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We benefited from discussions with colleagues at a University of Chicago Law School workshop and with Concetta Balestra Fagan and Eliot Levmore.

This Article is dedicated to my former law professor, Larry Echo Hawk, a member of the Pawnee Nation and Assistant Secretary of the Interior for Indian Affairs for President Barack Obama. I am greatly indebted to those who have provided helpful insights and comments on earlier drafts and underlying research, including Akhil Amar, Jack Balkin, William Baude, Steve Calabresi, Bradford Clark, Nicholas Cole, William Ewald, Lawrence Friedman, Shlomo Klapper, David Landau, Soren Schmidt, Michalyn Steele, Larry Solum, and Kevin Worthen. I thank my parents, John B. Updike and V. Lauri Updike, for acting as technical editors, and the very able editors of The University of Chicago Law Review. My heartfelt thanks also goes to Lee Arnold at the Historical Society of Pennsylvania for providing access to James Wilson’s Papers and particularly his drafts of the Constitution, and to Julie Miller, Julie Biggs, and Jennifer Evers from the Conservation Division of the Library of Congress for providing images and doing further forensic research of Randolph’s sketch. Finally, my thanks go to the indispensable Yale Law librarians, who never cease to lend valuable and timely assistance.

For helpful comments and conversations, I would like to thank Lynn Baker, Ben Berry, Brian Broughman, Elizabeth Cabraser, Brian Fitzpatrick, Todd Hilsee, Lee Kovarsky, Craig Lewis, Debbie Matties, Robert Mikos, David Siffert, Charlie Silver, Randall Thomas, Yesha Yadav, participants and panelists at the FTC’s workshop on Consumers and Class Action Notices, participants at Vanderbilt Law School’s 22nd Annual Law & Business Conference, and students enrolled in the University of Texas’s Colloquium on Current Issues in Complex Litigation. I am grateful to Regan Vicknair for excellent research assistance.

For comments on an earlier version, we are deeply grateful to Guilherme Almeida, Fiery Cushman, Mihailis Diamantis, Ivar Hannikainen, Scott Hershovitz, Brian Leiter, James Macleod, Roseanna Sommers, Andy Summers, Kevin Tobia, John Witt, Ben Zipursky, and Gideon Yaffe. Katya Botchkina provided excellent research assistance and her philosophical suggestions were immensely helpful to us in drafting Part VI.

For helpful comments and suggestions, I thank Adam Badawi, Douglas Baird, Robert Bartlett, Andrew Bradt, Guy-Uriel Charles, Benjamin Chen, Adam Chilton, Albert Choi, Ryan Copus, Robert Cooter, John Coyle, Kevin Davis, John DeFigueredo, Josh Fischman, Jeffrey Gordon, Joe Grundfest, Mitu Gulati, Andrew Guzman, Deborah Hensler, Tim Holbrook, Bert Huang, William Hubbard, Matthew Jennejohn, Francine Lafontaine, Katerina Linos, Jonathan Masur, Justin McCrary, Joshua Mitts, Kevin Quinn, Bertrall Ross, Sarath Sanga, Robert Scott, Megan Stevenson, Eric Talley, Glenn West, Diego Zambrano, and Eyak Zamir, as well as the participants of workshops at Columbia Law School, NYU School of Law, Stanford Law School, the University of Chicago Law School, University of Virginia School of Law, University of Michigan Law School, UC Davis School of Law, University of Hamburg Faculty of Law, the 2020 American Bar Association M&A Committee Meeting, the 2020 Association of American Law Schools Annual Meeting, the 2020 Stanford-IACCM Symposium, the 2019 Northwestern Conference on Law and Textual Analysis, the 2019 Annual Empirical Contracts Workshop at Penn, the 2019 Annual Meeting of the German Law and Economics Association, the 2018 Conference on Empirical Legal Studies, the 2018 Conference on Empirical Legal Studies in Europe, and the 2018 International Conference on the Economics of Litigation.

For helpful discussions, the authors thank Joshua Braver, Yoav Dotan, Roberto Dalledone Machado Filho, Juliano Zaiden Benvindo, Sabrina Ragone, Jeong-In Yun, and participants at the ICON-S Conference in Santiago, Chile, July 2019, as well as workshops at Georgetown University Law Center, the University of Chicago Law School, University of Maryland Carey School of Law, NYU School of Law, Vanderbilt Law School, and the University of California-Berkeley School of Law. Thanks to Young Hun Kim for providing useful data and to Kali Cilli and Delhon Braaten for research assistance.

I’d like to thank Professor Lior Strahilevitz for his insightful comments on an earlier draft, without which this Comment would not exist in this form at all. I’m also grateful to all the editors of The University of Chicago Law Review for their assistance in editing and refining this piece and to all my friends who listened to me talk about installment land contracts for months as I wrote and rewrote (and rewrote) this Comment.

Many thanks to Professor Jennifer Nou for her help and advice throughout the drafting process.

For generous conversations and comments, I am grateful to Aziza Ahmed, Kevin Benish, Pamela Bookman, Beth Burch, Guy‑Uriel Charles, Kevin Clermont, Zachary Clopton, Brooke Coleman, William Dodge, David Engstrom, Nora Engstrom, George Fisher, Maggie Gardner, Myriam Gilles, Jasmine Harris, Larry Helfer, Deborah Hensler, Aziz Huq, Mark Kelman, Amalia Kessler, Tim Lovelace, Rick Marcus, Doug Melamed, Jenny Martinez, Anne O’Connell, Katerina Ossenova, Aaron Simowitz, Shirin Sinnar, David Sklansky, David Sloss, Norman Spaulding, Al Sykes, Justin Weinstein-Tull, Steve Yeazell, Diego Zambrano, as well as participants at the American Society of International Law Research Forum, Annual Civil Procedure Workshop, Bay Area Civil Procedure Forum, Emerging Scholars Workshop, Grey Fellows Forum, Junior Faculty Federal Courts Workshop, Northern California International Law Scholars Workshop, “The Extraterritorial State” Symposium at Willamette, and workshops at UC Berkeley, Boston College, Cardozo Law, Cornell, UC Davis, Duke, Emory, the University of Florida, Fordham, Georgetown, the University of Michigan, the University of Pennsylvania, and the University of Virginia. For exceptional research assistance, I thank Alexis Abboud, Douglas Callahan, Wesley DeVoll, Jeffrey Ho, Aletha Dell Smith, Sam Sherman, and Leonardo Villalobos. Thanks also to the thoughtful editors of The University of Chicago Law Review.

This Article was substantially written while Mah and Zhang were undergraduates, and it reflects neither the opinions of nor nonpublic information about their employers. The authors thank Ken Ayotte, Allison Buccola, Saul Levmore, Josh Macey, Adriana Robertson, Mike Simkovic, David Skeel, Matt Turk, and participants at a Wharton faculty workshop for criticism of defunct drafts.