75.1

Thanks to Victor Goldberg, Jody Kraus, Darian Ibrahim, and Eric Posner for helpful comments.

The author thanks Ronen Avraham, Howard Beales, Nevin Gewertz, Bernard Harcourt, Uri Itkin, Sarah Lawsky, Ronald Lee, Doug Lichtman, Tom Miles, Beth Milnikel, Jide Nzelibe, Adam Samaha, Max Schanzenbach, Paul Schwartz, David Weisbach, and Noah Zatz for their comments and suggestions, Levi Giovanetto for research assistance, and the Morton C. Seeley Fund and Visa, USA, Inc for generous research support. The author particularly thanks participants in The University of Chicago Law School’s Surveillance Symposium for their suggestions, as well as workshop participants at Northwestern and The University of Chicago.

The author would like to thank participants in workshops at Stanford Law School and Florida Law School for their feedback on the content of this article, and Victoria Ianni for her research assistance. This paper is a version of a talk given at The University of Chicago Law School’s Surveillance Symposium, June 15–16, 2007.

My work on this paper began while I was a Professor of Law at Brooklyn Law School, and it benefited there from the support of the Milton and Miriam Handler Foundation. It also received support from the Dean’s Research Fund at Brooklyn Law School as well as a summer research grant from Boalt Hall. Patricia Bellia, Jon Michaels, Chris Slobogin, Stephen Sugarman, and Frank Zimring offered helpful suggestions.

The views expressed in this article are those of the authors alone. All three authors received their JD degrees from Yale Law School in 1985.

This is a revised draft of my talk at The University of Chicago Law School’s Surveillance Symposium, June 15–16, 2007. I draw heavily on my books Not a Suicide Pact: The Constitution in a Time of National Emergency ch 6 (Oxford 2006) and Countering Terrorism: Blurred Focus, Halting Steps ch 7 (Rowman & Littlefield 2007).