This Article examines the scope of criminal laws that impose liability for failures to prevent a proscribed harm. Traditionally, courts have only imposed criminal sanctions upon individuals for their failure to act where the individual has a "legal duty" to prevent a specific harm. Professor Leavens rejects this conventional approach as being an artificial and ultimately unfair way to set the limits of omission liability. He asserts that in order for the courts validly to utilize any concept -- including "legal duty"-- to define the scope of omission liability, that concept must fairly reflect the underlying criminal prohibition; namely, that one may not cause particular harms. He argues that, at least in conventional omission analysis, "legal duty" is no more than an imperfect proxy for the law's requirement that there be an appropriate causal relationship between the omission and the harm before liability is imposed. Professor Leavens concludes by suggesting an alternative approach to imposing liability for omissions. He recommends eliminating the distinction between acts and omissions, claiming that it unnecessarily limits the courts' ability fully to evaluate the chain of causality between an actor's conduct and the prohibited harm. Instead, he suggests that courts consider the full course of the actor's conduct in light of the commonsense purposes of the criminal prohibition against causing certain harms. This approach, the Author states, will ensure that individuals have fair warning of the conduct expected of them and will avoid inconsistent applications of criminal liability.
76 Cal. L. Rev. 547 (1988)