Noah Feldman

An op-ed by Noah Feldman. What’s free speech for? There’s probably no more fascinating and important question in modern American public life -- or so says this professor of the First Amendment. On Monday, the U.S. Supreme Court took a stab at it in a case about directional signs guiding worshippers to the Good News Community Church of Gilbert, Arizona. The oral argument showed how sometimes the most trivial laws can generate the most fundamental constitutional issues. The case, Reed v. Town of Gilbert, involves a municipal ordinance that regulates signs put up by individuals, businesses or other organizations, such as churches.

An op-ed by Noah Feldman. Is New York state’s ban on “tiger selfies” the goofiest law of the year? It might be absurd for the state to pass a law banning the taking of photographs with jungle cats, but there’s nothing in the U.S. Constitution that bans absurd laws. The practical question -- at least if you’re a New York stud who wants a tiger selfie for your Tinder photo -- is whether the law is constitutional. If it is, you might have to travel to New Jersey (gasp) for your close encounter of the feline kind. And if you aren’t on the edge of your seat already, don’t despair. Before you conclude that this is the sorriest legal column you’ve ever read, I promise there are deep free speech issues in the underlying constitutional problem. Really. And grrrr.

An Op-Ed by Noah Feldman. A sitting member of the Securities and Exchange Commission co-writes an article accusing Harvard University of violating securities laws -- because, the article claims, a professor’s biased research has been used to argue for eliminating staggered corporate board terms....And for the moment, let’s leave aside the content of their argument, namely that the Shareholder Rights Project, led by my Harvard Law School colleague Lucian A. Bebchuk....

An op-ed by Noah Feldman. I was a small boy when I first heard the name Ben Ammi Carter, more properly Ben Ammi Ben-Israel, the leader and prophet of the African Hebrew Israelites of Jerusalem, known as the Black Hebrews. Ben Ammi, who died Dec. 27, never had as many followers as William Miller, Joseph Smith or Elijah Muhammad, who respectively led the Seventh-day Adventists, the Mormons and the Black Muslims. But his American religious genius was akin to theirs.

An op-ed by Noah Feldman. Why were the offices of Charlie Hebdo targeted this morning in Paris? It's too soon to know for sure, but if it's correct that the gunmen told bystanders they were from al-Qaeda in Yemen, as some newspapers are reporting, then a possible hypothesis emerges: This is an old-style, al-Qaeda jihadi attack against a Western capital designed to create global attention -- and its major aim is to compete with the new style of sovereignty-creating jihadism that has been so successful for Islamic State in Syria and Iraq.

An op-ed by Noah Feldman. Palestine’s bid to join the International Criminal Court is unlikely to lead to actual charges being brought against Israel, for reasons legal, political and institutional. So why is Palestinian President Mahmoud Abbas willing to pay a high price in lost revenue and U.S. anger to make the effort? And why is Israel so concerned about the Palestinian move? The answer is a matter of framing -- and it sheds light on the trajectory of the Israeli-Palestinian conflict more than 20 years after the Oslo accords.

An op-ed by Noah Feldman. Yesterday I wrote a column about the change of venue requested by accused Boston Marathon bomber Dzhokhar Tsarnaev. I argued that the Framers were concerned about keeping trials local to protect the accused. That much was correct. But I also offered a brief history of the rise of the change of venue in the U.S., tracing the modern doctrine to the English Central Criminal Court Act of 1856. That history was incomplete, and I now think I got the causality partly wrong. The English law of 1856 codified and developed a doctrine with older roots in the common law. The change of venue developed gradually in the U.S. from those earlier English common law origins -- not from the act of Parliament.

An op-ed by Noah Feldman. Can Dzhokhar Tsarnaev, the surviving Boston Marathon bombing suspect, get a fair trial in the Hub? It’s a profound question that the U.S. Court of Appeals for the 1st Circuit was asked to decide by today, when jury selection begins. But it’s also a question the Framers would have found incomprehensible. Far from providing for a change of venue in high-profile cases, they guaranteed that the accused deserved a trial “by an impartial jury of the State and district wherein the crime shall have been committed.” So what is the origin of the modern idea that the accused can seek to be tried elsewhere? The answer lies in England, and particularly in the lurid murder trial of William Palmer, the so-called prince of poisoners, which took place in 1855, fully 66 years after the Sixth Amendment was ratified.

An op-ed by Noah Feldman. One part of the U.S. Constitution stood out above all others in 2014: executive power. Under the presidency of George W. Bush, executive power reached what many considered its apogee, and the topic got a lot of press. During the first five years of the Barack Obama administration, the subject seemed to wane in importance, surfacing occasionally on the topic of drone strikes, and then receding. Now it's back, on issues such as the war against Islamic State, immigration reform and diplomatic relations with Cuba. And we can expect much more concern about the use of executive power during the rest of Obama's presidency, as the lame duck becomes the executive duck in charge.

An op-ed by Noah Feldman. The horrific massacre of 132 boys this week at their school in Peshawar, Pakistan, embodies a new trend in Islamist terrorism that has emerged over this year. Past jihadi terrorists, up to and including Osama bin Laden, claimed that their violence was justified as self-defense under their interpretation of the Islamic laws of war. In 2014, however, we’ve seen radical Islamists ignoring those laws altogether. From Islamic State to Boko Haram to the Pakistani Taliban, the killers seem unconcerned to justify their actions in terms of Shariah -- and this development demands careful attention to understand where the jihadis are going. Before you say that you don’t care what rationale terrorists give for their actions, recall that understanding terrorism is a necessary prerequisite to combating it.

An op-ed by Noah Feldman. With his announcement that the U.S. will open negotiations and try to normalize relations with Cuba, President Barack Obama is trying to break the hold of the Cuba lobby once and for all. In historical terms, that's a remarkable undertaking. For decades, U.S. policy toward Cuba has been guided by the smart, effective lobbying of a relatively small group of interested Cuban-Americans, mostly in Miami. The Cuba lobby’s success has reflected a deep truth of American politics: where there's a concentrated interest on one side of an issue, and only a diffuse interest on the other, the concentrated interest wins. Will it work? If so, why now? And what are the implications for other concentrated lobbying groups, such as the National Rifle Association and the pro-Israel lobby, which have themselves succeeded by following a version of the approach that the Cuba lobby pioneered?

An op-ed by Noah Feldman. Was 2014 the year of the hack? Or 2013? Or maybe 2011? The answer, of course, is that they all were, and that there are going to be lots more coming. But events in 2014 have helped frame a profound question that we’re going to have to answer about the right balance among property, privacy and free speech – and a glance through the year’s prominent hacks sheds some light on how we should answer it.

An op-ed by Noah Feldman...I thought of my client on Friday when the Supreme Court agreed to take up the question of retroactivity in connection with its holding that juvenile offenders may not constitutionally be sentenced to life without parole. The doctrine the Supreme Court applies when it ordinarily declines to make its decisions retroactive to convicted defendants is one of the strangest and most horrifying doctrines in the entire body of constitutional law. It’s almost impossible to justify from the standpoint of the Supreme Court’s job to interpret the Constitution. Its rationale is based entirely on practicality. Unfortunately, that practicality enables our system to keep people jailed even when the courts admit that their incarceration violates the Constitution.

An op-ed by Noah Feldman. Well, you heard it here first: Ignorance of the law is an excuse, so long as you're the police. Or so the U.S. Supreme Court has said in a 8-1 decision that symbolically strengthened the hand of the police to make stops even on the basis of nonexistent laws. The court split hairs, explaining that police ignorance is excusable only when the crime for which the defendant was convicted is different from the nonexistent crime for which he was stopped and searched. If that sounds iffy, it is. Here's why.

An op-ed by Noah Feldman. Was there racial bias in the jury rooms of Ferguson, Missouri, and New York's Staten Island? We’ll probably never know -- and if we did, it wouldn’t change the outcome in the cases tied to the deaths of Michael Brown and Eric Garner. According to a 230-year-old rule, courts ordinarily won’t reopen verdicts based on juror testimony about what went on behind closed doors, not even if the evidence would invalidate the verdict. The U.S. Supreme Court strengthened the code of silence yesterday, holding that federal evidence rules bar juror testimony that another juror lied in the jury selection process. But is jury omertà a good thing? It turns out that its meaning and justification have changed considerably over the centuries. In this age of open government and concern about jury racism, it may be time to reconsider a principle that lets the jury get away with almost anything.

An op-ed by Noah Feldman. Last week was a bad one for professors. First, Jonathan Gruber, an economist at the Massachusetts Institute of Technology, was raked over the coals by the House Oversight and Government Reform Committee for referring to the “stupidity of the American voter.” Then, Ben Edelman, an associate professor at Harvard Business School, was excoriated on the Internet for demanding treble damages after a Chinese restaurant overcharged him $4 on a delivery. If you’re a professor, especially one like me who has worked with the government and on occasion orders Chinese food, incidents like these are occasion for a little soul-searching. Beyond the obvious lesson to be humble -- or at least act humbly -- there's another message hiding: Professors are being held to a higher standard than civilians when it comes to public conduct. And that's a good thing.

An op-ed by Noah Feldman. Back in the 1940s, when the U.S. Supreme Court last spent a lot of time struggling with the question of what parts of a worker’s day were included in the job for the purposes of getting an hourly wage, the cases tended to come out 5-4. Then, liberals inclined toward unions while moderates and conservatives preferred employers. Times have changed. Today, the Supreme Court issued a 9-0 decision that warehouse employees who spend their days fulfilling Amazon orders won’t be paid for mandatory end of the day screening designed to check if they’ve stolen anything from the shelves. To do so, the court interpreted the 1947 Portal to Portal Act essentially as a pro-employer law. And the liberal justices were supremely uninterested in the moral logic of employee compensation.

An op-ed by Noah Feldman. Why won’t any U.S. politician, official or contractor ever be prosecuted for torturing people? That big question looms in the background of the just-released CIA report. Until now, the conventional wisdom had been that the Central Intelligence Agency's actions were essentially immunized from prosecution because the agency relied on opinions from the Office of Legal Counsel at the Department of Justice -- the so-called torture memos. The report championed by Democratic Senator Dianne Feinstein of California says that CIA interrogations went well beyond the techniques described to the Office of Legal Counsel and authorized as legal in its memos. If that’s true, then the interrogators essentially flouted even the counsel's expansive and doubtful approval of enhanced interrogation techniques. So shouldn’t somebody be held criminally responsible? And if not, why not?

An op-ed by Noah Feldman. Ever sit on Amtrak's Acela high-speed service wondering why our train system is so medievally slow compared with, say, China’s? Or rather: Have you ever sat on the Acela and not thought that? Either way, the U.S. Supreme Court has a case for you. Today it's considering the constitutionality of a law that, at least in theory, allows Amtrak to pressure the companies that own the rail lines and freight trains to improve access for passenger trains. And the constitutional issue is a fascinating one that goes back to the New Deal: How much lawmaking authority can Congress delegate to bodies other than itself?

An op-ed by Noah Feldman. When 188 people are sentenced to death in the same trial, as happened Tuesday in Egypt, you know something's gone terribly wrong in the system of justice. It's undeniable that there was a protest in the Kerdasa neighborhood of Cairo on Aug. 14, 2013, the same day that Egyptian security and military forces cleared Muslim Brotherhood supporters out of Tahrir Square some 10 miles away. Eleven policemen died, according to news reports. But a collective trial and conviction ignores the structure of individual justice that criminal law is supposed to deliver, no matter the country. It's the latest depressing chapter in the death of Egypt’s short-lived democracy -- and a reason for the U.S. to rethink its instinctive tendency to back the government of former general Abdul Fattah El-Sisi.

An op-ed by Noah Feldman. Does the U.S. Supreme Court have a trademark? It certainly has its own seal: Check out the cool legal eagle on supremecourt.gov. Regardless of whether it's a trademark, however, the eagle has reason to look proud of its uniqueness right now. The court, which very rarely hears trademark cases, is making two exceptions this week. Yesterday, the issue was how much the courts should defer to the examiners in the Patent and Trademark Office, in a technical case that I'm going to spare you. Today's case is both simpler and more fun -- and it involves the fascinating question of whether a trademark should count if it originates in a foreign language.