Andrew J. McClurg, Child Access Prevention Laws: A Common Sense Approach to Gun Control, 18 St. Louis University Public Law Review 47-78 (1999).

Fifteen states have Child Access Prevention or “CAP” laws that make it a crime for a gun owner to store a loaded firearm in a manner in which he knows or reasonably should know a child may gain access to the weapon.

This article asserts that CAP laws are a reasonable and feasible way to reduce a variety of gun-related harms. CAP laws do not constitute “gun confiscation” or, as a newspaper editorial asserted, “a cynical attempt to cancel a constitutionally guaranteed right.”

Basically, a CAP law says to gun owners: You own a dangerous instrumentality that can be used to instantly end a human life. You must store it in a reasonably safe way. If you fail to do so and a child or other unauthorized user gains possession of it and uses it to inflict harm, you will be held responsible.

Although CAP laws are touted primarily as a means of reducing accidental shootings by children, they also can be expected to prevent some intentional third-party shootings and suicides. When guns are securely stored, they cannot be misused by unauthorized users.

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).

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, one that matches rookie officers with cadets still in training at the police academy as a way to perpetuate honesty as an intrinsic police 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. Self-concept theory rests on the assumption that humans strive to maintain consistency between their own high concept of themselves, including their moral self-concept, and their behavior.

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 articulates a framework for police integrity programs based on the sponsorship model used effectively in 12-step recovery programs such as Alcoholics Anonymous. The sponsorship model works because it—perhaps unwittingly–capitalizes on the power of cognitive dissonance theory.

Andrew J. McClurg, Poetry in Commotion: Katko v. Briney and the Bards of First-Year Torts, 74 Oregon Law Review 823-48 (1995).

A classroom incident involving Katko v. Briney, the famous Iowa “spring-gun case,” started the author thinking about the suffocating environment legal education imposes on original expression.

Law school offers virtually no outlets for creativity, which is curious given the substantial reservoir of brain power collected in law schools and the fact that good lawyers must be creative thinkers. Students generally have only two avenues for expressing themselves within the institutional framework: their classroom comments and their written products.

Many law professors like to believe they foster a dynamic, vibrant classroom learning environment, but it is easy to confuse a successful bag of teaching tricks with vibrancy. True vibrancy requires risk-taking, spontaneity, inconsistency in presentation, and a relaxed freedom to speak openly—but these ingredients are missing from most law school classes.

The author’s one-percent solution (a mere footnote to a brainstorm) was to require his Torts students to compose poetry instead of case briefs about Katko, with surprising, satisfying results. The students’ poems make up much of this essay.

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

The author is credited by legal scholars for helping create the tort theory of “negligent marketing” claims against handgun manufacturers. In this article, arguing that strict liability was a failed theory, he asserts that victims of gun violence should refocus their sights on the more prosaic liability theory of common law negligence. In his words, it is time to “go back to basics.”

The article advances 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 Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 North Carolina Law Review 989-1088 (1995).

“Public privacy” sounds like an oxymoron, but this article asserts a tort theory to enforce just such a right under limited circumstances. Traditionally, courts have refused to recognize a right to privacy in a public place. The author argues that this lack of protection needs to be revisited in a world where good taste and decency have vanished from journalism/entertainment and video cameras and other electronic privacy-invading devices have proliferated.

Analyzing the three foundations of privacy—secrecy, solitude, and anonymity—the author explains how and why they need, and are worthy of, legal protection even in some public contexts.

Specifically, he proposes a redefinition of the privacy tort known as “intrusion” (as incorporated in the Restatement (Second) of Torts) that would allow recovery for highly offensive instances of intrusions in public places. He enlists a multi-factor test to assess the offensiveness of intrusive conduct, a standard that balances privacy interests against the countervailing interests of free social interaction and speech.

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.

Unfortunately, effective rhetoric is often fallacious and logically defective. A fallacy is a type of incorrect argument, and the study of fallacies is a sub-species of logic. A fallacious argument is one that appears to be correct and which may be very persuasive, but which proves on closer examination to be logically invalid.

In this article, the author asserts that fallacious argument dominates the gun control and gun rights debate on both sides. The author identifies and explains many specific examples of fallacious reasoning and argument in the gun debate, including fallacies of emotion, fallacies of diversion, and fallacies of proof.

Andrew Jay McClurg, It’s a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 Notre Dame Law Review 57-116 (1990).

What is a human life worth? The philosophical answer, echoed in literature throughout the ages, is that life is priceless. The answer under the American tort system is “zero.”

“Patient dumping” is medical non-practice. Patient dumping involves hospital refusing to provide emergency care to patients 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 or Your Life, widely cited by courts as well as legal commentators, was the first law review article seeking to interpret the Act. The article examines numerous sources of interpretation, including the statutory language, 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 and reasons for the patient-dumping problem, and the inadequacy of available state law remedies to victimized patients.

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.

Andrew Jay McClurg, Logical Fallacies and the Supreme Court: A Critical Examination of Justice Rehnquist’s Decisions in Criminal Procedure Cases, 59 University of Colorado Law Review 741-844 (1988).

Using former U.S. Supreme Court Chief Justice William H. Rehnquist’s opinions in criminal procedures cases as a contextual showcase, the author explores the nature and extent to which even U.S. Supreme Court justices, members of the world’s most powerful tribunal, resort to regularly employing rhetorical tricks and otherwise logically fallacious reasoning in their opinion-writing.

A logical fallacy is a type of incorrect argument, and the study of fallacies is a sub-species of logic. A fallacious argument is one that appears to be correct and which may be very persuasive, but which proves on closer examination to be logically invalid. Examples range from the familiar (e.g., begging the question, straw man arguments) to the esoteric (e.g., ignoratio elenchi, undistributed middle term).

This article, which has been assigned as required reading at national judicial conferences, examines more than twenty categories of both formal and informal logical fallacies and applies them to Justice Rehnquist’s criminal procedure opinions as concrete examples of how “crooked thinking” permeates persuasive writing even at its highest level of sophistication.