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.

Chapter 1 surveys the landscape of federal and state efforts to effectuate gun control measures. The chapter theme is that in spite of extensive federal and state laws regulating the manufacture, marketing, distribution, sale, and use of firearms, these measures have proven ineffective to stem the tide of gun violence. The chapter reviews the extensive federal and state protection of consumers from defective and harmful products, noting that firearms lobbyists prevented Congress from subjecting the firearms industry to consumer protection regulatory oversight. Instead, the gun industry is subject to the oversight by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. The chapter discusses the history of federal gun regulation, discussing the National Firearms Act, the National Firearms Registration and Transfer Records, the Gun Control Act, the Firearm Owners Protection Act, the Violent Crime and Law Enforcement Act, the Federal Assault Weapons Ban, and the Law Enforcement Officers Safety Act. The chapter introduces the firearm industry immunity statute, the Protection of Lawful Commerce in Arms Act (PLCAA). The chapter concludes with a brief review of the Supreme Court’s recent Second Amendment jurisprudence that has served as a barrier to effective gun control.

This chapter shifts the focus from the “masses” to “elites” and examines state legislative roll call votes on bills dealing with school curriculum. It compares how states have approached the teaching of reading over time, a policy area once highly polarized (“This is worse than abortion.”) but now moving toward bipartisan consensus, to debates about the teaching of history and race. I argue that legislators, like voters, follow the cues of national partisan leaders, and that media narratives and coverage play a big role in how education issues become nationalized. That suggests that efforts by highly divisive national leaders to engage in “leadership” on education issues (akin to Kernell’s “Going Public” strategy) are likely to backfire and turn half of the country against their ideas. Importantly, polarization of education policies is not a one-way ratchet that is always increasing, as the reading controversy shows.

In this chapter, I conclude with a new framework for how to think about reforms designed to improve student academic achievement. My proposal focuses on (1) encouraging voters to care more about student outcomes and (2) shifting political power to adults with the most skin in the game in order to (3) try to align the electoral and political incentives of office holders with the interests of students. Specifically, I recommend holding school board elections “on-cycle” (in November of even years), making student achievement growth information more salient to both voters and parents, and increasing high-quality school choice options. Overall, I argue that future reforms should be evaluated based on how they impact student achievement, not how adults feel about them. Drawing on recent research on housing policy, I conclude that more democracy is not always better and that we should be open to reforms that modestly reduce local control if such reforms are likely to help students.

Chapter 5 explores in detail the largely failed attempts of plaintiffs’ lawyers representing victims of gun violence to sue firearms defendants after Congressional enactment of PLCAA in 2005. The chapter discusses two types of challenges that plaintiffs’ attorneys raised when gun defendants invoked PLCAA as an immunity shield from litigation. The first universe of challenges embraced various constitutional challenges including arguments based on the First, Fifth, Tenth, and Fourteenth Amendments; Article I of the Constitution; the Commerce Clause; separation of powers doctrine; state sovereignty; federalism; and the takings clause. The discussion then turns to an analysis of the plaintiffs’ repeated failures to pursue their firearms litigation by invoking the six PLCAA exceptions from immunity, including challenges based on negligent entrustment, negligence, negligence per se, design defect, failure to warn, breach of implied warranty of merchantability, and products liability. The chapter ends with an analysis of the plaintiffs’ attorneys repeated attempts to invoke PLCAA’s predicate statute exception, finally culminating successfully in the Connecticut Sandy Hook Elementary School firearms litigation.

Chapter Six contends that courts should apply a system of weak judicial review to protect individual rights. Most of the rights protected under current constitutional doctrine are included in the Covenant on Civil and Political Rights. The United States is a party to that treaty. Congress has the power to authorize judicial enforcement of those treaty rights. If Congress enacts such legislation, and courts practice constitutional avoidance in cases where judicial enforcement of treaties provides a substitute for judicial enforcement of the Constitution, the net result would be a system of weak judicial review. The proposed system would enable judicial protection for rights that is substantially equivalent to, and in some cases better than, the current system of strong judicial review. Moreover, with weak review, Congress could override judicial decisions with which it disagrees. The option for legislative override is necessary to restore the power of We the People to exercise control over our government, a core structural feature of the Constitution.

Chapter 7 narrates the story of Brooklyn state Senator Myrie Zellnor and describes how he determined to combat the gun violence crisis in his legislative district and throughout New York state by proposing an innovative firearms public nuisance statute tailored to PLCAA’s predicate statute exception. It indicates Myrie’s additional gun control legislative efforts. The chapter delineates the New York legislative process to enact its first-in-the-country firearms public nuisance statute, and the findings and provisions of that statute. The discussion describes the efforts of the New York state Attorney General Letitia James to enforce the statute to deal with the trafficking of ghost guns in the state. The discussion segues to an analysis of the New Jersey firearms public nuisance statute enacted one year after New York’s statute, and patterned on the New York statute. The chapter discusses in detail the ensuing unsuccessful litigation brought by the National Shooting Sports Foundation challenging the New York and New Jersey statutes on various constitutional grounds, including Commerce Clause and void-for- vagueness arguments.

This chapter surveys Supreme Court decisions involving the Second Amendment right “to keep and bear arms.” Nowhere is the current Court’s approach more originalist. Before 2008, the Court had never held that the Second Amendment protects a personal right to possess weapons unrelated to service in what the Amendment’s preamble characterizes as the need of “free states” for “a well-regulated militia.” This chapter describes events leading to the Court’s turnaround and analyzes its decisions since then. In applying other constitutional guarantees, the Court frequently asks whether restrictions are “narrowly tailored” to important or “compelling” governmental interests. By contrast, it insists that the permissibility of modern regulations of firearms depends exclusively on whether analogous restrictions were historically tolerated. In response to difficulties that the lower courts encountered in determining whether challenged regulations had historical analogues, the Court recently explained that precise factual similarity matters less than whether a modern restriction is “consistent with the principles that underpin our regulatory tradition.” Applying that test poses formidable challenges. But if the Court’s majority views its prescribed approach to defining Second Amendment rights as successful, it could imaginably extend its exclusive reliance on history and tradition to identify constitutional violations to other areas.