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Federalist Society Project of the New Features at The E.L. Wiegand Th e Federalist Society Journal of the Practice Groups www.fed-soc.org Engage: Federalist Society Practice Groups The Journal Special Issue: SUPREME COURT RETROSPECTIVE of the NOTA BENE Federalist Federal Preemption at the Supreme Court by Daniel E. Troy & Rebecca K. Wood SCOTUScast Justice Kennedy’s Stricter Scrutiny Originally Speaking Society and the Future of Racial Diversity Promotion Multimedia Archive by Nelson Lund Practice The Supreme Court’s 2005-2008 Securities Law Trio by Allen Ferrell Groups The Federalist Society NONPROFIT ORG. for Law & Public Policy Studies U.S. POSTAGE The Supreme Court’s 21st Century Trajectory in Criminal Cases PAID 1015 18th Street, N.W., Suite 425 WASHINGTON, DC by Tom Gede, Kent Scheidegger & Ron Rychlak PERMIT NO. 5637 Washington, D.C. 20036 International or Foreign Law as an Interpretive Volume Aid in Supreme Court Jurisprudence by Roger P. Alford 9, Issue Debunking the Myth of a Pro-Employer Supreme Court by Daniel J. Davis 3 October The 2008 Presidential Election, the Supreme Court, and the Relationship of Church and State 2008 by Steffen Johnson & Adele Auxier BOOK REVIEWS The Dirty Dozen by Robert A. Levy & William Mellor The Rise of the Conservative Legal Movement by Steven M. Teles Volume 9, Issue 3 October 2008 Practice Group Publications Committees Administrative Law & Regulation Free Speech & Election Law Christian Vergonis, Chairman Reid Alan Cox, Chairman Daren Bakst, Vice-Chairman Francis J. Menton, Jr., Vice Chairman Civil Rights Intellectual Property Brian T. Fitzpatrick, Chairman Mark Schultz, Chairman Steven Tepp & Adam Mossoff , Vice Chairmen Corporations, Securities & Antitrust Michael Fransella, Chairman International & National Security Law Carrie Darling, Robert T. Miller Nathan Sales, Chairman & Robert Witwer, Vice Chairmen Soraya Rudofsky, Vice Chairman Th e Federalist Society for Law and Public Policy Studies is an organization of 40,000 lawyers, law students, scholars, and other individuals, located in every Criminal Law & Procedure Labor & Employment Law Ronald J. Rychlak, Chairman James A. Haynes, Chairman state and law school in the nation, who are interested in the current state of William A. Hall, Jr., Timothy Lynch Raymond J. LaJeunesse, Jr., Vice Chairman the legal order. Th e Federalist Society takes no position on particular legal or & Peter Th omson, Vice Chairmen public policy questions, but is founded on the principles that the state exists Litigation Environmental Law & Property Rights Margaret A. Little & Christopher C. Wang to preserve freedom, that the separation of governmental powers is central Donald Kochan, Chairman Co-Chairmen to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. Federalism & Separation of Powers Professional Responsibility & Legal Education Ilya Somin, Chairman Jack Park, Chairman Th e Federalist Society takes seriously its responsibility as a non-partisan Geoff rey William Hymans, Vice Chairman institution engaged in fostering a serious dialogue about legal issues in the Religious Liberties public square. We publish original scholarship on timely and contentious issues Financial Services & E-Commerce Becky Dummermuth, Chairman Charles M. Miller, Chairman in the legal and public policy world in an eff ort to widen understanding of the Telecommunications & Electronic Media facts and principles involved and to continue that dialogue. Raymond L. Giff ord, Chairman Positions taken on specifi c issues in publications, however, are those of the author, not refl ective of an organization stance. Engage presents articles, white papers, speeches, reprints, and panels on a number of important issues, but these are contributions to larger ongoing conversations. We invite readers to submit opposing perspectives or views to be considered for publication, and to share their general responses, thoughts, and criticisms by writing to us at [email protected]. Additionally, we happily consider letters to the editor. For more information about Th e Federalist Society, please visit our website: www.fed-soc.org. Th e Federalist Society For Law and Public Policy Studies Engage Volume 9, Issue 3 Directors/Offi cers Steven G. Calabresi, Chairman Hon. David M. McIntosh, Vice Chairman Letter from the Editor... Gary Lawson, Secretary Brent O. Hatch, Treasurer Eugene B. Meyer ngage, the Journal of the Federalist . T. Kenneth Cribb, Counselor Society Practice Groups, provides original Board of Visitors Hon. Robert H. Bork, Co-Chairman scholarship on current, important legal and Hon. Orrin G. Hatch, Co-Chairman E Lillian BeVier policy issues. It is a collaborative eff ort, involving Hon. Lois Haight Herrington Hon. Donald Paul Hodel the hard work and voluntary dedication of each Hon. Frank Keating Harvey C. Koch Robert A. Levy of the organization’s fifteen Practice Groups. Hon. Edwin Meese, III Hon. Gale Norton Th rough its publication, these Groups aim to Hon. Th eodore B. Olson Andrew J. Redleaf contribute to the marketplace of ideas in a way Hon. Wm. Bradford Reynolds Nicholas Quinn Rosenkranz that is collegial, measured, and insightful—to Staff spark a higher level of debate and discussion than President Eugene B. Meyer is all too often found in today’s legal community. Executive Vice President We expect that members will fi nd some of the Leonard A. Leo Senior Vice President & Faculty Division Director articles in these pages controversial. We expect Lee Liberman Otis Erin Sheley, Deputy Faculty Director disagreement on some issues, and welcome the Andrew Olson, Assistant Faculty Director Lawyers Division controversy. But we also welcome responses. Dean Reuter, Practice Groups Director Lisa Budzynski, Lawyers Chapters Director Articles can be sent to the editor for review at Jonathan Bunch, State Courts Project Director Mia Reynolds, State Courts Project Director [email protected]. Sarah E. Field, State Courts Project Deputy Director Juli Nix, Deputy Director Likewise, we hope that members fi nd the work David C.F. Ray, Associate Director Hannah De Guzman, Assistant Director Alicia Luschei, Assistant Director in the pages to be well-crafted and informative. Alex Reynolds, Assistant Director Student Division Articles are typically chosen by our Practice Group Peter Redpath, Director Elizabeth LeRoy, Assistant Director chairmen, but we strongly encourage members Kate Beer, Assistant Director Pro Bono Center Director and general readers to send us their commentary Peggy Little and suggestions at [email protected]. International Law and Sovereignty Project James P. Kelly, III, Director Alyssa Luttjohann, Deputy Director Finance Director Douglas C. Ubben Development Patty Price, Director Emily Kuebler, Associate Director Information Technology Director C. David Smith Publications Director P.C. Aigner Membership Director Erica Morbeck Offi ce Management Rhonda Moaland, Director Matt Nix, Assistant Director Volume 9, Issue 3Engage October 2008 The Journal of the Federalist Society Practice Groups SPECIAL ISSUE: SUPREME COURT RETROSPECTIVE Administrative Law & Regulation Th e Supreme Court’s Standing Problem by Ronald A. Cass ........................................................................................................ 4 Federal Preemption at the Supreme Court by Daniel E. Troy & Rebecca K. Wood .......................................................................... 7 Judicial Deference to Agency Action by Th omas W. Merrill ............................................................................................... 16 Civil Rights Justice Kennedy’s Stricter Scrutiny and the Future of Racial Diversity Promotion by Nelson Lund ......................................................................................................... 20 Anatomy of a Lawsuit: District of Columbia v. Heller by Robert A. Levy ...................................................................................................... 27 Corporations, Securities & Antitrust Th e Supreme Court’s 2005-2008 Securities Law Trio: Dura Pharmaceuticals, Tellabs, and Stoneridge by Allen Ferrell ......................................................................................................... 32 Th e Antitrust Revolution by Lino A. Graglia .................................................................................................... 37 Criminal Law & Procedure Th e Supreme Court’s 21st Century Trajectory in Criminal Cases by Tom Gede, Kent Scheidegger & Ron Rychlak ........................................................... 44 Federalism & Separation of Powers Respecting the Democratic Process: Th e Roberts Court And Limits on Facial Challenges by William E. Th ro .................................................................................................... 54 Free Speech & Election Law Th e Supreme Court and Campaign Finance by Allison R. Hayward ............................................................................................... 61 Crawford v. Marion County Election Board and the Future of Supreme Court Jurisprudence Concerning the Regulation of Elections by Charles H. Bell, Jr. & Jimmie E. Johnson .............................................................. 65 Intellectual Property Quanta and the Future of Supreme Court Patent Jurisprudence by F. Scott Kieff ......................................................................................................... 73 International & National Security Law International Law as an
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