Noah Feldman

An op-ed by Noah Feldman. Feel the chill in the air? Winter is coming to the Arab world, with no end in prospect. The meaningless Egyptian parliamentary elections that began Sunday set the scene perfectly. With the only credible opposition banned and its leaders jailed, the election is structurally identical to the sorry affairs in dictatorships before the Arab Spring. The point of the vote is simply to show that the government can engage in the charade of democracy. The public gets it, and any bump to the regime's legitimacy will come only from its confidence that it can produce a result it wants, not from any genuine belief that the people have a say in government.

An op-ed by Noah Feldman. One of the most striking features of the terrible cycle of violence in Israel right now is a recurring disagreement about the facts. From the Israeli perspective, Palestinians are randomly stabbing Israelis, after which Israeli police or bystanders shoot the assailants to prevent further violence. From the Palestinian perspective, the shootings by Israelis are either unprovoked or disproportionate to the threats and therefore amount to extrajudicial killings...But Americans might be able to glean some insight into the otherwise foreign disputes by comparing them to a phenomenon we know better: racially based disagreement about the shootings of blacks by white police officers.

An op-ed by Noah Feldman. Everything came from Egypt, according to the ancient Athenians -- and apparently that includes “Big Pimpin’,” one of Jay Z’s early hit singles. The beat under the rap was laid down by Timbaland, who was on his way to becoming the superproducer he is now, and it relied on a sample from an Egyptian song from the 1950s. On Wednesday, in federal court in Los Angeles, where he's being sued for copyright infringement, Jay Z acknowledged the borrowing but said he’d credited the song’s author, Egyptian composer Baligh Hamdi. The real story is more complicated -- and more interesting.

An op-ed by Noah Feldman. When I clerked on the D.C. Circuit in the 1990s, my friends and I dreaded getting “FERC-ed,” which was what we called being assigned a case involving the Federal Energy Regulatory Commission. The very word FERC can still give me a nightmare in which I’m chased through an endless pipeline by relentless administrative lawyers. On Wednesday, the U.S. Supreme Court was FERC-ed, in a case that asks whether the agency is allowed to pursue a plan to pay consumers not to use electricity at peak hours. Although the topic the justices discussed is technical and complex, the bottom line isn’t: The case is a conflict about federalism, in the guise of a fight about the meaning of a federal law.

An op-ed by Noah Feldman. Giving juveniles mandatory life sentences without the opportunity for parole is an unjust punishment, and the U.S. Supreme Court has ruled it unconstitutional. But that's not enough to get young offenders already sentenced to mandatory life resentenced or released. For the court’s 2011 decision to apply retroactively, the justices would have to deem it a new substantive rule of law. On Tuesday, the justices heard arguments on that question. If they follow the technical logic of their retroactivity rule, things don’t look good for the people incarcerated under a principle that the court now says is cruel and unusual.

An op-ed by Noah Feldman. If you download a free app to your phone or tablet and watch videos without registering, can the service share your viewing preferences with a third party? The answer is now yes in the 11th Circuit, which covers Alabama, Florida and Georgia. The appeals court held last week that the Video Privacy Protection Act doesn’t cover viewers who aren't registered, because they aren't “subscribers” under the meaning of the law. The decision is doubtful as a matter of logic, but it’s also now the law, so watch at your own risk.

An op-ed by Noah Feldman. The U.S. Court of Appeals for the 9th Circuit held last week that Bikram yoga can't be copyrighted. The decision covers California -- yoga’s American heartland -- and it'll probably influence courts elsewhere. Although the ideal of yoga being free to all is appealing, the court got this one wrong. The stylized, precise sequence of poses arranged by Bikram Choudhury, and performed in a 105 degree room, should’ve been treated as choreography, entitled to copyright protection, not as an abstract expression of medical ideas.

An op-ed by Noah Feldman. The quartet of Tunisian civil society leaders who won the Nobel Peace Prize on Friday played an important part in the country’s thus-far successful democratic, constitutional revolution. But their role was no more decisive than that of the leaders who shepherded the country from the Arab Spring protests to the election of the constituent assembly, or of the elected assembly members who produced, negotiated and ratified a liberal democratic constitution. The best way to think about it is that the Nobel committee wanted to reward the Tunisian people for being the only Arab state to have achieved democracy since the regional upheaval in 2011, and they picked the civil society leaders as the stand-in. The Peace Prize is being given to the Tunisian exception.

An op-ed by Noah Feldman. With the long black robes, red velvet curtain and secret conference room, the U.S. Supreme Court can seem like a pretty weird place. But the court is never weirder than when the death penalty is being discussed, as it was in Wednesday's oral arguments. On the surface, the justices must decide whether co-defendants can have their sentences determined in a single hearing, and whether a jury must be told that factors mitigating against a capital sentence don't need to be proved beyond reasonable doubt. But underneath these technical legal issues, something more profound is at stake: the immediate, personal involvement of the nine justices in the intentional killing of human beings.

An op-ed by Noah Feldman. It’s not often that “The Wire” comes to the U.S. Supreme Court. But Tuesday, in Ocasio v. U.S., a scenario ripped straight from the greatest television show ever made will be considered in the highest court in the land. It involves (of course) the Baltimore Police Department, corruption and wiretapping. And it raises an arcane-sounding legal question: Can you be convicted of conspiracy to commit extortion if your alleged co-conspirator is none other than the victim of your scheme?

An op-ed by Noah Feldman. The new Supreme Court term will include high-level discussions of affirmative action, free association and religious liberty. But the first Monday in October is starting with a suit about a Eurail pass. Specifically, the court will consider whether selling a Eurail pass in the U.S. through a subagent makes the Austrian rail service subject to liability in a U.S. court for an accident in which an American plaintiff lost her legs outside Innsbruck. And therein lies an important question about the relationship between U.S. courts and foreign entities, not coincidentally the subject of a new book by Justice Stephen Breyer.

An op-ed by Noah Feldman. Every U.S. Supreme Court term has a theme. For the term that begins Monday, the theme looks like it may be the achievement of longtime conservative aspirations using traditionally liberal constitutional tools. The court may finally prohibit government affirmative action, and it may effectively cripple unions by stripping them of the power to collect fees from nonmembers. The common thread in both cases is that precedent from the 1970s could be overturned by flipping a favorite liberal principle, one that progressives believe underpins the vary practice at issue. Affirmative action could die in the name of equality. And unions could lose in the name of free association.

An op-ed by Noah Feldman. Should the Securities and Exchange Commission be allowed to act as prosecutor, judge and jury in pursuing civil penalties against alleged violators of the security laws? If you think the answer is yes, you can only be heartened by Tuesday's decision by the U.S. Court of Appeals for the D.C. Circuit refusing to hear constitutional challenges to the SEC’s new powers under the Dodd-Frank Act. The court said that the defendant, George Jarkesy, could still bring his constitutional claims to the courts after the SEC reaches a final decision in this case, which hasn’t happened yet. In theory, the court could then reach a different result when reviewing the constitutional merits of the SEC’s powers.

An op-ed by Noah Feldman. The criminal justice reform bill unveiled Thursday by a bipartisan group of senators is an attempt to answer a classic conundrum of political science: It’s easy for elected officials to vote for increased sentences, but who ever got elected on a platform of being softer on crime? If the bill passes, the reason will be partly a response to the racial injustice of overimprisonment as a result of mandatory-minimum sentences, a cause taken up by the Black Lives Matter protests. It will also reflect libertarian concerns about the overcriminalization of American life, and a distinctly conservative worry about the rising costs of imprisonment.

An op-ed by Noah Feldman. Palestinian leader Mahmoud Abbas told the United Nations General Assembly on Wednesday that the Palestinian Authority no longer considers itself bound by the Oslo Accords signed with Israel in 1993. Although he didn't specify the details, there is a legal theory that would entitle one party to withdraw from a treaty: a material breach by the other side. Whether Israel in fact has breached the Oslo Accords will no doubt be subject to debate. But regardless of whether Abbas has grounds for the withdrawal, he’s making a long-term strategic mistake. Now and in the future, Israelis skeptical of peace will be able to say that Palestinian leadership can't be trusted to make a treaty and stick with it.

An op-ed by Noah Feldman. We already knew that Pope Francis went out of his way while in the U.S. to visit the Little Sisters of the Poor, who object to filling out a form that would guarantee their organization an exemption from providing contraceptive care under the Affordable Care Act. But we found out Wednesday the pope also met with Kim Davis, in an event that did more than just signal support for Catholic conscientious objectors -- he was, unfortunately, giving succor to the very un-Catholic idea that public officials should break laws they don't like rather than resigning to avoid a conflict between faith and professional obligation.

An op-ed by Noah Feldman. Can the military tribunals at the prison in Guantanamo Bay, Cuba, try civilian offenses? In a landmark decision in June, a panel of the U.S. Court of Appeals for the D.C. Circuit said no, restricting the tribunals to international war crimes and short-circuiting most Guantanamo trials except for the Sept. 11-related ones. But the court decided Friday to rehear the case en banc, effectively vacating the panel’s opinion.

An op-ed by Noah Feldman. “Happy Birthday” has been freed from its copyright shackles: Rejoice! But don’t rejoice too much. The federal district court in California that invalidated Warner/Chappell Music’s claim to own the lyrics didn’t rely on the logic you might imagine, namely that the words are as much a part of the public domain as, well, the phrase “Happy Birthday.” The court’s narrow decision, released last week, resulted from an incredibly detailed, legally arcane analysis of whether the alleged owner before Warner actually acquired rights to the lyrics alongside the rights to the music, which have since lapsed. The court seems to have reached the right result, but it hasn’t struck a blow for the freedom of song.

An op-ed by Noah Feldman. Is what you tell the rabbi’s wife a secret that she can’t be required to reveal in court? The Haredi Jewish newspaper Yated Ne’eman has reported on a fascinating decision by a judge in Portland, Oregon, holding that the answer is yes. The twist is that the women who successfully asserted the privilege were members of a branch of Orthodox Judaism known as “yeshivish,” which staunchly denies that women can be rabbis or even rabbinic advisers. Their argument was that the rabbi’s wife is, practically speaking, a kind of adjunct clergywoman in whom female members of the community confide in the expectation of privacy.

An op-ed by Noah Feldman. On the surface, the two world leaders making high-profile visits to the U.S. this week have little in common, except that each stands at the head of more than 1 billion followers. But although Xi Jinping runs a global economic and military power while Pope Francis is a spiritual guide who, as Stalin observed, has no divisions, they do in fact share a common challenge. Each man is in the midst of a historic struggle to defeat an entrenched bureaucracy that has constrained his predecessors. And in each case, the success of the leader's chosen mission will depend on how that struggle turns out.

An op-ed by Noah Feldman. What is Vladimir Putin’s true Syria game? Russia has now ensconced a meaningful mini-air force of fighters, bombers and helicopters in an airfield near Latakia, where its sole plausible purpose is to prop up President Bashar Assad's regime. But keeping Assad’s government alive and prolonging the Syrian civil war isn’t an end in itself for Putin, who naturally wants to enhance Russia’s presence in the region. It's much more likely that the Russian president's true objective is to broker a solution to the Syrian quagmire, one involving a rump Syrian state in which the Alawite minority would be transformed into a majority.