Noah Feldman

An op-ed by Noah Feldman. It's official: As of this week, Israel is no longer the only democracy in the Middle East. The immediate reason is that Tunisia, which has a newly minted democratic constitution, held a free presidential election to follow its successful legislative elections. That’s a happy story: the more democracies in the Middle East, the better for its peoples. But there's another reason to keep a close eye on Israel's democracy: a draft basic law -- in essence, a constitutional amendment -- approved by the Israeli cabinet that represents a big step backward from Israel's traditional self-identification as both Jewish and democratic.

An op-ed by Noah Feldman. When was the last time you heard of a grand jury decision causing a riot? Well … never. That's because grand juries are obscure relics of past practice, not designed to bear the full weight of a politically and symbolically important decision like the nonprosecution of police officer Darren Wilson for the death of Michael Brown in Ferguson, Missouri. The decision by St. Louis County Chief Prosecutor Robert McCulloch to put the issue neutrally before the grand jury was intended to create a sense of public legitimacy for whatever result followed, and also no doubt to deflect blame from the prosecutor's own exercise of discretion. It failed on both counts -- and with good reason.

Noah Feldman discusses Obama's anticipated executive action on immigration reform. Then we talk to you to see what you think.

An op-ed by Noah Feldman. Barack Obama’s much-anticipated executive order on immigration is clever politics, and maybe even a morally inspiring policy. But is it constitutional? Can the U.S. president just announce that he plans not to enforce the laws passed by Congress with respect to millions of people? And if it is constitutional, why is it?

An op-ed by Noah Feldman. President Barack Obama has made headlines by announcing that he favors net neutrality -- and in particular that he wants the Federal Communications Commission to designate Internet service providers as common carriers that would be regulated like utilities. What's weird about the president's announcement is not the policy perspective, about which reasonable people can differ. What's weird is that the president’s statement has no legal effect. He appointed a majority of the FCC’s commissioners -- but he can't fire them short of malfeasance, and they won't ever run for election. What kind of democracy is this?

An op-ed by Noah Feldman. Do you earn any money outside your state? Whether you’re an NBA player or a lowly lecturer-consultant like some of us, you know the drill: Pay income tax where you earned the money, then get a credit from your home state when you file your return. Unless, that is, you live in Maryland. Maryland refuses to credit residents for part of the money they earn elsewhere, choosing instead to double-tax them. The U.S. Supreme Court now has to decide whether this is constitutional. Depending on the outcome, copycats probably won’t be far behind.

An op-ed by Noah Feldman. Today's word is linkage. For example, Iran is confirming that, in October, President Barack Obama sent supreme leader Ayatollah Ali Khamenei a letter linking ongoing nuclear talks to the two countries’ joint interests in fighting the Islamic State. At the Supreme Court, linkage is going to be just as important. The U.S. Court of Appeals for the Sixth Circuit last week essentially forced the Supreme Court to decide whether there's a constitutional right to same-sex marriage, by refusing to recognize such a right itself. The next day, the court agreed to hear a potentially fatal legal challenge to the Affordable Care Act. Taken together, these two cases transform the current Supreme Court term into a blockbuster -- and the linkage relationship between them will be all-important.

An op-ed by Noah Feldman. Thought you were done with the U.S. Supreme Court and health care? Think again. The court has agreed to review the question of whether the federally created health insurance exchanges violate the law’s expectation that the exchanges be created by a state. Reading the tea leaves can only tell you so much about what the court is going to do. But from the standpoint of the Barack Obama administration, there is reason to be curiously concerned that the president’s signature legislative accomplishment is in jeopardy once again.

An op-ed by Noah Feldman. The U.S. Court of Appeals for the Sixth Circuit's refusal to declare a constitutional right to gay marriage is wrong. But it isn’t wrong in any simple way. The opinion isn’t grounded in homophobia or bias. It isn’t grounded in head-in-the-sand originalism. The decision, written by George W. Bush appointee Judge Jeffrey Sutton, is grounded in a theory of judicial restraint -- and not even judicial restraint generally, but a very modest theory of judicial restraint appropriate to appellate courts that are subordinate to Supreme Court precedent. So if you want to explain why the opinion is wrong, you can’t just say, “Gay marriage should be a basic right.” You have to explain why the court should have said so despite the Supreme Court’s unwillingness thus far to reach that conclusion.

An op-ed by Noah Feldman. Is a fish a tangible object? Does a sawed-off shotgun pose serious risk of injury? Laugh if you must, but the U.S. Supreme Court is taking up these questions in a pair of cases that will form another chapter in the saga of our vastly expanding federal criminal law. Funny as the cases may seem -- both funny strange and funny ha-ha -- they illustrate how policy and law constantly interact for a court deeply divided about the nature of statutory interpretation.

An op-ed by Noah Feldman. Menachem Zivotofsky hasn’t had his bar mitzvah yet, but he’s already been to the Supreme Court -- twice. A U.S. citizen born in Jerusalem, Zivotofsky (through his American-Israeli parents) seeks to have his birthplace named as “Israel” on his U.S. passport, not “Jerusalem” as is State Department practice. Having previously determined that the courts had the authority to hear the case, the Supreme Court is now hearing oral arguments and will decide whether a 2002 law requiring the State Department to add “Israel” to the place of birth on passports such as Zivotofsky’s unconstitutionally infringes on the president’s foreign relations power.

An op-ed by Noah Feldman. Edward Snowden may never appear before a U.S. court, much less the Supreme Court -- but that doesn't mean his whistle-blowing is far from the justices’ minds. What they think about it will be very much in evidence as the court hears oral arguments today in Department of Homeland Security v. MacLean, a case concerning an air marshal who was fired for disclosing "sensitive security information" to the media. The justices will have to decide whether the federal law that protects whistle-blowers extends to those who break an agency's regulations but not a law passed by Congress. This will matter for individual whistle-blowers in the future as well as for the overall environment in which prosecutions of government employees continue to be brought.

An op-ed by Noah Feldman. Is it a lie if you don’t know what you're saying isn't true? This eternal philosophical question, well-known to 6-year-olds everywhere, is now before the U.S. Supreme Court -- and the stakes are hundreds of millions of dollars' worth of securities class-action litigation. To be more precise, the court is considering whether Section 11 of the Securities Exchange Act of 1933, which makes issuers liable for making material false statements in their registration statements, applies when the issuer says it “believes” it is complying with the law, even when objectively speaking it isn’t. The appellate courts are split on the issue, and the Supreme Court’s resolution will have significant consequences for any issuing company that falls afoul of regulators and wants to avoid paying out to a shareholder class action.

An oped by Noah Feldman. The American diplomat Edward Djerejian once famously remarked that if Islamists were democratically elected to office, the result might be “one man, one vote, one time.” Preliminary results from Tunisia's second democratic election show that this concern was unwarranted, at least in Tunisia. The Islamic democrats of Ennahda, who won a plurality in Tunisia's first democratic vote in 2011, appear to have finished second to the secular alternative, Nidaa Tounes. Far from clinging to power, Ennahda conceded defeat even before the results were final. “We have accepted this result, and congratulate the winner Nidaa Tounes,” a party official told Reuters.

An op-ed by Noah Feldman. Want to see the first successful Arab democracy in action? Tune in Sunday, when tiny Tunisia will hold its first legislative elections since the ratification of its liberal-democratic constitution in January. Tunisia is where the Arab Spring began in 2011, and it’s just about the only place where that movement for freedom and democracy hasn't failed. The complex politics of these elections will tell us a lot about whether Tunisia is going to mature into a functioning democracy -- or revert to dictatorship like Egypt.

Whether it’s called ISIS or ISIL, few people a year ago had even heard of the radical Sunni Islamist group that had splintered from al-Qaida. But as the Iraq-based terrorist organization rapidly swarmed and took control of cities and towns in Iraq and Syria, it suddenly became a front-burner issue in American foreign policy...“I think that the name is instructive; it tells you what their goals are: They aim to create an Islamic state,” said Deborah Amos, an award-winning Middle East reporter for National Public Radio...Amos joined Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School (HLS), and Professor Kristen Stilt, co-director of the Islamic Legal Studies Program at HLS, for a wide-ranging discussion about ISIS before a standing-room crowd at Austin Hall Thursday afternoon.

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.