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 today’s tell-all world, where anyone with internet access can become a “media outlet,” growing numbers of people are finding themselves the victims of former intimate partners who mass disseminate private, highly embarrassing information, including photos and videotapes, about or involving them.

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 virtually no chance of recovery by plaintiffs. The tort sustained severe, possibly mortal wounds in a series of U.S. Supreme Court cases culminating in Florida Star v. B.J.F. (1989). In its current formulation, 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, Dead Sorrow: A Story About Loss and A New Theory of Wrongful Death Damages, 85 Boston University Law Review 1-51 (2005).

This “scholarative”–combining personal narrative and traditional doctrinal scholarship–tells the story of a personal loss as a prelude for arguing for a new theory of wrongful death damages.

When a tortiously caused death occurs, five losses/injuries result: (1) the decedent’s life itself; (2) the trauma and bereavement suffered by the decedent’s survivors, collectively referred to in this article as “grief;” (3) the pecuniary value of financial and service contributions that the decedent could have been expected to make to his or her dependents; (4) the loss of the decedent’s society and companionship, which in some states is considered a type of pecuniary loss under the fiction that society and companionship are a type of “lost service” with ascertainable monetary value (technically placing such damages in category 3) but which in other states is viewed as an intangible or noneconomic loss; and (5) the direct costs associated with the death, such as funeral expenses.

The wrongful death system fails to account for the first two elements. Current law attaches no monetary value to life itself. The second item, grief, traditionally has been the invisible injury from wrongful death. This article proposes a legislative reconceptualization of wrongful death damages that addresses both of the deficiencies described above—for one price. Specifically, it argues that life has independent value apart from what we earn and give to others and that this value should be recognized in the form of “lost life” damages.

Departing from the orthodox view that such damages should be allocated to the decedent’s estate or to the survivors, the article instead suggests that damages for the lost value of life be used for the exclusive purpose of establishing a lasting memorial to the decedent. Such a solution would promote both the economic deterrence and corrective justice models of tort law.

Additionally, the memorial established with the lost life damages would, at no additional cost, provide a proven grief-healing instrument for all persons who mourn the decedent’s passing. Finally, because it is recommended that memorials created with lost life damages be required to serve a utilitarian function, another unique aspect of the proposal is that it would allocate tort damages in ways that benefit society in addition to tort victims, enhancing the net social benefit of the tort system.

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).

In recent years, both major political parties have shied away from discussing gun control and gun rights during the presidential election cycle.

But it wasn’t always been that way. To the contrary, 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, 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 the twenty-eight year period of presidential debating from 1976-2004. The issue formed the subject of specific debate questions in five of the nine presidential debate cycles during that period.

This essay explores how presidential candidates performed in the gun debate during that period on the biggest political stage of them all.

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  pertaining to gun rights and gun control.

Andrew J. McClurg, Book Review: Joyce Lee Malcolm, Guns and Violence: The English Experience, 47 American Journal of Legal History 507 (2004).

Joyce Lee Malcolm’s Guns and Violence: The English Experience offers both an interesting history of guns and gun laws in England and a policy polemic that attempts to establish, through the English experience, that strict gun laws do not reduce violent crime. As explained in this book review, Malcolm’s book succeeds better as history than as advocacy.

Malcolm took on a big challenge in attempting to trace the history of guns and crime in England from medieval times to the present. She pulled it off admirably, constructing a cohesive survey of importance not only to historians, but to anyone interested in firearms policy.

The weakness of the book lies in Malcolm’s attempt to go one big step further and argue–with insufficient data and too many variables to account for over a period of several hundred years–that gun restrictions in England have led to increased crime, rather than, as gun control advocates assert, less crime (or at least, less violent crime).

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 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.

This article discusses each of those approaches, including the potentially insurmountable obstacles they face, and opts for a tort response to invasive consumer data profiling. Specifically, it argues that collecting and selling an extensive consumer data profile without consumer consent should be actionable under the privacy tort known as appropriation. The appropriation tort provides for liability against one who appropriates the identity of another for his own benefit, which is nearly always commercial in nature.

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.

The article 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. It also asserts that, unlike the property-based right of publicity action with which it is often confused, the appropriation tort was created to protect dignitary rather than economic interests.

Andrew J. McClurg, Armed and Dangerous: Tort Liability for the Negligent Storage of Firearms, 32 Connecticut Law Review 1189-1245 (2000).

Overwhelming evidence shows that high percentages of American gun owners negligently store their firearms, leaving them easily accessible to unauthorized, dangerous users. Public health studies show that millions of guns are kept loaded and unlocked. More than 50 percent of all handguns are stored unlocked. Ammunition is stored unlocked in between 30–40 percent of gun-owning households. Millions of children live in homes with loaded, unlocked firearms.

The author has argued in other articles for safe gun storage laws as a way to reduce accidental shootings, adolescent suicides, and intentional third-party shootings tied to stolen guns. This article makes a case that unsafe firearm storage constitutes an unreasonable risk and is negligent conduct under universally accepted principles of tort law.

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 tragedies 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 asserts that legislatively mandated safe firearms storage would also help stem the 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.