Legal Commentary

That's how I like to describe my latest paper, "Attempt by Omission." It's about nothing!

To clarify, the article is about imposing criminal liability on someone who neither performs any act nor causes any harm. It's not unusual for criminal law to punish action without harm (attempt, or more generally, "inchoate" liability) or harm without action (omission liability), but it might seem odd or even troubling to punish where there is neither action nor harm. This article finds that crimes of "harmless inaction" or "inchoate omission" do exist: many of them, in fact. More controversially (to me, anyway; I'm still a little ambivalent about this), the article asserts that such crimes are at least sometimes normatively justified. To quote the abstract: "However unlikely or dubious the legal math may seem, it turns out that zero action plus zero harm can, does, and should sometimes add up to a crime." The article also offers some thoughts about how the inchoate-omission case study might illuminate broader issues regarding how to craft criminal-law doctrine.

Of course, the topic also relates to "Seinfeld" in that the show's final episode involved a prosecution of the characters under a "Good Samaritan" law, i.e., a law imposing omission liability. Such laws might fall into my inchoate-omission category, though only if they allow prosecution regardless of whether the failure to help actually led to any resulting harm.

I guess "Much Ado About Nothing" would also fit as a title ... but then, that title could work for a lot of law-review articles.