Andrew Jay McClurg, Fight Club: Doctors vs. Lawyers―A Peace Plan Grounded in Self Interest, 83 Temple Law Review 101-58 (2011).

Doctors and lawyers have been at odds since the first medical malpractice “crisis” occurred in the mid-nineteenth century. As one professor said, it is axiomatic these days that “doctors hate lawyers,” which is curious in one sense given that social psychology “liking” research suggests they should get along well in light of their similar backgrounds and socioeconomic status.

Their modern fight plays out publicly in a variety of forums, principally the national tort reform movement. Like professional wrestlers, the fighters sometimes resort to dirty tactics. It is an unseemly, embarrassing spectacle for what traditionally have been considered the two most prestigious professions. Given the importance of the healthcare and legal systems they serve, the doctor-lawyer conflict has implications for all Americans. Previous calls for doctors and lawyers to improve their relationship have been met with scorn.

This article takes a different tack in calling for improved relations: an appeal to self-interest. It argues that doctors and lawyers have shared tangible and intangible interests in reducing their conflict and improving communication. The article also sets forth several steps toward accomplishing those goals, including the need for each side to acknowledge certain core, uncomfortable truths about our medical liability system. It begins with a brief history of the doctor-lawyer fight and an explanation of why the two groups dislike each other so much.

Throughout, doctors and lawyers are compared on a variety of measuring scales such as total numbers, educational debt load, income, public approval ratings, jokes concerning, job satisfaction, political leanings, substance abuse, and suicide rates.

Andrew J. McClurg, Kiss and Tell: Protecting Intimate Relationship Privacy Through Implied Contracts of Confidentiality, 74 University of Cincinnati Law Review  887-940 (2006).

In the tell-all, tell-all-the-time world we live in, more and more people are finding themselves the victims of former intimate partners who disclose private, highly embarrassing information about them, including photos and videotapes, on the internet.

In theory, tort law provides the perfect (and exclusive) remedy when one gives widespread publicity to embarrassing, non-newsworthy private facts about a person in a manner that reasonable persons would consider highly offensive. In practice, however, this claim, known as the tort of “public disclosure of private facts,” offers only a slight chance of recovery by plaintiffs. The tort sustained severe, some have argued mortal, wounds in a series of United States Supreme Court cases culminating in the Court’s 1989 decision in Florida Star v. B.J.F. Given the current state of the law, it is quite possible that the public disclosure tort is “unconstitutional” under the First Amendment.

The demise of the public disclosure tort has left a large gap in privacy protection for victims of offensive disclosures of private information. This Article proposes a theory to partially fill that gap in some public disclosure situations arising from intimate relationships. Specifically, expanding on an argument advanced by Professor Eugene Volokh that the only constitutionally permissible means for enforcing personal information privacy is contract law, the article argues that an implied contract of confidentiality arises in intimate relationships that the parties will not disseminate through an instrument of mass communication private, embarrassing information about the other acquired during the relationship.

Andrew J. McClurg, Sound-Bite Gun Fights: Three Decades of Presidential Debating About Firearms, 73 University of Missouri-Kansas City Law Review 1015-45 (2005).

Today it seems that presidential candidates–certainly Democrats–are afraid of discussing the gun issue. But it hasn’t always been that way.

In fact, here’s a question to add to the next edition of Trivial Pursuit, the popular Parker Brothers board game that tests one’s inventory of obscure knowledge: “Name a policy issue that has been the subject of specific questions in five of the nine U.S. presidential debates since 1976?” A surprising answer? Gun control.

With all of the important issues affecting America and Americans – taxes, budget deficits, foreign policy, unemployment, abortion, energy policy, the environment, education, poverty, health care, terrorism, Social Security and Medicare, trade policy and deficits, nuclear disarmament and proliferation, tort reform, big government, equal rights and others – gun control has been one of the most frequently asked-about subjects over twenty-eight years of presidential debating. This essay explores how presidential candidates have performed in the gun debate on the biggest political stage of them all over a period covering nearly three decades.

It reviews, largely from a rhetorical perspective, the presidential debates from 1976 to 2004 through the lens of firearms policy, collecting and commenting on each excerpt from the debates that pertains to gun rights and gun control.

Andrew J. McClurg, A Thousand Words Are Worth a Picture: A Privacy Tort Response to Consumer Data Profiling, 98 Northwestern University Law Review 63-144 (2003).

Private companies collect and aggregate thousands of items of information about individual American consumers with a view toward compiling a “complete 360-degree view” of a consumer’s life. Concerns over shrinking privacy in a data-driven economy have prompted several ingenious proposals from scholars to regulate the field of information privacy. While all of these proposals have substantial merit, they face potentially insurmountable obstacles.

This article advocates a tort response as one way to address invasive consumer data profiling. Specifically, it argues that collecting and selling or leasing an extensive consumer data profile without consumer consent should be actionable under the privacy tort known as appropriation. Appropriation provides for liability against one who appropriates the identity of another for his own benefit, which is nearly always a commercial benefit.

In modern times, appropriation is wielded almost exclusively by celebrities as a weapon for protecting the value of their fame, often under the rubric of the “right of publicity.” Most successful appropriation cases involve situations where the defendant has, without consent, used some aspect of a celebrity’s physical likeness, such as a picture or drawing, to promote its product or service.

In short, the article seeks to establish that a thousand words–a complete date portrait of a person–are, indeed, worth a picture. It asserts that the appropriation tort, both as originally conceived and as reflected in the reasoning of modern cases and influential secondary authorities, is aimed at protecting a broader sphere of identity than mere names or physical likenesses and that, unlike the property-based right of publicity action with which it is often confused, is intended to protect dignitary, rather than economic, interests. It argues further that while current law adequately protects indicia of external identity, a person’s inner identity, as reflected in their data profile, also deserves legal protection.

Andrew J. McClurg, The Public Health Case for the Safe Storage of Firearms: Adolescent Suicides Add One More ‘Smoking Gun’, 51 Hastings Law Journal 953-1001 (2000).

This article argues for passage of safe gun storage laws as a means of reducing adolescent suicides.

Millions of loaded and unlocked firearms sit in homes throughout America, easily accessible to unauthorized, dangerous users. Public health research, including ten studies discussed in this Article, shows that astonishingly high percentages of gun owners negligently store the most dangerous consumer product legally obtainable. Unsecured guns invite firearms tragedy of all types.

The author has previously argued for safe gun storage laws as a means for reducing both accidental and intentional third-party shootings.

The current article presents the case that legislatively mandated safe firearms storage would also help stem the rising tide of adolescent suicide. Suicide is the second leading cause of death among youths between the ages of fifteen and nineteen, and the third leading cause of death for youths aged fifteen to twenty-four. While the overall suicide rate in the United States has remained relatively stable since 1950, the rate of suicide for adolescents has more than tripled. Firearms account for 60 percent of all suicides in this country, including youth suicides, even though they are used in only a small percentage of suicide attempts.

The firearms suicide rate in the United States for children under age fifteen is eleven times higher than that of any industrialized nation in the world. The escalation in adolescent suicide rates is accounted for almost entirely by an increase in the use of firearms as the method of suicide attempt, with little rise in suicides by other means. Numerous studies, discussed in this article, link the ready availability of firearms, especially in homes, to suicides generally and to adolescent suicides in particular.

Andrew J. McClurg, Good Cop, Bad Cop: Using Cognitive Dissonance Theory to Reduce Police Lying, 32 University of California-Davis Law Review 389-453 (1999).

Police lying, including lying under oath, is so common it has its own name: “testilying.” Most police officers begin their careers honest and idealistic, but their values get corrupted by a system that encourages an end-justifies-the-means mentality in which lying is easy to rationalize. Once a police officer develops such a mentality, it is probably impossible to reverse it.

This article argues that lessons from the social psychology field of cognitive dissonance theory can be applied to create a successful police integrity training and mentoring program matching rookie officers with cadets still in training at the police academy as a way to perpetuate honesty as a value and prevent good cops from turning bad.

Cognitive dissonance is the tension that arises when one holds two conflicting beliefs or believes one way and then acts another. Dissonance is strongest when it involves a cognition about the self and behavior that violates that self-concept. This self-concept sub-theory rests on the assumption that human beings have a high concept of self and strive to maintain consistency between that concept and their behavio, including striving to preserve a morally good sense of self.

If a person considers herself to be a moral person and commits an immoral act, she will experience dissonance. Reducing this dissonance will require her to rethink or justify her actions to make them more consistent with her self-concept by changing attitudes or behavior. Because it directly challenges a person’s image of herself, dissonance-based persuasion is a powerful behavior-altering force. Dissonance persuasion has been used successfully to change attitudes and behavior about energy conservation, condom use for AIDS prevention, weight reduction, and adolescent smoking.

McClurg received substantial guidance on this article from the legendary social psychologist, Professor Elliot Aronson. Among his many honors, Aronson was named one of the 100 most influential psychologists of the twentieth century.

Andrew Jay McClurg, The Tortious Marketing of Handguns: Strict Liability is Dead, Long Live Negligence, 19 Seton Hall Legislative Journal 777-820 (1995).

McClurg is credited by legal scholars as one of the originators of a tort theory of “negligent marketing” claims against handgun manufacturers. U.S. Court of Appeals Judge Guido Calebresi also quoted the article with approval in his dissent to McCarthy v. Olin, 119 F.3d 148 (2d Cir. 1997), in which now U.S. Congresswoman Carolyn McCarthy sued the manufacturer of the “Black Talon” ammunition used in the 1993 mass shooting incident on a Long Island Railroad commuter train that left her husband and five others dead and nineteen people wounded.  (Black Talon cartridges contain hollow-point bullets designed to spread open into razor-sharp talons to cause maximum internal damage.)

Arguing that strict liability was no longer a viable theory for suing handgun manufacturers, McClurg asserted that victims of gun violence should refocus their sights on the more prosaic liability theory of common law negligence. In his words, it was time to “go back to basics.”

The article advanced three different negligent marketing theories for suing handgun manufacturers: (1) negligence in marketing unusually dangerous weapons such as assault weapons and Saturday Night Special-type handguns; (2) negligence in promoting the sale of handguns to criminal consumers; and (3) negligence in failing to take reasonable precautions to minimize the risk of handguns being sold to those likely to misuse them. The strengths and weaknesses of each theory are extensively analyzed.

Andrew J. McClurg, The Rhetoric of Gun Control, 42 American University Law Review 53-113 (1992).

In a democratic, pluralistic society, action on any issue of social importance depends on acceptance of the action by many different audiences. Acceptance depends on the audiences being persuaded as to the rightness of the action. Persuasion depends on effective rhetoric.

This article dissects modern discourse on the issues of gun control and gun rights from a rhetorical perspective. Professor McClurg identifies and explains logical fallacies employed on both sides of the gun debate, including fallacies of emotions, fallacies of diversion, and fallacies of proof.

Andrew Jay McClurg, Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping, 24 Wake Forest Law Review 173-237 (1989).

“Patient dumping” is the world of medical non-practice: hospitals, usually private hospitals, refusing to treat patients in need of emergency care because of their inability to pay. Instead of receiving treatment, the indigent, uninsured patient is turned away or shuffled across town to the nearest public hospital. The latter practice is euphemistically referred to as an “economic transfer.”

In 1986, Congress gave victims of patient-dumping a weapon with which to fight back: a provision of the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) creating a private right of action to patients who have been refused emergency care. Your Money of Your Life, which has been widely cited by courts as well as legal commentators, was one of the first law review articles seeking to interpret the Act. The article examines numerous sources of interpretation, including the statutory language, the legislative history both before and after enactment, federal regulations proposed to implement portions of the Act, analogies drawn from general tort principles and other remedial statutory schemes, and the policies sought to be furthered by the anti-dumping legislation.

The article begins by reviewing the scope of the patient-dumping problem, the reasons for the problem, and state law remedies available to victimized patients.