Stuart Babcock has posted Cabining Criminal Omission Liability on SSRN. Here is the abstract:
This article aims to elucidate questions, both legal and philosophical, concerning criminal liability for inaction, formally known as omission liability. In particular, this article aims to show that a person’s omission liability for a victimizing outcome does arise, legally, and should arise, normatively, only as a consequence of that person’s prior commissions, wherein those commissions are causes-in-fact of the victimizing outcome. The first half of this article reviews the status of omission liability in criminal law. It aims to reveal the prevalence of this article’s thesis in criminal law precedents. The second half of this article argues that the approach taken by courts is just and preferable to other standards of omission liability. In doing so, it aims to answer both doctrinal and normative challenges.