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Thanks to Matt Adler, Douglas Baird, Omri Ben-Shahar, Lee Fennell, Barry Friedman, Jake Gersen, Aziz Huq, Dan Kahan, Saul Levmore, Anup Malani, Tom Miles, Richard McAdams, Rick Pildes, Eric Posner, Jennifer Rothman, and David Strauss for helpful conversations and comments on an earlier draft, and to workshop participants at Loyola Law School Los Angeles, The University of Chicago Law School, and New York University Law School’s Constitutional Theory Colloquium. The latter workshop had to be cut short, and dramatically so, but Rick Pildes and David Golove made sure that I benefited from the participants’ generous attention to the Article. Hanna Chung and Daniel Roberts provided excellent research assistance. Mistakes are mine.

I appreciate helpful and timely comments from Samuel Bray, Jud Campbell, Jonathan Mitchell, Richard Primus, Richard Re, Stephen Sachs, Lawrence Solum, and the editors of The University of Chicago Law Review, as well as research support from the SNR Denton Fund and the Alumni Faculty Fund.

We thank Kenworthy Bilz, Bernard Harcourt, Owen Jones, Sarah Lawsky, Richard McAdams, Janice Nadler, Kitty Richards, Stephanie Stern, and Lior Strahilevitz for their comments and advice.

I am grateful for the comments I received on earlier drafts from Richard Banks, Rebecca Brown, Janet Giele, Phoebe Haddon, Michael Helfand, Fred Schauer, and Molly Walker. I also received helpful feedback from the participants in workshops at Duke Law School, the University of Minnesota Law School, Stanford Law School, the University of Virginia School of Law, and Wake Forest School of Law, as well as from attendees at my keynote speech at the Lavender Law Conference in San Francisco in September 2008, and from participants in the MidAtlantic People of Color Legal Scholarship Conference at Temple University James E. Beasley School of Law in January 2009 and the Third National People of Color Legal Scholarship Conference at Seton Hall University School of Law in September 2010. Student workshops at the University of Virginia and at Fairhaven College, Western Washington University, also provided useful feedback. The University of Virginia School of Law reference librarians, including Ben Doherty and Alison White, provided superb assistance. A special thanks to Jared Campbell, Evan Didier, Sarah Fritsch, Sarah Johns, Tim Lovelace, Chris Mincher, and Hadi Sedigh for their diligent research assistance and very helpful discussions. I welcome comments at kimfm@virginia.edu.

For helpful comments, I thank Omri Ben-Shahar, Rebecca S. Eisenberg, Margaret J. Radin, and the participants in the Law and Economics workshop at the University of Michigan Law School and the Licensing of Intellectual Property Symposium at The University of Chicago Law School. The views expressed in this work, as well as all remaining errors, are, of course, my own.

I thank the John M. Olin Foundation and the Paul H. Leffmann Fund for their generous research support. I also thank Lorraine Saxton for able research assistance and Connie Fleischer, Sheri Lewis, and Margaret Schilt in the D’Angelo Law Library for helping to track down missing sources.