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I876 HARVARD LAW REVIEW Vol.112:1834 THE CASE OF THE SPELUNCEAN EXPLORERS: REVISITED KOZINSKI,J.' [IIn the days when the judges ruled,a great famine came upon the land..·· Ruth I:I The statute under which defendants were convicted could not be clearer.It provides that "[w]hoever shall willfully take the life of an- other shall be punished by death."N.C.S.A.(N.s.)$I2-A.These thirteen simple English words are not unclear or ambiguous;they leave no room for interpretation;they allow for no exercise of judg- ment.(It would be different,of course,if the statute contained such inherently ambiguous terms as“is,”“alone,”or“have sex'”一which might mean anything to anybody-but fortunately it doesn't.)Statu- tory construction in this case is more accurately described as statutory reading.In these circumstances,a conscientious judge has no choice but to apply the law as the legislature wrote it. As the jury found,Roger Whetmore did not die of illness,starva- tion,or accident;rather,he was killed by the defendants.And the killing was not the result of accident or negligence;it was willful homicide.Indeed,defendants thought long and hard before they acted,even going to the trouble of consulting physicians and other out- side advisors.Under the law of Newgarth,which we have sworn to apply,we must affirm the conviction. Defendants argue this result is unjust and ask us to make an excep- tion because of the difficult and unusual circumstances in which they found themselves.They claim it is perverse,possibly hypocritical,to punish them for acts that even the best among us might have commit- ted,had we found ourselves in the same predicament.These are good arguments,presented to the wrong people. There was a time in our history,during the age known as the common law,when judges did not merely interpret laws,they actually made them.At common law,when the legislature was seldom in ses- sion and statutes were few and far between,judges developed the law on a case-by-case basis.One case would announce a rule that,when applied to unanticipated facts,reached an absurd result.The judges would then consult their common sense-their sense of justice-and modify the rule to take account of the novel circumstances.At com- Circuit Judge,United States Court of Appeals for the Ninth Circuit.Judge Kozinski has no stomach for spelunking;he prefers tamer sports like snowboarding,bungee jumping and paint- ball. HeinOnline--112 Harv.L.Rev.1876 1998-1999

HARVARD LAW REVIEW THE CASE OF THE SPELUNCEAN EXPLORERS: REVISITED KoZINSKI, J.* [In the days when the judges ruled, a great famine came upon the land .... Ruth i:i The statute under which defendants were convicted could not be clearer. It provides that "[w]hoever shall willfully take the life of another shall be punished by death." N. C. S. A. (N. S.) § 12-A. These thirteen simple English words are not unclear or ambiguous; they leave no room for interpretation; they allow for no exercise of judgment. (It would be different, of course, if the statute contained such inherently ambiguous terms as "is," "alone," or "have sex" - which might mean anything to anybody - but fortunately it doesn't.) Statutory construction in this case is more accurately described as statutory reading. In these circumstances, a conscientious judge has no choice but to apply the law as the legislature wrote it. As the jury found, Roger Whetmore did not die of illness, starvation, or accident; rather, he was killed by the defendants. And the killing was not the result of accident or negligence; it was willful homicide. Indeed, defendants thought long and hard before they acted, even going to the trouble of consulting physicians and other outside advisors. Under the law of Newgarth, which we have sworn to apply, we must affirm the conviction. Defendants argue this result is unjust and ask us to make an exception because of the difficult and unusual circumstances in which they found themselves. They claim it is perverse, possibly hypocritical, to punish them for acts that even the best among us might have committed, had we found ourselves in the same predicament. These are good arguments, presented to the wrong people. There was a time in our history, during the age known as the common law, when judges did not merely interpret laws, they actually made them. At common law, when the legislature was seldom in session and statutes were few and far between, judges developed the law on a case-by-case basis. One case would announce a rule that, when applied to unanticipated facts, reached an absurd result. The judges would then consult their common sense - their sense of justice - and modify the rule to take account of the novel circumstances. At com- * Circuit Judge, United States Court of Appeals for the Ninth Circuit. Judge Kozinski has no stomach for spelunking; he prefers tamer sports like snowboarding, bungee jumping and paintball. 1876 [Vol. 112:1834 HeinOnline -- 112 Harv. L. Rev. 1876 1998-1999

I999] THE SPELUNCEAN EXPLORERS I877 mon law,justice meant tweaking a harsh rule to reach a sensible re- sult. But we are not common law judges;we are judges in an age of statutes.For us,justice consists of applying the laws passed by the legislature,precisely as written by the legislature.Unlike common law judges,we have no power to bend the law to satisfy our own sense of right and wrong.As a wise jurist once observed,"judicial discomfort with a surprisingly harsh rule is not enough to permit its revision." United States v.Fountain,840 F.2d 509,519 (7th Cir.1988)(Easter- brook,J.).That we may feel sympathy for the defendants-that any of us might be in their place but for the grace of God-gives us no authority to ignore the will of the citizens of Newgarth,as embodied in their duly enacted laws.(Unless,of course,the laws violate the New- garth Constitution-which the law here does not.) This case illustrates why justice is too elusive a concept to be left to judges.Before us stand sympathetic defendants,represented by silver- tongued lawyers who argue that their clients had no choice but to kill Whetmore."If they had to eat,you must acquit,"they tell us.The re- ality is more doubtful.Defendants were told there was "little possibil- ity,”supra,at1852(Truepenny,,CJ）一not“no possibility'”一they would survive for the ten more days it would take to rescue them. The human body can be strangely resilient and oftentimes surprises us. For example,in late twentieth-century America,Karen Ann Quinlan lived for nine years after life support systems were removed from her comatose body-contrary to doctors'predictions that she would die at once if life support were removed.See Cruzan v.Harmon,760 S.W.2d 408,413 n.6 (Mo.1988),affd sub nom.Cruzan v.Director Mo.Dep't of Health,497 U.S.261(19go). Had defendants not taken Whetmore's life,everyone in the group might have survived.And if all had not survived,one surely would have died first,and that unfortunate fellow's body could have been eaten by the rest.Whetmore himself seemed to think that survival for another week was possible;why were the others in such a rush to shed blood?Whether the deliberate killing of a human being under these circumstances should be criminal is a difficult question.It must be an- swered by the conscience of the community,and that conscience is bet- ter gauged by the 535 members of the Newgarth legislature than by six unelected,effectively unremovable judges. Defendants also argue that the Newgarth legislature could not have meant what it said that it must have overlooked a case such as theirs.But defendants are not the first to have suffered this predica- ment.More than two millennia have passed since Regina v.Dadley and Stephens,14 Q.B.D.273 (1884),which raised precisely the same question,and United States v.Holmes,26 F.Cas.360(C.C.E.D.Pa. 1842)(No.I5,383),which dealt with a closely analogous situation.Un- fortunate incidents like these do happen from time to time,and we HeinOnline--112 Harv.L.Rev.1877 1998-1999

THE SPELUNCEAN EXPLORERS mon law, justice meant tweaking a harsh rule to reach a sensible result. But we are not common law judges; we are judges in an age of statutes. For us, justice consists of applying the laws passed by the legislature, precisely as written by the legislature. Unlike common law judges, we have no power to bend the law to satisfy our own sense of right and wrong. As a wise jurist once observed, "judicial discomfort with a surprisingly harsh rule is not enough to permit its revision." United States v. Fountain, 840 F.2d 509, 519 (7th Cir. 1988) (Easterbrook, J.). That we may feel sympathy for the defendants - that any of us might be in their place but for the grace of God - gives us no authority to ignore the will of the citizens of Newgarth, as embodied in their duly enacted laws. (Unless, of course, the laws violate the Newgarth Constitution - which the law here does not.) This case illustrates why justice is too elusive a concept to be left to judges. Before us stand sympathetic defendants, represented by silvertongued lawyers who argue that their clients had no choice but to kill Whetmore. "If they had to eat, you must acquit," they tell us. The reality is more doubtful. Defendants were told there was "little possibility," supra, at 1852 (Truepenny, C.J.) - not "no possibility" - they would survive for the ten more days it would take to rescue them. The human body can be strangely resilient and oftentimes surprises us. For example, in late twentieth-century America, Karen Ann Quinlan lived for nine years after life support systems were removed from her comatose body - contrary to doctors' predictions that she would die at once if life support were removed. See Cruzan v. Harmon, 76o S.W.2d 408, 413 & n.6 (Mo. 1988), affd sub nom. Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (i99o). Had defendants not taken Whetmore's life, everyone in the group might have survived. And if all had not survived, one surely would have died first, and that unfortunate fellow's body could have been eaten by the rest. Whetmore himself seemed to think that survival for another week was possible; why were the others in such a rush to shed blood? Whether the deliberate killing of a human being under these circumstances should be criminal is a difficult question. It must be answered by the conscience of the community, and that conscience is better gauged by the 535 members of the Newgarth legislature than by six unelected, effectively unremovable judges. Defendants also argue that the Newgarth legislature could not have meant what it said - that it must have overlooked a case such as theirs. But defendants are not the first to have suffered this predicament. More than two millennia have passed since Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884), which raised precisely the same question, and United States v. Holmes, 26 F. Cas. 36o (C.C.E.D. Pa. 1842) (No. 15,383), which dealt with a closely analogous situation. Unfortunate incidents like these do happen from time to time, and we 1999] 1877 HeinOnline -- 112 Harv. L. Rev. 1877 1998-1999

I878 HARVARD LAW REVIEW [Vol.I12:1834 must presume the legislature was aware of them,yet chose not to make an exception. But even if this were a case of legislative oversight,it would make no difference.We are not free to ignore or augment the legislature's words just because we think it would have said something else,had it but thought of it.Next week we may have a case in which a man is sentenced to death for killing his dog.Could we affirm the sentence if we were persuaded that the legislature would have made canicide a capital offense,had it but thought of it?Surely not. If putting these defendants to death is unjust-if it offends the sense of the community-relief must come from the organs of gov- ernment best equipped to judge what the community wants.Contrary to defendants'claim that they have widespread support among the population,elected officials have been strangely deaf to their pleas. The Newgarth legislature-which is almost always in session nowa- days-could have amended N.C.S.A.(N.s.)$I2-A to make an ex- ception for defendants'case.Any such law could have been made ex- pressly applicable to the defendants,as the Newgarth Constitution contains no reverse ex post facto or bill of attainder clauses.Then again,the Attorney General could have chosen not to prosecute,or to prosecute for a lesser offense.The grand jury-sometimes referred to as the conscience of the community-could have refused to indict, but indict it did.And the petit jury could have exercised its power of nullification by returning a not guilty verdict if convicting defendants offended its collective conscience.See Paul Butler,Racially Based Jury Nullification:Black Power in the Criminal Justice System,1o5 Yale L.J.677,7o0-oI(1995).It would be arrogant for us to pretend that we know better than all these other public officials what justice calls for in this case.The political process may yet come to the defen- dants'rescue,or it may not.But it is in the political arena that defen- dants must seek relief if they believe the law,as applied to them,has reached an unjust result.We serve justice when we apply the law as written. *米 Although this concludes my analysis,I pause to comment on the views expressed by my colleagues.Some of them,see infra,at 1913 (Easterbrook,J.);infra,at 1884-85(Sunstein,J.),infer judicial author- ity to read exceptions and defenses into N.C.S.A.(N.s.)$I2-A from the fact that the statute,if read literally,would condemn willful kill- ings by police,executioners,and those acting in self-defense.This pre- supposes that section I2-A is the only statute bearing on this issue, which it surely is not.In a statutory system,the definition of murder is written in categorical terms,as in section I2-A,while other provi- sions define justifiable homicide,such as legal authority and self- HeinOnline--112 Harv.L.Rev.1878 1998-1999

HARVARD LAW REVIEW must presume the legislature was aware of them, yet chose not to make an exception. But even if this were a case of legislative oversight, it would make no difference. We are not free to ignore or augment the legislature's words just because we think it would have said something else, had it but thought of it. Next week we may have a case in which a man is sentenced to death for killing his dog. Could we affirm the sentence if we were persuaded that the legislature would have made canicide a capital offense, had it but thought of it? Surely not. If putting these defendants to death is unjust - if it offends the sense of the community - relief must come from the organs of government best equipped to judge what the community wants. Contrary to defendants' claim that they have widespread support among the population, elected officials have been strangely deaf to their pleas. The Newgarth legislature - which is almost always in session nowadays - could have amended N. C. S. A. (N. S.) § 12-A to make an exception for defendants' case. Any such law could have been made expressly applicable to the defendants, as the Newgarth Constitution contains no reverse ex post facto or bill of attainder clauses. Then again, the Attorney General could have chosen not to prosecute, or to prosecute for a lesser offense. The grand jury - sometimes referred to as the conscience of the community - could have refused to indict, but indict it did. And the petit jury could have exercised its power of nullification by returning a not guilty verdict if convicting defendants offended its collective conscience. See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 700-01 (1995). It would be arrogant for us to pretend that we know better than all these other public officials what justice calls for in this case. The political process may yet come to the defendants' rescue, or it may not. But it is in the political arena that defendants must seek relief if they believe the law, as applied to them, has reached an unjust result. We serve justice when we apply the law as written. Although this concludes my analysis, I pause to comment on the views expressed by my colleagues. Some of them, see infra, at 1913 (Easterbrook, J.); infra, at 1884-85 (Sunstein, J.), infer judicial authority to read exceptions and defenses into N. C. S. A. (N. S.) § 12-A from the fact that the statute, if read literally, would condemn willful killings by police, executioners, and those acting in self-defense. This presupposes that section 12-A is the only statute bearing on this issue, which it surely is not. In a statutory system, the definition of murder is written in categorical terms, as in section 12-A, while other provisions define justifiable homicide, such as legal authority and self- 1878 [VOL. 112:1834 HeinOnline -- 112 Harv. L. Rev. 1878 1998-1999

I999] THE SPELUNCEAN EXPLORERS 879 defense (archaic examples dating from as far back as the twentieth century include sections 196 and 197 of California's Penal Code,Cal. Penal Code Ss 196-197 (West 1988),and section 35.05 of the New York Penal Law,N.Y.Penal Law 35.05 (Consol.1998)),and excus- able homicide caused by accident or misfortune during a lawful activ- ity (to give another twentieth-century example,section 195 of Califor- nia's Penal Code,Cal.Penal Code 195).Defendants have not cited any of the provisions dealing with justification or excuse,doubtless be- cause they do not apply.But that doesn't mean they don't exist,or that the legislature gave judges blanket authority to cut holes into the statute whenever the spirit so moves them. The folly of this approach is perhaps best illustrated by Justice Easterbrook,who finds justification here based on an easy calculus: the killing is justified if there is a net savings in lives.See infra,at 1915(Easterbrook,J.).But,as Justice West ably demonstrates,there are many situations where one could offer such a justification-the case of the conscripted organ donor for example.See infra,at 1896 (West,J.).Justice Easterbrook offers a "negotiation"rationale for his conclusion-he infers that the spelunceans would have preferred to enter the cave under a regime where one would be sacrificed to feed the rest rather than under a regime where all would starve.See infra, at 19I5-16(Easterbrook,J.).One could just as easily hypothesize a negotiation as to organ donation:any group of five people(one healthy and four needing his organs)could be supposed to have made a pact, while they were all still healthy,to sacrifice the one among them whose organs would be needed to save the rest.Under Justice Easterbrook's rationale,the four would be justified in hunting down a fifth and ran- sacking his body for vital organs. The parties here did negotiate but failed to reach agreement be- cause Whetmore refused to go along with the bargain;he,at least as of that time,thought that a one in five chance of being killed and eaten was worse than the alternative.My brother Easterbrook rejects this actual negotiation in favor of a hypothetical one where the outcome is dictated entirely by his personal preferences,but he gives no satisfac- tory reason for doing so.The negotiations actually conducted between the parties-where death was imminent and the risks concrete-are surely a better indication of what agreement would be reached by people in dire straits than Justice Easterbrook's musings about what imaginary explorers,faced with a remote and hypothetical risk,would decide if they took the trouble to think about it.This is a case of a judge who will not let mere facts stand in the way of a perfectly good theory.It demonstrates,better than anything I might say,the danger of appointing academics to the bench. I am more sanguine about the approach taken by my brother Sun- stein,though he dithers mightily before he gets to the point.Unlike Justice Easterbrook-who lightly undertakes to weigh life and death HeinOnline--112 Harv.L.Rev.1879 1998-1999

THE SPELUNCEAN EXPLORERS defense (archaic examples dating from as far back as the twentieth century include sections 196 and 197 of California's Penal Code, Cal. Penal Code §§ 196-197 (West 1988), and section 35.05 of the New York Penal Law, N.Y. Penal Law § 35.05 (Consol. 1998)), and excusable homicide caused by accident or misfortune during a lawful activity (to give another twentieth-century example, section 195 of California's Penal Code, Cal. Penal Code § 195). Defendants have not cited any of the provisions dealing with justification or excuse, doubtless because they do not apply. But that doesn't mean they don't exist, or that the legislature gave judges blanket authority to cut holes into the statute whenever the spirit so moves them. The folly of this approach is perhaps best illustrated by Jjustice Easterbrook, who finds justification here based on an easy calculus: the killing is justified if there is a net savings in lives. See infra, at 1915 (Easterbrook, J.). But, as Justice West ably demonstrates, there are many situations where one could offer such a justification - the case of the conscripted organ donor for example. See infra, at 1896 (West, J.). Justice Easterbrook offers a "negotiation" rationale for his conclusion - he infers that the spelunceans would have preferred to enter the cave under a regime where one would be sacrificed to feed the rest rather than under a regime where all would starve. See infra, at 1915-16 (Easterbrook, J.). One could just as easily hypothesize a negotiation as to organ donation: any group of five people (one healthy and four needing his organs) could be supposed to have made a pact, while they were all still healthy, to sacrifice the one among them whose organs would be needed to save the rest. Under Justice Easterbrook's rationale, the four would be justified in hunting down a fifth and ransacking his body for vital organs. The parties here did negotiate but failed to reach agreement because Whetmore refused to go along with the bargain; he, at least as of that time, thought that a one in five chance of being killed and eaten was worse than the alternative. My brother Easterbrook rejects this actual negotiation in favor of a hypothetical one where the outcome is dictated entirely by his personal preferences, but he gives no satisfactory reason for doing so. The negotiations actually conducted between the parties - where death was imminent and the risks concrete - are surely a better indication of what agreement would be reached by people in dire straits than Justice Easterbrook's musings about what imaginary explorers, faced with a remote and hypothetical risk, would decide if they took the trouble to think about it. This is a case of a judge who will not let mere facts stand in the way of a perfectly good theory. It demonstrates, better than anything I might say, the danger of appointing academics to the bench. I am more sanguine about the approach taken by my brother Sunstein, though he dithers mightily before he gets to the point. Unlike Justice Easterbrook - who lightly undertakes to weigh life and death 1999] 1879 HeinOnline -- 112 Harv. L. Rev. 1879 1998-1999

1880 HARVARD LAW REVIEW [Vol.112:1834 whichever way his fancy strikes him-Justice Sunstein at least an- nounces a constraining principle:where the statute is clear,we can ig- nore its plain meaning only when it reaches an absurd result.See in- fra,at 1883-84 (Sunstein,J.).And he rightly concludes that application of the statute to this case does not reach an absurd result. See id.at 1889.Though Justice Sunstein makes the case harder than it need be,I agree with Parts II and III of his opinion because they ar- ticulate a workable principle of law that does not depend unduly on the value system of the judge applying it. Which is more than I can say for the opinion of my sister De Bun- ker.Aside from the fact that she is a Godless heathen-for which she will suffer the tortures of the Ghenna until the coming of the Messiah (which won't be too much longer now if we keep writing opinions like these)-her rationale is,not to put too fine a point on it,odd.As I understand her position,she believes that the defendants acted law- fully because the legislature did not specifically prohibit the killing and eating of someone under these circumstances.See infra,at 1912 (De Bunker,J.).The general prohibition against willful killing is not enough,De Bunker tells us;the legislature had to enact an affirmative prohibition.See id.at 1905.But the legislature also did not affirma- tively prohibit killing on Tuesday,or killing for the purpose of har- vesting body parts,or killing by someone who can achieve sexual gratification only when his partner succumbs.Nor did the legislature pass laws that specifically prohibit stealing from the rich to give to the poor,though many people believe it's entirely justifiable and have since the days of Robin Hood and Goldilocks. Were Justice De Bunker's rationale to become the law of the land, the legislature would spend its entire time reenacting every law it has already passed,only to say:Yes,we really mean for it to apply in this circumstance or that.And who can tell what special circumstances require affirmative legislative action?Not until the matter is brought before our Court will the legislature learn whether a particular situa- tion is covered by the general rule or requires a specific prohibition- in which case the misconduct suddenly becomes lawful. Nor is this the only danger.Once the legislature is forced to aban- don general statutes in favor of multiple specific prohibitions,the problem arises of how to deal with the interstices.If the statute pro- hibits theft of currency,and theft of bullion,and theft of negotiable se- curities-rather than merely theft of property-what happens when someone steals something not covered by one of the specific prohibi- tions,like ancient Krugerrands?Inclusio unius est exclusio alterius, will argue the defendants.Even though Krugerrands are in all mate- rial respects the same as bullion and currency,the listing of the latter two raises the inference that the third was meant to be omitted. Surely,the legislature must be permitted to outlaw a generic evil and then create specific exemptions where they appear to be warranted. HeinOnline--112 Harv.L.Rev.1880 1998-1999

HARVARD LAW REVIEW whichever way his fancy strikes him - Justice Sunstein at least announces a constraining principle: where the statute is clear, we can ignore its plain meaning only when it reaches an absurd result. See infra, at 1883-84 (Sunstein, J.). And he rightly concludes that application of the statute to this case does not reach an absurd result. See id. at 1889. Though Justice Sunstein makes the case harder than it need be, I agree with Parts II and III of his opinion because they articulate a workable principle of law that does not depend unduly on the value system of the judge applying it. Which is more than I can say for the opinion of my sister De Bunker. Aside from the fact that she is a Godless heathen - for which she will suffer the tortures of the Ghenna until the coming of the Messiah (which won't be too much longer now if we keep writing opinions like these) - her rationale is, not to put too fine a point on it, odd. As I understand her position, she believes that the defendants acted lawfully because the legislature did not specifically prohibit the killing and eating of someone under these circumstances. See infra, at 1912 (De Bunker, J.). The general prohibition against willful killing is not enough, De Bunker tells us; the legislature had to enact an affirmative prohibition. See id. at 1905. But the legislature also did not affirmatively prohibit killing on Tuesday, or killing for the purpose of harvesting body parts, or killing by someone who can achieve sexual gratification only when his partner succumbs. Nor did the legislature pass laws that specifically prohibit stealing from the rich to give to the poor, though many people believe it's entirely justifiable and have since the days of Robin Hood and Goldilocks. Were Justice De Bunker's rationale to become the law of the land, the legislature would spend its entire time reenacting every law it has already passed, only to say: Yes, we really mean for it to apply in this circumstance or that. And who can tell what special circumstances require affirmative legislative action? Not until the matter is brought before our Court will the legislature learn whether a particular situation is covered by the general rule or requires a specific prohibition - in which case the misconduct suddenly becomes lawful. Nor is this the only danger. Once the legislature is forced to abandon general statutes in favor of multiple specific prohibitions, the problem arises of how to deal with the interstices. If the statute prohibits theft of currency, and theft of bullion, and theft of negotiable securities - rather than merely theft of property - what happens when someone steals something not covered by one of the specific prohibitions, like ancient Krugerrands? Inclusio unius est exclusio alterius, will argue the defendants. Even though Krugerrands are in all material respects the same as bullion and currency, the listing of the latter two raises the inference that the third was meant to be omitted. Surely, the legislature must be permitted to outlaw a generic evil and then create specific exemptions where they appear to be warranted. 188o [Vol. 112:1834 HeinOnline -- 112 Harv. L. Rev. 1880 1998-1999

I999] THE SPELUNCEAN EXPLORERS 188I Justice De Bunker's system would quickly devolve into such chaos that a party who could afford a battery of clever lawyers would get away with murder. But for two reservations,I would be inclined to join my sister West's opinion.The two reservations,however,are substantial.Al- though I agree with much of what she says about the need for the law to be applied equally-and with her trenchant observation that fail- ure to prosecute certain crimes is a species of discrimination visited upon the victims of those crimes,see infra,at 1894-95 (West,J.)-I believe she goes too far.The clear implication of Justice West's opin- ion is that the legislature here could not have passed a statute author- izing the killing of Whetmore under the circumstances of this case,be- cause to do so would have posthumously withdrawn from Whetmore the right to equal protection of the laws.Presumably,she also believes it would have been a denial of equal protection for the Attorney Gen- eral not to prosecute the defendants or for the Chief Executive to grant them a pardon,because each of these actions (or inactions)would deny Whetmore(and future Whetmores)the protection of law when they need it most. With this I cannot agree.As I said earlier,I believe that the legis- lature could properly conclude that the conduct here should not be criminal-and indeed could still do so.I do not agree that this would amount to a withdrawal of equal protection;it would merely adjust rights and responsibilities to reflect conflicting values.Because,as Justice Sunstein explains,this is not an absurd(or,I might add,invidi- ous)choice,see infra,at 1888(Sunstein,J.),I would leave it open to the legislature.The matter would be different for me if the legislature made a wholly irrational or invidious exception to a generally applica- ble law,such as legalizing murder or theft in poor neighborhoods. My other reservation about Justice West's opinion,of course,con- cerns her ruling as to the sentence.I need not dwell on our standing dispute as to whether the imposition of a sentence-particularly a death sentence-must be conditioned on the implementation of a mitigation principle that allows the sentencer to grant defendants "merciful justice,"infra,at 1899(West,J.).I find even more troubling the remedy she adopts,namely the remand for a mitigation hearing. What exactly will happen during the course of such a hearing?Pre- sumably the defendants will try to persuade the judge or jury not to impose the death sentence.But what if they succeed?Our law authorizes death as the only punishment for violating N.C.S.A.(N.s.) $I2-A.What can the sentencer do if it is persuaded that the death penalty here is too harsh?May it order whatever other punishment it believes fits the crime,such as whipping,nailing defendants'ears to the pillory,community service,amputation,or exile?My colleague may believe that the judge or jury would order defendants imprisoned, but I don't see where that punishment is authorized any more than HeinOnline--112 Harv.L.Rev.1881 1998-1999

THE SPELUNCEAN EXPLORERS Justice De Bunker's system would quickly devolve into such chaos that a party who could afford a battery of clever lawyers would get away with murder. But for two reservations, I would be inclined to join my sister West's opinion. The two reservations, however, are substantial. Although I agree with much of what she says about the need for the law to be applied equally - and with her trenchant observation that failure to prosecute certain crimes is a species of discrimination visited upon the victims of those crimes, see infra, at 1894-95 (West, J.) - I believe she goes too far. The clear implication of Justice West's opinion is that the legislature here could not have passed a statute authorizing the killing of Whetmore under the circumstances of this case, because to do so would have posthumously withdrawn from Whetmore the right to equal protection of the laws. Presumably, she also believes it would have been a denial of equal protection for the Attorney General not to prosecute the defendants or for the Chief Executive to grant them a pardon, because each of these actions (or inactions) would deny Whetmore (and future Whetmores) the protection of law when they need it most. With this I cannot agree. As I said earlier, I believe that the legislature could properly conclude that the conduct here should not be criminal - and indeed could still do so. I do not agree that this would amount to a withdrawal of equal protection; it would merely adjust rights and responsibilities to reflect conflicting values. Because, as Justice Sunstein explains, this is not an absurd (or, I might add, invidious) choice, see infra, at 1888 (Sunstein, J.), I would leave it open to the legislature. The matter would be different for me if the legislature made a wholly irrational or invidious exception to a generally applicable law, such as legalizing murder or theft in poor neighborhoods. My other reservation about Justice West's opinion, of course, concerns her ruling as to the sentence. I need not dwell on our standing dispute as to whether the imposition of a sentence - particularly a death sentence - must be conditioned on the implementation of a mitigation principle that allows the sentencer to grant defendants "merciful justice," infra, at 1899 (West, J.). I find even more troubling the remedy she adopts, namely the remand for a mitigation hearing. What exactly will happen during the course of such a hearing? Presumably the defendants will try to persuade the judge or jury not to impose the death sentence. But what if they succeed? Our law authorizes death as the only punishment for violating N. C. S. A. (N. S.) § 12-A. What can the sentencer do if it is persuaded that the death penalty here is too harsh? May it order whatever other punishment it believes fits the crime, such as whipping, nailing defendants' ears to the pillory, community service, amputation, or exile? My colleague may believe that the judge or jury would order defendants imprisoned, but I don't see where that punishment is authorized any more than 1999] 18gi HeinOnline -- 112 Harv. L. Rev. 1881 1998-1999

I882 HARVARD LAW REVIEW [VoL.1I2:I834 those listed above.The statute provides only one punishment for the crime of willful homicide,and imprisonment is not it.Were the jury to impose a term of years,we would be required to set defendants free because they would be held without legal authority. What can I say about my sister Stupidest Housemaid's opinion,as she has retreated into one of her occasional "other voices"methods of analysis?While I find her methodology refreshing and wish the rest of us had the courage and imagination to forsake our "whereases"and "wherefores"for a more colloquial form of discourse,in the end I be- lieve she errs even on her own terms.If I understand Justice Studpi- dest Housemaid's approach,she is voting to reverse the conviction be- cause she does not feel bound by the terms of N.C.S.A.(N.s.)$12-A. And she does not feel bound because she believes that there is no such thing as a rule of law-in her words"the law can often be argued every which way but up."Infra,at 1920(Stupidest Housemaid,J.). My sister instead judges this case by her moral sense. Justice Stupidest Housemaid also recognizes,however,that "it would be useful for the rule of law to exist,"and that"[ilt may even be true that the servant needs a rule of law more than the master."Id.at 1922.Yet she does not take the opportunity to announce how the rule of law should apply in these circumstances,or to try to persuade a ma- jority of the court to do so.Rather,she revels in what she sees as the absence of a rule of law,in a raw exercise of judicial power. This is too bad,because it might be useful to hear Justice Stupidest Housemaid's explication of how a fair and neutral law might be ap- plied in this case.She gives us tantalizing hints,but fails to follow through.For example,she observes that the spelunceans'activities re- sulted in a great expenditure of resources and the death of ten workers. She says that defendants ought to be held responsible for those deaths. See id.at 1919.Perhaps so,yet Justice Stupidest Housemaid aban- dons that thought without bringing it to its logical conclusion.I don't understand why.Defendants,after all,stand convicted of murder. The conviction is based on the record developed at trial,which in- cludes information about the ten dead workers.Because Justice Stu- pidest Housemaid has abandoned the statute as a guide of decision and,instead,uses her moral sense as a compass,she could well affirm the convictions on the ground that defendants caused the deaths of the workers. Such analysis would proceed along the lines of Justice Stupidest Housemaid's opinion.She should start by asking whether what de- fendants did was morally reprehensible.See id.at 1918.I infer she would say yes:Defendants went into the cave,exposed themselves to danger,knowing full-well that if they got into trouble great efforts would be made to rescue them-wasting valuable resources and en- dangering the lives of the rescuers.As Judge Cardozo said long ago, HeinOnline--112 Harv.L.Rev.1882 1998-1999

HARVARD LAW REVIEW those listed above. The statute provides only one punishment for the crime of willful homicide, and imprisonment is not it. Were the jury to impose a term of years, we would be required to set defendants free because they would be held without legal authority. What can I say about my sister Stupidest Housemaid's opinion, as she has retreated into one of her occasional "other voices" methods of analysis? While I find her methodology refreshing and wish the rest of us had the courage and imagination to forsake our "whereases" and "wherefores" for a more colloquial form of discourse, in the end I believe she errs even on her own terms. If I understand Justice Studpidest Housemaid's approach, she is voting to reverse the conviction because she does not feel bound by the terms of N. C. S. A. (N. S.) § 12-A. And she does not feel bound because she believes that there is no such thing as a rule of law - in her words "the law can often be argued every which way but up." Infra, at 1920 (Stupidest Housemaid, J.). My sister instead judges this case by her moral sense. Justice Stupidest Housemaid also recognizes, however, that "it would be useful for the rule of law to exist," and that "[i]t may even be true that the servant needs a rule of law more than the master." Id. at 1922. Yet she does not take the opportunity to announce how the rule of law should apply in these circumstances, or to try to persuade a majority of the court to do so. Rather, she revels in what she sees as the absence of a rule of law, in a raw exercise of judicial power. This is too bad, because it might be useful to hear Justice Stupidest Housemaid's explication of how a fair and neutral law might be applied in this case. She gives us tantalizing hints, but fails to follow through. For example, she observes that the spelunceans' activities resulted in a great expenditure of resources and the death of ten workers. She says that defendants ought to be held responsible for those deaths. See id. at 1919. Perhaps so, yet Justice Stupidest Housemaid abandons that thought without bringing it to its logical conclusion. I don't understand why. Defendants, after all, stand convicted of murder. The conviction is based on the record developed at trial, which includes information about the ten dead workers. Because Justice Stupidest Housemaid has abandoned the statute as a guide of decision and, instead, uses her moral sense as a compass, she could well affirm the convictions on the ground that defendants caused the deaths of the workers. Such analysis would proceed along the lines of Justice Stupidest Housemaid's opinion. She should start by asking whether what defendants did was morally reprehensible. See id. at 1918. I infer she would say yes: Defendants went into the cave,, exposed themselves to danger, knowing full-well that if they got into trouble great efforts would be made to rescue them - wasting valuable resources and endangering the lives of the rescuers. As Judge Cardozo said long ago, 1882 [VOL. 112:1834 HeinOnline -- 112 Harv. L. Rev. 1882 1998-1999

I999] THE SPELUNCEAN EXPLORERS I883 "Danger invites rescue."Wagner v.International Ry.Co.,133 N.E. 437,437(N.Y.I92). Second,my sister Stupidest Housemaid would look to deterrence. You can bet that if these defendants were convicted of murder for the death of the rescuers,that would make future billionaires think twice and three times about risking their lives in balloons and the like.In terms of incapacitation,we need not worry about those same billion- aires doing it again.As for rehabilitation,the death penalty probably would not achieve that end,but three out of four ain't bad. Of course there are some gaps to fill,like the fact that defendants were not charged with killing the workers.But these are the kind of meaningless legal formalisms that my sister Stupidest Housemaid dis- dains.As she is fond of saying,"When you is sittin on top,you can spit on them below and they can't spit back."(Actually,she says something very close to this,but I changed one little word out of a sense of decorum.)To which I would add,"If you gonna spit,don't spit in the wind."Which is by way of saying:How does it help the cause of the poor,of the oppressed,of the people of color,to let these four rich white guys walk when the law pretty clearly says they're guilty?It seems to me that my sister Stupidest Housemaid got bit by the white man's bug:"[W]hen white folks sacrifice white lives for the greater good,it's a big confusing problem."Id.at 1923.But Justice Stupidest Housemaid doesn't need to make "a big confusing problem" out of it.She can simply apply the white folks'law to these white folks and-according to her own lights-they'd get their just de- serts.Why should the stupidest housemaid work so hard to pull her master's chestnuts out of the fire? SUNSTEIN,J.The defendants must be convicted.Their conduct falls within the literal language of the statute,and the outcome is not so absurd,or so peculiar,as to justify this Court in creating,via inter- pretation,an exception to that literal language.Whether a justifica- tion or excuse would be created in more compelling circumstances is a question that I leave undecided.I also leave undecided the question whether the defendants might be able to mount a separate procedural challenge,on constitutional grounds,to the death sentence in this case. In the process of supporting these conclusions,I suggest a general approach to issues of this kind:Apply the ordinary meaning of statu- tory language,taken in its context,unless the outcome is so absurd as to suggest that it is altogether different from the exemplary cases that Karl N.Llewellyn Distinguished Service Professor,University of Chicago,Law School and Department of Political Science. HeinOnline--112 Harv.L.Rev.1883 1998-1999

THE SPELUNCEAN EXPLORERS "Danger invites rescue." Wagner v. International Ry. Co., 133 N.E. 437, 437 (N.Y. i921). Second, my sister Stupidest Housemaid would look to deterrence. You can bet that if these defendants were convicted of murder for the death of the rescuers, that would make future billionaires think twice and three times about risking their lives in balloons and the like. In terms of incapacitation, we need not worry about those same billionaires doing it again. As for rehabilitation, the death penalty probably would not achieve that end, but three out of four ain't bad. Of course there are some gaps to fill, like the fact that defendants were not charged with killing the workers. But these are the kind of meaningless legal formalisms that my sister Stupidest Housemaid disdains. As she is fond of saying, "When you is sittin on top, you can spit on them below and they can't spit back." (Actually, she says something very close to this, but I changed one little word out of a sense of decorum.) To which I would add, "If you gonna spit, don't spit in the wind." Which is by way of saying: How does it help the cause of the poor, of the oppressed, of the people of color, to let these four rich white guys walk when the law pretty clearly says they're guilty? It seems to me that my sister Stupidest Housemaid got bit by the white man's bug: "[W]hen white folks sacrifice white lives for the greater good, it's a big confusing problem." Id. at 1923. But Justice Stupidest Housemaid doesn't need to make "a big confusing problem" out of it. She can simply apply the white folks' law to these white folks and - according to her own lights - they'd get their just deserts. Why should the stupidest housemaid work so hard to pull her master's chestnuts out of the fire? SUNSTEiN, J.* The defendants must be convicted. Their conduct falls within the literal language of the statute, and the outcome is not so absurd, or so peculiar, as to justify this Court in creating, via interpretation, an exception to that literal language. Whether a justification or excuse would be created in more compelling circumstances is a question that I leave undecided. I also leave undecided the question whether the defendants might be able to mount a separate procedural challenge, on constitutional grounds, to the death sentence in this case. In the process of supporting these conclusions, I suggest a general approach to issues of this kind: Apply the ordinary meaning of statutory language, taken in its context, unless the outcome is so absurd as to suggest that it is altogether different from the exemplary cases that * Karl N. Llewellyn Distinguished Service Professor, University of Chicago, Law School and Department of Political Science. 1999] 1883 HeinOnline -- 112 Harv. L. Rev. 1883 1998-1999

I884 HARVARD LAW REVIEW [Vol.1I2:I834 account for the statute's existence,or unless background principles,of constitutional or similar status,require a different result. I I confess that I am tempted to resolve this case solely by reference to the simple language of the statute that we are construing.The basic question is whether the defendants have "willfully take[n]the life,"N. C.S.A.(N.s.)$I2-A,of another human being.At first glance,it seems clear that the statutory requirements have been met.Perhaps we should simply declare the case to be at an end. An approach of this kind would have the benefit of increasing cer- tainty for the future,in a way that reduces difficulty for later courts, and also for those seeking to know the content of the law.This ap- proach enables people to plan and keeps the law's signal clear;the in- creased certainty is an important advantage.Such an approach also tends to impose appropriate incentives on the legislature to be clear before the fact and to make corrections after the fact.I would go so far as to suggest that a presumption in favor of the ordinary meaning of enacted law,taken in its context,is a close cousin of the void-for- vagueness doctrine,which is an important part of the law of this ju- risdiction with respect to both contracts and statutory law.By insist- ing on the ordinary meaning of words,and by refusing to enforce con- tracts and statutes that require courts to engage in guessing games,we can require crucial information to be provided to all relevant parties, and in the process greatly increase clarity in the law. Nor is this a case in which a statutory phrase is properly under- stood as ambiguous or unclear.We do not have a term like "equal," "reasonable,"or "public policy,"whose content may require sustained deliberation or even change over time.It may be possible to urge that the statutory term "willfully"creates ambiguity,but I cannot see how this is so.There is no question that the defendants acted willfully un- der any possible meaning of that term.There is nothing wooden,or literal in any pejorative sense,in saying that the words here are clear. I have been tempted to write an opinion to this effect and to leave it at that.But both principle and precedent make me unwilling to take this route.As a matter of principle,it is possible to imagine cases that fit the terms of this statute but for which the outcome is nonethe- less so peculiar and unjust that it would be absurd to apply those terms literally or mechanically.In any case,our own jurisprudence forbids an opinion here that would rest entirely on the statutory text. For centuries,it has been clear that the prohibition in N.C.S.A.(N.s.) 1 The presumption in favor of plain meaning and the void-for-vagueness doctrine are cousins because both are designed to promote rule of law values and,in particular,to give the legislature an incentive to speak clearly. HeinOnline--112 Harv.L.Rev.1884 1998-1999

HARVARD LAW REVIEW account for the statute's existence, or unless background principles, of constitutional or similar status, require a different result. I I confess that I am tempted to resolve this case solely by reference to the simple language of the statute that we are construing. The basic question is whether the defendants have "willfully take[n] the life," N. C. S. A. (N. S.) § 12-A, of another human being. At first glance, it seems clear that the statutory requirements have been met. Perhaps we should simply declare the case to be at an end. An approach of this kind would have the benefit of increasing certainty for the future, in a way that reduces difficulty for later courts, and also for those seeking to know the content of the law. This approach enables people to plan and keeps the law's signal clear; the increased certainty is an important advantage. Such an approach also tends to impose appropriate incentives on the legislature to be clear before the fact and to make corrections after the fact. I would go so far as to suggest that a presumption in favor of the ordinary meaning of enacted law, taken in its context, is a close cousin of the void-forvagueness doctrine,1 which is an important part of the law of this jurisdiction with respect to both contracts and statutory law. By insisting on the ordinary meaning of words, and by refusing to enforce contracts and statutes that require courts to engage in guessing games, we can require crucial information to be provided to all relevant parties, and in the process greatly increase clarity in the law. Nor is this a case in which a statutory phrase is properly understood as ambiguous or unclear. We do not have a term like "equal," "reasonable," or "public policy," whose content may require sustained deliberation or even change over time. It may be possible to urge that the statutory term "willfully" creates ambiguity, but I cannot see how this is so. There is no question that the defendants acted willfully under any possible meaning of that term. There is nothing wooden, or literal in any pejorative sense, in saying that the words here are clear. I have been tempted to write an opinion to this effect and to leave it at that. But both principle and precedent make me unwilling to take this route. As a matter of principle, it is possible to imagine cases that fit the terms of this statute but for which the outcome is nonetheless so peculiar and unjust that it would be absurd to apply those terms literally or mechanically. In any case, our own jurisprudence forbids an opinion here that would rest entirely on the statutory text. For centuries, it has been clear that the prohibition in N. C. S. A. (N. S.) I The presumption in favor of plain meaning and the void-for-vagueness doctrine are cousins because both are designed to promote rule of law values and, in particular, to give the legislature an incentive to speak clearly. 1884 [VOL. 112:1834 HeinOnline -- 112 Harv. L. Rev. 1884 1998-1999

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