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I would like to thank workshop participants at the law schools of Columbia University, University of Michigan, and University of Southern California; conference participants at the 2018 Trans-Pacific Business Law Conference and the 2020 Winter Deals Conference; and particularly Dhruv Aggarwal, Adam Badawi, Elisabeth de Fontenay, Joel Friedlander, Jeff Gordon, Michael Knoll, Vice Chancellor Travis Laster, Brian Quinn, and Bob Scott for many helpful comments and suggestions. Comments are welcome to alchoi@umich.edu.

For helpful comments and suggestions, we thank Matthew Adler, Mireia Artigot i Golobardes, Ian Ayres, Lucian Bebchuk, Hanoch Dagan, John Donohue, Avihay Dorfman, Abigail Faust, Rosa Ferrer, Michael Frakes, Juan-José Ganuza, John Goldberg, Jacob Goldin, Fernando Gómez, Assaf Hamdani, Sharon Hannes, Alon Harel, Louis Kaplow, Kobi Kastiel, Roy Kreitner, Tamar Kricheli-Katz, Florencia Marotta-Wurgler, Alan Miller, A. Mitchell Polinsky, Ariel Porat, J. Mark Ramseyer, Barak Richman, Adriana Robertson, Steven Shavell, Henry Smith, Holger Spamann, Cass Sunstein, George Triantis, David Weisbach, and workshop participants at Bar-Ilan University, Chicago, Duke, Haifa University, Harvard, Stanford, Tel Aviv University, and Universitat Pompeu Fabra. Emily Feldstein and Haggai Porat provided outstanding research assistance.

For helpful comments on earlier drafts, thanks to Karen Blum, Roger Clark, Barry Friedman, Christopher Kemmitt, James Pfander, Richard Re, Alexander Reinert, Lou Reiter, Jack Ryan, Seth Stoughton, and Stephen Yeazell. For help constructing the dataset of Ninth Circuit cases, many thanks to John Wrench and Anya Bidwell. For excellent research assistance, thanks to Bryanna Taylor and Hannah Pollack. Thanks also to the editors at The University of Chicago Law Review for excellent editorial assistance.

This Article is dedicated to my former law professor, Larry Echo Hawk, a member of the Pawnee Nation and Assistant Secretary of the Interior for Indian Affairs for President Barack Obama. I am greatly indebted to those who have provided helpful insights and comments on earlier drafts and underlying research, including Akhil Amar, Jack Balkin, William Baude, Steve Calabresi, Bradford Clark, Nicholas Cole, William Ewald, Lawrence Friedman, Shlomo Klapper, David Landau, Soren Schmidt, Michalyn Steele, Larry Solum, and Kevin Worthen. I thank my parents, John B. Updike and V. Lauri Updike, for acting as technical editors, and the very able editors of The University of Chicago Law Review. My heartfelt thanks also goes to Lee Arnold at the Historical Society of Pennsylvania for providing access to James Wilson’s Papers and particularly his drafts of the Constitution, and to Julie Miller, Julie Biggs, and Jennifer Evers from the Conservation Division of the Library of Congress for providing images and doing further forensic research of Randolph’s sketch. Finally, my thanks go to the indispensable Yale Law librarians, who never cease to lend valuable and timely assistance.

For helpful comments and suggestions, I thank Adam Badawi, Douglas Baird, Robert Bartlett, Andrew Bradt, Guy-Uriel Charles, Benjamin Chen, Adam Chilton, Albert Choi, Ryan Copus, Robert Cooter, John Coyle, Kevin Davis, John DeFigueredo, Josh Fischman, Jeffrey Gordon, Joe Grundfest, Mitu Gulati, Andrew Guzman, Deborah Hensler, Tim Holbrook, Bert Huang, William Hubbard, Matthew Jennejohn, Francine Lafontaine, Katerina Linos, Jonathan Masur, Justin McCrary, Joshua Mitts, Kevin Quinn, Bertrall Ross, Sarath Sanga, Robert Scott, Megan Stevenson, Eric Talley, Glenn West, Diego Zambrano, and Eyak Zamir, as well as the participants of workshops at Columbia Law School, NYU School of Law, Stanford Law School, the University of Chicago Law School, University of Virginia School of Law, University of Michigan Law School, UC Davis School of Law, University of Hamburg Faculty of Law, the 2020 American Bar Association M&A Committee Meeting, the 2020 Association of American Law Schools Annual Meeting, the 2020 Stanford-IACCM Symposium, the 2019 Northwestern Conference on Law and Textual Analysis, the 2019 Annual Empirical Contracts Workshop at Penn, the 2019 Annual Meeting of the German Law and Economics Association, the 2018 Conference on Empirical Legal Studies, the 2018 Conference on Empirical Legal Studies in Europe, and the 2018 International Conference on the Economics of Litigation.

For generous conversations and comments, I am grateful to Aziza Ahmed, Kevin Benish, Pamela Bookman, Beth Burch, Guy‑Uriel Charles, Kevin Clermont, Zachary Clopton, Brooke Coleman, William Dodge, David Engstrom, Nora Engstrom, George Fisher, Maggie Gardner, Myriam Gilles, Jasmine Harris, Larry Helfer, Deborah Hensler, Aziz Huq, Mark Kelman, Amalia Kessler, Tim Lovelace, Rick Marcus, Doug Melamed, Jenny Martinez, Anne O’Connell, Katerina Ossenova, Aaron Simowitz, Shirin Sinnar, David Sklansky, David Sloss, Norman Spaulding, Al Sykes, Justin Weinstein-Tull, Steve Yeazell, Diego Zambrano, as well as participants at the American Society of International Law Research Forum, Annual Civil Procedure Workshop, Bay Area Civil Procedure Forum, Emerging Scholars Workshop, Grey Fellows Forum, Junior Faculty Federal Courts Workshop, Northern California International Law Scholars Workshop, “The Extraterritorial State” Symposium at Willamette, and workshops at UC Berkeley, Boston College, Cardozo Law, Cornell, UC Davis, Duke, Emory, the University of Florida, Fordham, Georgetown, the University of Michigan, the University of Pennsylvania, and the University of Virginia. For exceptional research assistance, I thank Alexis Abboud, Douglas Callahan, Wesley DeVoll, Jeffrey Ho, Aletha Dell Smith, Sam Sherman, and Leonardo Villalobos. Thanks also to the thoughtful editors of The University of Chicago Law Review.