Leave the Supreme Court ghostwriters alone

The Supreme Court Building is seen in Washington. (J. Scott Applewhite/Associated Press)

Rumor has it that when a victorious party is trying to persuade the Supreme Court not to grant cert. in their case, they will sometimes hire experienced specialists in Supreme Court practice to write the brief in opposition, but then keep their names off the papers so that it looks as if the case remains unexceptional from the respondent’s point of view. I’ve been giving this practice some thought ever since reading a very smart post by Ian Samuel this month, arguing that this ghostwriting practice is unethical. (Ian and his co-host Dan Epps also discuss this at length in the subscribers-only “Patreon” episode of their excellent podcast, First Mondays, but Ian’s post and the ensuing comment thread contain the core arguments.)

Ian’s argument is simple and powerful, which is that the practice is unethical because it is a form of deceptive concealment from the court of a material fact. As I understand Dan’s position, it’s that the court’s rules probably do not reach so broadly, but he would be open to seeing them reformed. Similarly, even some of the skeptical comments on Ian’s post profess agnosticism on whether it would be good to reform the rules and forbid ghostwriting.

So I thought somebody should lay out the basic case against regulating legal ghostwriting, and it may as well be me.

First, I take it as common ground that this is a question on which the Supreme Court’s rules could ultimately come down either way. If the court’s rules required those opposing certiorari to list all counsel involved, or not to have a deceptive motive when deciding which counsel to list, that would be the rule; similarly, if the court’s rules required only the counsel of record to be listed and left everything else up to the parties. We may have a dispute about what the current rules actually do require, but that seems like the least interesting part of the dispute. The more interesting question is whether the rule should be clarified, and if so, in which direction.

Second, I think it is important to consider that there the different possible reasons that a counsel opposing cert. might want to conceal the fact that they’ve retained top-tier Supreme Court counsel already. Ian writes as if the major reason that this fact is relevant to the court is that it is an indication that the case will be well-lawyered, a fact that makes the court somewhat more interested in the case. I think that consideration is overstated — absent certain positional conflicts, the respondents side of a granted case is likely to be swarmed by good lawyering, or at least likely enough that it would be foolish for the court to turn down a case because the respondent’s brief is bad.

Rather, I think the salient issue is often this: The fact that respondent has already started spending money on top-tier Supreme Court counsel is a sign that respondent itself recognizes the likelihood of the case being granted. They may have various arguments that the case shouldn’t be granted, they may even believe them, but they wouldn’t spend money hiring new lawyers specializing in Supreme Court practice unless they thought the threat of a cert. grant was high enough to justify the expenditure. Knowing that even the respondent thinks a grant is plausible is like an admission against interest that gives the court more confidence in granting cert.

But once we see the issue this way, we might be more sympathetic to a system that didn’t want to force that private information to be disclosed. Or imagine a proposed Supreme Court rule that required the respondent to disclose how many dollars or billable hours were spent on a brief in opposition so that the court could decide how seriously they should take it. The rule seems unduly intrusive and a little unfair. We don’t usually make parties price themselves out of a good litigating position. (We sometimes privilege offers made in settlement negotiations, for instance.) Indeed, the law is full of exclusionary rules that sometimes allow parties to shield information from a decision-maker where we think that shield serves a public purpose.

Third, this brings us to the likelihood that the no-ghostwriting rule would have unfortunate side effects. If respondents have to disclose that they have hired top-tier Supreme Court counsel to write the brief in opposition, and if that disclosure does indeed make the court more likely to grant the case, then surely on the margins a lot of respondents will stop hiring such counsel at the opposition stage. That means worse briefs, or at least briefs less likely to be directly responsive to the Court’s subtle concerns about shallow/stale splits, minor vehicle problems, and the like. That in turn increases the chance of bad grants and hurts the Court, possibly more than the current ghostwriting regime.

Indeed, the brief in opposition may be one of the documents whose quality matters most to the Supreme Court as an institution — this is the stage at which it is easy to miss a technical vehicle problem, to misunderstand the practical importance of a circuit split, and thus to waste a substantial amount of court and party time if the case is granted and becomes a wild goose chase. Moreover, the sheer volume of cert-stage cases makes it much harder for the Court’s independent research to make up for the party’s deficiencies, though of course the very smart law clerks in the cert. pool will do their best.

So the Court ought to be falling over backwards to encourage respondents to hire counsel who are knowledgeable about the certiorari process and really understand the criteria. One good way to do that is to not require disclosure so that parties don’t worry that they will have to pay a high price for taking efficient precautions. (To use another evidence analogy, think of the rule making subsequent remedial measures inadmissible to prove negligence or culpability). We can’t impose a disclosure regime without recognizing that it will also change behavior — maybe in ways that we don’t want.

Fourth and finally, I worry that attempts to ban the practice of ghostwriting would either be vague or overbroad. For instance, we can imagine a rule requiring all attorneys who worked on a brief to be listed (perhaps beyond a de minimis threshold). But that rule sweeps in the many attorneys who might have other, more sympathetic, reasons for wishing to be excluded. For instance, what about the attorney who is willing to lend aid to an unpopular cause but wishes to avoid private retaliation or harassment? What about the moonlighter who doesn’t want his employer to control his extracurricular activities? Or what about the attorney who wishes to help with a discrete issue in the brief but doesn’t want his name associated with the whole thing because other portions of the brief are beneath his standards? I’m not convinced that the ghostwriting practice is so nefarious that it is worth sweeping these folks in.

One could try to write a narrower rule, one that only applied to non-disclosure whose purpose was to conceal from the court the cert-worthiness of the case, but it’s hard to imagine that rule being administered in a fair, or even predictable, fashion.

I can see why Ian is troubled by ghostwriting; but it may be better to just let it be.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/30/leave-the-supreme-court-ghostwriters-alone/

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Trump administration tries to circumvent Supreme Court travel ban ruling

A Syrian refugee child at an informal tent settlement near the Syrian border in Jordan in June 2016. (Muhammed Muheisen/Associated Press)

On Monday, the Supreme Court lifted parts of the lower court injunctions against President Trump’s travel ban executive order, which suspends entry of citizens of six Muslim-majority nations into the United States, and suspends all refugee admissions for 120 days. But also ruled that the injunction holds when it comes to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”

Yesterday, the Trump administration issued guidelines implementing those parts of the travel ban that it now views as permissible. Key parts of those guidelines are so indefensible that they can only be regarded as attempts to circumvent the Court’s decision.

I. The Absurd Claim that Grandparents Do Not Qualify as “Close” Relatives.

The most egregious part of the Administration’s new policy is its absurdly narrow definition of what counts as a family relationship close enough to qualify as a “bona fide” tie to the United States. The Supreme Court indicated that “[f]or individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship.” It is pretty obvious this means that a family relationship as close as that which people generally have with their mother or father-in-law should be sufficient. The Administration, however, interprets this to include parents-in-law, but exclude foreign nationals who are “grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other ‘extended’ family members” of residents of the United States. The administration appears to have reversed course when it comes to fiancés, but so far not on the grandparents and other relatives.

You don’t have to be a lawyer or an expert on family dynamics to be able to see that most people have at least as close family relationships with their grandparents, grandchildren, and (in many cases) aunts and uncles, as they do with their in-laws. To further underscore the point, the Supreme Court emphasized that it is only lifting the lower court injunctions with respect to “foreign nationals abroad who have no connection to the United States at all” (emphasis added). That description surely does not apply to people who have grandchildren, grandparents, or other similarly close relatives in the US.

The administration’s failure to recognize this reeks of either incompetence or blatant bad faith. Frankly, I suspect the latter. The administration does not lack for competent lawyers. And it surely has staff with sufficient common sense to recognize that the relationship most people have with their grandparents is at least as close a family connection as that which they have with their in-laws. You don’t even need any specialized expertise to recognize that. Several commentators have already skewered this part of the administration’s policy in detail, including Marty Lederman, Leah Litman, and Amir Ali.

Josh Blackman argues that some of the types of relatives excluded under the administration’s guidance are ones denied priority under other provisions of immigration law. But nothing in the Court’s ruling says that its definition of a “close familial relationship” tracks those provisions. To the contrary, it obviously does not, since it covers mothers-in-law, while the statutes Blackman references do not.

Unlike the laws cited by Blackman, Trump’s executive order categorically bars entry into the United States by the people it covers. By contrast, the immigration laws merely deny some family relationships the priority given to others, but do not categorically bar people who only have the less-favored relationships. Moreover, none of those laws treat grandparents and grandchildren, less favorably than in-laws – the absurd approach now adopted by the administration.

II. Refugees who have Formal Relationships with Resettlement Agencies.

The administration’s approach to refugees is only modestly better than its treatment of family ties. The Supreme Court’s ruling states that “Section 6(a) [suspending the refugee program] may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States.” In other words, the same standards apply to refugees as to would-be entrants covered by the travel ban targeting the six nations. The latter are allowed to enter so long as they have a “formal” relationship with some US organization, such as an offer of employment, acceptance to an academic program at a university, an invitation to give a lecture, and the like. Any such relationship is sufficient so long as it is “formal, documented, and formed in the ordinary course,” and not as an attempt to circumvent the order. Yet the administration’s guidance on refugees (obtained by the state of Hawaii, one of the plaintiffs in the travel ban litigation) apparently bans entry by those who have received “formal assurances” from US refugee resettlement organizations who have agreed to sponsor them.

As prominent immigration law scholar Alex Aleinikoff explains, nearly all migrants who enter the US as refugees do so by means of formal arrangements with private refugee resettlement agencies, who officially agree to assist them in various ways. Such arrangements are undeniably, “formal,” “documented” and part of the “normal course” of business for refugee resettlement.

Admittedly, the Supreme Court indicated that “a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.” But this example was given as an illustration of how the relationship with a US entity must not be one established “simply to avoid §2© [of the order]. The relationships between refugees and resettlement organizations are not formed “simply” for that purpose, as proven by the fact that they were standard practice long before Trump issued his order in the first place. Moreover, as Aleinikoff emphasizes, this part of the Court’s opinion rrefers only to Section 2© of the order – the six nation travel ban – and does not apply to Section 6, which deals with refugee admissions.

The state of Hawaii has filed an emergency motion asking the district court to clarify the scope of its injunction, and specifically address the family and refugee issues. Hopefully, the judiciary will put a stop to the Administration’s attempts to circumvent the Supreme Court’s ruling.

Note: This could turn out to be a fast-developing story. By the time you read this post, it is possible there will have been additional changes in the administration’s policy. I will try to update when time permits.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/30/trump-administration-tries-to-circumvent-supreme-court-travel-ban-ruling/

Sharia in America

This final post explains why, on the whole and with legally imposed hard limitations, sharia courts, using Islamic law, can adapt to the American experience and become a part of the religious arbitration landscape of America.

Islamic courts are becoming common in North America. Muslims are building religious communities in America, and religious courts are part of the structure of many of these communities. These so-called sharia tribunals do what courts everywhere do: They provide a means for hearing and resolving disputes between members of their communities. Debates over these courts have been ongoing for well over a decade. In 2005, Ontario prohibited the adjudication of family disputes in religious courts in response to concerns over the rise of Islamic courts in the province. Similar concerns abound in the United States, where anti-sharia activists have sought to curb imagined Muslim efforts to impose Islamic law by seeking to ban the use of “foreign law” in American courts. But yet, people are protesting left and right, from New York to California. Islamic courts are a source of controversy, I suspect, for a few reasons, and taken all together, simply scare people.

First, Islamic courts tend not to have dual system experts — people who are familiar with both Islamic law and American law — so they tend to make the kinds of mistakes that judges and lawyers do not tolerate. Second, Islamic law has gotten a bad reputation politically generally since 9/11. Third, the Muslim community itself, because it tends to be poorer and first (or at most, second) generation immigrants, is poorly organized and allows the most radical members of its community be represented as mainstream. Finally, of course, there are a lot of people who are just haters of all things Muslim, and this is an easy target.

All of this could change. The truth is that Islamic courts are not so scary. State court judges regularly order the enforcement of religious arbitration awards, as the previous four posts explained. The future of Islamic law and sharia courts could look like the present state of Jewish law and rabbinical courts.

The rise of Islamic arbitration specifically, and of religious arbitration in general, is to be expected. Over the past 60 years, the common social fabric in America has shifted to a secular model. But religious Americans increasingly sense that secular American society and its courts do not fully comprehend, appreciate, and certainly do no not embrace religious norms and values. Religious arbitration is often viewed as a tool that will permit the faithful to preserve their communities by enabling them to opt out of secular cultural and legal standards and instead order their business and family relationships in accordance with their religious convictions. This is viewed as even more true in the Islamic community.

Once, litigants could legally adjudicate disputes only in state courts in accordance with state law. Under the 1924 Federal Arbitration Act, however, American law evolved to provide litigants with the opportunity to resolve cases using the forum and law of their choosing — a practice known as Alternative Dispute Resolution (ADR). In essence, ADR is the idea that people should be able to agree to resolve their disputes not only in courts that enforce American law, but in arbitration and in accordance with any set of rules to which the parties agree. Parties can rely on arbitration because the law allows them to turn to the courts for enforcement.

The fact that religious arbitration is legally explainable, however, does not mean that it is necessarily desirable for a secular society. Arbitration can result in the underhanded waiver of rights and the unprofessional and inexpert handling of sensitive interpersonal conflicts. The enforcement of religious arbitration may also produce injustice and the unequal treatment of women. Moreover, there is a reasonable argument to be made that it is both unfair and unwise to allow discrete segments of society to opt out of state laws through arbitration. There should be one law for one people.

These concerns can be mitigated by the law’s rigorously policing six important limitations on private arbitration generally, and on faith-based arbitration in particular. American legal system will not and should not enforce the decisions of religious arbitrators unless judges are confident that religious arbitration is reasonably just and proper as understood by secular law and society. First, there are basic principles of justice and procedural regularity that all religious arbitration panels must incorporate to ensure that their decisions are honored by secular courts.

Second, American courts generally review arbitration decisions for procedural fairness. Procedural safeguards are thus crucial to the viability of religious arbitration. Religious arbitrators must adhere to a set of published, standardized and reasonable procedural limitations, such as allowing lawyers to be present, treating all parties and witnesses equally regardless of sex and avoiding even the hint of corruption or bias. Such rules set fair expectations and help protect vulnerable parties.

Third, organizations providing arbitration services should develop internal appellate processes. This reduces the likelihood of errors, increases trust and helps prevent decisions from being routinely overturned by secular courts.

Fourth, religious courts must be clear about what law they are applying. Even deeply religious people or communities frequently do business according to secular law norms, and the decisions of faith-based arbitrators should reflect this reality.

Fifth, religious arbitrators must respect the limits imposed on them by secular law. While arbitration law permits parties to resolve private disputes through private channels, faith-based arbitrators cannot deal with criminal matters, impose physical punishments, violate people’s rights or overstep the bounds of the authority granted to them by the law and the parties regardless of what their religions may teach. Recognizing this reality is crucial for successful religious arbitration, and faith communities that do not accept these limitations will find courts unwilling to enforce their arbitral decisions, and for good reason.

Sixth, to make this all work, religious arbitration panels need to employ skilled lawyers and professionals who are also members of the panel’s constituent religious community and who can provide expertise in secular law, the faith’s own religious law and contemporary commercial practices. Dual expertise is crucial.

These measures, which have been successfully adopted by rabbinical courts, can be implemented by Islamic panels too, if they wish to do so. Of course, just because they can be learned and applied, does not mean that the Islamic community actually will do that: That is their choice and their choice alone. Either the Islamic courts can fit into the framework of religious arbitration in America and have their decisions upheld, or they can remain outside that framework, be a source of protest and not be acceptable to the legal system. The question is not whether American courts can adapt to Islamic arbitration — judges know no more Jewish law than Islamic law — but rather, the question is whether Islamic arbitration will adhere to the norms of American law.

Successful religious arbitration allows religious communities to be moderately self-governing. This sort of respect for legal pluralism is part and parcel of American legal culture and history: Federalism — the concurrent existence of multiple sovereigns (federal, state, local jurisdictions) — meshes well with the idea that for some people some matters are ecclesiastical, and that also is a “jurisdiction.”

Perhaps more importantly, by permitting Islamic communities to conduct private faith-based dispute resolution within certain legal limits, American law can bring Islamic and secular segments of society and culture into conversation with each other. Islamic communities will improve from these interactions with secular law, and secular law will advance as well.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/30/sharia-in-america/

Do liberal judges have a problem applying Chevron? (Or are conservative agencies bad at following statutory directions?)

The Supreme Court nomination of Neil Gorsuch helped propel a largely academic debate over judicial deference to agency interpretations of law to the fore. Under the Chevron doctrine, agency interpretations of ambiguous statutory language are to be upheld, provided that the agency interpretations are themselves reasonable. Although Chevron deference is not always available, when it can be invoked it helps agencies defend their actions in federal court. Then-judge Gorsuch’s opinions questioning Chevron highlighted long-simmering disputes over the doctrine’s wisdom. (For my own take on this question, see here.)

In theory, Chevron helps prevent judges from relying upon their own policy preferences when reviewing agency decisions. It does this by instructing courts to defer to agency decisions about how ambiguous statutory language should be interpreted. In effect, it tells judges: Unless the statute is clear, let the agency have its way, provided it’s not doing anything the statute clearly prohibits.

Does Chevron fulfill its purposes? A new paper by Kent Barnett, Christina Boyd and Christopher Walker shows that appellate courts are not as consistent in applying Chevron deference as some might like. Here’s the abstract:

Do federal circuit courts consistently apply Chevron deference’s framework when reviewing agency statutory interpretations? Or do political dynamics result in courts gaming the Chevron doctrine? To answer these questions, we empirically analyze circuit-court decisions from 2003 until 2013 that review agency statutory interpretations. Our results — from the largest and most comprehensive database of its kind — confirm longstanding intuition and earlier, more limited studies: courts do not consistently apply Chevron. Our findings, nevertheless, offer some surprising insights into the political dynamics of applying Chevron. When courts reviewed liberal agency interpretations, all panels — liberal, moderate, and conservative — were equally likely to apply Chevron. But when reviewing conservative agency interpretations, liberal panels applied Chevron significantly less frequently than conservative panels. Contrary to limited prior studies, we find no evidence of “whistleblower” or disciplining effects when judges of different judicial ideologies comprised the panel. Viewed together, our results provide important implications for the current debate on whether to eliminate, narrow, or clarify Chevron’s domain.

Worth highlighting is the apparent finding that liberal and conservative panels are not equally consistent in their application of Chevron. As the authors discuss in the paper:

It turns out that conservative judges tend to apply Chevron deference at effectively the same rate regardless whether the agency interpretation is liberal or conservative. And liberal and conservative judges apply Chevron at effectively the same rate for liberal agency interpretations. But when it comes to conservative agency interpretations, we find that liberal judges are less likely to apply Chevron deference. In other words, Chevron deference appears to constrain conservative judges as to liberal interpretations, but not vice versa.

What does this mean? There are several possibilities. Among other things, it is possible that conservative agency interpretations are less likely to be worthy of Chevron deference, perhaps because existing regulatory statutes have underlying liberal purposes or Republican administrations are more prone to taking liberties with statutory language in agency implementation. (See, for instance, the George W. Bush administration’s approach to the 1990 Clean Air Act, which led to repeated losses in federal court.) Under this interpretation, liberal judges are simply more likely to call out such excesses than are conservative ones.

Another possibility, of course, is simply that liberal judges are less constrained by Chevron than their conservative brethren. Under this interpretation, suggested by the authors, such judges are less likely to grant Chevron deference to agency actions with which they disagree. This would suggest that Chevron does not consistently constrain judges from considering or relying upon their policy preferences in rendering their decisions. Without looking at the specifics of the agency actions under review, it is impossible to know for sure.

As the authors note, this research is of potential relevance to ongoing debates about whether Chevron deference is worthwhile. As a general matter, Chevron deference helps agency actions survive judicial review. As prior research has shown, agencies tend to win in appellate courts when Chevron deference is applied. Yet this new research suggests Chevron might not help all agency actions equally.

Some commentators have suggested that abandoning Chevron deference now might make Trump administration deregulatory efforts more vulnerable to judicial review. Yet if liberal judges are less likely to apply Chevron to conservative agency actions — such as efforts to deregulate — abandoning Chevron might not matter as much in a court such as the U.S. Court of Appeals for the D.C. Circuit, which has a sizable liberal majority. This could make the Trump administration more willing to support proposed legislation to eliminate Chevron deference. Such legislation has already passed the House and is under consideration in the Senate.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/30/do-liberal-judges-have-a-problem-applying-chevron-or-are-conservative-agencies-bad-at-following-statutory-directions/

Deja vu, all over again

Pakistan’s former military ruler Pervez Musharraf speaks to the press in Islamabad in 2013. (Farooq Naeem/Agence France-Presse via Getty Images)

I am happy to be part of the Conspiracy. Thanks for the welcome, Conspirators and readers.

I watch reruns from time to time. “Seinfeld,” “The Simpsons,” “Hogan’s Heroes” — all the great ones. But I’ve grown rather tired of one set of reruns. Since 9/11, every president has had his military surges, meant to stabilize some country, be it Iraq or Afghanistan.

President Trump is apparently considering a recommendation for another surge in Afghanistan. We’ve had enough of these, and we know the ending. Perhaps it will stabilize Afghanistan, in the short term. But if all we do is what we’ve done in the past, nothing will really change. After a while, things will deteriorate and we will be in no better position than we are now. We are in the quagmire of quagmires, and our policymakers have the odd view that doing more of the same will somehow yield a different result.

If there is a surge, yet again, we ought to try something radically different. We need to lean on Pakistan. Hard. After 9/11, Richard Armitage went to Pakistan and gave then-Pakistani President Pervez Musharraf an ultimatum: Stop propping up the Taliban and help us defeat them and al-Qaeda. In return, the United States would shower largesse on Pakistan. If Pakistan refused this generous offer, the United States would bomb Pakistan “back to the stone age.” Pakistan accepted.

We kept our end of the bargain. In the decade and a half since 9/11, we have gifted Pakistan tens of billions of dollars. What did Pakistan do? It played the double game. It continued to fund and equip the Taliban in Afghanistan. And it likely helped conceal Osama bin Laden. There is evidence that our federal officials have known of this perfidy for more than a decade. Indeed, they sometimes lash out at Pakistan, in the press or before Congress. Sometimes they have tried to entice Pakistan by offering more nonmilitary aid. And yet absolutely nothing changes. We continue to bankroll the Pakistan military. We are in the curious position of funding Pakistan so that it allows us to supply American troops fighting the Taliban, an entity that is funded and directed by the Inter-Services Intelligence agency (the military intelligence unit of the Pakistan army). I suppose that no matter what happens, someone funded by the United States will win.

In February, the Hudson Institute and the Heritage Foundation published a proposal for ending this farce, one backed by a former Pakistani ambassador to the United States, Husain Haqqani. Endorsed by numerous American experts on the Af-Pak region, the report recommends that the U.S. government ought to give Pakistan several months to clean up its act or else. This seems more than reasonable. The Trump administration should stop pussyfooting around with Pakistan. If need be, it must stand ready to follow through on the Armitage ultimatum. The alternative is to continue to fund Pakistan as it actively supports the Taliban as the latter kills our soldiers in Afghanistan. This is the equivalent of paying someone to dig a hole and then someone else to fill it up, with thousands of our soldiers dying in the process. If we aren’t going to put a stop to Pakistan’s double-dealing, we should declare “victory” and withdraw from Afghanistan. We don’t need a business-as-usual surge.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/28/deja-vu-all-over-again/

Czech parliament’s lower house passes right of citizens to keep and bear arms ‘to participate in the security of the Czech Republic’

[Existing provision:] (2) State authorities, territorial self-governing bodies, and legal and natural persons are obliged to participate in the security of the Czech Republic. The scope of duties and other details are set by law.

[New provision:] (3) Citizens of the Czech Republic have the right to acquire, hold, and carry weapons and ammunition for the fulfillment of the tasks mentioned in paragraph 2. This right may be restricted by law, and other conditions for its exercise may be laid down by law if necessary for the protection of the rights and freedoms of others, of public order and security, of life and health, or for the prevention of crime.

Die Presse reports that the provision passed by 139 to 9 in the lower house and now has to get a three-fifths vote in the Senate. The proposal seems to be pushback to European Union tightening of weapons controls: “We do not want to disarm our own people in a time in which the security situation is constantly deteriorating,” said Czech Interior Minister Milan Chovanec.

Little-known fact: The word “pistol” comes to English indirectly from Czech; the Oxford English Dictionary reports that it is a special use of “píst’ala whistle, pipe, flute,” “apparently first applied during the Hussite wars to a weapon with a barrel and a clear-sounding shot.”

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/29/czech-parliaments-lower-house-passes-right-of-citizens-to-keep-and-bear-arms-to-participate-in-the-security-of-the-czech-republic/

Federal government surrenders in the Redskins case

From a Justice Department letter to the court, sent Wednesday:

The United States respectfully responds to this Court’s order of June 21, 2017, directing the parties to state their positions on the need for oral argument in the above-captioned case.

The United States concurs with appellant Pro-Football, Inc., that oral argument is unnecessary. The Supreme Court’s decision in Matal v. Tam, No. 15-1293 (U.S. June 19, 2017) [the Slants case], controls the disposition of this case. Consistent with Tam, the Court should reverse the judgment of the district court and remand the case with instructions to enter judgment in favor of Pro-Football.

No word yet from the other parties that were defending the decision to deny the Redskins trademark registration. But the federal government’s position seems clearly right to me, given the logic of Matal v. Tam.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/29/federal-government-surrenders-in-the-redskins-case/