Frank Mcclellan - Academia.edu (original) (raw)
Papers by Frank Mcclellan
This article contends a declaration by Congress that access to health care is a human right remai... more This article contends a declaration by Congress that access to health care is a human right remains an important first step towards promoting health equity. Morally speaking, existing health care policies challenge the notion that each human being is entitled to respect and dignity independent of the amount of his or her wealth. Alarming evidence reveals how particular groups, in terms of race, ethnicity, class, and gender, carry disproportionate burdens of poor health and disproportionate barriers to gaining health insurance coverage. The recent debate over the passage of the Patient Protection and Affordable Care Act ignored the issue of race because of the potential divisive effects that candid discussions about race pose to the political process in America. However, a colorblind approach to health care reform severely limits the development of effective strategies aimed at promoting health equity. Acknowledgment of the role of race and racism in producing health disparities, tog...
While few who have urged tort reform have recognized racism as one of the principal barriers to s... more 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.
The research reports, 1997
Special contributions of several people deserve recognition. Lawrence Salazar provided bits of da... more Special contributions of several people deserve recognition. Lawrence Salazar provided bits of data, insights, and introductions to key informants that were invaluable. Gail James patiently and competently typed and retyped numerous drafts of the manuscript. Producers, processors, border inspection officials, and custom harvest operators took time from their busy schedules to provide the data and insights on which the study is based. To all these people we owe a debt of gratitude. Deficiencies in the work are the sole responsibility of the authors. Chile has long been an important element in New Mexico culture and cuisine. With the increasing popularity of Mexican food in recent decades, nationwide demand for chile has increased markedly. While chile is widely grown in northern New Mexico gardens and small plots, commercial production is concentrated in the southern part of the state. Since chile harvest is labor intensive, proximity to the large labor pool in El Paso/ Juarez has be...
This article examines whether judges can realistically or effectively determine whether their rac... more This article examines whether judges can realistically or effectively determine whether their racial biases preclude them from fairly presiding over a particular case and argues a motion for recusal is too straightforward of a mechanism to effectively address the complicated, elusive and often unrecognized issue of racial bias on the part of a judge. This article maintains a motion for recusal based on racial bias should almost never be raised except for the most extreme cases where the conduct and words of the offending judge is unmistakably and explicitly biased. Bearing in mind Chief Justice Nix’s opinions on judicial integrity and judicial disqualification, first, the article explores the issue of recusal from the perspective of the litigant and his or her attorney, then moves to discuss the complex issue of recusal motions based on racial bias on the part of the judges and attorneys, and lastly the article argues that lawyers who make baseless charges of racial bias should be s...
Merck’s strategy in the Vioxx cases exposes an alarming deficiency in the legal system’s ability ... more Merck’s strategy in the Vioxx cases exposes an alarming deficiency in the legal system’s ability to achieve the fundamental goals of tort law in prescription drug cases. Utilizing a “try every case” approach, Merck’s strategy revealed significant challenges in the achievement of deterrence, corrective justice, and social justice in the tort system where large numbers of consumers suffer harmful reactions to the same defective drug. This article contends the Vioxx litigation most likely reveals the present way of providing legal services to mass tort victims is not adequate to provide compensation to those individual victims who justly deserve corrective justice. Instead, policy makers should adopt new judicial tools and remedies to discourage parties and lawyers from minimizing the importance of individual justice.
THE BAIL SYSTEM as it now generally exists is unsatisfactory from either the public's or the defe... more THE BAIL SYSTEM as it now generally exists is unsatisfactory from either the public's or the defendant's point of view. Its very nature requires the practically impossible task of translating risk of flight into dollars and cents and even its basic premise-that risk of financial loss is necessary to prevent defendants from fleeing prosecution-is itself of doubtful validity. The requirement that virtually every defendant must post bail causes discrimination against defendants who are poor and imposes personal hardship on them, their families and on the public which must bear the cost of their detention and frequently support their dependents on welfare. Moreover, bail is generally set in such a routinely haphazard fashion that what should be an informed, individualized decision is in fact a largely mechanical one in which the name of the charge, rather than all the facts about the defendant, dictates the amount of bail. ABA PRE-TRIAL RELEASE STANDARDS'
The Fourth Edition of this unique casebook has been dramatically revised. This new edition presen... more The Fourth Edition of this unique casebook has been dramatically revised. This new edition presents the important cases, statutes, empirical data, and competing tort theories in a problems-oriented format that is designed to help students acquire a sophisticated understanding of tort law through active learning. As before, the text includes a large number of problems Now, however, the Problems, updated
Preface Acknowledgments Part I: Legal, Medical, and Ethical Standards 1. Threshold Considerations... more Preface Acknowledgments Part I: Legal, Medical, and Ethical Standards 1. Threshold Considerations: When Doctors and Patients Collide 2. The Lawyer's Duty of Care 3. The Common Law of Medical Malpractice 4. Discovering and Proving the Standard of Care in a World of Specialization 5. Economics, Ethics, and the Standard of Care: Emerging Issues 6. Tort Reform: Legislation, Courts, and State Constitutions Part II: Assessing and Proving Damages 7. Assessing and Proving Compensatory Damages 8. Punitive Damages: Goals and Standards Part III: Gathering Evidence and Developing Strategies 9. Obtaining and Reviewing Medical Records 10. Choosing and Using an Effective Expert Witness 11. Special Problems Related to Therapeutic Drug-Induced Injuries 12. Multiple Parties: Issues, Concerns, and Strategies 13. Preparing for Trial: Integrating Law and Medicine Appendix Notes Suggested Readings in Case Law General Index Index of Cases
... Cassie Stankunas and Shyam Nair came to my rescue on the computer. Jacquelin Latty provided d... more ... Cassie Stankunas and Shyam Nair came to my rescue on the computer. Jacquelin Latty provided diligent and reliable research and citation checking. Thanks also go to my production and copy editors, Joan Vidal and Jane Barry. ...
JUDICIAL IMPARTIALITY & RECUSAL: REFLECTIONS ON THE VEXING ISSUE OF RACIAL BIAS Frank M. McCl... more JUDICIAL IMPARTIALITY & RECUSAL: REFLECTIONS ON THE VEXING ISSUE OF RACIAL BIAS Frank M. McClellan* I. INTRODUCTION: JUDICIAL IMPARTIALITY This Article is dedicated to Chief Justice Robert NC Nix, who devoted his life as a jurist to working to maintain ...
Medicaid as enabling states to provide medical assistance to children of low-income families and ... more Medicaid as enabling states to provide medical assistance to children of low-income families and disabled persons without means for attaining adequate care).
Villanova law review, 1999
Journal of Legal Medicine, 1982
In conclusion, I note sadly that the medical profession, through its national association, its ma... more In conclusion, I note sadly that the medical profession, through its national association, its many individual societies, and its journals, has on the whole not reacted to this [Tuskegee Syphilis] study except by ignoring it. One lengthy editorial appeared in the October 1972 ...
Journal of Legal Medicine, 2006
php3?ReportID=233 (finding, when pitted against the war in Iraq and terrorism, voters considered ... more php3?ReportID=233 (finding, when pitted against the war in Iraq and terrorism, voters considered moral values a more important voting criterion).
The Fourth Edition of this unique casebook has been dramatically revised. This new edition presen... more The Fourth Edition of this unique casebook has been dramatically revised. This new edition presents the important cases, statutes, empirical data, and competing tort theories in a problems-oriented format that is designed to help students acquire a sophisticated understanding of tort law through active learning. As before, the text includes a large number of problems Now, however, the Problems, updated
This article contends a declaration by Congress that access to health care is a human right remai... more This article contends a declaration by Congress that access to health care is a human right remains an important first step towards promoting health equity. Morally speaking, existing health care policies challenge the notion that each human being is entitled to respect and dignity independent of the amount of his or her wealth. Alarming evidence reveals how particular groups, in terms of race, ethnicity, class, and gender, carry disproportionate burdens of poor health and disproportionate barriers to gaining health insurance coverage. The recent debate over the passage of the Patient Protection and Affordable Care Act ignored the issue of race because of the potential divisive effects that candid discussions about race pose to the political process in America. However, a colorblind approach to health care reform severely limits the development of effective strategies aimed at promoting health equity. Acknowledgment of the role of race and racism in producing health disparities, tog...
While few who have urged tort reform have recognized racism as one of the principal barriers to s... more 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.
The research reports, 1997
Special contributions of several people deserve recognition. Lawrence Salazar provided bits of da... more Special contributions of several people deserve recognition. Lawrence Salazar provided bits of data, insights, and introductions to key informants that were invaluable. Gail James patiently and competently typed and retyped numerous drafts of the manuscript. Producers, processors, border inspection officials, and custom harvest operators took time from their busy schedules to provide the data and insights on which the study is based. To all these people we owe a debt of gratitude. Deficiencies in the work are the sole responsibility of the authors. Chile has long been an important element in New Mexico culture and cuisine. With the increasing popularity of Mexican food in recent decades, nationwide demand for chile has increased markedly. While chile is widely grown in northern New Mexico gardens and small plots, commercial production is concentrated in the southern part of the state. Since chile harvest is labor intensive, proximity to the large labor pool in El Paso/ Juarez has be...
This article examines whether judges can realistically or effectively determine whether their rac... more This article examines whether judges can realistically or effectively determine whether their racial biases preclude them from fairly presiding over a particular case and argues a motion for recusal is too straightforward of a mechanism to effectively address the complicated, elusive and often unrecognized issue of racial bias on the part of a judge. This article maintains a motion for recusal based on racial bias should almost never be raised except for the most extreme cases where the conduct and words of the offending judge is unmistakably and explicitly biased. Bearing in mind Chief Justice Nix’s opinions on judicial integrity and judicial disqualification, first, the article explores the issue of recusal from the perspective of the litigant and his or her attorney, then moves to discuss the complex issue of recusal motions based on racial bias on the part of the judges and attorneys, and lastly the article argues that lawyers who make baseless charges of racial bias should be s...
Merck’s strategy in the Vioxx cases exposes an alarming deficiency in the legal system’s ability ... more Merck’s strategy in the Vioxx cases exposes an alarming deficiency in the legal system’s ability to achieve the fundamental goals of tort law in prescription drug cases. Utilizing a “try every case” approach, Merck’s strategy revealed significant challenges in the achievement of deterrence, corrective justice, and social justice in the tort system where large numbers of consumers suffer harmful reactions to the same defective drug. This article contends the Vioxx litigation most likely reveals the present way of providing legal services to mass tort victims is not adequate to provide compensation to those individual victims who justly deserve corrective justice. Instead, policy makers should adopt new judicial tools and remedies to discourage parties and lawyers from minimizing the importance of individual justice.
THE BAIL SYSTEM as it now generally exists is unsatisfactory from either the public's or the defe... more THE BAIL SYSTEM as it now generally exists is unsatisfactory from either the public's or the defendant's point of view. Its very nature requires the practically impossible task of translating risk of flight into dollars and cents and even its basic premise-that risk of financial loss is necessary to prevent defendants from fleeing prosecution-is itself of doubtful validity. The requirement that virtually every defendant must post bail causes discrimination against defendants who are poor and imposes personal hardship on them, their families and on the public which must bear the cost of their detention and frequently support their dependents on welfare. Moreover, bail is generally set in such a routinely haphazard fashion that what should be an informed, individualized decision is in fact a largely mechanical one in which the name of the charge, rather than all the facts about the defendant, dictates the amount of bail. ABA PRE-TRIAL RELEASE STANDARDS'
The Fourth Edition of this unique casebook has been dramatically revised. This new edition presen... more The Fourth Edition of this unique casebook has been dramatically revised. This new edition presents the important cases, statutes, empirical data, and competing tort theories in a problems-oriented format that is designed to help students acquire a sophisticated understanding of tort law through active learning. As before, the text includes a large number of problems Now, however, the Problems, updated
Preface Acknowledgments Part I: Legal, Medical, and Ethical Standards 1. Threshold Considerations... more Preface Acknowledgments Part I: Legal, Medical, and Ethical Standards 1. Threshold Considerations: When Doctors and Patients Collide 2. The Lawyer's Duty of Care 3. The Common Law of Medical Malpractice 4. Discovering and Proving the Standard of Care in a World of Specialization 5. Economics, Ethics, and the Standard of Care: Emerging Issues 6. Tort Reform: Legislation, Courts, and State Constitutions Part II: Assessing and Proving Damages 7. Assessing and Proving Compensatory Damages 8. Punitive Damages: Goals and Standards Part III: Gathering Evidence and Developing Strategies 9. Obtaining and Reviewing Medical Records 10. Choosing and Using an Effective Expert Witness 11. Special Problems Related to Therapeutic Drug-Induced Injuries 12. Multiple Parties: Issues, Concerns, and Strategies 13. Preparing for Trial: Integrating Law and Medicine Appendix Notes Suggested Readings in Case Law General Index Index of Cases
... Cassie Stankunas and Shyam Nair came to my rescue on the computer. Jacquelin Latty provided d... more ... Cassie Stankunas and Shyam Nair came to my rescue on the computer. Jacquelin Latty provided diligent and reliable research and citation checking. Thanks also go to my production and copy editors, Joan Vidal and Jane Barry. ...
JUDICIAL IMPARTIALITY & RECUSAL: REFLECTIONS ON THE VEXING ISSUE OF RACIAL BIAS Frank M. McCl... more JUDICIAL IMPARTIALITY & RECUSAL: REFLECTIONS ON THE VEXING ISSUE OF RACIAL BIAS Frank M. McClellan* I. INTRODUCTION: JUDICIAL IMPARTIALITY This Article is dedicated to Chief Justice Robert NC Nix, who devoted his life as a jurist to working to maintain ...
Medicaid as enabling states to provide medical assistance to children of low-income families and ... more Medicaid as enabling states to provide medical assistance to children of low-income families and disabled persons without means for attaining adequate care).
Villanova law review, 1999
Journal of Legal Medicine, 1982
In conclusion, I note sadly that the medical profession, through its national association, its ma... more In conclusion, I note sadly that the medical profession, through its national association, its many individual societies, and its journals, has on the whole not reacted to this [Tuskegee Syphilis] study except by ignoring it. One lengthy editorial appeared in the October 1972 ...
Journal of Legal Medicine, 2006
php3?ReportID=233 (finding, when pitted against the war in Iraq and terrorism, voters considered ... more php3?ReportID=233 (finding, when pitted against the war in Iraq and terrorism, voters considered moral values a more important voting criterion).
The Fourth Edition of this unique casebook has been dramatically revised. This new edition presen... more The Fourth Edition of this unique casebook has been dramatically revised. This new edition presents the important cases, statutes, empirical data, and competing tort theories in a problems-oriented format that is designed to help students acquire a sophisticated understanding of tort law through active learning. As before, the text includes a large number of problems Now, however, the Problems, updated