Abby, this draft is a substantial structural improvement over the prior draft concerning only the duty to rescue. It's clear about the idea it is pursuing, the proportion of the development to be given to each illustration, and how they should build the reader's understanding of your idea. I think the nature/nurture opening is not very productive for the idea overall, though it has some purpose in relation to the use of your sister's case as an illustration. But moving it might be a good editorial idea, if it needs to remain in at all.

Now we need to deal with some technical legal issues in your illustrations.

1) Retrospective imposition of a duty in cases which result in criminal liability surely raises due process problems, doesn't it? The court in Pope, or any court similarly situated, cannot hold the defendant criminally liable for a failure to intervene or call the police unless that duty has previously existed. This is the same general problem that the Supreme Court dealt with in 1816 in US v. Hudson and Goodman, when it held there are no federal common law criminal offenses.

2) Your discussion of Goodyear v. Brown is misleading. The Browns are attempting to sue in North Carolina a foreign subsidiary of Goodyear, which for these purposes is simply a company in Luxembourg, about an accident occurring in France that was possibly caused by a tire, which was manufactured, sold and used outside the US. Goodyear US is a separate party, and it doesn't contest jurisdiction, so reference to its resources is irrelevant. The North Carolina court says there are sufficient contacts with North Carolina because some of the tires manufactured by the Luxembourg company in Europe have turned up in North Carolina. That's the flexible, standards-based approach to 14th amendment personal-jurisdiction issues created by International Shoe. That's not under dispute either. Everyone agrees that North Carolina would have jurisdiction to adjudicate any dispute arising from the sale or performance of those tires. That would be jurisdiction arising from the contacts with the State. The North Carolina Court had to find that those tires sold into North Carolina were sufficient contacts not for specific jurisdiction over suits related to the contacts, but for general jurisdiction over all claims.

If the North Carolina court is correct on that conclusion, then anyone in the world can sue Goodyear SA Luxembourg, on any claims they may have about anything, in the North Carolina courts, without offending the Due Process Clause, because some of Goodyear SA Luxembourg's tires wound up in North Carolina. That would be an immense decision, with amazing global consequences, and it's got to be wrong. In technical terms, it's wrong because those tires that wound up in North Carolina despite being designed for the European, Turkish or Asian market, don't indicate sustained, "continuous and systematic" contacts that would reasonably cause the company to expect to be suable there.

From the point of view of the Browns, this may be substantive injustice. But to say that it's the result of too rule-like and too little standards-based reasoning doesn't make much sense.

3) The circumstances of a life such as Caroline's will affect how any prosecutor weighs the public interest in prosecuting her. That's a standards-based process. It would also affect how any sentencing authority free to make sentencing decisions would consider the consequences of a conviction. If your point is that mandatory minimums reduce the inherently standards-based problem of sentencing to arithmetic that causes constant injustice, you are strongly supported by judges throughout the US, who privately—and sometimes very publicly—make the same point. A very prosecution-minded but thoughtful federal judge of high integrity in our neighborhood, Judge John Gleeson of the EDNY, just recently sounded the alarm again.

But if standards-based flexible reasoning is appropriate in both charging and sentencing decisions, we come up once again against the question, is it equally appropriate in the decision on criminal liability? Strong reasons, of fairness to defendants above all, motivate us to make the criminal law as rule-focused as possible. If we are acting within the law's literal scope, we can count on the basic principle of fair warning to prevent the state of mind in which we've acted from dragging us within the scope of liability. Whether and what to charge is inherently a discretionary matter, and circumstances will always count in the prosecutor's decision, for many valid reasons. So with the post-conviction decision how to deal with the offender. But should motive determine liability, beyond the requirement of knowledge or intention in the offense? If so, why?