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 1998-1999THE 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 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 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 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 1999] 1879 HeinOnline -- 112 Harv. L. Rev. 1879 1998-1999