Noah Feldman

An op-ed by Noah Feldman. Today, in the U.S. Supreme Court's much-anticipated Hobby Lobby case, swing Justice Anthony Kennedy tried to cut the unborn baby in half. He joined four conservatives, signing a majority opinion written by Justice Samuel Alito stating that closely held corporations are exempt from the Affordable Care Act’s contraceptive mandate.

An op-ed by Noah Feldman. Labor unions lost a legal battle today as the U.S. Supreme Court held, 5-4, that “partial” public employees can’t be required to contribute to unions to cover the cost of collective bargaining. The unions averted, for now, a far greater disaster: the possibility that the court would reverse its precedent and hold that no public employees at all can be made to contribute to unions' collective-bargaining costs. That result could’ve broken many public unions. But the sword of Damocles still hangs over them.

An op-ed by Noah Feldman. Finally, after intense negotiation between the Barack Obama administration and senators including drone-strike stalwart Rand Paul, the government released the much discussed memo justifying the killing of Anwar al-Awlaki, which was written by David Barron when he was the acting head of the Office of Legal Counsel. And the revelation is … nothing, or near enough to it. The reason isn’t that the memo is benign. It’s that it’s crucially incomplete. The administration redacted the important passages of the memo referring to Awlaki’s due process rights as a U.S. citizen. And it referred to another memo, also by Barron, that dealt with the constitutional issues. That memo is -- you guessed it -- still secret.

em>An op-ed by Noah Feldman. In a decision that was a legal defeat for the Barack Obama administration but may well be a practical victory, the U.S. Supreme Court’s conservative justices voted 5-4 to block the Environmental Protection Agency from a creative-yet-practical interpretation of the Clean Air Act that would have let the EPA significantly increase its regulation of greenhouse gases. In an opinion by Justice Antonin Scalia, the conservatives nevertheless threw the EPA a bone, allowing regulation of greenhouse gases from plants that already emitted significant other pollutants.

An op-ed by Noah Feldman. Executive power lost the battle but won its war with the Senate over recess appointments in an important case decided today by the U.S. Supreme Court. The court held that the president may make recess appointments during both breaks within sessions and breaks between sections, for offices that come open either before or during these recesses. This part was the win for executive power. It also said that breaks within sessions of between three and 10 days are presumptively not recesses -- and therefore canceled the National Labor Relations Board appointments that Barack Obama had made and that were challenged in this case. This was the battle at hand, and the administration lost it.

An op-ed by Noah Feldman. It’s becoming a June ritual: Chief Justice John Roberts joins the liberals to issue a moderate, centrist opinion, and leaves his erstwhile conservative admirers flailing. Roberts’s latest foray into moderation comes in today’s free-speech case involving a 35-foot no-access zone around hospitals or abortion clinics opposed by Massachusetts law.

An op-ed by Noah Feldman. Dilemma for the day: You run the pension plan for your own company -- and as an insider, you know the company’s stock is seriously overvalued. What are you supposed to do? You can’t sell without violating insider-trading laws. But you’re also a fiduciary of the plan, so if you don’t sell, you’re violating your responsibilities under the Employee Retirement Income Security Act, which is, by the way, your bible. You are, ahem, flummoxed either way. Today, the U.S. Supreme Court tried to help out pension plan decision-makers who are also corporate insiders. Its answer was a little complicated but, in essence, the court said: “Don’t break the law by selling; don’t buy any more of the stock; and we’ll try to cover you if you get sued.”

An op-ed by Noah Feldman. Sometimes the law is an ass -- but not, apparently, when it comes to Aereo, the cable-television-to-your-computer service that was designed to save you money by exploiting a loophole in the copyright laws. The U.S. Supreme Court closed the loophole today -- and with it shut down Aereo. This was a victory for the cable companies, to be sure. But more important, it should send a message to anyone who wants to start a company based on an innovation that means nothing in the real world.

An op-ed by Noah Feldman. Class-action securities litigation survived today -- and the big news is that it was saved not just by swing voting Justice Anthony Kennedy, but also by Chief Justice John Roberts. Roberts wrote the opinion for the court affirming the presumption that, if you bought stock in a reasonably well functioning market, you relied on material information that the market knew. The decision showed once again the realism that has cost Roberts the admiration of hard-core conservatives ever since his pragmatist treachery in upholding the individual mandate in the Affordable Care Act case.

An op-ed by Noah Feldman. Perhaps, like me, you trust Mormon missionaries and enjoy chatting with them even if you already have your own religion. Even so, if you happen to see one with his hand in your mailbox, you should probably tell someone. Kevin Loughrin used phony LDS missionary cover to steal checks from boxes all over Salt Lake City. He then altered the checks, used them to buy stuff at Target, and later returned the goods for cash. Today, the U.S. Supreme Court held that he was guilty of federal bank fraud.

An op-ed by Noah Feldman. Rabbi Menachem Mendel Schneerson, who died 20 years ago today by the Jewish calendar, was easily the most important rabbi of the second half of the 20th century in the U.S. At his death, his legacy was uncertain: He left no successor, and his followers, the Chabad Lubavitch Hasidim, found themselves locked in a profound internal dispute about whether the man they expected to be revealed as the messiah had in fact died with the world unredeemed.

An op-ed by Noah Feldman. Bruce Abramski bought a handgun for his uncle, hoping to use his expired police officer ID to get a discount. When the seller asked, as required by law, if the gun was for him, Abramski said yes. C’mon, wouldn’t you have done the same for a bargain? Next time, don’t. Abramski was convicted for making a false statement “material to the lawfulness of the sale” and a false statement with respect to information required for the dealer’s records -- and today a divided U.S. Supreme Court upheld the convictions.

An op-ed by Noah Feldman. Was a vote for the Affordable Care Act a vote for "taxpayer-funded abortion"? Sounds like a question of opinion, doesn't it? But when a pro-life advocacy group called the Susan B. Anthony List said as much about then-Congressman Steve Driehaus’s vote during the 2010 election cycle, Driehaus filed an action charging them with making a false statement about his voting record, a crime under Ohio law. Driehaus lost the election, and the case was never decided. But the SBA folks still wanted the federal court to strike down the Ohio law as unconstitutional. Yesterday, the Supreme Court allowed their challenge case to go forward -- and that tells us something important about the future of election law.

An op-ed by Noah Feldman. What do you dread more than a summons from the IRS? The tax authority is the closest thing to Dostoevsky’s Grand Inquisitor that our democracy allows. And today the U.S. Supreme Court made the Internal Revenue Service just a little bit stronger, overturning an appeals court opinion that would have allowed you to examine the IRS agents who summon you to find out if they have improper motives. The court established a reasonable-sounding rule: You can question the agents only if you can point to specific circumstances plausibly raising the inference of bad faith. In reality, however, it’ll be hard to pass this bar unless the courts share the skepticism of the IRS that is natural to most taxpayers.

An op-ed by Noah Feldman. Since 1968, when the U.S. Supreme Court first announced some protection for government employees’ free-speech rights against the risk of retaliation, the trend in its decisions has been to cabin and limit that right almost to nothingness. Today the court gently reversed that trend. Its holding -- that a government employee can’t be sanctioned for testimony given in court outside his job responsibilities -- sounds intuitive and obvious. But under past case law, it wasn’t. The decision is therefore not only a victory for common sense, but also a modest win for the First Amendment in the government workplace.

An op-ed by Noah Feldman. Score two for the gamblers. Today the Supreme Court handed a double defeat to the Republic of Argentina in its effort to default on sovereign bonds issued in 1994. That means a double win for NML Capital, that so-called vulture fund that holds $1.33 billion of those bonds bought for pennies on the dollar in the hopes that the U.S. courts would eventually try to make Argentina pay.

An op-ed by Noah Feldman. State constitutions are law’s Cinderellas. Ignored most of the time by their cruel stepsisters in the federal courts, they emerge suddenly as belles of the ball when a spectacular state court decision puts them front and center. The latest Prince Charming is the California judge who struck down teacher tenure as violating the right to education and equal protection. Unfortunately, the glass slipper doesn’t fit. The decision yesterday by Superior Court Judge Rolf Treu is terribly reasoned -- and it should be reversed.

An op-ed by Noah Feldman. Antioxidants got you down? They would if you were POM Wonderful LLC, which makes pomegranate and blueberry juices that have to compete with the Coca-Cola Co. Coca-Cola makes its own juice product that mentions pomegranates and blueberries on the label but has only 0.3 percent of the former and 0.2 percent of the latter. POM sued Coke alleging false advertising. Coke replied that the government regulates food labeling, and that its label was fine. Who should win?

An op-ed by Noah Feldman. Bankruptcy courts are the mark of an advanced legal society. Think of the alternatives. Debt-slavery is inhumane. Debtors’ prison is inefficient. And breaking a trader’s bench and banning him from the market doesn’t get anybody’s assets back. But how far should the jurisdiction of special bankruptcy courts reach? The U.S. Supreme Court has been grappling with this question for several years; today, in Executive Benefits Insurance Agency v. Arkison, it came a step closer to a common-sense answer.

The al-Qaeda-inspired Islamic State of Iraq and Syria (ISIS) announced Friday that a Shariah-based system of governance will be imposed in Mosul and other cities and towns in Iraq that have been overtaken by militants…“Today’s advocates of Shariah as the source of law are not actually recommending the adoption of a comprehensive legal code derived from or dictated by Shariah — because nothing so comprehensive has ever existed in Islamic history,” says Noah Feldman…a law professor at Harvard University...“To the Islamist politicians who advocate it or for the public that supports it, Shariah generally means something else. It means establishing a legal system in which God’s law sets the ground rules, authorizing and validating everyday laws passed by an elected legislature.”

An op-ed by Noah Feldman. Scratch a patent-law expert and you’ll find a Supreme Court critic. Most patent lawyers I know disdain the Supreme Court, or at least think it should butt out of their disputes and let the Federal Circuit, made up of experienced patent-law judges, do its own thing. Today in a pair of unanimous decisions reversing the Federal Circuit, the Supreme Court made it clear the contempt is mutual. It not only slapped down the specialist court, but also implied strongly that the lower court has run amok, making patent law based on its own policy preferences and not what the patent laws actually say.