Noah Feldman

An op-ed by Noah Feldman. When is a court not like court? The answer to this riddle is: When it’s the U.S. Court of Appeals for the Federal Circuit. This special court was imbued with special powers when it was created by Congress in 1982, including the authority to hear appeals from the federal district courts in essentially all patent cases. Such is the uniqueness of the Federal Circuit that, even though appeals courts are supposed to defer to lower courts’ factual findings, the court reviews the interpretation of patents from scratch, granting no deference. The Supreme Court -- which drubbed the federal circuit last term -- is now poised to decide whether the appeals court has exceeded its authority by adopting this unique practice.

An op-ed by Noah Feldman. Ever tried whitening your own teeth? How’d that work out for you? In North Carolina, you probably wouldn’t even have had the option. In the middle of the 2000s, the North Carolina State Board of Dental Examiners systematically hounded non-dentist teeth-whitening operations out of operation -- and effectively blocked the sales of teeth-whitening agents. Now the Supreme Court will decide whether this was an antitrust violation, as the Federal Trade Commission ruled, or whether the board’s status as a quasi-official North Carolina agency means its campaign was out of the commission’s reach.

An op-ed by Noah Feldman. The worst fight between justices in the modern history of the U.S. Supreme Court grew out of a dispute about whether coal miners should be paid for the time it took them to travel thousands of feet up and down a mine shaft to do their jobs. The bitter interpersonal war it generated between Justice Hugo Black and Justice Robert Jackson started in 1945 and reached its climax in 1946, when their dispute hit newspapers' front pages and cost Jackson the chief justiceship. So you'd think the question of what activities count as part of the workday would've been solved by now, 70 years later. You'd be wrong. In Integrity Staffing Solutions v. Busk, the Supreme Court is hearing arguments in a dispute between an Amazon.com contractor and its employees about whether workers should be paid for time spent going through security checks to make sure they haven't stolen from the warehouse on the way home.

An op-ed by Noah Feldman. Class action lawsuits are big business. The U.S. Chamber of Commerce -- admittedly, not the most objective source -- estimates that securities class actions alone cost shareholders $39 billion a year. When you add in all other class actions -- for accidents, accounting errors, you name it -- you can understand why potential corporate defendants as well as plaintiffs’ lawyers fight tooth and nail over every inch of the legal terrain. When the U.S. Supreme Court takes up an important question of how these class actions will proceed, as it is doing in the case of Dart Cherokee Basin Operating Company LLC v. Owens, it's worth taking notice of what the court is doing -- and why.

An op-ed by Noah Feldman. Back in the dark ages in America, coffee didn’t come from sleek, fast Italian machines: it dripped, one painful drop at a time, through a filter into a waiting pot. This, my best-beloved, was called “percolation” -- and it provides the central metaphor for how the U.S. Supreme Court considers whether to take controversial cases. Today's decision by the justices to deny seven petitions asking them to decide whether there is a constitutional right to same-sex marriage was a classic example. Impervious to the pressures of the news media or the gay-rights movement, the justices decided to let the issue percolate a while longer.

An op-ed by Noah Feldman: In France, the bitter controversy over the hijab, or headscarf, worn by some Muslim women relates to citizenship, feminism, and the secularism of the French Revolution and Republic. In America, we have Abercrombie. So perhaps it's fitting that the U.S. Supreme Court has announced it will take its first hijab case to decide whether the chain could deny employment to an otherwise qualified young woman who wanted to wear a headscarf on the job. The case, Equal Employment Opportunity Commission v. Abercrombie & Fitch, started in 2008 when 17-year-old Samantha Elauf applied for a job at the Abercrombie Kids store in the Woodland Hills Mall in Tulsa, Oklahoma. At Abercrombie, salespeople are called “models,” and part of the job interview is scored on how you look. Once hired, the “models” must comply with an Abercrombie “look policy” that governs how they dress.

Rachel Martin talks to Noah Feldman, professor of International Law at Harvard School of Law, about why he believes there is no law supporting the American air strikes in Syria.

An op-ed by Noah Feldman. The Barack Obama administration has offered no credible legal authorization for a war against Islamic State, and Congress plainly will not provide one. What's going on here, asks the shade of James Madison? Has the U.S. completely lost the part of the Constitution that imagines Congress and thus the people as a check on the president’s war powers? And if so, does it matter?

Two Harvard Law School professors critiqued the legal grounds of President Obama’s military strategy against the Islamic State of Iraq and Syria during a lecture Monday. Speaking to an audience of nearly 200 people at the Law School, professors Jack L. Goldsmith and Noah R. Feldman ’92 analyzed the Obama administration’s legal justifications for the increased use of U.S. military force against ISIS.

An op-ed by Noah Feldman. Every country gets the government it deserves … right? So the U.S. Court of Appeals for the Second Circuit has ruled -- in a fascinating and weird decision denying the Iraqi people the right to sue corporations that allegedly colluded with Saddam Hussein to defraud them. In essence, the court said, the Iraqis can’t sue because they’re responsible for Saddam’s conduct when he was their lawful president.

An op-ed by Noah Feldman. Just what, exactly, is going on with the advocacy group United Against Nuclear Iran? That's a question U.S. Attorney General Eric Holder doesn't want answered. Yesterday the Department of Justice asked a federal district court to dismiss a defamation suit against the group on the ground that a trial might reveal state secrets. How, you ask, could a nongovernmental, nonprofit, nonpartisan organization be in possession of classified information so important that revealing it would materially harm U.S. interests? The government -- big shock -- won't tell you. In the absence of any public justification whatsoever, we're left to parse through the possibilities by speculation -- and to ask whether such a dismissal is compatible with the rule of law.

As President Obama made his case for deepening U.S. military involvement in Syria and Iraq and the country prepared to mark the 13th anniversary of the 9/11 terrorist attacks, scholars from Harvard Kennedy School (HKS) and Harvard Law School (HLS) came together to explore the circumstances surrounding the recent upheavals in the Middle East and the complex forces driving the many strategic challenges to peace. In a Tuesday panel moderated by HLS Professor Noah Feldman, Nicholas Burns, Michael Ignatieff, and Meghan O’Sullivan assessed the global threat now posed by the Sunni jihadist group known as the Islamic State of Iraq and the Levant (ISIL).

An op-ed by Noah Feldman. When a computer somewhere in China hacks into your company’s server, the Department of Justice says that’s a crime. But good luck hauling an anonymous junior officer in the People’s Liberation Army into court -- much less deterring future Chinese cyber-attacks through criminal prosecution. SolarWorld Americas, a major U.S. producer of solar panels, has another idea. It has asked the Department of Commerce to impose trade sanctions against China as retaliation for cyber-attacks it has suffered. The idea is legally creative, politically risky -- and the harbinger of things to come in the emerging cool war between China and the U.S.

An op-ed by Noah Feldman: The message China’s leaders sent when they announced that they would have to approve any future elected leaders of Hong Kong should be heard loud and clear -- not as much in Hong Kong as in Taiwan, where it really matters, and throughout the region. Hong Kong isn’t just a unique entity within China, governed in theory by the principle of "one country, two systems." It's also a model of what Taiwan could expect if Chinese hegemony over the island it claims as its own were to become greater. China’s message to Hong Kong puts Taiwanese democrats in a difficult strategic bind in their attempt to assure their future. It also has consequences for American efforts to engage Asian allies who are growing economically closer to China each passing day.

An op-ed by Noah Feldman. On the surface, this summer’s Gaza war seemed like a repetition of what happened in 2012. The rockets from Gaza into Israel, the bombing of Gaza by Israel, the mutual recriminations about who started it -- even the proportions of civilian and military casualties seem eerily similar. Small wonder that to many who care about Palestinians, Israelis or (yes, it’s possible) both, this summer’s events felt like an eternal return as imagined by Nietzsche: repetitive, circular and pointless. In fact, though, this round of Gaza violence was different -- and its meaning for setting policy is correspondingly different as well. Hamas is in a very different strategic place than it was in 2012. That war came because it seemed the Arab Spring might herald a new era of popular, even democratic Islamism.

An op-ed by Noah Feldman.When Amish breakaway leader Samuel Mullet and eight followers were charged with the “hate crime” of cutting co-religionists’ beards, it seemed to me that the otherwise conscientious U.S. attorney, moved by the Nazi-esque spectacle, had gone too far. Now the U.S. Court of Appeals for the Sixth Circuit has struck down the conviction for relying on too broad a reading of the federal hate-crimes law. The decision is right on the law -- and the U.S. attorney should not refile.

An op-ed by Noah Feldman. The government would have to overcome major legal hurdles to charge John Hinckley Jr. in the murder of James Brady some 30 years after the fact. But if that were the morally right thing to do, it would be worth trying, despite the improbability of success. Is it? The answer is no -- but not for the reasons you might think. It doesn’t have to do with Hinckley’s guilt or Brady’s heroism or Ronald Reagan’s presidential status. The reason not to prosecute Hinckley lies in the kind of criminal justice system we want to have: one that doesn’t seek solely to punish the guilty, but rather to punish the guilty subject to the requirements of basic fairness.

An op-ed by Noah Feldman. Just when you thought it was safe to get back in the water, the judges in Washington took another big chomp out of the Affordable Care Act. No, not the Supreme Court -- this time it was the U.S. Court of Appeals for the D.C. Circuit. In a 2-1 panel decision on partisan lines, the appeals court ruled that the tax subsidies for insurance coverage purchased from federal exchanges are illegal. The effect of the decision is to drastically undercut Obamacare by enabling all 36 states that don’t have their own exchanges to exempt millions of people from the individual mandate that they buy insurance. Meanwhile, across the Potomac River, the U.S. Court of Appeals for the Fourth Circuit ruled the opposite way.

The deteriorating situation in Iraq has the international community scrambling for some way to avoid all-out sectarian warfare…Noah Feldman, professor at Harvard Law School, served as the senior constitutional adviser to the Coalition Provisional Authority in Iraq immediately after the war. He helped to draft Iraq's interim constitution, which provided for the election of a National Assembly, included a bill of rights and outlined a separation between religion and state. At the time, Feldman and the Bush administration were criticized for excluding Arab, Iraqi, and Muslim legal experts from the process. But today's chaos, Feldman says, is a direct result of the administration's inability to see security and nation building as two distinctly difference processes.

An op-ed by Noah Feldman. The U.S. Supreme Court says closely held religious corporations get a religious exemption from providing contraceptive insurance. Should President Barack Obama follow the court’s lead and exempt religious affiliates from an executive order requiring federal contractors not to discriminate against gay people? The answer is no -- not because the court was wrong, and not because the religious affiliates aren’t sincere. The reason is that the contraceptive case and the question of federal contractors respecting gay rights are fundamentally different. One case is about a right against government coercion; the other is about the privilege of getting a federal contract. And while contraceptive insurance is nice, it isn’t a constitutional value -- anti-discrimination is.

An op-ed by Noah Feldman. Chief Justice John Roberts' announcement yesterday that Justice Samuel Alito would deliver both of the Supreme Court final decisions for the term marked a personal triumph for Alito. Thus far, his year at the court had been relatively quiet. He’d for the most part refrained from any dramatic concurrences or dissents -- as though keeping his powder dry for Burwell v. Hobby Lobby, the biggest religious-liberty decision in years.