Lois Forer retired in 1987 from her position as a senior judge on the Pennsylvania Court of Common Pleas for the First Judicial District. She was educated at Northwestern University (A.B., 1935; J.D., 1938), where she was an editor of the Law Review. Her previous positions in state government include eight years as Pennsylvania deputy attorney general. She taught at the University of Pennsylvania and New York University. Among her books are The Death of the Law ( 1975), Criminals and Victims: A Trial Judge Reflects on Crime and Punishment ( 1980), Money and Justice: Who Owns the Courts? ( 1984), and Unequal Protection: Women, Children, and the Elderly in Court ( 1991). The following 1988 piece, "When Should Judges Be Whistle Blowers?" appeared in 27 Judge's Journal 3.
Commenting on the trial of Klaus Barbie, foreign affairs expert Flora Lewis used the telling phrase, "The Guilt of Doing Nothing".1 To those trained in Anglo-American common law this is a novel concept. Guilt connotes crime, and crime requires an act with evil intent. Enormous amounts of jurisprudential time and thought have been devoted to the arcane question of whether the insane, the mentally and emotionally disturbed, and the very young and the very old can have such guilty intent or "mens rea." Even that most nebulous and protean of crimes, conspiracy, requires an agreement, tacit or express. Guilt cannot be predicated on inaction in the absence of a clear statutory mandate requiring action.
Civil liability is also based on wrongful or negligent actions, not mere inaction. For centuries it was, and, in most jurisdictions still is, the law that absent a positive duty owed to a particular individual, there is no liability for inaction. Tort law exemplifies the notion that under common law there is no guilt or legal responsibility for doing nothing.2
When I was in law school we began the study of torts with this proposition: A person is sitting on the end of a dock; a life preserver is at hand; he sees a drowning man in the water. The law (as we were taught it) imposes no duty on