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Thanks to Professor William Hubbard and Ramon Feldbrin for thoughtful feedback.

Many thanks to The University of Chicago Law Review editors and Professor John Rappaport for their help and advice.

For valuable input, I am grateful to Hannah Bloch-Wehba, Kiel Brennan-Marquez, Danielle Citron, Julie Cohen, Christina Koningisor, Megan Ericson, Nikolas Guggenberger, Thomas Kadri, Daphne Keller, Louis Kaplow, Mark Lemley, Ngozi Okidegbe, Przemysław Pałka, Mitchell Polinsky, Steven Shavell, David Walker, editors at The University of Chicago Law Review, and participants at Boston University School of Law faculty workshop, Brooklyn Law School faculty workshop, Harvard Law and Economics Seminar, Junior Tech Law Scholars workshop, and Stanford Law and Economics Seminar. Brianne Allan, Jacob Axelrod, Samuel Burgess, Leah Dowd, Derek Farquhar, Shecharya Flatte, Chris Hamilton, Jack Langa, Kathleen Pierre, Tyler Stites, and Gavin Tullis provided excellent research assistance.

I would like to thank workshop participants at the law schools of Columbia University, University of Michigan, and University of Southern California; conference participants at the 2018 Trans-Pacific Business Law Conference and the 2020 Winter Deals Conference; and particularly Dhruv Aggarwal, Adam Badawi, Elisabeth de Fontenay, Joel Friedlander, Jeff Gordon, Michael Knoll, Vice Chancellor Travis Laster, Brian Quinn, and Bob Scott for many helpful comments and suggestions. Comments are welcome to alchoi@umich.edu.

For helpful comments and suggestions, we thank Matthew Adler, Mireia Artigot i Golobardes, Ian Ayres, Lucian Bebchuk, Hanoch Dagan, John Donohue, Avihay Dorfman, Abigail Faust, Rosa Ferrer, Michael Frakes, Juan-José Ganuza, John Goldberg, Jacob Goldin, Fernando Gómez, Assaf Hamdani, Sharon Hannes, Alon Harel, Louis Kaplow, Kobi Kastiel, Roy Kreitner, Tamar Kricheli-Katz, Florencia Marotta-Wurgler, Alan Miller, A. Mitchell Polinsky, Ariel Porat, J. Mark Ramseyer, Barak Richman, Adriana Robertson, Steven Shavell, Henry Smith, Holger Spamann, Cass Sunstein, George Triantis, David Weisbach, and workshop participants at Bar-Ilan University, Chicago, Duke, Haifa University, Harvard, Stanford, Tel Aviv University, and Universitat Pompeu Fabra. Emily Feldstein and Haggai Porat provided outstanding research assistance.

For helpful comments on earlier drafts, thanks to Karen Blum, Roger Clark, Barry Friedman, Christopher Kemmitt, James Pfander, Richard Re, Alexander Reinert, Lou Reiter, Jack Ryan, Seth Stoughton, and Stephen Yeazell. For help constructing the dataset of Ninth Circuit cases, many thanks to John Wrench and Anya Bidwell. For excellent research assistance, thanks to Bryanna Taylor and Hannah Pollack. Thanks also to the editors at The University of Chicago Law Review for excellent editorial assistance.

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.

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.