84.1

Winter

2017

The author wishes to thank the faculties of the University of California, Berkeley, School of Law; Boston University; the Williams Institute at the UCLA School of Law; Rutgers Law School; Fordham University School of Law; Seton Hall University School of Law; Maurice A. Deane School of Law at Hofstra University; the University of Washington School of Law; and the University of Miami Law School for helpful conversation. I am especially indebted to Kathryn Abrams, Kenny Alston, Sergio Campos, Mary Anne Case, Paisley Currah, Katie Eyer, Sheila Foster, Katherine Franke, Mary Anne Franks, Andrew Gilden, Zil Goldstein, Gayatri Gopinath, Joanna Grossman, Bruce Hay, Tracy Higgins, Clare Huntington, Molly Van Houweling, Neal Katyal, Alexander Lee, Linda McClain, Melissa Murray, Russell Robinson, Juana Maria Rodriguez, Darren Rosenblum, Simone Ross, Dean Spade, Edward Stein, Leti Volpp, and the editors of The University of Chicago Law Review for their insights and suggestions. I am also particularly grateful for the incredible research assistance of Juli Adhikari, Joseph Galvin, Andrea Hall, Kelly Herbert, Nicole Rivera, and Catherine Song.

We benefited from helpful comments from David Abrams, Cindy Alexander, Miriam Baer, Rachel Barkow, Jayne Barnard, Michal Barzuza, Lisa Bernstein, Samuel Buell, Oscar Couwenberg, Brandon Garrett, William Hubbard, Edward Iacobucci, Louis Kaplow,
Michael Klausner, Brett McDonnell, Mark Ramseyer, Eva Schliephake, Steven Shavell, Matthew Spitzer, Abraham Wickelgren, Josephine van Zeben, and participants at the annual meetings of the Business Associations Section of the Association of American Law Schools, the American Law and Economics Association, the European Law and Economics Association, and the Society for Institutional and Organizational Economics, as well as participants at workshops at Brooklyn Law School; UCLA School of Law; Columbia Law School; ETH Zurich; Harvard Law School; NYU School of Law; University of Pennsylvania Law School; University of Pompeu Fabra; Queen’s Law School, Ontario, Canada; Stanford Law School; University of Texas Law School; University of Toronto Faculty of Law; University of Virginia School of Law; and Western Law School, Ontario, Canada. We also would like to thank Brandon Garrett and Vic Khanna for sharing their data on PDAs, which we compared to our own hand-collected dataset. We also thank Brandon Arnold, Rachel Lu Chen, Elias Debbas, Josh Levy, Reagan Lynch, Matt Mutino, Alice Phillips, Jared Roscoe, KyungEun Kimberly Won, and Donna Xu for excellent research assistance, with special thanks to Tristan Favro, Katya Roze, and Cristina Vasile. Jennifer Arlen is grateful for the financial support of the New York University School of Law. Marcel Kahan’s research was supported by the Milton and Miriam Handler Foundation.

We are grateful to Ron Levin, John Manning, Arden Rowell, David Strauss, participants at a Harvard Law School faculty workshop, and participants at a University of Chicago symposium for valuable comments, and to Evelyn Blacklock and Maile Yeats-Rowe for superb research assistance. Parts of this Essay significantly expand and revise, while drawing on, a section of a near-contemporaneous, and much longer, article, Cass R. Sunstein and Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 S Ct Rev 41. We are grateful for permission to draw on that section here.

I owe thanks to the participants in The University of Chicago Law Review Symposium on “Developing Best Practices for Legal Analysis,” which led to the Symposium Issue in which this Essay appears, and to participants at a faculty workshop at Georgetown University Law Center. I owe special thanks to Gregory Klass and Louis Michael Seidman for the their very helpful suggestions and criticisms. My thanks as well to Johanna Schmidt for valuable research assistance. © 2017 by Lawrence B. Solum.

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.

Thanks to Brett Kavanaugh and John Manning; to Yale Law School students Julie Hutchinson, Aaron Levine, Scott Levy, Aviv Lipman, Leah Scaduto, and Kyle Victor; and to participants in presentations at The University of Chicago, University of Minnesota, and Yale law schools; and, as always, special thanks to Henry Monaghan.

Thanks to John Gerring, Brian Leiter, Saul Levmore, Simone Sepe, and Lawrence Solum for superb comments.