83.3

Summer

2016

I am grateful to Brian An, David Armor, David Card, Sheryll Cashin, Erwin Chemerinsky, Chris Elmendorf, Reynolds Farley, Lee Fennell, Jeremy Fiel, Jim Greiner, Matthew Hall, Rick Hasen, Aziz Huq, John Iceland, Ellen Katz, Douglas Massey, Martha Minow, Martha Nussbaum, Rick Pildes, Alex Polikoff, Eric Posner, Sean Reardon, Florence Roisman, Daria Roithmayr, James Ryan, Richard Sander, Robert Schwemm, Stacy Seicshnaydre, Michael Seidman, Genevieve Siegel-Hawley, Lior Strahilevitz, and David Strauss for their helpful comments. My thanks also to the workshop participants at the University of Chicago, where I presented an earlier version of the Article. I am pleased as well to acknowledge the support of the Robert Helman Law and Public Policy Fund.

The authors thank the twenty-one judges in the Duke Judicial Studies LLM program (2016–17), Tom Ginsburg, and Jack Knight for comments. Susanna Rychlak provided excellent research assistance.

Earlier versions of this Article were presented at the 2015 Intellectual Property Scholars Conference; the University of Pennsylvania Law School Center for Technology, Innovation and Competition’s 2015 Copyright Scholarship Roundtable; a workshop on the Oxford Handbook on Intellectual Property at Tel Aviv University; the Fourth Global Congress on Intellectual Property and the Public Interest at the National Law University, Delhi, India; and the 2015 annual conferences of the Association of Law, Property, and Society and the International Society for New Institutional Economics. This Article greatly benefited from the comments and criticisms of participants in those conferences, as well as from those of Larry Alexander, Shyamkrishna Balganesh, Oren Bracha, Ben Depoorter, Kristelia García, Jane Ginsburg, Brad Greenberg, Paul Heald, Justin Hughes, Roberta Kwall, Orly Lobel, Glynn Lunney, David McGowan, Joseph Miller, Justine Pila, Lisa Ramsey, Terrence Ross, Guy Rub, Matthew Sag, Pam Samuelson, Maimon Schwarzschild, Ted Sichelman, Steve Smith, Horacio Spector, Christian Turner, Chris Wonnell, and Christopher Yoo; and from excellent research assistance from Ananth Padmanabhan. We are especially grateful to Wendy Gordon for critical comments and constructive suggestions and for encouraging us to carefully rethink our original positions.

Special thanks to Randy Barnett, Morgan Cloud, Julie Cohen, William Cuddihy, Jennifer Daskal, Thomas Davies, Daniel Ernst, Erin Kidwell, Martin Lederman, John Mikhail, Paul Ohm, James Oldham, Julie O’Sullivan, Michel Paradis, Brad Snyder, Geoff Stone, William Treanor, and Peter Winn, who provided thoughtful comments on earlier versions of the Article. Ladislas Orsy kindly helped to verify the meaning of the original Latin texts. My appreciation extends to participants at the Georgetown Law faculty workshop, Georgetown Law’s Constitutional Law Seminar, the 2015 Berkeley-GW 8th Annual Privacy Law Scholars Conference, the Washington, DC National Security Law Roundtable, and the Retired Partners Group at Arnold & Porter LLP for their critiques. Jeremy McCabe, Thanh Nguyen, Ellen Noble, and Morgan Stoddard kindly assisted in helping to obtain many materials. Betsy Kuhn copyedited the penultimate text, which is reflected in part in chapters four and five of my recently published book, The Future of Foreign Intelligence: Security and Privacy in a Digital Age (Oxford 2016). The editors at The University of Chicago Law Review dedicated time and effort to ensuring the quality of the final Article. It is much appreciated.