Institutional Design

Prior versions of this Essay were presented as lectures at the School of Law of the University of Buenos Aires, the Faculty of Law of the University of São Paolo, the University of Texas School of Law, and at the American Philosophical Association Pacific Division Meeting in Vancouver. My deep appreciation goes to Gregory Crane, David Drew, and Stephen Levandoski for their research assistance.

Thanks to Susan Cohen, Oscar Gandy, Ian Kerr, David Phillips, Neil Richards, Rebecca Tushnet, participants in the Unblinking Workshop at UC Berkeley, and participants in The University of Chicago Law School’s Surveillance Symposium for their comments on an earlier version of this paper, to Kirstie Ball for sharing her work in progress on exposure as an organizing concept for surveillance, and to Amanda Kane and Christopher Klimmek for research assistance.

My work on criminal justice has been greatly influenced by conversations with three extraordinary colleagues: Lawrence Friedman, Mark Kelman, and Robert Weisberg. I thank them for their generous willingness to share their thoughts on the field. Needless to say, I absolve them (and anyone else) of responsibility for any errors or omissions.

I am grateful to Adam Cox and Cass Sunstein for comments on an earlier draft and to the Sonnenschein Faculty Research Fund at The University of Chicago Law School for financial support.

I am grateful to Barbara Atwood, David Fontana, Andy Klein, Toni Massaro, Nina Rabin, Bob Rabin, David Shapiro, and Carol Rose for comments on earlier drafts and to Sam Issacharoff for his confidence. I owe particular thanks to Richard Nagareda for thorough and patient reactions to this Review.

I appreciate helpful conversations with Daniel Carpenter, Michele Dauber, John Ferejohn, George Fisher, Rich Ford, Lawrence Friedman, David Golove, Jill Hasday, Daniel Ho, Don Hornstein, Lewis Kornhauser, David Luban, Eric Muller, Hari Osofsky, Robert Tsai, and Barry Weingast, as well as feedback from workshop participants at Berkeley, Iowa, Oregon, NYU, North Carolina, Southwestern, and Stanford’s Center for International Security and Cooperation. David Kennedy provided extremely helpful written comments on an earlier version of this Article. I also benefited greatly from the research assistance of Mindy Jeng, Shivan Saran, Britt Grant, Mrinal Menon, Connor Raso, Brad Hansen, and Jennifer Liu, as well as the staff of the Stanford Law School Library. I am also grateful to the staff at the National Archives in College Park, Maryland, the Franklin D. Roosevelt Presidential Library, and the Harry S. Truman Library. All of these people should be secure in the knowledge that they are not responsible for any errors or omissions. This is dedicated to Mateo, Ria, and Lucy.

Thanks to Greg Alexander, Akhil Amar, Will Baude, Aaron Bruhl, Michael Dorf, Joey Fishkin, Marin Levy, Bernadette Meyler, David Pozen, Catherine Roach, and Steve Sachs for helpful and thought-provoking comments on earlier drafts, and to Kevin Jackson for excellent research assistance. Any remaining errors or infelicities are, of course, my own.

In the spirit of its subject matter, this Article was made available for public comment, and we incorporated excellent suggestions from Steve Charnovitz, David Fontana, Fred Lawrence, Ronald Levin, Eric Lipman, Chip Lupu, and Richard Pierce.