Wednesday, June 15, 2011
Frank McClellan (Temple) has posted several of his older pieces to SSRN. First, The Dark Side of Tort Reform: Searching for Racial Justice. The abstract provides:
While few who have urged tort reform have recognized racism as one of the principal barriers to social justice, this article claims it is essential to discuss race discrimination in order to have true tort reform and to address the problems inherent in the tort doctrine. The article emphasizes the race issue impacts every aspect of a tort claim and adversely affects lawyers, clients, and the public view on justice. Pretending race has nothing to do with tort law or utilizing a colorblind approach only reinforces inequality within the system. Stories of people of color, in addition to what empirical studies of judgments and verdicts are available, shed some light on the serious problems within the tort system with regards to racial justice albeit only scratching the surface. The article concludes by suggesting some tort reform measures that could ease the pain of participants in the tort system.
Second, Medical Malpractice Law, Morality, and the Culture Wars: A Critical Assessment of the Tort Reform Movement. The abstract provides:
Tort reform emerged as a major issue in the culture wars during the 2004 presidential election and continues to be a heavily debated issue today. While a community’s sense of social justice should dictate the values used to assess and shape tort law, different communities have widely varying perspectives of social justice. This article reflects on the potential impact of the culture wars on medical malpractice law and litigation and emphasizes the most critical criteria for assessing medical malpractice reform is how well the legal system protects, affirms, and restores the human dignity of both patients and health care providers. The article reasons there is not a one-size fits all medical malpractice tort system, and in order to prioritize human dignity, it is essential to take into account the cultural, social, and religious diversity within America and shift the focus from economic to dignitary priorities. Finally, the article discusses the profound health care consequences of illiteracy and low health literacy.