70 Am. U. L. Rev. 589 (2020).

* Laure Sudreau Endowed Chair in Law, Pepperdine University Caruso School of Law. The author is indebted to many who have reviewed and commented on this Article in its earliest and latest edition including Nestor Davidson, David Callies, Tim Duane, Alexandra Klass, J.B. Ruhl, Sarah Schindler, and Ilya Somin. The author is also grateful to Enoch Cheung, Ben Fraser, and the American University Law Review members for their excellent editing skills in reviewing this Article. Any mistakes belong to the author.