Vanessa Rivas-Bernandy provided extraordinary research assistance for this piece—thinking through counterarguments and limitations to my claims, in addition to reorganizing convoluted sentences, paragraphs, and pages. For very helpful comments, I am also very grateful to Elena Kempf and to participants at the October 23, 2020, Conference on Measuring Impact in Constitutional Law. I am very grateful for the financial support of the Carnegie Foundation, the Miller Center for Global Challenges and the Law, and the German American Academic Exchange Program.
We are extremely grateful to Catherine Albiston, Lauren Edelman, Stavros Gadinis, David Lieberman, Aila Matanock, Alison Post, Kevin Quinn, Karen Tani, and participants at the Berkeley Law Faculty Workshop for their generous comments.
I. Imagining Alternatives and Identifying a Puzzle