Comments on: Criminal Law, Empirics, and the Duty to Rescue

By: Max Minzner

Max Minzner — Fri, 11 Jul 2008 07:49:07 +0000

Orin,

Thanks for the thoughts. I certainly can’t argue with the choice to exclude the duty to rescue. I’ve been tempted to do that as well.

By: Orin Kerr

Orin Kerr — Fri, 11 Jul 2008 06:56:01 +0000

Max,

Two thoughts.

First, narcotics does make an appearance in most criminal law classes, right? In my experience, a not-insignificant chunk of cases in most crim books are narcotics cases, even if the elements of the crime are not specifically analyzed (because the elements are usually very easy). And criminal procedure courses are largely about narcotics: in particular, studying Fourth Amendment law is largely about studying narcotics investigations.

Second, I respond to the relative insignificance of duty to rescue cases by not teaching the subject (or at least not discussing it for more than about 5 minutes). Students generally get this topic in torts, and it seems so uncommon in criminal law that there isn’t much to dwell on. That’s my take, anyway.

By: Max Minzner

Max Minzner — Fri, 11 Jul 2008 04:42:28 +0000

Orin, I don’t have data on the frequency of duty to rescue cases, but my instinct is the same as yours. Prosecutions are probably rare. That’s the reason I think it is worth trying to bring some data to bear on the issue. Without it, I worry students may think that prosecutions for non-rescue (and non-rescue itself) are common in the real world.

Orin and Kevin, I agree that drug prosecutions do not fit well in the basic criminal law course because the issues that arise in practice are so deeply factual. I fear that this is a problem with the class, though. It troubles me that the dominant crime in the real world makes little or no appearance in criminal law. This is similar to the common critique of contracts. Drafting is a large portion of the practice of contract law, but the contracts course emphasizes litigation.

By: Jeff

Jeff — Thu, 10 Jul 2008 22:08:30 +0000

Re last sentence of your last paragraph, Mr Minzer – - we in UK aren’t pampered by the existence of such procedural mollycoddling.

Hats off to your written constitution; from what we see from here you all do appreciate what you’ve got, as you should.

By: Kevin

Kevin — Thu, 10 Jul 2008 20:10:45 +0000

Also, your duty to rescue remarks are spot-on. We covered a bit of duty to rescue, and if I recall our casebook had a small comment from one of the Conspirators (I think it was Eugene, don’t hold me to that) regarding duty to rescue. Going over an actual study would be invaluable – and not just for duty to rescue, but interesting studies across the spectrum of crimes covered.

By: Kevin

Kevin — Thu, 10 Jul 2008 20:06:56 +0000

I just finished 1L year, take my comment with a grain of salt.

I thought that the usual Crim Law course was just fine, even though I am very interested in drug crime and policy. Aren’t the more interesting issues of drug crime (sentencing, incarceration, etc.) more properly dealt with in other courses? I can’t imagine a good place where drug crime would actually fit into learning the basics of conspiracy, attempt, or crim statute interpretation.

By: Orin Kerr

Orin Kerr — Thu, 10 Jul 2008 17:30:33 +0000

Do duty to rescue issues come up a lot in criminal practice? My sense is that this is the kind of issue that is an interesting puzzle, but not particularly closely related to practice. Also, what are the interesting substantive crim legal issues raised by narcotics prosecutions? I cover the meaning of possession in the “guilty act” materials pretty early on in the semester, but what else is there?

By: Stephen Aslett

Stephen Aslett — Wed, 09 Jul 2008 18:02:40 +0000

Have you taken a look at Marin Scordato’s “Understanding the Absence of a Duty to Reasonably Rescue in American Tort Law,” 82 Tul. L. Rev. 1447 (2008)? Despite its title, Scordato does discuss the relative merits of a criminal law duty to rescue.

Available at SSRN here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1139243