Is the Proposed Activity/Inactivity Distinction Just the Common Law “Actus Reus” Requirement?

My co-blogger Jonathan Adler is right, in a sense, that efforts to draw a doctrinal distinction based on the requirement of an “act” are not new in American law. But I think that’s precisely the problem with the proposed activity/inactivity distinction in the mandate setting: American law has traditionally struggled with doctrines premised on act requirements, which generally end up being conceptually quite complicated. That doesn’t mean that introducing such a distinction is wrong. But it does mean that proponents of the proposed distinction at least need to articulate what version of the distinction they want to draw if they expect appellate courts to adopt it.

First, some background. Law students first encounter act requirements when they study the “guilty act” requirement of common law criminal liability (in latin, “Actus Reus”). For most law students, this subject arises in the near the beginning of their first semester. Students are told that there is an “act” requirement. But then they are forced to struggle with what the “act” means. Much to students’ surprise, it turns out that the requirement of an “act” can be satisfied by a failure to act — an “omission” — at least in some circumstances. Specifically, the “omission” can lead to liability if there is a “duty,” but when a duty exists is rather complicated. Plus, some actions don’t satisfy the requirement of an “act,” because they must be “voluntary,” with the catch that what counts as a “voluntary” act is actually rather unclear. Consider a person who commits a criminal act while sleepwalking. The person has “acted” in a common sense view, but have they committed an “act” for purposes of the “act” requirement? (Answer: No.) The discussion eventually veers into the philosophical, aided by the reality that no cases exist to answer how the distinction applies to a lot of the obvious hypotheticals. And, for most students, that’s just in the first few weeks of law school.

The important lesson for first-year law students is that distinctions such as “acts” and “omissions” that might seem clear at first blush can actually be very complicated. The proposed line can mean lots of different things, and students have to spend some time working through the possible meanings and grappling with the implications. Students that get the complications and ambiguities get an A. Students who continue to believe that there is a simple distinction — based, you know, on what seems to be an act — do not.

I think Jonathan’s discussion of the common law act requirement highlights some of the difficulties. Jonathan writes:

An obvious example where the law has long recognized a distinction between activity and inactivity is the duty to rescue. Under the common law, simple inactivity — a failure to rescue, by itself — can never be a source of liability. Rather, the duty to rescue only arises when one engages in certain activities — that is, when one takes certain affirmative steps, such as by creating an ultrahazardous situation entering a certain type of relationship with the individual in need of rescue becoming a common carrier, or taking initial steps toward rescue. And only after certain activities are engaged in can there be liability. Whether certain activities are, or should be, the source of a duty breach of which could result in liability has prompted significant debate, but the fact that the common law required activity of some sort before a duty could arise is clear. In other words, under the common law, activity could create the duty but inactivity could not.

The problem with this example, I believe, is that Jonathan is mixing up two different common law concepts: acts/omissions, on one hand, and legal duties, on the other. It’s true that the law does not ordinarily impose liability for failure to rescue. But — at least from a criminal law perspective — that’s because there is no duty to rescue, not because the law does not impose liability for inaction.

I think Jonathan recasts the common law doctrine of duties into a common law doctrine of acts and omissions by treating the creation of a duty as itself an act: He suggests that a person must “take certain affirmative steps” and enter into a relationship that creates a duty. But the common law doesn’t require “certain affirmative steps” for the creation of a legal duty. A legal duty exists in seven different situations: 1) When a statute imposes a duty (such as a statute prohibiting leaving the scene of an accident), 2) When a special relationship exists (such as parents vis a vis their children), 3) When there is a contractual duty (such as a lifeguard who has agreed to watch the beach), 4) When a person voluntarily assumes care, 5) When the person has created the danger, 6) When the person has an affirmative duty to control others (such as an employer who has a duty to stop an employee from committing crimes), and 7) When a landowner invites people on to his property. See Wayne LaFave, Criminal Law 214-19 (3d ed 2000). Some of those ways generally will require the taking of affirmative steps (3, 4, 5, 7), while others generally will not (1, 2, 6). Either way, Jonathan’s hypo is about when a legal duty exists, not about the distinction between acts and omissions.

Further, if the activity/inactivity distinction is simply about the common law voluntary act requirement, as Jonathan suggests, then I would think that the decision not to buy health insurance is an act that satisfies the common law standard. Under the common law standard, the decision not to deviate from a pre-set course of action over which a person has control can lead to liability. A common hypothetical in first-year Criminal Law classes is the driver who is driving down the highway with the cruise control on when he sees a little old lady slowly walking across the street. The driver realizes that if he does nothing, his car will hit and kill the little old lady. However, if he takes the car off cruise control and slows down, or if he comes to a stop, or turns the steering wheel a bit, his car will miss the little old lady and she will live. The driver decides he wants the old lady to die, so he does nothing and she is killed. The driver can’t then avoid criminal liability on the ground that he never acted. In this setting, the law treats the failure to act as an “act” for purposes of the actus reus requirement. The decision not to act and stop the harmful event that the person has the capability to stop satisfies the act requirement. See, e.g., Moreland v. State, 139 S.E. 77 (Ga. 1927) (owner of chauffeur-driven car is guilty of homicide when chauffeur drives negligently and gets into an accident that causes death, even though owner was not driving and was only passively sitting in the back of the car, as the driver failed to “curb the operator of the car”).

None of this means that there are no ways to draw a distinction between activity and inactivity. Obviously there are. The problem is that there are lots of different ways to draw the distinction. And it’s genuinely hard to know what the distinction means unless its advocates tell us which line they are proposing.

From a purely strategic perspective, I suppose I can understand why proponents of the distinction have tried to avoid explaining it. If you have to explain it, you quickly expose the same conceptual problems that first-year law students encounter when they grapple with the common law “act” requirement. You either end up saying that the distinction is a formal requirement that is easily circumvented (for example, the act requires physical motion), or else that it is some fairly minimal requirement (as with the common law act requirement in criminal law), or else that it is sort of substantive requirement that relies on some fairly complicated philosophical concepts that judges aren’t likely to be very eager to adopt as constitutional law (for example, the act must be such that it substantially interferes with the power of the state to impose an overly burdensome regulatory regime). None of these options are very appealing for proponents of the distinction. If you want to make the distinction seem intuitive — and thus something judges are more likely to adopt — it’s preferable to rely on our vague sense that the line must be easy and to avoid acknowledging the difficult choices.

If the recent oral arguments are a sign, avoidance may work with some judges. That’s especially true on the district court. But as the mandate moves up the ladder to the appellate courts, I think judges see the difficulty pretty easily. They naturally want some explanation of what version of the distinction proponents have in mind. Given that, I think it would be sensible for mandate proponents to be a lot more specific as to what version of the distinction they want the courts to adopt.

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