Noah Feldman

An op-ed by Noah Feldman. In the post-Ferguson era, the details of a police shooting that kills a fleeing defendant are all-important -- and you might think we would want juries, not judges, to consider them. But on Monday, eight justices of the U.S. Supreme Court made it harder for police shooting cases to reach a jury. The court held that a Texas state trooper couldn't be sued for using his rifle to shoot the driver of a car that led police on an 18-minute chase. Only Justice Sonia Sotomayor, who’s emerging as the court’s conscience on race, thought the suit should be able to go forward.

An op-ed by Noah Feldman. If you’re arrested and charged with a white-collar crime, can the government freeze the assets you need to pay for a lawyer to prove your innocence? Remarkably, there's no definitive legal answer to this question, which the U.S. Supreme Court will take up Tuesday. It’s established that the government can freeze tainted assets that it traces to your alleged crime, and that you don’t get to challenge that determination. But Tuesday's case will answer the further question of whether the government can freeze any of your assets up to the value of what it says you stole -- not just assets it identifies as tainted proceeds.

An op-ed by Noah Feldman. Which do the conservative justices hate more: personal-injury lawyers or interpreting a law loosely to expand the power of lower courts? That question will be on the table Monday at the U.S. Supreme Court. The justices are hearing oral argument in a potentially important case about whether you have to pay back your insurance company for medical bills after you’ve sued and recovered from the person who injured you in the first place. Montanile v. National Elevator Industry Health Benefit Plan has all the marks of a case only lawyers could love. It involves insurance, money, a drunken driver and what may arguably be the most complicated statute in the entire U.S. Code, the Employee Retirement and Income Security Act of 1974, known as Erisa.

An op-ed by Noah Feldman. The Church of Jesus Christ of Latter-day Saints seemed to have made its peace with the U.S. Supreme Court’s gay-marriage decision over the last four months. Senior leaders rejected civil disobedience a la Kentucky clerk Kim Davis, and helped pass a housing discrimination bill in the Utah legislature that included protections for gay people. The church also decided to maintain its close relationship with the Boy Scouts of America notwithstanding that organization’s willingness to allow gay scoutmasters. But in a strong signal that respect for the law and for organizational federalism don’t amount to a softening of the Mormon religious position on gay unions, the church has informed its lay leaders that same-sex marriage is apostasy. The children of same-sex couples will be barred from the faith until they turn 18 and repudiate their parents’ unions.

An op-ed by Noah Feldman. The saga of the Keystone XL pipeline seemed to come to an end Friday when U.S. President Barack Obama officially rejected TransCanada’s request by saying the oil pipeline from Canada to the Gulf Coast would “undercut” American leadership on climate change. But the pipeline isn’t completely dead. Because of falling oil prices, it’s mostly a partisan issue. If Democrat Hillary Clinton is elected president in 2016, she won’t reverse Obama’s decision. But if a Republican is elected, he or she might well make the opposite call, and be supported by a Republican Congress.

An op-ed by Noah Feldman. Can a woman be a rabbi? For many American Jews, the issue is long settled: The Reform movement first ordained a woman in 1972; the Reconstructionist movement in 1974; and the Conservative movement in 1985. Regina Jonas, usually considered the first female rabbi, was ordained in Germany in 1935, and died at Auschwitz after serving as a rabbi in the Theresienstadt concentration camp. For Orthodox Judaism, however, the issue has been more complicated. In the past week, the two major Orthodox rabbinical associations in the U.S., the Rabbinical Council of America, which is roughly modern Orthodox, and the Moetzes Gedolei HaTorah of America, roughly ultra-Orthodox, issued public statements condemning in definitive terms the possibility of Orthodox women being ordained as clergy.

An op-ed by Noah Feldman. Pot is news, and Ohio voters’ rejection of an amendment to legalize marijuana Tuesday deserves the headlines it’s gotten. But a more important story is easy to miss: Those same voters amended the Ohio Constitution to make it very difficult for future initiative promoters to give themselves a monopoly through the state referendum process. The new amendment was targeted at the marijuana growers, who wanted a monopoly in exchange for having advocated legalization. Yet the new amendment is an important example of a very unusual constitutional phenomenon: an entrenching amendment that makes future amendments much harder.

An op-ed by Noah Feldman. How would you feel if your 10-year prison sentence depended on a dangling modifier? That's the situation for Avondale Lockhart, whose case was heard Tuesday by the U.S. Supreme Court. Lockhart was caught in a federal sting and pleaded guilty to one count of possessing child pornography. He had a previous state conviction for attempted rape, a form of sexual abuse. According to federal law, Lockhart gets a mandatory 10-year minimum sentence for the child pornography if he had a prior state conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” The crucial words here are “involving a minor.” Lockhart says they apply to the whole sentence. Because his prior conviction was for attempted rape of a woman, not a minor, the law doesn't apply to him. The government says “involving a minor” just refers to the last part of the sentence, “abusive sexual conduct,” not to what came before.

An op-ed by Noah Feldman. Can you sue a company in federal court for publishing false information that might affect your credit score? Congress says yes. But the Supreme Court seriously considered the possibility Monday that Congress lacks the authority to create that right to sue if you haven't suffered a concrete injury. The issue has far-reaching consequences for your rights and expectations of accuracy in the information economy. Everyone from Experian to eBay has weighed in with friend-of-the-court briefs. There's also a right answer -- but no guarantee the court will reach it.

Thanks to a generous gift from Mitchell R. Julis, one of America’s most successful hedge fund managers, Harvard Law School announced today the launch of the Julis-Rabinowitz Program in Jewish and Israeli Law. The new initiative will fund visiting scholars and fellows, hold classes devoted to traditional Jewish legal texts, host an annual conference, and organize events related to “the impact and study of Jewish law in Israel, in the United States, and across the world.”...The Harvard program’s director will be Noah Feldman, the Harvard law professor and public intellectual best known for helping to write the Iraqi constitution in the aftermath of Operation Iraqi Freedom. “Jewish law and Israeli law are distinct and different,” Feldman said, explaining the rationale for the new center, “yet they also interact and make claims on each other. It makes sense to study them both in the same program, even as we study them independently.” The Julis gift, he added, “gives us a broad ambit to bring in a wide range of voices to explore these fascinating and rich topics from all sides.”

An op-ed by Noah Feldman. In July, a house in the Palestinian village of Duma was firebombed. A family of four was inside: Saad Dawabsheh, his wife and two children, ages 4 and 18 months. Only the 4-year-old survived. The leading suspects for the attack are Jewish, part of a loose network known in Israel as “hilltop youth,” teenagers who grew up in small and often unsanctioned settlements in the West Bank, especially in the region they call Samaria...Although small, this movement represents a troubling new fusion of messianism, legalism and violence. Its aim is to create a sovereign territory under God’s law. For these reasons, it is worthy of serious analysis and consideration.

An op-ed by Noah Feldman. There’s something inescapably charming about the House of Lords, the upper chamber of the U.K. Parliament with 817 active members. But the usually discreet charm of the aristocracy is under attack this week after the Lords used its power to delay tax-credit cuts passed by the Conservative majority in the House of Commons. The prospect of a Tory government complaining about tradition is deliciously ironic, but it does raise two serious questions: Is there a place for an unelected chamber in a modern democracy? And what benefits, if any, stem from its slowing or delaying the operation of the elected government?

An op-ed by Noah Feldman. The most important document in the most important Supreme Court case of the year is the University of Texas’ brief arguing that it needs to use affirmative action to achieve diversity in its undergraduate class. That brief, submitted Monday for the court’s consideration in Fisher v. University of Texas at Austin, says that the university can’t achieve its educational goals by admitting on numbers alone. Rather, achieving the magic of campus diversity requires a “holistic” effort to treat applicants as unique individuals with distinctive features. Think of the admissions process as a 10-gallon Texas version of the Hogwarts sorting hat, and you get the idea. Is Texas right? And, equally important, can it persuade Justice Anthony Kennedy not to end affirmative action as we know it in college admissions?

An op-ed by Noah Feldman. I realize no American much cares whether the U.S. acted lawfully in planning to shoot Osama bin Laden on sight during the 2011 raid on his Pakistan compound. But new details of the legal game plan to get him, excerpted in the New York Times from reporter Charlie Savage’s forthcoming book, are nevertheless troubling. According to Savage's reporting, senior government lawyers specifically detailed the reasons it would be lawful to kill an unarmed Bin Laden, even if he was in the act of surrendering. This is problematic not so much because of its doubtful legality but for the precedent it sets for lawyers essentially directing shoot-to-kill military operations before the fact.

An op-ed by Noah Feldman. Should law schools admit students who are statistically uncertain to pass the bar on the basis of their standardized test scores? A growing conventional wisdom says no. The worry is that such students will build up large amounts of debt that they won't be able to pay back if they don't become lawyers. This view assumes that it's up to the law schools to make the threshold decision paternalistically, “saving” naive college graduates from pursuing the dream of becoming lawyers when there’s no guarantee that they'll succeed. It treats standardized test scores as destiny and correlation-based studies as gospel.

An op-ed by Noah Feldman. Can an American detained and allegedly tortured by the FBI at black sites outside the U.S. sue for damages? A panel of the U.S. Court of Appeals for the D.C. Circuit said no last week, on the ground that the violations of the citizen’s rights took place abroad. The distinction is mistaken, and the decision is wrong. The Constitution should protect the rights of U.S. citizens against the illegal actions of U.S. government no matter where they happen to be.

An op-ed by Noah Feldman. In an unusual, head-snapping reversal, Amazon.com has convinced a panel of the U.S. Court of Appeals for the 9th Circuit to retract an opinion on its search results technique and replace it with a decision in its favor. To make the result even weirder, the single judge who flipped isn't a member of the 9th Circuit all. He’s a 78-year-old partly retired judge from the Western District of Michigan sitting by designation with the appellate court whose megacircuit covers the half-moon from Arizona to Montana. What gives?

An op-ed by Noah Feldman. Vincent van Gogh’s “The Night Cafe” will stay at the Yale University Art Gallery, the U.S. Court of Appeals for the 2nd Circuit ruled this week, even though the Bolsheviks stole it from a private collector in 1918. The court said it has no authority to consider the validity of a foreign government’s act confiscating private property. So how come confiscated Nazi art, like the Gustav Klimt painting in the film “Woman in Gold,” can end up returned to its rightful heirs, while Soviet-confiscated art can’t? The legal answer turns out to be surprisingly convoluted. In essence, it’s this: The Nazis are different.

An op-ed by Noah Feldman. On the surface, Monday's decision of the U.S. Court of Appeals for the 2nd Circuit upholding most of the assault weapons bans passed by New York and Connecticut is a win for gun-control advocates. But down in the weeds, the unanimous decision by a panel of three Democratic appointees nevertheless points to potential trouble for similar laws should they ever be reviewed by the U.S. Supreme Court. The court held that assault weapons do in general fall within the core protections of the Second Amendment. But the judges applied a lenient standard to uphold the laws -- and a more aggressive Supreme Court might well apply a tougher standard and strike them down.

An op-ed by Noah Feldman. Scientists say they hope to avoid government regulation of genetically modified organisms, or GMOs, by using a variant on a powerful new method to knock out some plant genes. This thinking is worrisome -- not so much for scientific reasons as for legal ones. When research is aimed at achieving a regulatory goal rather than a scientific one, it's a sign that something is wrong with the regulations, and that they need to be changed sooner rather than later.