Noah Feldman

An op-ed by Noah Feldman. On Monday, just a few days after the shootings in San Bernardino, California, the U.S. Supreme Court announced it won't hear a challenge to a Chicago suburb’s ban on semiautomatic weapons. On Wednesday, in the wake of a semester’s turmoil over race on campuses from Missouri to New Haven, the court is hearing a challenge to affirmative action. Coincidence? Well, sort of. The court’s actions -- refusing to hear the gun challenge while considering affirmative action -- are case studies of judicial timing that raise a broader question: How is the court influenced by day-to-day headlines and current events? The answer turns out to be more complicated, and more interesting, than you might think.

An op-ed by Noah Feldman. The idea that American Indian tribes are sovereign has a checkered history, in which it’s been both a sword for taking away Indians’ land and a shield for protecting some vestige of self-determination. Tribal sovereignty is before the U.S. Supreme Court on Monday in a case that asks whether tribal courts have authority over non-Indians in civil cases. You’d think that, more than 500 years after first contact, the question would be settled. But it isn't, or not exactly -- and therein lies a tale of big money, big principles and thorny legal details.

An op-ed by Noah Feldman. The International Monetary Fund’s decision to designate the Chinese renminbi, commonly known as the yuan, as a global reserve currency will, over time, encourage the country’s leadership to make the currency more tradable. But the political implications of global reserve status may be more significant than the economic ones.

An op-ed by Noah Feldman. There may have been a stranger and more lurid case in the federal appeals courts in 2015 than that of Gilberto Valle, the "cannibal cop." But if there was, I haven’t heard of it -- and it doesn’t carry the same high probability of going to the U.S. Supreme Court. A divided panel of the U.S. Court of Appeals for the 2nd Circuit on Thursday vacated both Valle’s conviction for conspiracy to kidnap and a second conviction for unauthorized use of a computer database to look up a possible victim. Both parts of the decision deserve a close look, for different reasons.

An op-ed by Noah Feldman. Can Native Hawaiians form a government of their own to negotiate with the U.S. government like an Indian tribe? The issue is still before the lower courts, but the U.S. Supreme Court dropped a big hint Wednesday that its eventual answer may be no. The justices voted, 5-4, to continue an injunction that blocks the counting of ballots for delegates to a convention limited to Native Hawaiians. The U.S. Court of Appeals for the 9th Circuit could allow the counting to go forward after it rules -- but the issue will then go right back to the Supreme Court.

An op-ed by Noah Feldman: When you’re trading securities, you generally think about being regulated by the Securities and Exchange Commission and federal law. Should you be worried about state law, too? That question isn't merely theoretical, as shown by the naked short selling case that was argued Tuesday before the U.S. Supreme Court. The answer has practical consequences for traders of all kinds. The case, Merrill Lynch v. Manning, arises from allegations by individual shareholders in Escala Group Inc., that traders at Merrill Lynch, Knight Equity Markets and UBS Securities, among others, engaged in naked short selling to manipulate the value of the stock. In essence, the original plaintiffs alleged that the traders made short sales without bothering to borrow the securities that would be needed to cover the trade.

An op-ed by Noah Feldman: Turkish President Recep Tayyip Erdogan has a new enemy in Russian President Vladimir Putin after Turkey shot down a Russian jet. But his new friends in the European Union more than make up for the loss. Desperate to stanch the flow of immigration, the EU has promised Turkey 3 billion euros ($3.2 billion) to keep Syrian refugees there so they won’t go to Europe. Included in the bargain is the restarting of Turkey’s accession to the EU, stalled until now because of traditional European fears of Turkish economic migrants and worries about the country’s slow slide away from liberal democracy. The ironies are palpable and rich.

An op-ed by Noah Feldman. The Temple Mount conflict has made headlines in recent months as a possible cause of a string of Palestinian stabbings and Israeli retaliations. But at the Western Wall, in the literal shadow of the site -- known to Muslims as the Noble Sanctuary -- another long-ranging controversy has been simmering, one posing its own challenge to Israel’s identity as a Jewish and democratic state. The struggle concerns Jewish women who’ve been prohibited from reading the Torah at the Orthodox-dominated Western Wall. On Sunday, a group of them brought the issue to the Israeli Supreme Court, charging the Orthodox rabbi in charge of the holy site with discrimination on the basis of sex.

An op-ed by Noah Feldman. On the surface, TrueAllele Casework, a computer program that extracts genetic profiles from DNA samples, would seem to mark an advance in criminal justice technology. But defense lawyers say it shouldn’t be allowed in court, because Cybergenetics Corp., the firm that owns the program, won’t reveal the software’s source code, which it considers a trade secret. The resulting conflict, which is presently playing out in a Pennsylvania murder trial, poses fascinating and important questions: Do we need to know exactly how a given technique works to consider it scientifically reliable and admissible in court? And is it democratically right to convict, and possibly execute, someone based on a secret process the defendant isn’t allowed to know?

An op-ed by Noah Feldman. What are the legal prospects for the California girls who want to join the Boy Scouts of America? Five girls, ages 10 to 13, have asked the local council to be admitted as full-fledged Boy Scouts. Should they eventually take their case to court, they won’t be able to rely on Title IX, the law that prohibits sex discrimination in educational institutions, because Congress wrote in an exemption for the Boy Scouts. Structurally, the exemption resembles the one that Congress gave Major League Baseball from antitrust laws: It doesn't really have a principled basis, but reflects some combination of tradition and lobbying power.

An op-ed by Noah Feldman. I come not to mock Ben Carson for forgetting that Thomas Jefferson was in France when the Constitution and Bill of Rights were drafted, but to thank him for (unwittingly) raising the topic. My thesis is this: We should be thankful Jefferson was away. Notwithstanding the genius of the Declaration of Independence, its principal draftsman had truly terrible views about what a constitution should be like. If we’d followed them, we wouldn't have the Constitution we revere. In fact, I don't think we’d have much of a constitution at all.

An op-ed by Noah Feldman. I’ll cheerfully admit that until last weekend I had no idea that Mississippi decides tied elections by drawing straws -- much less that other states flip a coin. The only comparable version of planned randomness I’d heard of was the ancient Greek practice of choosing annual leaders by lottery. My first instinct on hearing about the Mississippi State House election that was resolved Friday in favor of the Democratic candidate was that this arbitrary practice should obviously be changed. On reflection, I’m not so sure.

An op-ed by Noah Feldman. The Nuremberg trials opened 70 years ago, on Nov. 20, 1945 -- with every prospect of ending in disaster. Nuremberg was the first time in modern history that the victors of a war decided to treat a defeated European enemy as criminal. The prosecution faced one overwhelming problem: There was no clear legal authority to say that starting a war was a crime under international law. Today we often think of the Nuremberg trials as having been about the Holocaust. But in fact the prosecution team, led by U.S. Supreme Court Justice Robert Jackson and including British, French and Russian lawyers, focused on the theory that Germany’s crime was to have engaged in “aggressive war.”

An op-ed by Noah Feldman. Louis Brandeis, the father of market regulation in the U.S., famously called sunlight “the best of disinfectants.” The Securities and Exchange Commission announced Wednesday that it would apply his dictum to dark pools, the electronic alternative trading systems where the size and price of orders are hidden from other market participants. The proposed SEC rules, now open for 60 days of public comment, are aimed at revealing potential conflicts of interest between the trading systems and those who use them, and clarifying some aspects of order routing in the dark pools. The proposed rules raise an intriguing question: Do we need more regulation for markets that are used overwhelmingly by extremely sophisticated traders, and that are themselves in competition with one another? Put another way, shouldn't the market for alternative trading systems (the market for markets, if you will) be sufficient to ensure that they operate fairly and efficiently?

An op-ed by Noah Feldman. The U.S. and Europe have spent the last week focused on Islamic State, but the possibility of conflict between China and Taiwan is far more dangerous to the world’s security. An important development took place Nov. 7, when Chinese President Xi Jinping met for a historic summit with Taiwanese leader Ma Ying-jeou. The meeting has been variously interpreted. But the best read is that it was a warning from China to Taiwanese voters not to move toward independence. That's particularly worrisome, because Ma’s nationalist Kuomintang Party (KMT) is widely expected to lose upcoming elections to the independence-minded Democratic Progressive Party (DPP).

An op-ed by Noah Feldman: President Francois Hollande has closed France's borders for three months after Friday's terrorist attacks on Paris. But this is only the latest shutdown to threaten Europe's coherence and unity. European Council President Donald Tusk warned last week of a “race against time” to save the 1985 Schengen Agreement, which created open borders among almost all members of the European Union as well as a few other countries. That's putting it mildly. Germany, the EU’s 800-pound gorilla, closed its border with Austria in September. Even Sweden, the most welcoming European country when it comes to refugees, has implemented border checks.

An op-ed by Noah Feldman. Beirutis are justifiably frustrated that Friday's attacks in Paris overshadowed the bombings that killed 43 people in their city the day before. But equal respect for human life isn't the only reason Western media should be more focused on Beirut than they have been. The Paris attack succeeded in frightening the West, but the attack on Beirut represents a more important strategic avenue for Islamic State. The Sunni-militant group isn't going to destabilize France. Yet destabilizing Lebanon, a tinderbox at the best of times, is an achievable goal.

An op-ed by Noah Feldman. As if the University of Missouri didn't already have enough problems, State Senator Kurt Schaefer is trying to block a research study by a graduate student in the School of Social Work. The senator, who’s a one-man scourge of Planned Parenthood, is claiming that the study violates a Missouri law that bars spending state funds to encourage abortion. Schaefer’s effort blatantly violates academic freedom. If it succeeds, it might possibly violate the First Amendment.

An op-ed by Noah Feldman. When French President Francois Hollande said Friday's attacks on Paris were an “act of war,” he was following a script set by George W. Bush in the aftermath of the Sept. 11 attacks. Rhetorically, invoking the language of war to describe a terrorist attack sends a message of seriousness and outrage. But as U.S.’s post 9/11 wars show, it isn’t always wise to elevate a terrorist group to the level of the sovereign entities that traditionally have the authority to make war. This was a mistake with respect to al-Qaeda, but it’s a greater mistake when it comes to Islamic State, whose primary aspiration is to achieve statehood. By saying that Islamic State is in a war with France, Hollande is unwittingly giving the ragtag group the international stature it seeks.

An op-ed by Noah Feldman. The violence in the Terai plain of Nepal over the last six weeks may not be on your radar screen. But the blockade of the Nepal-India border created by armed groups from the Madhesi ethnic minority actually has global significance. The reason is surprising: On Sept. 20, Nepal ratified a new constitution after a fitful and frustrating eight-year process. You'd think this would be good news, heralding an era of good feelings. Instead, ratification drove the Madhesis into something very like open revolt. Thus, a question of universal relevance: Why do some constitutions work, and others fail? Put another way, what's the essence of a constitutional deal that enables it to succeed?

An op-ed by Noah Feldman. At the embattled University of Missouri, where the president and chancellor are stepping down, university police sent students an e-mail Tuesday urging them to call and report if they “witness incidents of hateful and/or hurtful speech.” The e-mail urged witnesses to provide descriptions of the speakers and, if safe, snap pictures of them with their phones. The First Amendment applies at a state university campus, and those who speak hatefully or hurtfully can't be criminally punished. But they can be penalized or expelled if they create an environment that's hostile on the basis of race or sex. There's a serious tension between these interests, and the Missouri e-mail raises a pressing question: Does the use of campus police to enforce anti-discrimination advance the goal of knowledge or detract from it?