The Journal of the Federalist Society Practice Groups
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The Journal of the Federalist Society Practice Groups Project of the E.L. Wiegand Practice Groups NOTA BENE Gasoline, Markets & Regulators by Andrew Morriss Carhart v. Gonzales: What Hath Kennedy Wrought? by Hadley Arkes The Legal Implications of Complying with Race- and Gender-Based Client Preferences by Curt A. Levey The Scope of the SEC’s Authority Over Shareholder Voter Rights by Stephen M. Bainbridge Stripping Habeas Corpus Jurisdiction over Non-Citizens Detained Outside the United States: Boumediene v. Bush and the Suspension Clause by Scott Keller The Supreme Court and Judicial Restraint: Philip Morris v. Williams by Raymond J. Tittmann BOOK REVIEWS Henry Mark Holzer’s The Supreme Court Opinions of Clarence Thomas, 1991-2006 David Blankenhorn’s The Future of Marriage Kevin J. Smant’s Principles and Heresies Volume 8, Issue 3 June 2007 The Federalist Society for Law and Public Policy Studies is an organization of 40,000 lawyers, law students, scholars and other individuals located in every state and law school in the nation who are interested in the current state of the legal order. The Society takes no position on particular legal or public policy questions, but is founded on the principles that the State exists to preserve freedom, that the separation of governmental powers is central 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. The Federalist Society takes seriously its responsibility as a non-partisan institution engaged in fostering a serious dialogue about legal issues in the public square. We publish original scholarship on timely and contentious issues in the legal or public policy world, in an effort to widen understanding of the facts and principles involved and to continue that dialogue. Positions taken on specific issues in publications, however, are those of the author, not reflective 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 The Federalist Society, please visit our website: www.fed-soc.org. Th e Federalist Society For Law and Public Policy Studies Engage Vol. 8, 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, President . T. Kenneth Cribb, Counselor ngage, the journal of Th e Federalist Society for Law and Board of Visitors Public Policy Studies, is a collaborative eff ort, involving Hon. Robert H. Bork, Co-Chairman Hon. Orrin G. Hatch, Co-Chairman the hard work and voluntary dedication of each of the Lillian BeVier E organization’s fi fteen Practice Groups. Th ese Groups hope to Hon. Lois Haight Herrington Hon. Donald Paul Hodel spark a higher level of debate and discussion than is all too often Hon. Frank Keating Harvey C. Koch found in today’s legal community. Th rough their programs, Robert A. Levy Hon. Edwin Meese, III conferences and publications, they aim to contribute to the Hon. Th eodore B. Olson Andrew J. Redleaf marketplace of ideas in a way that is collegial, measured, and Hon. Wm. Bradford Reynolds insightful. Nicholas Quinn Rosenkranz Hon. Gale Norton Th is issue is the third in our twenty-fi fth anniversary Staff year, which began at the November 2006 National Lawyers President Eugene B. Meyer Convention. Th e transcripts from that event’s many panels appeared on our website in May as the second issue of the Senior Vice President & Faculty Director Lee Liberman Otis current volume. We are pleased to announce that nearly all of Executive Vice President the panels which appear there have been taken by various law Leonard A. Leo reviews (listed on the opening page in Engage 8.2), and have Lawyers Division: Dean Reuter, Practice Groups Director already been, or will soon be, printed around the country. Th is Lisa Budzynski, Lawyers Chapters Director is also the fi rst time that we have been able to produce a third Mia Reynolds, Director, State Courts Project David C.F. Ray, Associate Director edition of Engage in a single volume. Juli Nix, Deputy Director Alyssa Haupt, Assistant Director Deborah O’Malley, Assistant Director The following pages feature articles discussing only John Paul Fox, Assistant Director the most pertinent issues in these fi fteen areas of law and Federalist Society Pro Bono Center policy. February’s issue contained a great number of articles Peggy Little, Director dealing with the “war on terror.” A more common theme in International Aff airs Director James P. Kelly, III this edition is proper jurisdiction, or questions of federalism, Student Division: national sovereignty and separation of powers. Considering Th e Peter Redpath, Director Federalist Society’s mission statement, this seems altogether Sarah Roderick, Associate Director Lisa Graff , Assistant Director fi tting. Kyle Reini, Assistant Director Publications Director Upcoming issues of Engage will continue to feature P.C. Aigner original articles, essays, book reviews, practice updates and Finance Director transcripts of programs that are of interest to Federalist Society Douglas C. Ubben members. We hope you fi nd these issues well-crafted and Development: Patty Price, Director informative, and encourage members and others to off er their Cindy Searcy, Associate Director feedback. Information Technology Director C. David Smith Membership Director Terry Archambeault Offi ce Manager Rhonda Moaland Matt Nix, Assistant Volume 8, Issue 3 June 2007 Engage Administrative Law & Regulation Gasoline, Markets, and Regulators by Andrew Morriss ................................................................. 4 Civil Rights Th e Legal Implications of Complying with Race- And Gender-Based Client Preferences by Curt A. Levey .................................................................................................................. 14 A Call to Action: Diversity in the Legal Profession by Rick Palmore ................................................................................................................... 21 Gonzales v. Carhart: What Hath Kennedy Wrought? by Hadley Arkes ................................................................................................................... 22 Corporations, Securities & Antitrust Th e Scope of the SEC’s Authority Over Shareholder Voter Rights by Stephen M. Bainbridge ................................................................................................... 25 Th e Dark Side of the Fare Wars: Th e Sixth Circuit Takes a Fresh Look at Predatory Pricing Claims Under Section 2 of the Sherman Antitrust Act by J. Gregory Grisham ......................................................................................................... 34 Criminal Law & Procedure Universal Jurisdiction: Th e German Case Against Donald Rumsfeld by Tom Gede ........................................................................................................................ 41 Environmental Law & Property Rights NEPA Scope of Analysis in the Federal Permitting Context: Th e Federal Tail that Risks Wagging the Non-Federal Dog by Deidre G. Duncan & Brent A. Fewell ............................................................................... 47 Save America: Th row the Raisins Away! by Timothy Sandefur.............................................................................................................50 Federalism & Separation of Powers Holding Enemy Combatants in the Wake of Hamdan by Ronald D. Rotunda ......................................................................................................... 51 Financial Services & E-Commerce A Comment on the Proposed Statement on Subprime Mortgage Lending by Todd Zywicki & Joseph Adamson ...................................................................................... 62 Th e WTO as a Supranational Competition Authority by Keith R. Fisher ................................... 69 Free Speech & Election Law Public Employees and Governmental Expression by Randy J. Kozel .......................................... 77 A Glimpse of the Future? Campaign Finance Laws and Government Regulation of the Press by William Maurer .............................................................................................................. 82 Intellectual Property Th e Seagate Conundrum: Risks and Rewards of Raising the Defense of “Advice of Counsel” To A Charge of Willful Patent Infringement by David L. Applegate & Paul J. Ripp ................................................................................... 86 Patents and Health at the World Health Organization by Mark Schultz & Christopher Frericks ................................................................................ 93 International & National Security Law Stripping Habeas Corpus Jurisdiction Over Non-Citizens Detained Outside the United States: Boumediene v. Bush and the Suspension Clause by Scott Keller ..................................................................................................................... 98 Democratic Evolution and the Church of the United Nations by James P. Kelly, III .........................................................................................................