Rowe and Silver on the Action-Inaction Distinction

Jean Elting Rowe and Theodore Silver, Touro College Jacob D. Fuchsberg Law Center, have posted The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance from the Fifteenth Through the Twentieth Centuries, which appeared in the Duquesne Law Review 807 33 (1995): 807-55.  Here is the abstract:    

The article discusses how negligence doctrine has long distinguished misfeasance (a “misdoing”) from nonfeasance (a “not doing”), purporting to provide that the former occasions liability and the latter does not. After a brief explanation on the origins of this distinction and the chaos that has ensued because of it, the article lays the basis for subsequent discussion by (a) examining the manner in which English courts early defined and distinguished misfeasance and nonfeasance, (b) identifying the single case from which there emerged the erroneous jurisprudence that produced the law's confused perspective on the terms, and (c) probing the conceptual tensions to which the terms then gave rise from the fifteenth through the nineteenth centuries. Building on Part I, Part II describes the manner in which “nonfeasance” and its supposed contradistinction to “misfeasance” now muddles the law of negligence. Through historical inquiry it demonstrates that the confusion reflects, in truth, the law's failure ever to delimit the notion of duty as it, in turn, informs the realm of negligence. Part III sets forth a workable conceptual scheme through which courts might determine that with respect to negligence, a given defendant does or does not owe a duty to a given plaintiff. It thus unburdens the common law of the befuddlement with which it has so long lived in this regard and, indeed, frees it to delete “nonfeasance” and “misfeasance” from its lexicon.