaks simply published that material in a manner that should be protected by the First Amendment. But what seems highly likely is that Assange’s detention is anything but arbitrary -- it’s because of the investigation of serious crimes.

An op-ed by Noah Feldman. Tesla Motors has taken the first step toward challenging a year-old Michigan law that bars direct-to-consumer auto sales in the state. I trust you’ll agree with me that the law is a blatant piece of protectionism, designed to help car dealers at the expense of consumers. But that still leaves an important -- and interesting -- question: Is the law not merely dumb, but unconstitutional, too?

An op-ed by Noah Feldman. There’s something mystifying about the animated pop video released this week by the Chinese Communist Party to illustrate President Xi Jinping’s “Four Comprehensives” policy a year after its announcement. If you’re expecting the loyalty dance of the Cultural Revolution, or the terrifying elegance of red flags being silently waved, you’re in for a surprise. The new video is cloyingly cute and almost self-consciously trivializing, without a shred of cultural pretension.

An op-ed by Noah Feldman. International human-rights litigation in the U.S. is still alive, despite the U.S. Supreme Court’s best efforts to kill it. The latest evidence is a decision this week by the U.S. Court of Appeals for the 4th Circuit to allow part of a lawsuit alleging human-rights violations in Somalia in the 1980s to go forward. The case is thoroughly fascinating, on both the facts and the law. It sheds light not only on the state of human-rights law in the U.S., but also on the U.S. government’s murky record of enabling violations by its military allies.

An op-ed by Noah Feldman. The European Union and the United States reached a new deal Tuesday on privacy protections for Europeans’ data that gets sent to U.S. servers. The agreement, to be called Privacy Shield, replaces an agreement repudiated by the European Court of Justice in October. That’s good news for major corporations like Facebook and Google that want continued access to their European users’ data. But the new agreement requires scrutiny itself, which European regulators and probably the ECJ are going to give it. Notwithstanding the powerful business interests at stake, there’s reason to think that the agreement may have loopholes that make it difficult for those bodies to uphold.

An op-ed by Noah Feldman. Can Wisconsin make a sex offender who’s completed his sentence wear a GPS monitor on his ankle for the rest of his life? Reversing a lower court judgment last week, the U.S. Court of Appeals for the 7th Circuit said the answer is yes. The opinion, by the influential Judge Richard Posner, presents itself as an exercise in cost-benefit analysis and legal common sense. But the decision is wrong nonetheless, because the right to privacy can’t be balanced away by statistics.

An op-ed by Noah Feldman. Events in Tunisia look, on the surface, like a replay of 2011. A frustrated, unemployed man killed himself Jan. 17 in an act of protest that was intended to remind everyone of the self-immolation of a fruit seller that set off the Arab Spring. Protests then spread from city to city. They focused on rampant unemployment, which was one of the concerns of the protesters last time. Eventually, the government had to call a curfew to make the protests die down, which they eventually did. Deeper down, the situation in 2016 is fundamentally different. The reason is democracy.

An op-ed by Noah Feldman. By any measure, Eric Lander, director of the Broad Institute, is one of the most important scientists in the world today. His science is groundbreaking, his institutional power is enormous, and his ethical reputation is sterling. Yet Lander now finds himself the target of immense criticism as a result of … trying to do history. Lander's essay "The Heroes of Crispr," recently published in the journal Cell, has been attacked for its failure to disclose his research center’s stake in a massive patent fight over the extraordinary genome-editing technology Crispr/Cas9, as well as for downplaying the roles of two female scientists, Emmanuelle Charpentier and Jennifer Doudna, who are on the other side of what's been called the biggest patent war in the history of biotech. What went wrong? The lesson of this kerfuffle isn’t only, as some have proposed, that critics are jealous of Lander’s influence or opposed to his big-science ideology and accomplishments. It’s something more subtle and more interesting: There's a huge difference between doing your job and trying to write the history of that job.

An op-ed by Noah Feldman. The University of Missouri won’t fire an assistant professor of communications, school officials say, even though the professor, Melissa Click, has been charged with assault for blocking a student reporter who was trying to take video of protests on the campus. That’s a reasonable policy decision, because everyone’s entitled to the presumption of innocence. At the same time, the university’s acting chancellor, Henry Foley, said something calculated to strike fear in the hearts of untenured professors everywhere: He indicated that university would take account of her actions when she’s being considered for tenure.

An op-ed by Noah Feldman. Who gets to define the “Jewish” part of Israel’s identity as a Jewish and democratic state? Maybe the Knesset or Israel’s supreme court? It turns out there’s another major player: the Israel Defense Forces. The military recently announced a change in the Jewish Identity Unit, which teaches draftees a religious version of what Jewishness entails. The change is intended as a blow against nationalist Orthodoxy in the cultural struggle over whether Israel is a secular or a religious state.

An op-ed by Noah Feldman. The indictment of anti-abortion activist David Daleiden is a stark reminder that the criminal law is a dangerous animal: Once it’s set free, there’s no telling who will be its target. Yet Daleiden is extremely unlikely to receive anything but symbolic jail time if convicted of the charge of making and using a false California driver’s license in the course of his undercover attempt to discredit Planned Parenthood clinics in Texas. And despite what his supporters might say, the indictment doesn’t pose a threat to First Amendment values or legitimate investigative journalism.

An op-ed by Noah Feldman. Monday's landmark decision by the U.S. Supreme Court to make retroactive its 2012 prohibition on mandatory life sentences without parole for juvenile offenders is worthy of celebration. The court clarified its retroactivity jurisprudence, holding for the first time that the Constitution demands that new substantive constitutional rules be applied to people convicted before the rules were announced. And the justices were correct to apply their newly announced principle to the case of mandatory sentences of life without parole for juveniles. But at the same time, the court’s bold decision, written by Justice Anthony Kennedy, underscores the depth of an anomaly that it left unchanged: When the court announces a new procedural rule mandated by the Constitution, those convicted under the old rule stay in prison and are unaffected by the new judgment.

An op-ed by Noah Feldman. I’ve always loved the title of the 1951 film, “I Can Get It for You Wholesale,” maybe because of my ancestral connections to the garment industry (manufacturing on the paternal side, retail on the maternal). Today I get to connect my job to that of my grandparents: The U.S. Supreme Court has decided a case about the power of the Federal Energy Regulatory Commission on the basis of the wholesale-retail distinction. I don’t have anything to sell you, but I will try to explain why the case matters, and what the court said.