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With deepest thanks to Michael Burstein, Risa Goluboff, Deepak Gupta, Michael Herz, Richard Schragger, Anthony Sebok, Kate Shaw, and Stewart Sterk. All errors are my own.

For helpful feedback, we thank Jack Chin, Heather Gerken, Ellen Katz, Nathaniel Persily, Michael Pitts, Bertrall Ross, David Schleicher, Douglas Spencer, Nicholas Stephanopoulos, faculty workshop participants at UC Davis School of Law, and the Articles Editors of The University of Chicago Law Review. We also acknowledge UC Davis law students Chané Buck, Chelsea Daughters, Andrew Doan, Joel Guerra, James Knauer, Lars Reed, Diem Ly Vo, and Zachary Zaharoff for their work coding cases. A codebook defining the fields that were used is available at http://lawreview.uchicago.edu/page/elmendorf-quinn-abrajano.

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.