Supreme Court and constitutional law roundup

  • “There is nothing in the Constitution that …even hints that the president’s power expands because Congress won’t pass the legislation he advocates.” [David Bernstein interview with Josh Blackman about Bernstein’s new book “Lawless,” on Obama administration vs. constitutional limits more from Bernstein on book]
  • “Will the Supreme Court End Affirmative Action? A Preview of Fisher v. University of Texas at Austin on the Eve of Oral Argument” [Cato event Dec. 7 with Andrew Grossman, John Paul Schnapper-Casteras, Gail Heriot, Richard Lempert, and Wallace Hall, moderated by Ilya Shapiro]
  • Theme of this year’s Federalist Society lawyers’ convention was Congress, videos of related panels [originalist views of Congress, Congressional dysfunction, deference and delegation, prospects for getting legislative branch to reclaim lawmaking power]
  • Certiorari petition asks SCOTUS to review dischargeability of law school debts in bankruptcy [BNA; Tetzlaff v. Educ. Credit Mgmt. Corp.]
  • At Cato’s Constitution Day, panels looked back at an eventful SCOTUS term [Cato Policy Report]
  • Common law vs. statutes: Richard Epstein on Spokeo v. Robins oral argument [Hoover] Must plaintiffs show they actually suffered harm? [Daniel Fisher]
  • No, the Constitution doesn’t let feds cancel Redskins trademark as offensive [Kristian Stout, Truth on the Market; Ilya Shapiro]


  • I disagree that forbidding Federal registration of offensive marks is unconstitutional.

    For one thing, I believe that proscription has been around since the early days of trademark law, and I am not a proponent of the movement to locate hitherto unsuspected constitutional rights lurking in the constitution. We have more than enough trouble protecting the clearly demarcated rights that are indisputably in the constitution without unearthing more rights not to protect. (Of course, that puts me out of step with the Zeitgeist).

    For another, trademark ipso facto requires the holder to maintain the association of the mark with his product in the minds of consumer. If offensive marks were granted trademark protection, the the government would be penalizing the company for *not* constantly expressing its mark, which it would have to do in order to maintain validity.