Chapter Eight responds to the likely objection that the proposals presented earlier in the book are unrealistic. The chapter first addresses theories of constitutional change, focusing on Professor Ackerman’s “movement, party, Presidency” model of constitutional transformation. The rest of the chapter lays out a program for revolutionary change, based on the assumption that the Democratic Party will be the main engine of constitutional transformation. If the Democratic Party decides to launch a constitutional revolution to restore the power of We the People to exercise effective control over our government, it will have to change the composition of the Supreme Court. The chapter analyzes proposals for Supreme Court reform, then discusses constitutional transformation related to the electoral process, and finally considers other potential constitutional changes.

Chapter 10 addresses the question whether litigation against the firearms industry may ever evolve into a mature mass tort litigation, ultimately leading to an industry-wide settlement modeled on the tobacco settlement. The discussion sets forth signposts that historically have been indicators that certain product cases will evolve from individual litigation to an aggregate mass tort. These signposts include (1) developments or changes in the law, (2) regulatory recall, alert, or notice of a defective product, (3) establishment of a track record of litigation victories and settlements, (4) rise in the interest of the plaintiffs’ bar in pursuing litigation, (5) emergence of a critical mass of similarly situated claimants, (6) docket congestion, (7) judicial reception toward aggregating and managing multiple-claims litigation, (8) discovery of underlying facts and public dissemination of discovery materials, (9) development of underlying science or expert testimony in proof of claims, (10) the interest of states’ attorneys general in pursuing relief on behalf of their citizenry, (11) agile, strategic lawyering in response to changing litigation developments, and (12) the willingness of putative defendants and their insurers to come to the negotiation table.

This chapter outlines the content of the written Constitution and describes the historical context, debates, and compromises from which the Constitution emerged. A central theme involves the emergence of “judicial supremacy” or the dominant role of the Supreme Court in constitutional interpretation. At the time of the Constitution’s ratification, many people believed that each of the branches of the national government would interpret the Constitution for itself. Moreover, the Supreme Court was not initially regarded as a particularly important institution. In order to explain the rise of judicial supremacy, the chapter begins to develop the idea, borrowed from political scientific literature, that the Court’s power exists within and is constrained by politically constructed boundaries that are constituted by the willingness of other institutions and ultimately the American people to accept the Court’s rulings as authoritative. In support of the argument that the Court’s power to interpret the Constitution authoritatively depends on the support of political officials and the American public, not the clear mandate or logical implications of the constitutional text, the chapter debunks the myth that the Supreme Court’s 1803 decision in Marbury v. Madison definitively settled the question of the Court’s interpretive authority.

Chapter Seven presents a critique of the Court’s so-called “federalism” doctrines. Those doctrines have had very little practical effect in protecting state autonomy from unwarranted federal interference. Under the banner of federalism, the Court has engaged in illegitimate judicial lawmaking by creating a set of judge-made rules that have no basis in the Constitution’s text. Moreover, when the Court speaks of federalism, it conveniently ignores the fact that the Supreme Court itself is part of the federal government. If the Court truly wants to protect state autonomy from unwarranted federal interference, it should exercise self-restraint by limiting the reach of judge-made law that interferes with state autonomy. In particular, the Court should repudiate incorporation doctrine – a judge-made doctrine invented by the Warren Court that has no basis in the text of the Fourteenth Amendment. As a practical matter, incorporation doctrine imposes much more severe restrictions on state autonomy than all of the federal statutes (viewed in the aggregate) that the Court has invalidated under various federalism doctrines.

Chapter Five presents historical analysis to establish two key points that lay a foundation for the normative argument presented in Chapter Six. First, throughout the nineteenth century, federal courts applied a system of weak judicial review in which they enforced treaty-based rules to protect individual rights from government infringement. Therefore, the type of weak review system I am proposing in Chapter Six has deep historical roots in American public law. Second, due to a largely invisible constitutional transformation that occurred between 1945 and 1965, international human rights treaties are not currently available to U.S. courts as a source of judicially enforceable rights. However, under current constitutional understandings, Congress has the power to make human rights treaties judicially enforceable by enacting an appropriate statute to that effect.

Chapter 6 details the events surrounding the Sandy Hook Elementary School shooting perpetrated by Adam Lanzer with a semiautomatic firearm that killed numerous first grade students and their teachers. The chapter begins with a description of the U.S. Supreme Court’s denial of a writ of certiorari in 2019, refusing an appeal from the Connecticut Supreme Court’s finding of a valid application of PLCAA’s predicate statute exception to immunity from suit. The chapter explores the initial Sandy Hook trial litigation against firearms manufacturers in which the defendants invoked PLCAA immunity. The discussion sets forth the trial court’s grant of the defendant’s dismissal of the case, finding no applicable PLCAA exception to immunity from suit. The chapter next focuses on the Connecticut Supreme Court’s reversal of the trial court’s dismissal, effectively reviving the litigation. The analysis considers the broad implications of the U.S. Supreme Court’s refusal to hear the PLCAA appeal, as well as the precedential value of the Sandy Hook decision upholding a PLCAA predicate statute exception. The chapter concludes with a survey of post-Sandy Hook litigation seeking to exploit the inroads on firearms immunity after the Sandy Hook litigation.

Chapter 2 examines how copyright’s treatment of collaboration and crediting elevates might over right with problematic consequences for both creative and egalitarian interests. Drawing on the history of the beloved musical Rent, the chapter begins by assessing how the imposition of copyright’s mutual-intent requirement has transformed questions of joint authorship into a referendum on leverage that fails to recognize modalities of creation that are more collaborative in nature and disproportionately burdens individuals with lesser bargaining power, thereby disadvantaging women, people of color, and the poor. Meanwhile, the striking lack of a law of crediting has undermined the efficacy of the copyright regime by stymieing the allocation of capital resources towards the very individuals with the ability to best advance progress in the arts. And, when viewed through the prisms of gender, race, and class, it has also left those at society’s margins most vulnerable to exploitation and disproportionately susceptible to receiving insufficient credit for, and participation in, the spoils of their creative labors. To better align copyright with its policy goals and to promote social justice, our laws of collaboration and crediting must begin to privilege creativity over clout, and not the other way around.