Noah Feldman

An op-ed by Noah Feldman. Here’s the issue in a real free-speech case just decided by the U.S. Court of Appeals for the Ninth Circuit: Can someone be refused a teaching certification because of his otherwise protected social or political views? The answer sounds like it should be no, doesn’t it?

An op-ed by Noah Feldman. Starting in the new year, judges in Florida can wear robes in any color they want -- so long as that color is black. The state Supreme Court seems to have adopted the new rule -- which also prohibits any robe embellishment -- because of a judge who wore a camouflage robe, which some litigants thought signaled his identity as a good ol’ boy, thereby undercutting public confidence in the judiciary.

An op-ed by Noah Feldman. At long last, Korea's “comfort women” are getting a real apology from Japan's government for being forced into sexual slavery by the Japanese army during World War II. But the moment is bittersweet, and not just because it’s taken 70 years. The apology comes not out of a change in Japanese sentiment, but from a change in geopolitics -- namely, the rise of China and the increasing need for Japan and South Korea to cooperate on mutual defense. And it comes at the price of a promise by the South Korean government not to criticize Japan over the issue again -- a trade of moral claims for compensation and finality.

An op-ed by Noah Feldman. 2015 was supposed to be the year President Barack Obama would use unilateral executive action to accomplish major goals of his administration that had been blocked by Congress: relaxing deportations, closing the prison at Guantanamo Bay, Cuba, and restricting access to guns. But all three goals stalled.

An op-ed by Noah Feldman. Over the last 15 years, Americans have become accustomed to distinguishing domestic mass shootings from Islamic terrorism -- the difference between Columbine and the Sept. 11 attacks, if you will. In 2015, that conceptual division broke down with the massacre in San Bernardino, California. It wasn’t the first domestic act of terrorism inspired by Islam -- Army Major Nidal Hasan’s attack on Fort Hood and the Boston Marathon bombing both featured American Muslim terrorists. But San Bernardino was the first time the two paradigms were literally indistinguishable. It’s as if the terrorists finally said, “Who needs airplanes when assault weapons are readily available?”

An op-ed by Noah Feldman. Reviewing the year at the U.S. Supreme Court, there’s no question that the outstanding historic moment was June’s decision in Obergefell v. Hodges, in which the court recognized -- or, if you prefer, invented -- a right to gay marriage. There was nothing substantively surprising about the decision itself. Justice Anthony Kennedy had been preparing the way for 20 years, melding the principles of equality and due process into a jurisprudence of “equal dignity.” What’s surprising is the lack of sustained national opposition to the decision. In the contentious, circuslike Republican primary campaign, there has thus far been astonishingly little discussion of Obergefell and how to combat it or roll it back.

An op-ed by Noah Feldman. Do Christians and Muslims worship the same God, as Pope Francis and suspended Wheaton College professor Larycia Hawkins affirm? Or are Allah and the Christian deity two different things, as the Wheaton administration believes? The debate is a throwback to the days when evangelical Protestants and Catholics were deeply at odds on a range of theological questions. It only seems surprising because Roe v. Wade began a process of political rapprochement between American evangelicals and Catholics that makes them appear closer than they really are. But the debate is also a major issue for Jewish-Christian relations. If Christians and Muslims don’t worship the same God, then neither do Christians and Jews.

An op-ed by Noah Feldman. Should the First Amendment protect what doctors can say to their patients in the privacy of the examining room? Weighing state prohibitions on gay conversion therapy, liberals have tended to think the state should be able to regulate medical treatment without worrying about free speech. Now the shoe’s on the other foot: Florida’s ban on physicians asking patients about gun ownership puts liberals in the position of wanting to protect the doctor-patient relationship. The U.S. Court of Appeals for the 11th Circuit upheld the Florida “docs vs. Glocks” law this week on the ground that the state’s interest in protecting gun ownership outweighs physicians’ free-speech interests -- a result sure to trouble liberals.

An op-ed by Noah Feldman:  Five years ago today, the self-immolation of Tunisian fruit sellerMohamed Bouazizi sparked the Arab Spring. At this distance, it's possible to ask a difficult question: Has the Arab Spring been good for the Arabic-speaking world? Are most people better off than they were five years ago? It's also possible to give a disturbing answer, one born of deep respect and admiration for those who bravely protested and in many cases gave their lives for dignity, justice and democracy.With the exception of Bouazizi’s home country of Tunisia, the uprisings associated with the Arab Spring have either been thwarted by dictators and monarchs or led to civil war and anarchy. Extraordinary as it was, the Arab Spring wasn't enough to lift the citizens of the countries involved out of political subjugation and into collective self-government.

An op-ed by Noah Feldman. Japan's Supreme Court has rejected an equality-based constitutional challenge to a law requiring couples to adopt either the husband’s or the wife’s last name. The decision is fascinating in its own right, reflecting the contemporary moment for feminism in Japan. It also raises a much broader question: How much should a constitution reflect the distinctive values of the society in which it operates, and how much should it express fundamental rights recognized almost universally?

An op-ed by Noah Feldman. U.S. Army Sergeant Bowe Bergdahl deserted his post in Afghanistan in 2009 -- there isn’t much doubt about that. But the charge of desertion isn't the reason he faces life imprisonment in his court-martial, announced Monday by the commanding officer at Fort Bragg, in North Carolina. Under the Uniform Code of Military Justice, the maximum punishment for desertion is five years. The potential life sentence comes from a now-obscure charge with origins in the articles of war enacted by the Continental Congress on Sept. 20, 1776: the charge of misbehavior before the enemy.

An op-ed by Noah Feldman. You might think Donald Trump could use a crash course in Islam, but there's no way to make him take it. A Massachusetts judge, however, faced with a convicted defendant who demonstrated anti-Muslim views, ordered her to take a class on Islam as part of her probation. Now the commonwealth’s Supreme Judicial Court will have to decide whether the sentence was an unconstitutional infringement of religious liberty or a common-sense, measure-for-measure matter of justice. The facts grow out of that most brutal of human interactions, the landlord-tenant dispute.

An op-ed by Noah Feldman. What if the National Rifle Association is right that the no-fly list shouldn’t be used for denying people guns, as President Barack Obama has urged and Connecticut Governor Dannel Malloy has said he will do? If you’re a liberal, the very idea may seem absurd -- but in fact there’s an important constitutional issue at stake. The problem isn’t that gun-sales restrictions are unlawful in themselves. It’s that the no-fly list is a black box full of errors, featuring limited opportunity for redress. Whether you like it or not, gun possession is a constitutional right under the Second Amendment -- unlike flying. That means we need to decide whether the government can restrict that right based on a determination of dangerousness that occurs with a very unusual form of due process.

An op-ed by Noah Feldman. In the U.S., we tend to say that the cure for hate speech is more speech: If you don’t like what Donald Trump has to say about Muslims, speak out, or vote against him. Other democracies do it differently, and many make it a crime to incite racism and violence. This approach sometimes seems appealing -- but it’s also difficult to apply, as the Israeli Supreme Court showed this week when it declined to order the prosecution of the authors of a Jewish law book that arguably constitutes religious hate speech.

An op-ed by Noah Feldman. The last time affirmative action was before the Supreme Court, in 2013, Justice Anthony Kennedy, the court’s swing vote, didn't want to decide the case, and the court sent it back to the court of appeals. Now, with campuses across the country roiled by racial debate and protest, the timing for a decision on the controversial issue is worse. And sure enough, at oral argument Wednesday, Kennedy strongly hinted that he'd like to send the case back -- this time to the trial court to develop the record and find more facts.

An op-ed by Noah Feldman. On Tuesday, the Supreme Court heard oral arguments on whether states' drawing of legislative districts should be based on total population, as it is now, or voter population, as some conservatives want. The case, Evenwel v. Abbott, raises a fundamental question about who is represented in our democracy. But as so often happens, the oral argument took a turn in the direction of our history with a focus on the drafting of the Constitution.

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.