People
Noah Feldman
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What Would Scalia Do With 2,447 Bottles of Wine?
September 18, 2015
An op-ed by Noah Feldman. Sometimes the name of a case says it all. Pennsylvania v. 2,447 Bottles of Wine is such an instance. After a county judge’s ruling, the state is poised to pour more than 1,300 bottles of fine wine down the drain -- all because of a misinterpretation of an obsolete, arcane law. The court got this one wrong. In fact, it doesn’t matter which approach to statutory interpretation you prefer: Justice Antonin Scalia’s textualism or Justice Stephen Breyer’s purposivism. Either way, the wine shouldn’t be wasted.
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The Dancing Baby Versus the YouTube Algorithms
September 16, 2015
An op-ed by Noah Feldman. The mother who posted a video to YouTube of her baby dancing to a Prince song may not have had to take it down after all, the U.S. Court of Appeals for the 9th Circuit ruled Monday, because the company hadn’t considered whether the video was fair use under copyright law before ordering her to remove it. But don’t go thinking the decision was a big victory for free information or fair use or even just moms who let their babies dance to Prince.
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What If Iran and the U.S. Keep Talking?
September 14, 2015
An op-ed by Noah Feldman. Now that the Iran nuclear deal is all but an accomplished fact, Iran’s supreme leader Ayatollah Ali Khamenei and Israeli Prime Minister Benjamin Netanyahu actually agree on something: Both have made it clear that they don’t want any more engagement between the U.S. and Iran. Iranian and Israeli hardliners alike want the nuclear deal to be a one-off that doesn’t change the basic structure of regional opposition between Iran and its Shiite proxies on the one hand, and the U.S. and its alliance with Israel and Saudi Arabia on the other. But moderates in the U.S. and Iran -- and possibly even Israel -- will see things differently. Many of them perceive large areas of overlapping American and Iranian interests, most notably the defeat of Islamic State and a solution to the generational humanitarian and policy debacle that is Syria.
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What ‘So Help Me God’ Meant to George Washington
September 14, 2015
An op-ed by Noah Feldman. Did George Washington add the words “so help me God” to the constitutionally prescribed oath of office when he was sworn in as president on April 30, 1789? I’ve always thought so, and when discussing Kentucky clerk Kim Davis’s misinterpretation of her oath of office last week, I wrote that the U.S. Constitution doesn't include the words but that Washington “famously added them.” Immediately I received an e-mail citing an essay that claims this widely held view was in fact a myth, unsubstantiated by contemporary historical evidence and derived from a doubtful childhood memory by Washington Irving. I read the essay, and then found counterarguments on the web and in a good old-fashioned book. So what's the truth? And why should we care, other than historical accuracy, which is always desirable and never perfectly attainable?
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Courts Can’t Mend a Parent’s Broken Heart
September 11, 2015
An op-ed by Noah Feldman. How much should you know before your baby is entered into a medical study? That complicated and heartbreaking question has been at the center of a controversy about a clinical trial that tested the effects of different oxygen levels on premature infants with extremely low birth weights. A federal judge in Alabama rejected last month the legal claims of parents whose children suffered adverse effects after participating. The court's decision was correct -- but not because the consent form given to parents was adequate for them to understand the risks, which as an ethical matter it probably wasn't.
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The Problem With Religious Exemptions to Gay Rights
September 10, 2015
An op-ed by Noah Feldman. The federal judge who released Kim Davis, the Rowan County, Kentucky, clerk, from jail wasn't following the usual protocol: He was trying to effect a compromise on gay marriage. Ordinarily, someone jailed for disobeying a direct judicial order wouldn’t be freed unless she agreed to comply with it. Davis didn’t.
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Kentucky Clerk’s Contempt Is Different
September 9, 2015
An op-ed by Noah Feldman. Kim Davis, the Kentucky county clerk who refused a federal judge's direct order to issue marriage licenses, was freed from jail Tuesday. But some conservatives have questioned why she was there in the first place, comparing her stand with that of President Barack Obama, who says he won’t deport some immigrants in the U.S. without legal authority; with the noncooperation of "sanctuary city" mayors with federal immigration authorities; and with the refusal of California Governor Jerry Brown to defend Proposition 8 when it was challenged in federal court. These public officials, the conservatives point out, refused to follow the law. Yet they are not only free, but also lauded by liberals. This charge of hypocrisy requires a serious response.
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What’s Going on With China’s Military?
September 8, 2015
An op-ed by Noah Feldman. Talk about mixed signals. Last week, Chinese leader Xi Jinping announced a 300,000-man reduction in the size of the People’s Liberation Army -- a decision at least partly calculated to look like China has no aggressive intentions toward the rest of the world. Yet at almost the same time, he sent five Chinese ships into the Bering Sea near Alaska, in an unprecedented maneuver timed to coincide with the last day of President Barack Obama’s visit to the state. This sort of symbolism is pretty close to the textbook definition of muscle-flexing aggression.
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Cases Test The Limits Of Religion’s Place In The Law (audio)
September 7, 2015
Does the Constitution protect people who feel that the law requires them to act contrary to their beliefs? NPR's Linda Wertheimer speaks with Harvard law professor Noah Feldman about the Kentucky case.
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What the Oath of Office Means to a Kentucky Clerk
September 4, 2015
An op-ed by Noah Feldman. What’s in an oath? That fascinating question arose as part of a crusade by Rowan County, Kentucky, Clerk Kim Davis to seek a religious exemption from issuing marriage licenses to gay couples. Before the U.S. Supreme Court put the kibosh on her claim, Davis in her legal brief argued that she understood her oath of office “to mean that, in upholding the federal and state constitutions and laws, she would not act in contradiction to the moral law of God.” Why? Because her oath included the words, “So help me God.”
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Affirmative-Action Lessons From India’s Castes
September 4, 2015
An op-ed by Noah Feldman. Think affirmative action is controversial in the U.S.? The American debate is nothing compared with the fight over caste-based preferences in India, where police smashed heads in the aftermath of last week's 500,000 strong anti-preference rally in Gujarat.
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Judge’s Moral Choice on Contraception Gets the Law Wrong
September 4, 2015
An op-ed by Noah Feldman. What’s so special about religion? When it comes to exemptions from general laws, whether regulating gay marriage or contraception, no question is more important -- or more complicated. The federal district court in Washington answered that question Monday by saying religion is nothing special. The court held that the Department of Health and Human Services is obligated to give the same exemption to a nonreligious group that has a principled reason to deny its employees contraceptive health-care coverage that the department already gave to religious groups with analogous views. This conclusion was almost certainly correct as a matter of moral logic. But it’s far from clear that it was correct as a matter of law.
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Supreme Court Gets a First-Amendment-Free Zone
September 4, 2015
An op-ed by Noah Feldman. There’s no free speech in front of the U.S. Supreme Court -- or so says the U.S. Court of Appeals for the D.C. Circuit, which on Friday upheld a 1949 law that says you can’t assemble or display signs on the plaza in front of the courthouse. The decision contradicted a 2002 ruling by the same court that allowed free speech on the grounds of the U.S. Capitol, just across the street from the court. It rested on a combination of architectural analysis and insistence that judges and courts should be more insulated from the public than politicians and legislators. With all due respect to the D.C. Circuit, architecture is beside the point.
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Oil Is Islamic State’s Lifeblood
August 27, 2015
An op-ed by Noah Feldman: The battle for Baiji, site of one of Iraq’s major oil refineries, is heating up again. Since May, Islamic State fighters have been chipping away at the Iraqi government’s control. Now it seems possible that the empty city and the shuttered refinery could fall. Iraqi Prime Minister Haidar al-Abadi visited the battlefield this week and emphasized the site’s strategic importance to retaking Mosul. What he didn’t say was that Islamic State’s offensive on Baiji is part of its grand strategy to develop domestic sources of revenue that would help make it a functioning state, instead of a would-be state attempting to achieve legitimacy by beheadings and religious fervor.
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As Markets Fall, Nationalism Rises
August 27, 2015
An op-ed by Noah Feldman: After the correction comes the nationalism. China's market meltdown portends a potentially dangerous rise in nationalist sentiment likely to be whipped up by leaders both in China and in the U.S. The motives on each side are slightly different: China's leaders need to shore up the legitimacy of Communist Party rule as growth slows, while Republican presidential candidates need to criticize the Democratic administration on foreign policy without mentioning the Middle East. But there’s an underlying symmetry that's highly worrisome. On both sides, nationalism is a proven strategy for generating popular support while changing the subject. On China’s side, the equation is pretty simple. The Chinese Communist Party’s legitimacy doesn’t come from communism. It comes from economic growth, which is slowing. Even if the stock market’s losses don’t directly affect most Chinese, the sharp market decline is likely to be felt in the real economy.
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Arkansas’s Mixed Religious Messages
August 25, 2015
An op-ed by Noah Feldman: Arkansas, which is poised to erect a new Ten Commandments monument on the grounds of its state capitol, has just rejected a request by a Hindu group to erect a statue of the god Hanuman there. Constitutionally, the rejection is permissible: The U.S. Supreme Court permits the government to pick and choose what symbols it wants to project in public space. But turning down a statue of the Hindu deity with the jaw of a monkey also calls into question the constitutionality of the Ten Commandments statue -- because the government can’t endorse one religion at the expense of others. Confused? I hope so. If you aren’t, you get an A in constitutional law -- but something’s gone wrong with your logic function. The Supreme Court’s twin doctrines on government speech and endorsement of religion are in tension with each other, as the Arkansas situation shows.
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Abortion Rights vs. Disability Rights in Ohio
August 25, 2015
An op-ed by Noah Feldman: Ohio is considering legislation that would ban abortion, even before viability, if the reason for the termination is that the fetus has Down syndrome. On the surface, the law seems blatantly unconstitutional: The U.S. Supreme Court has affirmed a woman’s basic right to be free of any “undue burden” on terminating her pregnancy before viability. And no one doubts that the proposed law is intended as part of a broader legal attack on Roe v. Wade. Yet on closer examination, the legal issue is more complicated. Seven states have laws banning abortion aimed at selecting the sex of a child. These laws are arguably constitutional, and haven’t been struck down by the courts. The argument in favor of those laws is that the state has a compelling interest in combating sex discrimination. It seems possible that countering discrimination against those with Down syndrome is a compelling interest on par with combating discrimination against women.
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How Islamic State Pushes Egypt Toward Chaos
August 24, 2015
An op-ed by Noah Feldman: Who is blowing up Egypt? Thursday's car bombing in Cairo, which destroyed a national security force building and injured dozens, will be just a blip on the international headlines. But the bombing, along with a string of similar attacks, matters existentially in Egypt, where it's the latest episode in a mounting campaign since the army deposed elected president Mohamed Mursi in a coup d'etat two years ago. The answer, so far at least, isn't what you might expect -- or what Abdel-Fattah El-Sisi's government would have you believe. There's little evidence that the attacks are coming from the Muslim Brotherhood, the now-outlawed party of the former president. Instead they seem mostly to be coming from far more radical jihadi forces based in the Sinai desert, who have recently been identifying themselves with Islamic State. Indeed, Islamic State claimed responsibility for the latest attack.
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What Students Post Online Can Get Them Suspended
August 24, 2015
An op-ed by Noah Feldman: When I was a student in a private religious school, I looked with envy on the First Amendment rights of public school children, who couldn’t, I imagined, be disciplined for what they said off campus. Now a divided U.S. Court of Appeals for the 5th Circuit has held that I was wrong. According to the appeals court, a student can be suspended for posting rap lyrics on Facebook and YouTube that threatened a teacher at the school, because the speech was predictably disruptive. Depending on how Thursday's decision is interpreted, it could be used to limit students’ off-campus political speech in cases where no threat existed at all.
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Iran Deal Is Shaping the Iraq War
August 20, 2015
An op-ed by Noah Feldman. Iraq's prime minister, Haider al-Abadi, is taking severe steps to rid himself of his troublesome predecessor, Nuri al-Maliki. On the heels of a government shakeup, the latest move is a parliamentary report blaming Maliki and many of his political and military leaders for the fall of Mosul to Islamic State last summer. The report is going to be referred to a public prosecutor -- which means Abadi may be plotting a criminal prosecution. Maliki is fighting back, issuing a public statement repudiating the report. Given that Maliki had more domestic support than Abadi when the U.S., with grudging Iranian acquiescence, forced Maliki out of office, it’s no surprise that Abadi would like to consolidate his authority by purging Maliki completely.
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Black America Has No Leader. Not Even Obama.
August 20, 2015
An op-ed by Noah Feldman. The death on Saturday of Julian Bond, a leading 1960s civil rights leader who became chairman of the National Association for the Advancement of Colored People, raises a deep question about contemporary U.S. politics: Where are today’s young Julian Bonds? Why isn’t there a clear and identifiable national black leadership for the under-50 generation?