Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW reflect "efficiency and common sense."85 Handy is Keen's dopple- ganger:Keen emphasizes the stability and externality of law,and Handy emphasizes its mobility and contingency.36 Keen rigidly sep- arates legal interpretation from politics,and Handy responds by making legal interpretation an exercise in practical politics (stressing,for example,the role of popular opinion in his vote to acquit37).Keen is serious and pompous while Handy winks at the reader,deflates the pretensions of his colleagues,and treats the case like a game. If The Case of the Speluncean Explorers had been written in the early 1930s,when realism was overtaking the philosophies of Pound and Holmes,a debate between Keen's law/formalism and Handy's poli- tics/functionalism might have been the centerpiece of the case.In- stead,the centerpiece is Justice Foster's opinion,38 which specifically reflects intellectual developments from the end of the 1930s.The New Deal ensured the complete defeat of mechanical jurisprudence and offered the prospect of a very attractive positive law regime in which smart,young judges and administrators(many of whom were prominent realists)were making policy.Yet at the very moment of progressive positivism's electoral triumph over Lochner-based natu- ral law,positivism found itself intellectually vulnerable.As Ameri- can intellectuals learned about European fascism in the 1930s,the more restive they became with a positivist separation of law and morals.39 Were Nazi decrees"law"in the same way that New Deal statutes were?Were decrees that basically attacked an entire seg- ment of the body politic entitled to obedience? Like others on the eve of America's entry into World War II, Fuller himself invoked these quandaries as an occasion to question 35.1d.at639. 36.I believe theirs is an uneven match,however.I read Keen's opinion as a serious intellectual statement refecting the respect that Holmes still engendered at the Harvard Law School in the 1940s.I read Handy's opinion as more of a caricature of realism, reflecting both Fuller's ambivalence about realism,see Lon L.Fuller,American Legal Real- ism,82 U.PA.L.REv.429 (1934)(stating that realism "reveals rather conspicuously the defects of youth"),and the Harvard Law School's tendency to consider the realist pro- ject as having presented nothing particularly new or productive,see generally Robert S. Summers,Professor Fuller's Jurisprudence and America's Dominant Philosophy of Law,92 HARV. L.REv.433 (1978)(comparing the views of Fuller with dominant theories of law). 37.Fuller,supra note 1,at 639,643-44 (opinion of Handy,J.). 38.Foster's is the opinion that best resonates with Fuller's own work,see LoN L. FULLER,THE LAW IN QUEST OF ITSELF (1940);FULLER,supra note 1,at 693-743;Lon L. Fuller,American Legal History at Mid-Century,6 J.LEGAL EDUC.457 (1954);Lon L.Fuller, Reason and Fiat in Case Law,59 HARV.L.REV.376 (1946).It is the second opinion in the case(following the Chief Justice's,which simply states the facts and then rests its legal analysis on a fatuous appeal to executive clemency that no one else takes seriously),and it is the primary focus of the critical responses in the opinions of Justices Tatting,Keen, and Handy. 39.This story is told in EDWARD A.PURCELL,JR.,THE CRISIS OF DEMOCRATIC THE- ORY:SCIENTIFIC NATURALISM THE PROBLEM OF VALUE 159-78 (1973). 1993] 1737 HeinOnline--61 Geo.Wash.L.Rev.1737 1992-1993Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW reflect "efficiency and common sense."3 5 Handy is Keen's dopple￾ginger: Keen emphasizes the stability and externality of law, and Handy emphasizes its mobility and contingency.3 6 Keen rigidly sep￾arates legal interpretation from politics, and Handy responds by making legal interpretation an exercise in practical politics (stressing, for example, the role of popular opinion in his vote to acquit 37). Keen is serious and pompous while Handy winks at the reader, deflates the pretensions of his colleagues, and treats the case like a game. If The Case of the Speluncean Explorers had been written in the early 1930s, when realism was overtaking the philosophies of Pound and Holmes, a debate between Keen's law/formalism and Handy's poli￾tics/functionalism might have been the centerpiece of the case. In￾stead, the centerpiece is Justice Foster's opinion,38 which specifically reflects intellectual developments from the end of the 1930s. The New Deal ensured the complete defeat of mechanical jurisprudence and offered the prospect of a very attractive positive law regime in which smart, young judges and administrators (many of whom were prominent realists) were making policy. Yet at the very moment of progressive positivism's electoral triumph over Lochner-based natu￾ral law, positivism found itself intellectually vulnerable. As Ameri￾can intellectuals learned about European fascism in the 1930s, the more restive they became with a positivist separation of law and morals.3 9 Were Nazi decrees "law" in the same way that New Deal statutes were? Were decrees that basically attacked an entire seg￾ment of the body politic entitled to obedience? Like others on the eve of America's entry into World War II, Fuller himself invoked these quandaries as an occasion to question 35. Id. at 639. 36. I believe theirs is an uneven match, however. I read Keen's opinion as a serious intellectual statement reflecting the respect that Holmes still engendered at the Harvard Law School in the 1940s. I read Handy's opinion as more of a caricature of realism, reflecting both Fuller's ambivalence about realism, see Lon L. Fuller, American Legal Real￾ism, 82 U. PA. L. REV. 429 (1934) (stating that realism "reveals rather conspicuously the defects of youth"), and the Harvard Law School's tendency to consider the realist pro￾ject as having presented nothing particularly new or productive, see generally Robert S. Summers, Professor Fuller's Jurisprudence and America's Dominant Philosophy of Law, 92 HARv. L. REV. 433 (1978) (comparing the views of Fuller with dominant theories of law). 37. Fuller, supra note 1, at 639, 643-44 (opinion of Handy, J.). 38. Foster's is the opinion that best resonates with Fuller's own work, see LON L. FULLER, THE LAW IN QUEST OF ITSELF (1940); FULLER, supra note 1, at 693-743; Lon L. Fuller, American Legal Histoy at Mid-Century, 6J. LEGAL EDUC. 457 (1954); Lon L. Fuller, Reason and Fiat in Case Law, 59 HARv. L. REV. 376 (1946). It is the second opinion in the case (following the ChiefJustice's, which simply states the facts and then rests its legal analysis on a fatuous appeal to executive clemency that no one else takes seriously), and it is the primary focus of the critical responses in the opinions ofJustices Tatting, Keen, and Handy. 39. This story is told in EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THE￾ORY: SCIENTIFIC NATURALISM & THE PROBLEM OF VALUE 159-78 (1973). 1993] 1737 HeinOnline -- 61 Geo. Wash. L. Rev. 1737 1992-1993