In light of Orin’s post this morning I have four additional observations to add to my post of yesterday.
First, Attorney General Katyal did not question the meaningfulness of the activity-inactivity distinction. Instead, he argued that the statute regulated activity. That is a different claim than Orin has been making. In none of its briefs to date has the government adopted Orin’s approach. Perhaps it should, and one day it will, but to date it has not engaged in the activity of making that particular argument. In my view, it would be a serious tactical mistake to do so; one which it has not made and I do not expect it to.
Second, by Orin’s reckoning, Judge Motz must have not have been a “A” law student. Or more precisely, when she was (allegedly) “baffled” about the activity-inactivity distinction during the opening minutes of the oral argument she was an “A” student, but later when she employed the activity-inactivity distinction repeatedly she had digressed to being a “B” student or worse.
Third, cases involving “vicarious responsibility” are fascinating, which is why years ago I decided to teach the course on Agency. But agency law requires a “principal” to enter into a specifically defined “consensual” relationship with an “agent” before holding the principal legally responsible for the acts of another. This reflects an exceedingly basic principle of private law — lest we could haul into court anyone with an ability to pay and sue them to compensate us for our losses. Any such defendant would be able to demur “why me?” and the complaint will be dismissed unless the plaintiff can make out a good “cause of action” for why this particular individual is vicariously responsible for the injuries for which compensation is being sought. But the act-omission distinction in criminal law and torts is challenging enough without moving our discussion into yet another doctrinal area.
Finally, given all Orin said about complexifying the act-omission distinction to first-year law students, it is a wonder that the law still accepts the distinction rather than repudiates it! Yet it does. Like much of the Socratic method, the law professor’s first year critique of the “act-omission” distinction exploits two conflicting intuitions held by ordinary people, which first-year law students still are when we get our hands on them. The first is the intuitive distinction between performing an action, and not doing anything, coupled with the further intuition that we should be held legally responsible for our voluntary acts and not for simply being alive. The second is the fact that a failure to act can sometimes result in the same consequences or effects as acting does. So if the law is aimed at avoiding these consequences or effects, then we should at least sometimes be held liable for our inaction. In short, the law professor confronts the moral intuitions of his or her students with a consequentialist critique. This conflict can then be heightened in class by pressing the fact that the law does — on relatively rare occasions — impose a “duty to act” on persons who are not acting and thereby hold them responsible for their inaction. But, and this is important, this consequentialist critique does not undermine the meaningfulness of the act-omission distinction itself, but instead it challenges the intuition that legal liability ought to turn on this distinction. Yet the legal distinction between acts and omissions lives on. As I once said when debating Orin, one would quite literally have to be deranged not to recognize the difference between acting and failing to act. While we may drive a very few law students mad, I believe that even most “A” students survive their exposure to first-year law professors with their basic intuitions largely intact. Some of them later go on to become judges.