Academic

Green on Theft by Omission

By Lawrence Solum

Stuart P. Green (Rutgers Law School-Newark) has posted Theft by Omission (ESSAYS IN CRIMINAL LAW IN HONOUR OF SIR GERALD GORDON, Edinburgh University Press, 2010) on SSRN. Here is the abstract:

Other things being equal, should the law regard a crime committed by means of an omission as any more or less blameworthy than the same crime committed by means of an act? The question has arisen mostly in the context of homicide, where significant disagreement about the moral equivalence of killing and letting die persists. The focus here will be on theft. There are at least four ways of committing theft by omission: failing to return lost property, failing to return misdelivered property, failing to make a required disposition of funds received, and fraudulently failing to disclose information that one is under a legal duty to disclose. Modern Anglo-American law tends to treat each of these kinds of omissive theft as interchangeable with, and subject to the same penalties, as core forms of commissive theft. I argue that this is a mistake. Even if, other things being equal, omissive and commissive theft were equally blameworthy, other things ordinarily are not equal, and the relevant differences - in terms of harms caused, wrongs inflicted, community understandings, and criminalization norms - ordinarily provide a justification for differential treatment.

Full post as published by Legal Theory Blog on June 16, 2009 (boomark / email).