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This Article greatly benefited from comments and criticisms by Jonathan Barnett, Omri Ben-Shahar, Philip Blumberg, Lloyd Cohen, Bob Ellickson, Assaf Hamdani, Henry Hansmann, Christine Jolls, Sonia Katyal, Greg Keating, Dan Kelly, Dan Klerman, Yair Listokin, Tom Merrill, Gideon Parchomovsky, J.J. Prescott, Bob Rasmussen, Roberta Romano, Carol Rose, Alan Schwartz, Peter Siegelman, Henry Smith, Chris Stone, Bill Treanor, Mark Weinstein, and Ben Zipursky; and participants in the Law, Economics, and Organization Workshop at Yale University and the law and economics seminars and workshops at University of Michigan Law School, University of Southern California Gould School of Law, the Bar Ilan University Faculty of Law, and the Tel Aviv University Faculty of Law; and participants in faculty seminars at Fordham University Law School, Brooklyn Law School, University of Connecticut Law School, University of San Diego Law School, Washington University School of Law, University of Illinois Law School and George Mason University Law School. For the central ideas, I am indebted to Fred Schauer and Steven Shavell, without whom this Article would not have been possible. I am also grateful for the financial support of the John M. Olin Center for Law, Economics, and Business at Harvard Law School. All errors, of course, are mine.

I greatly benefited from a presentation of this Review to a faculty workshop at UCLA School of Law. Many thanks to the faculty there for their helpful comments, and to Jon Michaels and the faculty colloquium committee for the invitation. Thanks as well to Viktor Mayer-Schönberger and Frank Zimring for their suggestions. In the interest of full disclosure, I wish to note that Professor Solove and I are coauthors on a casebook, Information Privacy Law (Aspen 3d ed 2009).

Thanks to John Gardner, Leslie Green, Mark Greenberg, and Scott Shapiro for useful discussion of these issues on various occasions, and to Greenberg for quite helpful discussion of an early draft of this Article. I also benefited from questions and comments by students in my Spring 2007 Jurisprudence class at the University of Texas at Austin when we discussed this topic. Workshop audiences at a variety of venues provided valuable feedback and discussion: the Faculty of Law and Program in Social and Political Theory, Research School of Social Sciences, Australian National University; UCLA School of Law; the Institute for Philosophical Investigation, National Autonomous University of Mexico; the jurisprudence departments of the Faculties of Law at the Universities of Genoa in Italy and Girona in Spain, and the University of Chicago Law School. Of the many who helped me on these occasions, I should mention especially Peter Cane, Riccardo Guastini, Larry Laudan, Adam Muchmore, Martha Nussbaum, Giovanni Ratti, Jane Stapleton, and Ed Stein.

Very useful comments were provided by Ken Bamberger, Eric Biber, Tino Cuéllar, Dan Farber, Jesse Shapiro, Matthew Stephenson, Adrian Vermeule, and John Yoo. Financial support has been provided by the Hellman Family Faculty Fund, the Boalt Hall Fund, UC Berkeley’s Committee on Research, and the Jerome Kutak Fund at The University of Chicago Law School. Thanks to Tess Hand-Bender, Roman Giverts, Monica Groat, Edna Lewis, Harry Moren, Stacey Nathan, and John Yow for research assistance. An earlier version of this Article was presented at the 2008 annual meeting of the American Law and Economics Association and in the UC Berkeley’s Center for the Study of Law and Society’s Speaker Series.

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.

We thank Stephanos Bibas, Frederic Bloom, Josh Bowers, Sharon Dolovitch, Brandon Garrett, Bernard Harcourt, Dan Kahan, Adam Kolber, Brian Leiter, Richard McAdams, Eric Posner, Adam Samaha, Stephanie Stern, Lior Strahilevitz, David Strauss, and Jeannie Suk for helpful comments, and Kathleen Rubenstein for excellent research assistance.

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.

For helpful comments, thanks to participants in faculty workshops at the University of Illinois College of Law and the University of Cincinnati College of Law, in a Vanderbilt Works-inProgress Lunch, in an International Legal Studies Roundtable on Foreign Affairs held at Vanderbilt University, and in a Foreign Relations Workshop held at Georgetown University Law Center. Thanks also to David Bederman, Brad Clark, Jacob Cogan, Larry Helfer, Eugene Kontorovich, Mike Ramsey, Larry Solum, Kevin Stack, and Carlos Vázquez. Carlee Hobbs, Christen Moore, and Katherine Poulus provided excellent research assistance.

Thanks to Kevin Davis, Paul Kelly, Geoffrey Miller, Cass Sunstein, students in a Harvard Law School reading group on the Theory of the Administrative State, and audiences at the London School of Economics, NYU Law School and Tel Aviv Law School for helpful comments, and to Elisabeth Theodore for excellent research assistance.

Thanks to Kelli Alces, Douglas Baird, William Birdthistle, Rosalind Dixon, Bernard Harcourt, Lee Fennell, William Landes, Anup Malani, Jonathan Masur, Richard McAdams, Martha Nussbaum, Randy Picker, Eric Posner, David Strauss, Vova Shklovsky, David Weisbach, and David Yosifon for helpful suggestions. Rebecca Fike, Nicholas Lawhead, and Ruben Rodrigues provided excellent research assistance.