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The authors would like to thank Jason Friedman, Ben Schaye, and Grace Tabib for excellent research assistance. The authors also thank participants in workshops at Harvard Law School, Yale Law School, and the University of Minnesota School of Law for helpful comments.

We are thankful for comments from workshop participants at the American Bar Foundation, the National Bureau of Economic Research, and The University of Chicago; and from Douglas G. Baird, Richard Brooks, David Gerber, Lani Guinier, John Heinz, Bill Kidder, Richard Lempert, Tracey Meares, Randall Picker, Eric Posner, Max Schanzenbach, Stephen M. Shavell, David Weisbach, Justin Wolfers, and Robert Yalen. We thank the Andrew W. Mellon Foundation for financial support.We alone are responsible for the contents and for all remaining errors.

I wish to acknowledge a general debt of inspiration to Mark Tushnet’s studies of political controls on emergency powers, although my views differ from Tushnet’s. See generally, for example, Mark Tushnet, The Political Constitution of Emergency Powers: Some Lessons from Hamdan, 91 Minn L Rev 1451 (2007); Mark Tushnet, The Political Constitution of Emergency Powers: Parliamentary and Separation-of-Powers Regulation, 3 Intl J L in Context 275 (2008). For helpful comments, thanks to Jack Goldsmith, Eric Posner, Philip Rumney, Matthew Stephenson, Cass Sunstein, Mark Tushnet, workshop participants at Harvard Law School, and participants at a conference held at Harvard Law School to discuss Cass R. Sunstein, Worst-case Scenarios (Harvard 2007). Thanks to Elisabeth Theodore and Jennifer Shkabatur for helpful research assistance.

For helpful comments, I thank Alan Auerbach, Alan Blinder, Mitchell Engler, Victor Fleischer, Mark Gergen, Kevin Hassett, James Hines, Mitchell Kane, Alex Raskolnikov, Julie Roin, Frank Sammartino, Daniel Shaviro, Joel Slemrod, Gene Seago, David Weisbach, Larry Zelenak, and participants at the University of Michigan’s Tax Policy Workshop Series and NYU’s Colloquium Series on Tax Policy and Public Finance. Special thanks to Reed Shuldiner and Michael Knoll for many useful discussions. This research was not supported by funding from any outside source. The working paper version of this Article was first circulated and posted on SSRN on June 25, 2007. See Chris William Sanchirico, The Tax Advantage to Paying Private Equity Fund Managers with Profit Shares: What is It? Why is It Bad? (University of Pennsylvania Institute for Law and Economics Research Paper No 07-14, June 25, 2007), online at http://ssrn.com/abstract= 996665 (visited June 8, 2008).

This Article greatly benefited from comments and criticisms by Ben Depoorter, Lee Anne Fennell, Mark Fenster, Sonia Katyal, Jim Krier, Tom Merrill, Adam Mossoff, Dan Richman, Ed Rock, Carol Rose, Chris Serkin, Peter Siegelman, Henry Smith, Phil Weiser, and participants in the 2007 Property Works in Progress Conference at the University of Colorado Law School.

Many people helped me think through the problems addressed in this article. I am especially grateful to Larry Alexander, Randy Barnett, David Bernstein, Julie Cohen, Lee Anne Fennell, Martin Lederman, Gary Peller, Adam Samaha, Geoffrey Stone, Mark Tushnet, and Rebecca Tushnet, and to participants at workshops at The University of Chicago Law School, Georgetown University Law Center, and Loyola University Law School. I received excellent research assistance from James Banda and Richard Harris.

We are grateful to Rosalind Dixon, Heather Gerken, Rick Hasen, Sam Issacharoff, Jonathan Masur, Rick Pildes, Adam Samaha, Max Schanzenbach, Josh Sellers, Cass Sunstein, Emerson Tiller, Dan Tokaji, and Fred Vars for helpful comments and conversations. We would also like to thank the workshop participants at Northwestern University School of Law, University of Toronto Faculty of Law, Yale Law School, the Searle Symposium on Empirical Studies of Civil Liability, and the Conference on Empirical Legal Studies. Carolyn Sha and Annabelle Yang provided invaluable research assistance.

This Article has benefited from the comments and suggestions of Professors Bobby Ahdieh, Douglas Baird, Margaret Blair, Bill Bratton, William Christie, Steven Davidoff, Gillian Hadfield, Paul Heald, Larry Helfer, Donald Langevoort, David Millon, Erin O’Hara, Bob Rasmussen, Hans Stoll, Bob Thompson, Joel Trachtman, and Todd Zywicki. The Article also benefited from faculty workshops at the University of Georgia, the University of Pennsylvania, the University of Southern California, and Northwestern University. I would also like to thank Murray Teitelbaum, James Duffy, and the staff of the New York Stock Exchange for their time and valuable insight.

We are grateful to Bruce Ackerman, Rachel Brewster, Ethan Bueno de Mesquita, Bob Cooter, Rosalind Dixon, John Ferejohn, David Fontana, Heather Gerken, Tom Ginsburg, Dan Ho, Cheng-Yi Huang, Alison LaCroix, Daryl Levinson, John Matsusaka, Richard McAdams, Drew Navikas, Anne O’Connell, Eric Posner, Adam Samaha, Lior Strahilevitz, Madhavi Sunder, Cass Sunstein, Matthew Stephenson, and Adrian Vermeule for helpful comments and conversations. Johanna Chan, Monica Groat, Stacey Nathan, and Peter Wilson provided excellent research assistance. Financial support was provided by the John M. Olin Foundation and the George J. Stigler Center for the Study of the Economy and the State.

My thanks to Michael Abramowicz, Brad Clark, John Duffy, Howell Jackson, Geoffrey Miller, Richard Nagareda, Robert Rhee, Bill Rubenstein, Anthony Sebok, Mark Spindel, and participants in faculty workshops at Harvard Law School, Georgetown University Law Center, and George Washington University Law School.