This chapter addresses the Supreme Court’s recent, partly paradoxical lines of cases involving issues of presidential power, prerogative, and immunity. On the one hand, the Court has held that Article II and the Constitution’s overall structure endow the president with sweeping authorities and prerogatives. These include powers to control a “unitary” executive branch by removing officials who refuse to do the president’s bidding and, separately, a prerogative-like “immunity” from prosecution for many unlawful official acts, including ones that would constitute serious crimes if committed by anyone else. On the other hand, the Court has sought to limit the powers of agencies within the executive branch, which the president heads, on the theory that post–New Deal agency officials were allowed to assume functions that the Constitution reserves either to Congress or to the courts. Nowhere, this chapter explains, has the Court’s conservative supermajority pursued, or does it seem more likely to continue to pursue, a doctrinally revisionist agenda with more sweeping practical consequences.

This chapter lays out the book’s central thesis that Supreme Court decisions changing previously prevailing interpretations of a mostly unaltered written Constitution represent the historical norm, not an exception. The chapter begins by discussing the death of Justice Antonin Scalia in February 2016 and the changes in constitutional doctrine that Scalia, who had pioneered the interpretive methodologies of originalism and textualism, had helped to bring about. The chapter also highlights changes that Scalia had urged but could not persuade a majority of his colleagues to adopt. It describes the political machinations by a Republican Senate majority in the aftermath of Scalia’s death and the similarly partisan maneuvers that resulted in the swift confirmation of a successor to the iconic liberal Justice Ruth Bader Ginsburg in 2020. Together, these developments helped produce the Court’s current supermajority of six conservative justices (out of nine), including three appointed by Donald Trump, and inaugurated a new era in constitutional history. After sketching this background, the chapter preliminarily sketches some of the book’s most important themes, including that the Supreme Court is a lawmaking institution but one that is constrained by widely shared understandings of the judicial role in ways that legislative lawmakers are not.

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.