Chapter 4 addresses the radical change in the legal landscape of firearms litigation as a consequence of Congressional enactment of the Protection of Lawful Commerce in Arms Act (2005) (PLCAA). The chapter traces the history of events leading to and precipitating the firearms industry and its legislative allies to introduce and enact the major statute conferring nearly blanket immunity from suit on the entire firearms industry. The discussion sets forth the constituent parts of PLCAA, including its statement of purposes, findings, definitions, and the six exceptions to immunity from suit. The chapter suggests that after 2005 PLCAA effectively stemmed the tide of firearms litigation and references the plaintiffs’ difficulties in invoking the PLCAA exceptions – to be discussed in more detail in ensuing chapters. The discussion notes the conceptual and doctrinal PLCAA victory the Sandy Hook Elementary School plaintiffs achieved in invoking PLCAA’s predicate statute exception and the implications of that judicial victory. The chapter closes with a discussion of the repeated unsuccessful legislative attempts by gun control advocates in Congress to repeal PLCAA.

Public schools exist to educate students. Local school districts are governed by elected school boards. But only adults vote in local school board elections. I argue that these three facts are the primary cause of low academic achievement in American public schools, particularly for the most disadvantaged students. The institutions of democratic control cause unacceptably poor performance because the main concerns of adults who vote in local school board elections are not aligned with the academic needs of students. Adult interests – organized around partisanship, identity politics, employment concerns, and property values – dictate what schools do, often at the expense of academic achievement. I also argue that the existing literature, focused on the debate about the role of money and teachers’ unions in education, overlooks other major problems with public education. Finally, I also anticipate the main counterarguments to my thesis and “prebunk” them by showing why they are wrong.

This chapter considers the nature of constitutional “law” in the Supreme Court. In pursuing that inquiry, the chapter begins with the premise that the Constitution is law not because the Founding generation adopted it but because relevant constituencies in the United States today accept it as authoritative. Moreover, because the Constitution does not include all of the rules necessary for its own interpretation, many of the norms that mark the limits of permissible constitutional interpretation, including the doctrine of stare decisis, are similarly grounded in shared understandings and accepted practices among the justices and other officials, not written rules laid down by prior generations. The acceptance-grounded law that applies to the justices is enforceable through extra-judicial mechanisms that could potentially include defiance of Court decisions if they were widely perceived as overstepping the justices’ lawful authority. But we should recognize that the “law” that constrains the justices is different from more ordinary law. In a normative vein, this chapter describes adaptive judicial interpretations of a Constitution that was mostly written in the eighteenth century as a functional necessity. But it presents a more troubled assessment of developments in the current politically charged and divided era.

Literary modernism cognitivizes the gothic by engaging the counter-conversionary energies that James associated with the sick-soul’s awareness of the human potential for evil. Where psychological commentary on the First World War’s aftermath typically concerns “shell-shock,” this chapter highlights the period’s equal investment in the cognitively rehabilitative potentialities of modernist “techniques of dissociation” to disrupt dangerous excesses of affect and forestall identification with fascistic beliefs. F. Scott Fitzgerald’s The Great Gatsby (1925) and Katherine Anne Porter’s Pale Horse, Pale Rider (1939), demonstrate how the various information streams—song lyrics, social commentary, and newspaper publicity—haunt their protagonists, producing self-estranging varieties of dissociation characteristic of the Jamesean sick soul, wherein soul-sickness indicates both a recognition of and resistance to dehumanizing beliefs.

Chapter Four contends that the electronic amplification of false and misleading election-related claims poses a significant threat to American democracy. To address that threat, we urgently need government regulation of companies that provide electronic amplification services. However, the Supreme Court has created a body of First Amendment doctrine that places Congress in a constitutional straightjacket, making it almost impossible for Congress to enact the type of legislation that is urgently needed to protect our democracy. This chapter sketches the outlines of a proposed federal statute that would restrict the electronic amplification of election-related misinformation. It explains why any statute along those lines – indeed, any statute that might be moderately effective in protecting American democracy from the threat posed by the electronic amplification of misinformation – would almost certainly be deemed unconstitutional under the Court’s current First Amendment doctrine. Therefore, the Court must revise its First Amendment doctrine to help save American democracy.

This chapter examines the politics of school closure, which represents the “third-rail” in education. I argue that school closures closely follow a “bootleggers and Baptists” model of politics. Bootleggers provide the behind-the-scenes financial and organizational resources to shape policy, while the Baptists serve as the movement’s more sympathetic and earnest public face. In the context of schools, the bootleggers are school employees who worry how school closures will affect their jobs, while the Baptists are local community members who want to keep their neighborhood schools open. A large-N quantitative analysis examines both the causes and consequences of closure. I find that: (1) although closures appear to disproportionately affect communities of color, the disparities are explained by school enrollment patterns and differences in achievement that are correlated with the racial composition of students; (2) on average, building closures neither improve nor reduce average student performance on math or ELA exams in elementary and middle school grades; and (3) school closures modestly accelerate student enrollment losses and significantly decrease teacher employment.

Chapter 9 discusses the Mexican government’s 2021 lawsuit in Massachusetts federal court against seven American gun manufacturers to recover the costs to the Mexican government because of gun violence in Mexico. The chapter sets forth statistics documenting the escalating incidence of gun violence in Mexico, attributable to the illegal gun trafficking from the United States and used by Mexican drug cartels against Mexican citizens. The narrative focuses on the American border states and gun defendants responsible for the flood of guns into Mexico. The chapter discusses Mexico’s basis for its lawsuit, and the claims alleged sounding in tort theories of negligence, negligence per se, and public nuisance. This discussion details the defendants’ responses and the district court’s dismissal of the lawsuit, based on PLCAA immunity. The court examined the question of the extraterritorial application of PLCAA to events occurring outside the United States. On appeal, the First Circuit Court reversed the district court’s dismissal, holding that PLCAA did have extraterritorial application but that a PLCAA exception permitted Mexico’s lawsuit to proceed. The chapter ends with a discussion of the pending certiorari petition to the U.S. Supreme Court by Smith & Wesson.

The conclusion revisits the book’s themes, including a summation of the reasons why the firearms industry – alone among hazardous product manufacturers – has been relatively invulnerable to accountability for the harms to society they have contributed to and maintained by its products. The conclusion renews discussion of the pivotal developments in firearms litigation accomplished by the Sandy Hook litigation and the nine states’ enactment of consumer protection, accountability, and public nuisance statutes. The narrative explores the possibility of development of a firearms mass tort litigation accomplished through the combined efforts of state attorneys generals with private bar attorneys, modeled after the 1998 Tobacco Master Settlement Agreement. This analysis describes what provisions such a global firearms settlement might entail. The summation ends by canvassing and evaluating the potential obstacles to achieving a comprehensive firearms industry accountability settlement, concluding that like all other harmful product industries, the firearms industry ultimately will be held accountable for its societal harms.

Chapter One presents a normative theory of judicial review that relies on distinctions among strong, weak, and deferential judicial review. In a system of strong review, judicial decisions applying the Constitution are not subject to legislative override. In a system of weak review, judicial decisions are subject to legislative override. The chapter defends three main normative arguments. First, courts should apply strong judicial review in election-law cases to enhance the quality of representative democracy and ensure that every citizen has an equally effective voice in choosing our elected legislators. Second, courts should apply weak judicial review for most individual rights claims. Courts can provide robust protection for individual rights by applying federal statutes and international human rights treaties, instead of applying the Constitution, as the primary source of protection for individual rights. Third, courts should apply deferential review for claims involving federalism-based limits on Congress’s legislative powers. To protect state autonomy, the Court should exercise self-restraint to curb judicial violations of the Tenth Amendment.

Chapter 3 introduces discussion of the 1998 Tobacco Master Settlement Agreement and the role this revolutionary agreement between all fifty states (through their states attorneys general) accomplished with the tobacco company defendants. The chapter places the MSA in the evolutionary context of twentieth-century mass tort litigation and uses this example to show that even the most difficult industry defendants may be brought to account through model litigation. The chapter explores the parallelisms between the history of tobacco litigation, opioid litigation, and the lessons that the resolution of these mass torts have for the prospects of resolving firearms litigation in a similar fashion. The chapter concludes with a discussion of the lessons to be learned from the tobacco litigation for firearms industry accountability, focusing on the valuable portions of the Tobacco Master Settlement Agreement and its most useful remedies. The discussion acknowledges the criticisms of the implementation of the MSA, but nonetheless concludes that there is much to appreciate from the MSA as a model approach to holding the firearms industry accountable for the harms it contributes to through the manufacture, marketing, and sale of its products.

This chapter traces the arcs of change that are visible in the interpretation of the First Amendment’s Establishment and Free Exercise Clauses. To a rough approximation, the Supreme Courts over which Earl Warren and Warren Burger presided as chief justice (from 1954 to 1969 and 1969 to 1986, respectively) sought to enforce a “wall of separation” between church and state. That wall has crumbled in the decades since. The current Court has embraced the originalist position that historical understandings define the exclusive Establishment Clause limitations on permissible governmental acknowledgment of and support for religion. Among the outstanding questions is whether the Warren Court’s iconic decisions banning prayer in the public schools will survive. The pattern of decisions under the Free Exercise Clause is complex, with current trends reflecting a reversal of positions by judicial conservatives and judicial liberals alike. Justice Scalia epitomized the views of conservatives of his generation in holding that the Free Exercise Clause does not require the government to exempt either religious organizations or individual believers from generally applicable laws that impede religiously motivated practices. More recently, as the parties seeking exceptions have increasingly included conservative Christians, the conservative supermajority has often supported their demands.

Historically, African-Americans have found work disproportionately in the public sector, including in local school districts, and I argue that this has created impediments to improving public education in majority Black cities. Educational reforms are evaluated primarily based on how they impact adult employment opportunities, not student learning. Often, the loss of local democratic control is necessary to overcome opposition to reforms driven by employment concerns. I illustrate these dynamics with two case studies of (1) the integration of schools in the South after Brown v. Board of Education and (2) the state takeover of New Orleans schools after Hurricane Katrina.

Chapter 8 turns to a consideration of the newly enacted state firearm accountability statutes under consumer protection and public nuisance theories after the passage of the New York and New Jersey firearm industry accountability laws. The chapter canvasses in detail the state firearm statutes enacted between 2021 and 2024 in seven additional states: California, Colorado, Delaware, Hawai’i, Illinois, Maryland, and Washington state. The discussion compares the provisions of these state statutes to the original New York and New Jersey models, focusing on provisions relating to purposes, definitions of industry members, standards of conduct, persons or entities with standing to sue, and available remedies for violations of the laws. The chapter relates, in detail, the challenges by the National Shooting Sports Foundation (NSSF) to these new state statutes, including arguments based on the First, Fourth, Tenth, and Fourteenth Amendments to the Constitution, Article I and the Commerce Clause, the dormant Commerce Clause, and void-for-vagueness challenges. The discussion also notes recent Second Amendment challenges to the state statutes based on the Supreme Court’s 2022 in Bruen.

Ezra Pound launches the book as a dramatic “case study” illustrating William James’s theory of “conversion” as a cognitive process by which individuals become converts to a cause, be it artistic, religious, or political. Even as recent scholars have revitalized our understanding of James’s politics and his philosophical engagements with the social, they nonetheless underscore a conspicuous gap: none have investigated how James’s understanding of the social realm is indebted to his pioneering work as a psychologist and, more specifically, to his theorization of conversion as a cognitive phenomenon that impacts not just individuals but larger groups. At one extreme, conversion can yield blind commitment to doctrine, or, more productively, can fracture such monolithic narratives to achieve productive disagreement with, or “dissent” from, repressive or demagogic systems. Literary modernists after James can be understood as mind scientists because they deploy the psychodynamics of conversion both formally and thematically. By making the psychodynamics of conversion visible, their writings encourage readerly dissent from rigid points of view and authoritarian ideological frameworks.