Noah Feldman

An op-ed by Noah Feldman. Is there a fundamental difference between war fought for reasons of belief and war fought out of self-interest? Is one more primitive than the other, or morally superior? These deep questions are raised by the finding of a mass grave from 10,000 years ago by the shores of Kenya’s Lake Turkana, now the earliest such site known. They also resonate in the debate about how seriously to engage Islamic State, and whether to employ means of warfare that would actually eliminate the group instead of just contain it. In particular, the fight against Islamic State involves the question of whether it’s good or right to go to war because the enemy is morally so bad.

An op-ed by Noah Feldman. I can’t be the only one who thinks they should bring back the original “Law & Order.” If NBC did, the show’s first case should be one that went on trial this week in a local court in Mineola, New York. A man has been charged with homicide in the death of a police officer who was hit by an SUV. The twist is that, when the crash happened, the defendant was leaning against the guardrail. He had been driving home from a night of drinking, got involved in a minor accident and was pulled over. The policeman was hit by a different car while investigating the crash. Is the homicide charge justified?

An op-ed by Noah Feldman. Is the freedom of speech a right to speak? Or is it a right not to be punished by the government for what it thinks you’re saying? The difference may sound academic, but it isn’t for police officer Jeffrey Heffernan of Paterson, New Jersey, whose case was argued Tuesday before the U.S. Supreme Court.

An op-ed by Noah Feldman. Any remaining suspicion that the Supreme Court is soft on the death penalty should be dispelled by Wednesday’s judgment in two cases challenging capital sentences in Kansas. In an 8-1 decision, the justices reinstated death sentences that had been overturned by the Kansas Supreme Court. The state court had said that jurors must be told expressly that mitigating circumstances introduced by the defense didn’t need to be proved beyond a reasonable doubt, as findings for the prosecution must be proved. But the U.S. Supreme Court said no such instruction was necessary.

An op-ed by Noah Feldman. Who put the quid in the quid pro quo? Was it the same person who put the ram in the rama lama ding dong? The U.S. Supreme Court said Friday that it would consider a version of this eternal question in the appeal of Bob McDonnell, the convicted former governor of Virginia. To be specific, the court will decide whether the federal crime of bribing an official requires that the official actually do something specific in return for the bribe, or whether it’s enough for the official to do his usual job while generally hoping to influence policy in favor of the person who gave the bribe. The issue has major significance for all public officials -- and for the private actors who hope to influence them, whether legally or illegally.

An op-ed by Noah Feldman. Is the separation of church and state unconstitutional? You read that right. The U.S. Supreme Court said Friday that it would consider whether Missouri’s constitution, which bars state aid to religious groups, violates the U.S. Constitution by discriminating against religion. This claim sounds crazy, and to those who wrote the Missouri constitutional provision in the 1870s, it would’ve been. But the claim, in fact, isn’t utterly absurd -- if you consider the historical circumstances in which the provision was drafted.

An op-ed by Noah Feldman. We now have our major Supreme Court story of the year: The justices will review the constitutionality of President Barack Obama’s plan to defer deportations, stalled by the U.S. Court of Appeals for the 5th Circuit. The court’s decision to take the case, United States v. Texas, ensures major drama around the oral argument in April, and fevered anticipation in the run-up to the announcement of the court’s decision sometime in late June.

An op-ed by Noah Feldman. For most of the last thousand years, building mosques was a way of consolidating an Islamic empire’s prestige and spreading its beliefs. In recent decades, Saudi Arabia has been the leading global mosque builder, erecting sanctuaries and paying imams to spread its Wahhabi brand of fundamentalist state religion. Now Turkey and Iran have entered the mosque race, sponsoring new structures in their distinctive architectural styles. But they’re late to the game, at least if the score is tallied by discouraging disfavored ideology and spreading their own religious and political views.

An op-ed by Noah Feldman. In October, a Kentucky judge dismissed criminal charges against a man who had shot down a drone flying over his property. Now the drone’s owner has brought a federal civil suit against the shooter, William Merideth, arguing that the Federal Aviation Administration is in charge of all airspace and that it allows drones to fly over private property. All this amounts to a legal mess. The law, both state and federal, is still pretty unclear about where you can fly a drone, and what you as a citizen may do if a drone -- probably with a camera on board -- is hovering above your home.

An op-ed by Noah Feldman. One of Europe’s most liberal countries has joined the likes of Iran and Turkey in drawing the ire of Israel. Israel has officially let it be known that Swedish Foreign Minister Margot Wallström isn’t welcome in the country because of comments she made in December warning that Israel might be committing “extrajudicial executions” in connection with stabbing attempts by Palestinians against Israeli citizens. Wallström defended herself in Sweden’s parliament this week, insisting that she “was making an argument based on principles of international law.” Her critics say she’s apologizing for terrorism and hiding behind the law.

An op-ed by Noah Feldman. The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again. The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter. The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific. The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.

An op-ed by Noah Feldman. Is the Commonwealth of Puerto Rico sovereign, like the 50 states? Or is it a mere territory of the U.S.? This problem in the metaphysics of colonialism has some relevance to the question of Puerto Rico’s ability to restructure its bonds using bankruptcy law, which will come before the U.S. Supreme Court later this year. But the justices will take up the matter directly Wednesday, in considering whether Puerto Rico and the federal government can separately prosecute someone for the same crime.

An op-ed by Noah Feldman. Federal courts are supposed to apply laws passed by Congress. But can Congress dictate the outcome in a particular case, the way it did when it essentially told the federal district court in New York to rule for victims of terrorism trying to collect $2 billion from the Iranian government? The U.S. Supreme Court will take up this question Wednesday in Bank Markazi v. Peterson -- and it’s legally tricky as well as politically sensitive.

An op-ed by Noah Feldman. The First Amendment protects your right to burn the flag in protest. What about getting naked to draw attention to your cause? An Oregon man is intent on finding out -- and so far, the courts have ruled against him. His case deserves attention because of the light it sheds on a core question of free speech.

An op-ed by Noah Feldman. On Christmas, hopes for high-level peace talks between India and Pakistan were higher than they’d been in years. Indian Prime Minister Narendra Modi made a surprise visit to his Pakistani counterpart, Nawaz Sharif, and the two shared a very public and symbolic hug. Now, just two weeks later, the optimism is mostly gone. After terrorists from Pakistan attacked an Indian air base, killing seven Indian security personnel, Modi told Sharif that talks wouldn’t go forward unless Pakistan took action against the terrorists. It seems altogether likely the talks won’t happen at all.

An op-ed by Noah Feldman: Alabama Chief Justice Roy Moore is at it again, grandstanding to block implementation of the U.S. Supreme Court’s gay-marriage decision in his state. This time his legal arguments are much weaker than they were last January and February and March, before the nation’s highest court ruled in June. And this time Moore is flirting with outright defiance and the potential loss of his post. That’s an experience he’s had before: In 2003, he was removed from office after defying a federal court order to uproot a granite statue of the Ten Commandments in front of the Alabama Supreme Court.

An op-ed by Noah Feldman: Rosa Parks now belongs to the ages -- literally. The U.S. Court of Appeals for the 11th Circuit has ruled that the estate of the civil-rights pioneer can’t block the use of her image on a commemorative plaque being sold at a Target near you, because she and her story are matters of public interest. The case raised the crucial question of who owns a person’s story once he or she has been in the news. Construed broadly, the decision could mean the end of life-rights sales to the motion-picture industry.Like most property rights, the privacy right to control your own image and story is a matter of state law. The federal court decided the case under Michigan law, because Michigan is where the foundation that inherited Parks’s estate is located.

An op-ed by Noah Feldman. Gun-rights advocates are already suggesting that they’ll go to court to challenge President Barack Obama’s newly announced executive action on background checks. But what exactly, is the challenge going to be? And will it work? The highlight of Obama’s action is to “clarify” the law that says checks are only necessary for sales by people “engaged in the business of selling guns.” As many as 40 percent of gun sales are currently unregulated because they’re in theory not made by dealers engaged in the business. The most likely path for the Second Amendment activists will be to argue that the administration’s clarified definition is too narrow, interfering with nonbusiness sales. Such a claim won’t be simple to get before the courts. And when it does get there, it will be difficult for it to succeed -- but not impossible.

An op-ed by Noah Feldman. The rapidly escalating conflict between Saudi Arabia and Iran, sparked by the execution of a Saudi Shiite activist, may seem like the natural outgrowth of a decade’s Sunni-Shiite tensions. But more than denominational differences, what’s driving the open conflict is the Saudis’ deepening fear that the U.S. is shifting its loyalties in the Persian Gulf region from its traditional Saudi ally to a gradually moderating Iran. And in a sense, they’re right: Although the U.S. is a long way from becoming an instinctive Iranian ally, the nuclear deal has led Washington to start broadening its base in the Gulf, working with Iran where the two sides have overlapping interests. Of which there are many these days.

An op-ed by Noah Feldman. Remember Fallujah? For the Barack Obama administration, the Iraqi retaking of Ramadi -- with substantial U.S. help -- is a welcome New Year’s gift. But before anyone gets too excited about moving on to Mosul, Iraq’s second-largest city, it would be wise to remember that at least two further obstacles remain before that battle can be mounted. The Iraqis need to hold Ramadi and establish supply lines in the territory leading to Mosul, and they must break Islamic State’s hold on Fallujah, to the rear of Ramadi and perilously close to Baghdad.

An op-ed by Noah Feldman. Not every democracy needs a supreme court with the power to block legislation it deems unconstitutional. But Poland’s reforms of its Constitutional Tribunal, enacted by a right-wing majority and signed into law by a conservative president, are worrisome signs for the country's prospects of democratic government. The political timing -- and the nature of the changes -- provides a valuable guide to what judicial review is good for, and why so many countries have adopted it since World War II.