Mount Saint Vincent University Canadian Legal System Discussion

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Step 1:

Please read: “The Case of the Spelunciean Explorers: Twentieth Century Statutory Interpretation in a Nutshell”.

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Step 2:

Now, consider yourself the judge in this case.  How would you have decided the case? Support your decision by comparing your perspective on the case to that of each judge in the case and, if you’d like, to any other judicial philosophy you may research.  There are many more besides the ones discussed in the spelunciean case.  That said, you need not discuss any more that are discussed in the case.

Yale Law School
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Yale Law School Faculty Scholarship
1993
The Case of the Speluncean Explorers: TwentiethCentury Statutory Interpretation in a Nutshell
William N. Eskridge Jr.
Yale Law School
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Eskridge, William N. Jr., “The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell” (1993).
Faculty Scholarship Series. 3839.
https://digitalcommons.law.yale.edu/fss_papers/3839
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The Case of the Speluncean Explorers:
Twentieth-Century Statutory
Interpretation in a Nutshell
William N. Eskridge, Jr.*
Roger Whetmore is cannibalized by his cave-exploring colleagues
in Lon Fuller’s hypothetical case of the Speluncean Explorers.1 The
survivors are convicted of violating2 a law making it a crime that one
“willfully take the life of another,” notwithstanding their defense of
necessity. The explorers were trapped in a cave and would have
died but for the sustenance of Roger Whetmore. 3 An evenly divided Supreme Court of Newgarth affirms the convictions. Voting
to affirm, Justice Keen follows the plain meaning of the statute and
refuses to consider the equitable defense of necessity, 4 while Chief
Justice Truepenny urges the Chief Executive to grant clemency
based upon the defense.5 Voting to reverse, Justice Foster argues
that neither the understandings of common society nor the purpose
* Professor of Law, Georgetown University Law Center; Visiting Professor of Law,
New York University. The intellectual framework utilized in this article will be developed and elaborated in WILLIAM N. ESKRIDGEJR., DYNAMIC STATUTORY INTERPRETATION
(forthcoming 1994).
I. Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV. L. REV. 616 (1949).
The discussion in the text is drawn from Fuller’s article and will be more fully elaborated
infra. For other cases from the hypothetical Supreme Court of Newgarth, see LON L.
FULLER, THE PROBLEMS OFJURISPRUDENCE 71-102, 628-36 (temp. ed. 1949). For excellent introductions to Fuller and his philosophy, see ROBERT S. SUMMERS, LON L. FULLER
(1984), and Martin P. Golding, Jurisprudence and Legal Philosophy in Twentieth-Century
America: Major Themes and Developments, 36 J. LEGAL EDUC. 441, 473-80 (1986).
2. Fuller, supra note 1, at 619 (opinion of Truepenny, C.J.).
3. Id. at 618.
4. Id. at 631-37 (opinion of Keen, J.).
5. Id. at 616-19 (opinion of Truepenny, CJ.).
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of the statute is served by conviction, 6 while Justice Handy votes to
7
reverse as well, relying on virtual consensus in popular opinion.
Anguished Justice Tatting-the potential tiebreaker-recuses himself because he cannot choose among the various arguments. 8
TheJustices’ opinions constitute a microcosm of this century’s debates over the proper way to interpret statutes. A historical understanding of those debates reveals the breathtaking intellectual
accomplishment of Fuller’s article, which closes one period of
American statutory law (legislative positivism), announces its successor (the legal process school), and anticipates the arguments that
will bedevil the successor in its turn.
I.
The Pre-History of the Speluncean Explorers: The PositivismNatural Law Debate in Statutory Interpretation,
1890-1940
One way to situate the case of the Speluncean Explorers is to view
it as a moment in the Anglo-American debate over the role of equity
and natural law in statutory interpretation. Justice Keen’s plainmeaning opinion conceptualizes the enterprise as nothing more
than implementing the positive law enacted by the legislature. That
view, separating law from politics and morals, is challenged in the
opinions ofJustices Handy (who argues that law is politics) and Foster (who argues that law implicates morality). The debate between
positivism and natural law was a prominent theme of statutory interpretation debates in the first half of the century, and Fuller’s article
is an accessible time capsule of that debate.
Before the 1890s, American theories of statutory interpretation
largely tracked English theory: Follow the plain meaning of the statute, except in the rare case in which the plain meaning is absurd. 9
Thus, American theory was in the main positivist, demanding that
courts follow the rules enacted by the legislature. It contained a
safety valve-the exception for absurd results-that was jurisprudentially ambiguous, however. A meaning leading to an absurd result should not be imputed to the legislature either because the result
was probably not the legislature’s intent (the positivist argument) or
because it was not. right, just, or fair (the natural-law argument).
This ambiguity is illustrated by the Supreme Court’s most celebrated statutory case of the Lochner era.
6. Id. at 620-26 (opinion of Foster, J.).
7. Id. at 637-44 (opinion of Handy, J.).
8. Id. at 626-31 (opinion of Tatting, J.).
9. See SIR FORTUNATUS DWARRIS, A GENERAL TREATISE ON STATUTES: THEIR RULES
OF CONSTRUCTION AND THE PROPER BOUNDARIES OF LEGISLATION AND OFJUDICIAL INTERPRETATION 143-44 (Albany, William Gould & Sons 1871); G.A. ENDLICH, A COMMENTARY
ON THE INTERPRETATION OF STATUTES 4 (Jersey City, Frederick D. Linn & Co. 1888);
THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION
AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW (New York, Baker, Voorhis
& Co., 2d ed. 1874); J.G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION (Chicago, Callaghan & Co. 1891); see also John Choon Yoo, Note, Marshall’sPlan: The Early
Supreme Court and Statutory Interpretation, 101 YALE L.J. 1607, 1610 (1992).
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In 1892, the Supreme Court decided Church of the Holy Trinity v.
United States.10 The church had hired an English clergyman to be its
rector and provided for his transportation to the United States.11
The latter action appeared to violate a federal immigration statute
making it “unlawful for any person.., in any manner whatsoever, to
prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States… to perform lab6r or service of any
kind in the United States.”‘ 12 Although the prohibition against employment contracts facilitating immigration was broad and filled
with loophole-plugging language, 13 the Supreme Court refused to
interpret the statute to exclude the rector from entering the United
States. The Court held “that a thing may be within the letter of the
statute and yet not within the statute, because not within its spirit,
nor within the intention of its makers.”‘ 4 To determine the statute’s
“spirit,” the Court first relied on positive evidence, mainly the statute’s legislative history, which suggested that the words ” ‘labor and
service’
”
really should have read ” ‘manual labor’ or ‘manual ser-
vice’ ” and assuredly were not meant to cover “brain toilers.” 15 The
Court’s opinion, however, then proceeded to a natural-law appeal,
arguing that our history as a “Christian nation” should remove all
doubt that the statute might intend
to obstruct efforts to bring reli16
gious leaders into the country.
Holy Trinity Church was a prolegomenon to the Lochner era, in
which the Court expressed a constitutional hostility to socio-eco-7
nomic regulatory statutes that displaced old common-law rules.’
The judicial philosophy of the Lochner era, scorned by Professor
Roscoe Pound as “mechanical jurisprudence,”‘ 18 was one nostalgic
for the economic, libertarian values of the common law, which
10. 143 U.S. 457 (1892).
11. Id at 457-58.
12. Act of Feb. 26, 1885, ch. 164, 23 Stat. 332, repealed by Act ofJune 27, 1952, ch.
477, § 403(a)(2), 66 Stat. 166, 273.
13. Elsewhere, for example, the statute listed specific occupations excluded from the
prohibition, and clergy were not mentioned. Id. § 5, 23 Stat. at 333 (excepting from the
statute professional actors, artists, lecturers, and singers, among others).
14. Holy Trinity Church, 143 U.S. at 459.
15. Id at 464. It appears from the case that the committee was operating under
end-of-session pressure and did not believe it necessary to vote an amendment to the
statute. Id. The Supreme Court also relied on the statute’s title and the circumstances
of its adoption to hold it inapplicable to “brain toilers.” Id. at 465.
16. Id. at 471; see also id. at 465 (“[N]o purpose or action against religion can be
imputed to any legislation, state or national, because this is a religious people.”). The
author of the opinion, Justice David Brewer, was the evangelical son of Christian
missionaries.
17. The standard citation is Lochner v. New York, 198 U.S. 45 (1905), in which
Justice Brewer and his allies struck down a statute setting maximum work hours for
bakers in New York.
18. Roscoe Pound, MechanicalJurisprudence,8 COLUM. L. REv. 605, 615-16 (1908).
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judges felt were under assault from new regulatory statutes. 19 The
conservatives of the bench and bar in that period expressed their
arcadian philosophy through statutory as well as constitutional interpretation. 20 The common law had long been a natural-law surrogate in statutory interpretation, and a nostalgic Supreme Court
pursued that theme episodically for two generations, from 1892 to
1938.
The rallying cry of anti-Court progressives during this period was
distinctly positivist: They contended that the common law was no
longer sufficient to the needs of a complex, strife-ridden society,
that the legislature was in a better position to gather facts and make
judgments necessary for such a society, and that the role of courts
lay in following these progressive commands of the legislature and
abandoning their Lochnerian obduracy. Pound argued, for example,
that the importation by judges of their libertarian values into statutes was “spurious” statutory interpretation and inconsistent with
the proper role of courts in a democracy. 2 ‘ According to Pound, the
proper method of statutory interpretation was an “imaginative reconstruction” of the legislature’s specific intent. 22 That view had
many adherents among progressive jurists 23 but was not sojurisprudentially sophisticated as the progressive theory of Justice Oliver
Wendell Holmes, Jr.
Justice Holmes believed that statutory interpretation was usually
24
just an exercise in determining the statute’s ordinary meaning.
Like Pound, Holmes was a positivist who astringently believed in the
separation of law and morals. Like Pound, he rejected as spurious a
judge’s effort to read his own values into statutes and believed the
judge ought to bow to legislation expressing authentic social forces,
19. See Roscoe Pound, Common Law and Legislation, 21 HARv. L. REV. 383, 384-85
(1908).
20. Some of the leading cases of arcadian statutory interpretation include Bedford
Cut Stone Co. v. Journeymen Stonecutters’ Ass’n, 274 U.S. 37, 39 (1927) (narrowing
interpretation of Clayton Act’s labor exemptions), Duplex Printing Press Co. v. Deering,
254 U.S. 443, 446-48 (1921) (similar), Caminetti v. United States, 242 U.S. 470, 491
(1917) (expansive interpretation of morals statute to cover fornication), Loewe v.
Lawler, 208 U.S. 274, 292-93 (1908) (expansive interpretation of Sherman Act to cover
labor unions), Northern Sec. Co. v. United States, 193 U.S. 197, 327 (1904) (expansive
interpretation of Sherman Act to cover corporate size), and United States v. E.C. Knight
Co., 156 U.S. 1, 16-17 (1895) (narrowing interpretation of Sherman Act to exempt manufacturing monopolies).
21. Roscoe Pound, Spurious Interpretation, 7 COLUM. L. REv. 379, 382 (1907).
22. For Pound, the role of the judge should be to discover “what the law-maker
meant by assuming his position, in the surroundings in which he acted, and endeavoring
to gather from the mischiefs he had to meet and the remedy by which he sought to meet
them, his intention with respect to the particular point in controversy.” Id. at 381; see
also Roscoe Pound, Enforcement of Law, 20 GREEN BAG 401 (1908). Pound himself was
following Judge Sanborn’s formula in In re Clerkship of Circuit Court, 90 F. 248, 251
(C.C.S.D. Iowa 1898).
23. Judge Learned Hand was perhaps the most notable of these. See Fishgold v.
Sullivan Drydock & Repair Corp., 154 F.2d 785, 788-91 (2d Cir.), aff’d, 328 U.S. 275
(1946); Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (2d Cir. 1914), cert. denied,
235 U.S. 705 (1915).
24. “We do not inquire what the legislature meant; we ask only what the statute
means.” Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417,
419 (1899).
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such as the labor movement and nosey social regulations. 25 Unlike
Pound, however, Holmes emphasized the importance of plain
meaning, not only for reasons of democratic theory, but also for
rule-of-law reasons. According to Holmes, our polity could not be a
government of laws and not men unless legal standards were external to the decisionmaker 2 6 For the same reasons that Holmes favored a “reasonable man” standard in torts cases, he advocated a
“normal speaker” theory of plain meaning. 2 7
The legislature-grounded positivism of Holmes’s plain-meaning
theory is similar tojustice Keen’s opinion in The Case of the Speluncean
Explorers.28 Keen makes quite a show of segregating his own moral
view-that the defendants should not be punished-from his responsibility as a judge:
[A] question that I wish to put to one side is that of deciding
whether what these men did was “right” or “wrong,” “wicked” or
“good.” That is …a question that is irrelevant to the discharge
of my office as ajudge sworn to apply, not my conceptions of morality, but the law of the land….
Whence arise all the difficulties of the case … ? The difficul-
ties, in whatever tortured form they may present themselves, all
trace back to a single source, and that is a failure to distinguish the
legal from the moral aspects of this case. To put it bluntly, my
brothers do not like the fact that the written law requires the conviction of these defendants. Neither do I, but unlike my brothers I
respect the obligations of an office that requires me to put my
personal predilections out of my mind when
I come to interpret
29
and apply the law of this Commonwealth.
In a representative democracy, the law is the statutes enacted by the
25. “I always say that I regard legislation like buying a ticket to the theatre. If you’re
sure you want to go to the show and have money to pay for it there is an end of the
matter. I may think you foolish to want to go, but that has nothing to do with my duty.”
Letter from Oliver Wendell Holmes, Jr., to Franklin Ford (Apr. 6, 1911), quoted in Daniel
R. Ernst, The Critical Tradition in the Writing of Americal Legal History, 102 YALE LJ. 1019,
1053-54 (1993) (book review).
26. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 41, 44 (Boston, Little Brown
& Co. 1881).
27. Holmes, supra note 24, at 417-18.
[W]e ask, not what this man meant, but what those words would mean in the
mouth of a normal speaker of English, using them in the circumstances in
which they were used …. [Tihe normal speaker of English is merely a
special variety, a literary form, so to speak, of our old friend the prudent
man. He is external to the particular writer, and a reference to him as the
criterion is simply another instance of the externality of the law.
Id.
28. Fuller writes that the Justices are “as mythical as the facts” and that, by
“seek[ing] to trace out contemporary resemblances where none is intended or contemplated, the reader should be warned that he is engaged in a frolic of his own.” Fuller,
supra note 1, at 645 (Postscript).
29. Id. at 632-33 (opinion of Keen, J.).
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elected representatives in the legislature, which is supreme in lawmaking. “From that principle [of legislative supremacy] flows the
obligation of the judiciary to enforce faithfully the written law, and
to interpret that law in accordance with its plain meaning without
reference to our personal desires or our individual conceptions of
justice.”3 0 For Keen, as for Holmes, bending the statute to accommodate the members of the Speluncean Society would be a sacrifice
of law’s objectivity and hence of both its democratic legitimacy and
its usefulness.
Although Keen’s approach to statutory interpretation was (when
Holmes was writing) a progressive approach, it was one that had
been undermined by the time Fuller wrote The Case of the Speluncean
Explorers. The realists in the 1920s and 1930s had debunked the
possibility of objectivity in statutory or any other kind of interpretation, arguing that judges had an enormous lawmaking discretion
that was little confined by statutory plain meaning or imaginative
reconstruction.3 1 The realists unsettled the statutory interpretation
debate. Although the realists had no use for Lochner-style conservatives or natural law, neither were they simple legislative
supremacists, as Pound and Holmes were. The realists viewed the
sovereign’s rules as the results of the judicial and not the legislative
process (i.e., because there is no law until the statute has been interpreted3 2 ) and also tended to accept the tenets of ethical positivism. 33
Moreover, because they believed that judges have great
leeway in reading their own policy preferences into statutes, the
realists emphasized the importance of instrumental, policy-driven
considerations.
In The Case of the Speluncean Explorers, Justice Handy reflects the
realists’ disdain for the “obscuring curtain of legalisms” and “abstract theory” 3 4 and their endorsement of doctrinal solutions that
30. Id. at 633.
31. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 166 (192 1) (“I
have grown to see that the [udiciall process in its highest reaches is not discovery but
creation …. “); MORRIS R. COHEN, LAW AND THE SOCIAL ORDER: ESSAYS IN LEGAL PHILOSOPHY 131 (1933) (“The meaning of a statute… is ajuridical creation in the light of
social demands.”); Charles P. Curtis, A Better Theory of Legal Interpretation, 3 VAND. L. REV.
407, 407-08 (1950) (arguing that “the belief that the interpretation of legal documents
consists essentially in a search for the intention of the author” is “orthodox.. . yet…
quite wrong”);Jerome Frank, Words and Music: Some Remarks on Statutory Interpretation,47
COLUM. L. REV. 1259, 1267-70 (1947) (“We do not usually speak of [legislative] ‘delegation’ to the judiciary, but the fact of such delegation is undeniable, whatever the label.”);
K.N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 31-40 (1934); see
also JOHN C. GRAY, THE NATURE AND SOURCES OF THE LAW 124-25 (2d ed. 1927) (a prerealist taking the position that “it is only words that the legislature utters; it is for the
courts to say what those words mean; that is, it is for them to interpret legislative acts”).
32. Max Radin, Statutory Interpretation,43 HARv. L. REv. 863, 870-72 (1930).
33. See, e.g., Karl N. Llewellyn, A RealisticJurisprudence-TheNext Step, 30 COLUM. L.
REV. 431, 431-33 (1930). By “ethical positivism,” I mean the view that law is the command of the sovereign and that the goodness of law (the “ought”) is a matter separate
from what the law actually requires (the “is”). See Owen M. Fiss, The Varieties of Positivism,
90 YALE L.J. 1007, 1007 (1981).
34. Fuller, supra note 1, at 637 (opinion of Handy, J.).
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reflect “efficiency and common sense.” 3 5 Handy is Keen’s doppleginger: Keen emphasizes the stability and externality of law, and
Handy emphasizes its mobility and contingency.3 6 Keen rigidly separates 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 politics/functionalism might have been the centerpiece of the case. Instead, 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 natural law, positivism found itself intellectually vulnerable. As American 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 segment 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 Realism, 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 project as having presented nothing particularly new or productive, see generally Robert S.
Summers, ProfessorFuller’sJurisprudenceand 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 Fiatin 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 THEORY:
SCIENTIFIC NATURALISM & THE PROBLEM OF VALUE
159-78 (1973).
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ethical positivism in law. In his 1940 Rosenthal Lectures, Fuller
suggested, first, that decrees such as those of the Nazis were not
binding law, because the conditions of human coexistence ceased to
exist for most of the citizenry. 40 Second, he argued that there is no
sharp distinction between the “is” and “ought” in law. 4 ‘ Both suggestions show up nine years later in the opinion of Justice Foster.
Accordingly, one reason that Foster gives for acquitting the defendants is that the positive law ceased to apply to them when they
were thrust back into a “state of nature” by their entrapment in the
cave:
Whatever particular objects may be sought by the various
branches of our law, it is apparent on reflection that all of them
are directed toward facilitating and improving men’s coexistence
and regulating with fairness and equity the relations of their life in
common. When the assumption that men may live together loses
its truth, as it obviously did in this extraordinary situation where
life only became possible by the taking of life, then the basic
premises underlying
our whole legal order have lost their mean42
ing and force.
Under pure natural law, Foster asserts, the defendants acted out of
45
necessity and were “guiltless of any crime” as a result.
Foster asserts a second and independent reason for voting to acquit, one more subtly echoing natural-law influences. Even conceding that the explorers’ conduct “violates the literal wording of the
statute,” he argued that one “may break the letter of the law without
breaking the law itself” and that a law must “be interpreted reasonably, in the light of its evident purpose.” 4 4 To a reader of the 1920s
and 1930s, Foster’s statement would have been an uncomfortable
echo of the natural law in Holy Trinity, with Foster’s rejection of the
law’s “letter” for the law’s “purpose” (a seeming euphemism for
Holy Trinity’s “spirit”). Could the invocation of a “Christian nation”
be far behind? By the late 1940s, readers would have been more
comfortable with Foster’s second argument, whose intellectual
background and relationship to his first argument I shall now explore in detail.
II.
After the Positivism/NaturalLaw Debate: The Case of the
Speluncean Explorers and the Legal Process Synthesis,
1940-1958
American law faced an intellectual crisis on the eve of World War
II. Formalist theories of law, like those of Newgarth’s Justice Keen,
were vulnerable to realist attacks concerning their objectivity. On
the other hand, realist theories, like the view of Justice Handy that
40. See FULLER, supra note 38, at 122-25.
41. Id. at 4-15.
42. Fuller, supra note 1, at 621 (opinion of Foster, J.).
43. Id.
44. lId at 624. To support his interpretation of the law’s purpose, Justice Foster
invokes the exception to murder statutes for self-defense. Id. at 624-25.
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judges are nothing more than another set of political actors, seemed
inconsistent with traditional theories of democracy or the rule of
law. The shortcomings of both formalism and realism gave rise to a
demand for a theory of statutory interpretation that tied law to reason as well as to democracy and rules. Judges and academics grappled with this conundrum, and a tentative answer emerged in the
period from 1939 to 1942: Statutory interpretation must be informed by the purposive role of state actors. 45 Although earlier
scholars had acknowledged the idea that legislative purpose was important to statutory interpretation, and the Supreme Court had occasionally invoked purpose-based reasoning,46 this idea did not
become central until 1939-1942, after the New Deal had been politically consolidated, just as the New Deal majority was forming on the
Supreme Court, and right before the United States entered World
War II.
The new generation of scholars and judges accepted the realist
argument that unelected officials do engage in lawmaking, but they
suggested that such lawmaking had some direction from democratic
sources. “Legislation has an aim,” asserted Justice Felix Frankfurter. “[I]t seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of
government.” 47 Hence, added Professor Harry Willmer Jones,
“[t]he ‘law’ of a statute is not complete when the legislative stamp
has been put upon it; subsequent judicial decisions add meaning
45. The primary articles, in order of their publication, are Harry W. Jones, The Plain
Meaning Rule and Extrinsic Aids in the Interpretationof Federal Statutes, 25 WASH. U. L.Q. 2
(1939), FrederickJ. de Sloov~re, Extrinsic Aids in the Interpretationof Statutes, 88 U. PA. L.
REV. 527 (1940) [hereinafter de Sloov~re, ExtrinsicAids], Harry W.Jones, ExtrinsicAids in
the FederalCourts, 25 IOWA L. REV. 737 (1940) [hereinafterJones, ExtrinsicAids], Harry W.
Jones, Statutory Doubts and Legislative Intention, 40 COLUM. L. REV. 957 (1940), Charles B.
Nutting, The Ambiguity of Unambiguous Statutes, 24 MINN. L. REV. 509 (1940), and Max
Radin, A Short Way with Statutes, 56 HARV. L. REV. 388 (1942). For later works in the
same vein, see Frank, supra note 31, and Felix Frankfurter, Some Reflections on the Reading
of Statutes, 47 COLUM. L. REV. 527 (1947).
My assertion about the dramatic break in the literature is based in part on the dramatic surge in articles with strikingly similar arguments in or around 1940 and in part on
the different emphasis in these articles. Compare, for example, de Sloov~re’s 1940 article emphasizing legislative purpose, see de Sloov~re, ExtrinsicAids, supra, at 532-33, with
his earlier work emphasizing imaginative reconstruction, Frederick J. de Sloov6re, Preliminary Questions in Statutory Interpretation,9 N.Y.U. L.Q. REV. 407, 411-16 (1932). A waystation article is FrederickJ. de Sloov6re, The Equity and Reason of a Statute, 21 CORNELL
L.Q. 591, 598 (1936), which advocates the Golden Rule, that statutes should be interpreted reasonably.
46. See, e.g., United States v. Whitridge, 197 U.S. 135, 143 (1905) (Holmes, J., for
the Court) (“[W]e cannot forget that… the general purpose is a more important aid to
the meaning than any rule which grammar or formal logic may lay down.”).
47. Frankfurter, supra note 45, at 538-39. Even arch-realist Max Radin accommodated the new consensus in a 1942 article, which argued that a statute is a “ground
design,” an “instruction to administrators and courts to accomplish a definite result,
usually the securing or maintaining of recognized social, political, or economic values.”
Radin, supra note 45, at 407.
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and effect to the statutory direction.” 48 Such subsequent lawmaking
would be guided by “the principle that in determining the effect of
statutes in doubtful cases judges should decide in such a way as to
advance the objectives which, in their judgment, the legislature
sought to attain by enactment of the legislation.” 4 9 By tying statutory interpretation to legislative purpose, these thinkers established
a link to democratic theory. They argued further that this link contributed to the rule of law, because ascertaining legislative purpose
could be determined easily by examining the statute’s legislative
50
history.
Remarkably, at the same time that the academic consensus was
forming against the plain-meaning rule and in favor of interpreting
statutes to fulfill their purposes, the New Deal Court was filling the
U.S. Reports with the fruits of that consensus. Writing for the Court
in 1940, Justice Stanley Reed (who had been Solicitor General during the early New Deal era) explained in United States v. American
Trucking Associations, Inc. :51
There is, of course, no more persuasive evidence of the purpose
of a statute than the words by which the legislature undertook to
give expression to its wishes….
In such cases we have followed
their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to
the purpose of the act. Frequently, however, even when the plain
meaning did not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a
whole” this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as
used in the statute, is available, there certainly can be no “rule of
law” which forbids its use, however clear the words may appear on
“superficial examination.”
The purposive spirit of Justice Reed’s opinion in American Trucking
52
was followed for a generation by the Supreme Court.
Justice Foster’s opinion in The Case of the Speluncean Explorers deploys the purpose-of-the-statute theory in several interesting and
important ways. Foster introduces the purpose rule with a neat rhetorical appeal to history and tradition:
48. Jones, ExtrinsicAids, supra note 45, at 761; see Frank, supra note 31, at 1270 (arguing that legislatures must delegate filling in statutory meaning to courts and agencies).
49. Jones, ExtrinsicAids, supra note 45, at 757; see Frankfurter, supra note 45, at 53839; Radin, supra note 45, at 399.
50. “By reference to extrinsic aids it is usually possible .
.
. to discover .
.
. the
purposes or objectives which the enacting legislators, or some of them, sought to
achieve by enactment of the legislation.” Jones, Extrinsic Aids, supra note 45, at 756-57;
see de Sloov~re, Extrinsic Aids, supra note 45, at 540 (arguing that the study of legislative
history by the interpreter creates a “comprehensive and detailed … contextual setting”
that protects against idiosyncratic interpretations by judges); Radin, supra note 45, at
410-11. Indeed, “the purpose or policy embodied in a statute[] is more often discoverable than is an understanding of legislators as to technical meaning or specific application.” Jones, ExtrinsicAids, supra note 45, at 761.
51. 310 U.S. 534, 543-44 (1940) (footnotes omitted).
52. Some leading opinions include Schwegmann Bros. v. Calvert Distillers Corp.,
341 U.S. 384 (1951), Fay v. Noia, 372 U.S. 391 (1963), Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968), and Griggs v. Duke Power Co., 401 U.S. 424 (1971).
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Now it is, of course, perfectly clear that these men did an act that
violates the literal wording of the statute which declares that he
who “shall willfully take the life of another” is a murderer. But one
of the most ancient bits of legal wisdom is the saying that a man may break
the letter of the law without breakingthe law itself. Every proposition of
positive law, whether contained in a statute or a judicial precedent, is to be interpreted reasonably, in the light of its evident
purpose. This is a truth so elementary that it is hardly necessary to expatiate on it.53
For this “truth so elementary,” Foster cites (fictional) cases in which
the court followed such an antiliteralist approach, and readers in
1949 could have substituted American Trucking and other chestnuts
that had been publicized by academics in the 1930s. 54 Most tellingly, Foster invokes the established exception for self-defense: No
matter how broadly a murder statute is phrased, wouldn’t a court
infer a self-defense exception? 5 5 Such an exception is lawful and
not merely equitable, he argues, because it is the interpretation sup56
ported by the deterrent purpose of a criminal statute.
Foster is aware of the then-familiar charge of Lochnerism, for Keen
specifically maintains that Foster’s purposivist interpretation is
nothing more than judicial “revision” of a statute and a “specious”
approach to statutes, both of which are inconsistent with legislative
supremacy 5 7 and its corollary “obligation of the judiciary to enforce
faithfully the written law.” 5 8 Not only does Foster deny the charge,
but he responds that his approach, not Keen’s, best reflects “fidelity
to enacted law” and the role of the judiciary as agents of the
legislature:
No superior wants a servant who lacks the capacity to read between the lines. The stupidest housemaid knows that when she is
told “to peel the soup and skim the potatoes” her mistress does
not mean what she says. She also knows that when her master
tells her to “drop everything and come running” he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect
the same modicum of intelligence from thejudiciary. The correction of obvious legislative errors or oversights is not to supplant
the legislative will, but to make that will effective. 5 9
53. Fuller, supra note 1, at 623-24 (opinion of Foster, J.) (emphasis added).
54. The main cite was Heydon’s Case, 76 Eng. Rep. 637, 638 (Ex. 1584), which
urged courts to interpret statutes in a way “as shall suppress the mischief, and advance
the remedy” sought by the statute.
55. Fuller, supra note 1, at 624-25 (opinion of Foster, J.).
56. Id-at 625.
57. Id-at 634 (opinion of Keen, J.).
58. Id. at 633.
59. Id. at 625-26 (opinion of Foster, J.). Thus, Foster’s explanation implies that the
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The most important contribution of Foster’s opinion extends beyond these specific arguments and reposes in the interplay of his
two grounds for decision. Foster asserts that the second ground for
decision (interpret the law to fulfill its rational purpose) is independent of the first (the rule of law lapsed when the explorers
became trapped in the cave), but the two are related insofar as they
share a common theory of state legitimacy. Just as the second
ground insists that laws be interpreted with reference to statutory
purpose, the first ground insists that law is purposive generally. Recall Foster’s observation that law is “directed toward facilitating and
improving men’s coexistence and regulating with fairness and equity the relations of their life in common.” 60 Foster makes the point
more clearly a page later: “The powers of government can only be
justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the
necessity of constructing anew some order to make their life in common possible.” 6 1 It is this view of the state as an organism of cooperation in Foster’s first ground for decision that validates the
normative assertion in the second ground that statutes must be interpreted in accord with their purposes.
This normative insight in Foster’s opinion provided scholars in
the emerging legal process school with a political theory by which to
rethink statutory interpretation. In the 1950s, Fuller’s colleagues at
the Harvard Law School, Professors Henry Hart and Albert Sacks,
dilated the theoretical structure of Foster’s opinion into more than
62
1,400 pages of materials on what they called “The Legal Process.”
Following the views of Foster’s opinion, Hart and Sacks’ intellectual
starting point was the interconnectedness of human beings and the
utility of law in helping us coexist together peacefully. “Law is a
doing of something, a purposive activity, a continuous striving to
solve the basic problems of social living,” they asserted. 63 Because
the legitimacy of law rests upon its purposiveness and not upon abstract social contract principles, Hart and Sacks further maintained
that “[e]very statute must be conclusively presumed to be a purposive act. The idea of a statute without an intelligible purpose is foreign to the idea of law and inadmissible.”‘ ‘
Hart and Sacks emphasized that the process of lawmaking hardly
ends with the enactment of a statute and that law is a process of
honest agent of a legislative directive will not interpret the directive in a way that undermines the overall enterprise. This argument is developed in William N. Eskridge, Jr.,
Spinning Legislative Supremacy, 78 GEO. LJ. 319, 324 (1989).
60. Fuller, supra note I, at 621 (opinion of Foster, J.).
61. Id. at 622. Compare this with the “veil of ignorance” articulation of the social
contract in JOHN RAWLS, A THEORY OF JUSTICE 136-42 (1971).
62. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS
IN THE MAKING AND APPLICATION OF LAW (tent. ed. 1958). The Hart and Sacks materials
will be published by Foundation Press in 1994.
63. Id at 217.
64. Id at 1156; see also id at 1414-15; Robert Weisberg, The CalabresianJudicialArtist:
Statutes and the New Legal Process, 35 STAN. L. REV. 213, 214 (1983).
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65
reasoned elaboration of purposive statutes by courts and agencies.
Following not only Foster’s opinion but also the leading statutory
scholars of the 1940s,66 Hart and Sacks reasoned that, because
“every statute.., has some kind of purpose or objective, ‘6 7 ambiguities can be intelligently resolved, first, by identifying that purpose and the policy or principle it embodies, and then by deducing
the result most consonant with that principle or policy. 68 Hart and
Sacks not only rejected the plain-meaning rule in favor of a rule of
reasonable interpretation but rejected imaginative reconstruction as
well. 69
The legal process theory of purposive statutory interpretation was
an intellectually robust legacy of the New Deal and World War II.
Under such a theory, statutory interpretation could be both dynamic
and legitimate, equitable as well as lawlike. Although Fuller’s precise influence on Hart and Sacks (his faculty colleagues after 1940)
is unknowable to us today, it is clear that the primary analytical devices in legal process’s theory of interpretation were precisely anticipated by Justice Foster’s opinion in The Case of the Speluncean
Explorers. For this reason alone, Fuller’s fictional exercise must be
counted as one of the important jurisprudential documents in this
century.
III.
The Case of the Speluncean Explorers and Problems with
the Legal Process Synthesis, 1958-Present
As the creator of Spelunceanjustice Foster, Lon Fuller was a parent of legal process theory. What may be even more interesting,
however, is the way in which Fuller was also legal process’s most
perceptive critic, nine years before the Hart and Sacks materials assumed their final form and decades before serious attacks on the
theory were launched by the next generation of scholars. Recall
65. HART & SACKS, supra note 62, at 162-68.
66. See supra note 45.
67. HART & SACKS, supra note 62, at 166.
68. Id at 166-67; see id at 1148-79, 1200 (describing purposive interpretation in
greater detail and contrasting it with the plain-meaning rule).
69. “The internal legislative history of the measure… may be examined,” they
declared, but only “for the light it throws on general purpose. Evidence of specific intention with respect to particular applications is competent only to the extent that the particular applications illuminate the general purpose and are consistent with other
evidence of it.” Id at 1415-16. Thus, Hart and Sacks warmly endorsed as their exemplarJohnson v. Southern Pac. Co., 196 U.S. 1 (1904), which used legislative history to
figure out general purpose. HART & SACKS, supra note 62, at 1165-74, 1180-86, 1200.
Jones had similarly flagged this case as an exemplar. Jones, ExtrinsicAids, supra note 45,
at 759. Moreover, Jones and virtually all his colleagues from the 1930s had revived
interest in Heydon’s Case, the leading English case for purposive interpretation. See id. at
757; see also de Sloov~re, Extrinsic Aids, supra note 45, at 546 & n. 103; Radin, supra note
45, at 388-89.
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that no one in The Case of the Speluncean Explorersjoins Foster’s opinion and that the explorers’ conviction is affirmed. 70 More significantly, all the other opinions attack the aspirational vision in
Foster’s work. True to his academic integrity, Fuller made sure that
the attacks have bite, so much so that they generally anticipated the
next generation’s criticisms of purposive theory. Consider the main
lines of attack on Foster’s approach:
1. Because Purpose Is Fictional, Interpretation Becomes Judicial Lawmaking. No one else on the Newgarth Supreme Court accepts Justice Foster’s argument that purposive interpretation is not judicial
lawmaking; and Justices Tatting and Keen appear to refute it altogether. Tatting (the Justice too conflicted to cast a vote) finds Foster’s purpose-of-the-statute argument appealing but ultimately
unpersuasive, in part because the criminal law has several purposes
other than to deter wrongdoing. 7 ‘ These other purposes include
retribution and rehabilitation, 72 both of which would be served by
punishing cannibals, even cannibals acting under conditions of necessity. Tatting further wonders whether deterrence is really a serious purpose of criminal laws, when so many of their sanctions seem
unrelated to any plausible deterrence. 7 3 “Assuming that we must
interpret a statute in the light of its purpose, what are we to do when
it has many purposes or when its purposes are disputed?”7 4 Finally,
Tatting questions whether even the deterrent purpose of the criminal law would not be subserved by convicting the explorers. “The
stigma of the word ‘murderer’ is such that it is quite likely, I believe,
that if these men had known that their act was deemed by the law to
be murder they would have waited for a few days at least before
carrying out their plan.” 7 5 Tatting might have observed that the explorers could have cannibalized the first of their numbers to have
died, and that they might have chosen that strategy had they better
internalized society’s prohibition of murder. In some circumstances, waiting a few days could mean the difference between life
and death.
Tatting’s opinion suggests that purposivist statutory interpretation is no more determinate or objective than the approaches (plain
meaning and imaginative reconstruction) criticized by the legal realists. Although one advantage of grounding statutory interpretation
on legislative purpose is that general purpose is more easily determinable than specific intent, a corresponding disadvantage is that
purpose is too easy to determine, yielding a plethora of purposes,
cross-cutting purposes, and purposes set at such a general level that
70. Fuller, supra note 1, at 645.
71. Id at 628-29 (opinion of Tatting, J.).
72. Id at 628.
73. Id. at 629-30. Tatting cites Commonwealth v. Vajean, in which the hypothetical
Court upheld the conviction of a man for stealing a loaf of bread for his family. Id. at
629. In today’s America, the willingness of the state to execute convicted criminals,
notwithstanding unimpressive evidence of deterrent effects, is testimony to this point.
74. Id. at 628-29.
75. Id. at 630.
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they could support several different interpretations. Purposive statutory interpretation, therefore, might be even less determinate than
more traditional approaches. This has been a standard criticism of
legal process interpretation, 76 and newly appointed Justice Paul
makes this criticism of all the “general” approaches presented by
77
the prior Justices .
Justice Keen presses this criticism more deeply when he observes
that “not one statute in a hundred has any such single purpose, and
…the objectives of nearly every statute are differently interpreted
by the different classes of its sponsors. ‘7 8 Although Keen does not
develop this criticism in detail, subsequent legal scholars and judges
have done so, based upon theories of the political process such as
public choice theory. 79 The criticism suggests that legislators often
support statutes for nothing more than self-serving political pressures and that statutes might have no overall public-regarding purpose at all. Even if legislators had purposes, the legislature probably
does not, and the process of statutory enactment undermines any
coherent purpose the proposed statute might at one point have had.
The process by which statutes are enacted is one of coalition-building, compromise, and sometimes deceit. Different groups and interests supporting enactment of a statute might have very different
ideas about what the statute is attempting to do, and this heterogeneity might be encouraged by the sponsors themselves. In short,
inquiries based upon legislative purpose may be worse than indeterminate; they may be incoherent or analytically impossible.
If that is so, Foster’s theory of interpreting statutes to carry out
their purposes is judicial lawmaking, a concession discreetly made
by Hart and Sacks. 8 0 Lawmaking by unelected officials requires jus-
tification under traditional theories of democracy. Neither Foster
76. See United Steelworkers v. Weber, 443 U.S. 193, 219-22 (1979) (Rehnquist, J.,
dissenting) (arguing that the majority’s purposivist interpretation was “reminiscent not
of jurists such as Hale, Holmes and Hughes, but of escape artists such as Houdini”);
William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1545-46
(1987) (arguing that “the Hart and Sacks ‘gambit’ has more often than not been used to
the Court’s discredit, having contributed to sloppy opinions.”).
77. Jeremy Paul, The Case of the Speluncean Explorers: ContemporaryProceedings, 61 GEO.
WASH. L. REV. 1801, 1806 (1993) (opinion of Paul, J.).
78. Fuller, supra note 1, at 634 (opinion of Keen, J.).
79. For examples, see K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 325 (1988)
(Scalia, J., concurring in part and dissenting in part), DANIEL A. FARBER & PHILIP P.
FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION ch. 4, at 95-102 (1991),
RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 269-78 (1990), and Frank H.
Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533, 547-48 (1983).
80. Hart and Sacks speak of “what purpose ought to be attributed to a statute.”
HART & SACKS, supra note 62, at 1157. In attributing purpose, they suggest that a court
“should not do this in the mood of a cynical political observer, taking account of…
short-run currents of political expedience that swirl around any legislative session.” Id.
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nor his intellectual heirs, Hart and Sacks, provided such justification. This theoretical gap has left legal process theory vulnerable to
critique from both the left and the right. Both wings of the critique
are anticipated by opinions in The Case of the Speluncean Explorers.
2. JudicialLawmaking Is Questionablefor Reasons of Democratic Theory
and Institutional Competence. Justice Keen’s opinion in The Case of the
Speluncean Explorers lays out the primary objection to judicial revision
of statutes: It is inconsistent with “the supremacy of the legislative
branch of our government.””‘ Subsequent legal process work has
built on this “counter-majoritarian difficulty” 8 2 as the key problem
with activist statutory interpretations by courts. Indeed, the issue of
legislative supremacy is a primary litmus test that divides “liberal”
process thinkers 83 from more “conservative” ones.8 4 The former
are more likely than the latter to update statutes to reflect changed
circumstances, to interpret a statute to effectuate a reasonable purpose notwithstanding a contrary plain meaning, and to read a statute to avoid inequities and not just absurd results.8 5
Justice Keen invokes both rule-of-law and democratic values in
defending the primacy of legislative supremacy. His initial defense
emphasizes rule-of-law values and tradition:
I am not concerned with the question whether the principle that
forbids the judicial revision of statutes is right or wrong, desirable
or undesirable; I observe merely that this principle has become a
of the legal and governmental
tacit premise underlying the whole
86
order I am sworn to administer.
Yet he also hints that a polity’s failure to follow a “clear-cut principle”8s7 of governmental ordering can have calamitous consequences:
There was a time in this Commonwealth when judges did in fact
81. Fuller, supra note 1, at 633 (opinion of Keen, J.).
82. The term is taken from ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH:
THE SUPREME COURT AT THE BAR OF POLITICS 16 (1962), a conservative legal process
work that focuses on constitutional as well as statutory issues.
83. For examples of this approach, see RONALD DWORKIN, LAW’S EMPIRE ch. 4
(1986), JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 4
(1980), CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULA-
TORY STATE (1990), and Eskridge, supra note 59, at 320-21.
84. For examples of this approach, see ROBERT H. BORK, THE TEMPTING OF
(1990), REED DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES (1975), Daniel A. Farber, Statutory Interpretation
AMERICA: THE POLITICAL SEDUCTION OF THE LAW
and LegislativeSupremacy, 78 GEO. LJ.281 (1989), and Earl M. Maltz, Rhetoric and Reality in
the Theory of Statutory Interpretation: Underenforcement, Overenforcement, and the Problem of Legislative Supremacy, 71 B.U. L. REV. 767 (1991).
85. Compare the separate concurring and dissenting opinions of Justices Brennan
and Scalia in K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988). Justice Brennan argued
that “[m]anifestly, .. . legislators … viewed trademark ownership differently than we
view it today” and that “[a]ny prescient legislator … would almost certainly have concluded” that the interpretation ofJustice Brennan was the correct one. Id. at 315 (Brennan, J., concurring in part and dissenting in part). Justice Scalia chided Justice Brennan
for “asserting that we have the power-indeed the obligation, lest we commit a ‘stolid
anachronism’-to decline to apply a statute to a situation that its language concededly
covers …. I confess never to have heard of such a theory of statutory interpretation.”
Id. at 324-25 (Scalia, J., concurring in part and dissenting in part).
86. Fuller, supra note 1, at 633-34 (opinion of Keen, J.).
87. Id. at 633.
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legislate very freely, and all of us know that during that period
some of our statutes were rather thoroughly made over by the judiciary. That was a time when the accepted principles of political
science did not designate with any certainty the rank and function
of various arms of the state. We all know the tragic issue of that
uncertainty in the brief civil war that arose out of the conflict between the judiciary, on the one hand, and the executive and the
legislature, on the other.8 8
Although no one (these days) asserts that the republic will end if
judges revise statutes, a Keen-like formalism grounded upon the
concept of legislative supremacy has proven to be an enduring
theme of conservative legal process attacks on purposive or creative
89
statutory interpretations as politically illegitimate.
At the end of his opinion, Justice Keen provides a functional,
democratic justification for text-centered statutory interpretation
that ignores the equities:
Now I know that the line of reasoning I have developed in this
opinion will not be acceptable to those who look only to the immediate effects of a decision and ignore the long-run implications
of an” assumption by the judiciary of a power of dispensation.. A
hard decision is never a popular decision ….
But I believe that
judicial dispensation does more harm in the long run than hard
decisions. Hard cases may even have a certain moral value by
bringing home to the people their own responsibilities toward the
law that is ultimately their creation, and by reminding them that
there is no principle of personal grace that can relieve the mistakes of their representatives.
Indeed, I will go farther and say that not only are the principles
I have been expounding those which are soundest for our present
conditions, but that we would have inherited a better legal system
from our forefathers if those principles had been observed from
the beginning. For example, with respect to the excuse of selfdefense, if our courts had stood steadfast on the language of the
statute the result would undoubtedly have been a legislative revision of it. Such a revision would have drawn on the assistance of
natural philosophers and psychologists, and the resulting regulation of the matter would have had an understandable and rational
basis, instead of the hodgepodge of verbalisms and metaphysical
distinctions that have emerged from the judicial and professorial
treatment.9 0
88. Id.
89. For examples of the revival of formalism in statutory interpretation, see MARTIN
H. REDISH, THE FEDERAL COURTS IN THE POLITICAL ORDER: JUDICIAL JURISDICTION AND
AMERICAN POLITICAL THEORY ch. 2 (1991), Frank H. Easterbrook, The Role of Original
Intent in Statutory Interpretation, 11 IARv.J.L. & PUB. POL’Y 59, 60-61 (1988), Farber, supra
note 84, at 294-306, Maltz, supra note 84, at 773-82, and Thomas W. Merrill, The Common
Law Powers’ofFederal Courts, 52 U. CHI. L. REV. 1, 8 (1985).
90. Fuller, supra note 1, at 636-37 (opinion of Keen, J.).
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Keen’s analysis rests upon a theory of comparative institutional
competence in a democracy: Courts are not institutionally as competent as legislatures to create whole new policy regimes. If courts
insist on performing that gap-filling function, they will discourage
the legislature from doing so, which is not only undemocratic but is
also bad policy.
This line of argument has been a recurring theme of conservative
process theory and has been of particular interest to Justice Scalia
on our current Court. Like Keen, Scalia invokes both formalist and
functional reasons for a plain-meaning approach to statutory interpretation.9 1 Thus, Scalia and his legal process allies invoke tradition
and constitutional structures to insist upon a textualist approach to
reading statutes.9 2 They argue, moreover, that statutory interpretation should not aspire to reach results that are good ex post 93 but
should instead subserve ex ante goals, such as providing Congress
with “clear interpretive rules” so that it can know the effect of language it adopts. 9 4 This approach, they argue, stimulates Congress
and not the courts to make important policy decisions.9 5 “I think we
have an obligation to conduct our exegesis in a fashion which fosters th[e] democratic process” embedded in the Constitution, Scalia
has said. 96 Though there is much to be said for his insistence that
elected representatives and not unelected judges update statutes,9 7
Scalia’s argument is subject to newly appointed Justice Miller’s response that the democratic process can foster itself, and that the
democratic process has delegated the lawmaking responsibilities to
courts and agencies-and the duty to do justice ex post-when it
enacts broad statutes. 98
A final line of conservative legal process thought is anticipated by
the opinion of Chief Justice Truepenny. After stating the facts, the
ChiefJustice announces that he will follow the plain meaning of the
statute and vote to affirm the convictions. 99 He accommodates the
equitable concerns in the case somewhat differently than Justice
91. These are described in William N. Eskridge, Jr., The New Textualism, 37 UCLA L.
REV. 621, 640-56 (1990).
92. Justice Antonin Scalia, Speech on Use of Legislative History, Delivered Between
Fall, 1985 and Spring, 1986 at Various Law Schools (copy on file with the author).
93. See Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 470 (1989)
(Kennedy, J., concurring in the judgment) (“Although I believe the Court’s result is
quite sensible, I cannot go along with the unhealthy process of amending the statute by
judicial interpretation.”).
94. Finley v. United States, 490 U.S. 545, 556 (1989) (Scalia, J., for the Court)
(“What is of paramount importance is that Congress be able to legislate against a back-
ground of clear interpretive rules, so that it may know the effect of the language it
adopts.”).
95. United States v. Taylor, 487 U.S. 326, 344 (1988) (Scalia,J., concurring in part).
96. Id. at 346; see Public Citizen, 491 U.S. at 473 (Kennedy, J., concurring in the judg-
ment) (“[I]t does not foster a democratic exegesis for this Court to rummage through
unauthoritative materials to consult the spirit of the legislation in order to discover an
alternative interpretation of the statute with which the Court is more comfortable.”).
97. For arguments pro and con, see William N. Eskridge, Jr., OverridingSupreme Court
Statutory InterpretationDecisions, 101 YALE LJ. 331 (1991).
98. Geoffrey C. Miller, The Case of the Speluncean Explorers: ContemporaryProceedings, 61
GEO. WASH. L. REV. 1798, 1800 (1993) (opinion of Miller, J.).
99. Fuller, supra note 1, at 619 (opinion of Truepenny, CJ.).
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Keen does. At the end of his opinion, the ChiefJustice invokes “the
principle of executive clemency” as the most legitimate way “to mitigate the rigors of the law” and urges the Chief Executive to ameliorate the defendants’ punishment. 00
The ChiefJustice’s opinion is something of a lark in Fuller’s exercise, but it does have a serious point that has become a pillar of
conservative process theory: the principle of institutional settlement. Hart and Sacks made this principle a centerpiece of their
legal process materials.. Because law must be dynamic and adaptive
and because the exact direction of the change is unpredictable, it is
more important for a polity to agree on the procedures and institutional roles for making such changes than it is for the polity to map
out the substantive rules themselves.’ 0 ‘ Exactly what these institutional roles ought to be has become an important battleground in
process theory. Echoing Truepenny and Keen, conservative process
theorists and judges argue for very little law-updating by the judiciary and for law-changing by organs more connected with the political process (particularly the Executive Branch). 10 2 Echoing Foster
and Handy, liberal process theorists and judges argue for more lawupdating by the judiciary and against excessive reliance on legisla103
tive and executive organs.
3. Judicial Lawmaking Is Questionable on Grounds of Elitism.
Although Keen’s opinion is a rather complete statement of conservative objections to purposivist interpretation, Handy’s opinion
suggests just an outline of subsequent progressive objections to
purposivist interpretation. Handy’s main objection, made against
both Keen and Foster, is that their opinions rest upon legalisms and
abstractions, both of which deflect attention from the “human realities” of the case.’ 0 4 His philosophy is stated at the outset:
100. Id. This recommendation is bitterly denounced by Justice Keen, who believes
that the defendants should be pardoned but does not think it appropriate for the Court
to instruct the Chief Executive. Id at 632 (opinion of Keen, J.). Justice Handy reveals
secret evidence that the Chief Executive is not inclined to grant clemency and then
shows how all the Justices are bending their judicial roles in transparent efforts to sway
the Executive. Id. at 642-43 (opinion of Handy, J.).
101. HART & SACKS, supra note 62, at 3-4 (“[I]nstitutionalized procedures … are
obviously more fundamental than the substantive arrangements in the structure of a
society… since they are at once the source of the substantive arrangements and the
indispensable means of making them work effectively.”).
102. See, e.g., Colin S. Diver, Statutory Interpretationin the Administrative State, 133 U. PA.
L. REV. 549 (1985); Antonin Scalia,JudicialDeference to Administrative Interpretations of Law,
1989 DuKE LJ. 511; Kenneth W. Starr,JudicialReview in the Post-Chevron Era, 3 YALEJ.
ON REG. 283 (1986).
103. See, e.g., Stephen BreyerJudicial Review of Questions of Law and Policy, 38 ADMIN. L.
REV. 363 (1986); William N. Eskridge, Jr. &John Ferejohn, The Article I, Section 7 Game,
80 GEO. L.J. 523 (1992); Cynthia R. Farina, Statutory Interpretationand the Balance of Power
in the Administrative State, 89 COLUM. L. REv. 452 (1989); Cass R. Sunstein, Law andAdministrationAfter Chevron, 90 COLUM. L. REV. 2071 (1990).
104. Fuller, supra note 1, at 637-38 (opinion of Handy, J.).
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[G]overnment is a human affair, and.., men are ruled, not by
words on paper or by abstract theories, but by other men. They
are ruled well when their rulers understand the feelings and conceptions of the masses. They are ruled badly when that understanding is lacking.
Of all branches of government, the judiciary
is the most likely to
1
lose its contact with the common man. 05
Handy’s charge is elitism. The legitimacy of government rests upon
how well it serves “We the People.” A danger of any kind ofjudgemade legalism is that it is alienated from popular needs. Handy’s
theme has surfaced in the work of progressive republican scholars
who urge popular, political engagement rather than judicial surrol0 6
gacy as the aspiration for progressive legal work.
Handy’s charge can be broadened and even turned against its au-
thor, who is after all a judge who must by his own admission 10be7
“most likely to lose . . . contact with the common man.”
Although he lamely tries to escape the charge by appealing to public
sentiment in his opinion,10 8 Handy is just as unelected and unaccountable as his brethren and more arrogant in asserting the rightness of his own views. Indeed, Handy’s willingness to rest private
rights on public opinion reveals him to be a less sympathetic figure
in that respect. This willingness reveals an ironic and final line of
progressive critique of legal-process statutory interpretation.
The image of the Commonwealth of Newgarth that emerges from
the five opinions, including Handy’s, is one of a false homogene-
ity. 10 9 The world of The Case of the Speluncean Explorers and of its Justices-and Lon Fuller’s world-presents itself as a world in which
the only actors who matter are male,”10 white,”‘ affluent,11 2 and
105. Id. at 638.
106. See Paul Brest, Interpretation and Interest, 34 STAN. L. REv. 765 (1982); Frank
Michelman, Law’s Republic, 97 YALE LJ. 1493 (1988).
107. Fuller, supra note 1, at 638 (opinion of Handy, J.).
108. I say “lamely,” because Handy is interpreting a “text,” just as Keen and Foster
are. His text is “a poll of public opinion,” idL at 639, which is just as subject to interpretation and manipulation as statutory text and purpose.
109. See Gary Peller, Neutral Principles in the 1950s, 21 U. MICH. J.L. REFORM 561,
561-66 (1988) (criticizing 1950s scholars who advocated law based on “neuti-al principles” for failing to understand “the context of racial and sexual domination that marked
everyday life in the United States in the 1950’s”).
110. The Justices advert to the views of their “brothers” throughout. E.g., Fuller,
supra note 1, at 627-31 (Tatting’s constant reference to “my brother” Foster); id. at 633
(Keen’s reference to the otherJustices as “my brothers”); id. at 633-37 (Keen’s constant
reference to “my brother Foster” and “my brother Tatting”); id. at 638 (Handy’s reference to the other Justices as “my brothers”); id. at 642-43 (Handy’s reference to the
Chief Justice’s flapping “his judicial robes” and to “my legalistic brother Keen”). It
appears from the opinions that the explorers were themselves all men. See, e.g., id. at 616
(referring to the explorers as “the men”); id. at 640 (referring to the explorers as “these
men”). The Chief Executive is characterized as “a man now well advanced in years.” Id.
at 642. Even the jury was headed by a “foreman.” Id. at 644.
111. There is no explicit clue of any sort as to the race of any participant. That is,
itself, an implicit clue. In the 1940s, it went without saying that you were white if your
race was not noted.
112. The affluence of the Speluncean world is suggested by the preppy, upper-class
context of the hypothetical: The hobby is the rarefied, relatively expensive one of cave
exploring. Moreover, once their plight is discovered, the state goes to great lengths to
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heterosexual. 1 3 Unless Newgarth is vastly different from America
of 1949, that image is false, for half the real people are women, a
majority are not affluent, and many are not white or heterosexual.
These people (a majority) are not only ignored (as in the opinions)
but are also segregated-confined to the kitchen, the other side of
the tracks, the closet-in ways that Handy’s “popular opinion” approves. The same public opinion that supported Handy’s willingness to overturn the convictions of the Speluncean Explorers would,
in 1949, have supported racial apartheid, unequal job opportunities
for women, and aversion therapy for lesbians, gay men, and
bisexuals.
A similar criticism can be made of purpose-based statutory interpretation. Notwithstanding Handy’s own elitism, his suggestion
that legal process’s purposive interpretation threatens to alienate
government from the people and obscure their underlying
problems is a criticism that has gained force over time, especially
from progressive communities. Focusing on solving the problems
arising out of people’s coexistence in the melting pot of the 1950s,
legal-process theory seems to assume a cultural homogeneity that
was more apparent in the 1940s and 1950s than it is today, in an era
of emerging multiculturalism. 114 Multicultural approaches to statutory interpretation would depart from legal-process theory in a
number of ways, as revealed by several of the opinions penned by
newly appointed Justices.
Feminist theory (represented in this reconsideration by Justices
Cahn, Coombs, and Stein) is critical of the distance placed by the
original Justices between the case’s social context and the Justices’
reasoning and grand theorizing. This critique affects one’s approach to the case in several ways. One is that feminist theorists
tend to be more interested in the “effect of [the Justices’] decisions
on distributions of power among groups in our society,” especially
rescue them. Fuller, supra note 1, at 616-17. Their cases end up as a battleground of
Newgarth’s political elites (the Chief Executive and the Court).
The only appearances of nonwealthy people in the case are demeaning. Ten workingmen died trying to rescue the explorers, yet the Justices show no sympathy or attention to their plight. Most revealing is the snide reference by Justice Foster-the “nice”
Justice-to the “stupidest housemaid.” Id. at 625 (opinion of Foster, J.). If even she has
the “modicum of intelligence” to avoid silly plain meanings, Foster argues, then surely
anyone can. Id.
113. In 1949, just after the first Kinsey Report was published, most people were not
aware of, or were unwilling to admit, the existence of “homosexuals.”
114. See DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL
JUSTICE (1987); Harold McDougall, Social Movements, Law, and Implementation: A Clinical
Dimension of the New Legal Process, 75 CORNELL L. REV. 83 (1989).
Moreover, The Case of the Speluncean Explorers-like virtually all the cases and examples
in the Hart and Sacks materials nine years later, see supra note 62 and accompanying
text-derives its interest from posing a conflict between two issues on which there is
cultural consensus. Here, murder is bad, but survival is good.
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gender-based distributions.’ 15 The jurists appointed for this Symposium explore various cross-cutting implications for battered women who kill their batterers, 1 6 abusive male lovers, 117 and future
Spelunceans. 1 18 Relatedly, feminist theory tends to be empathetic,
viewing the situation at least in part from the perspective of the people beingjudged.11 9 It is significant that none of the feminist judges
is willing to condemn the Speluncean defendants to death. Finally,
it is significant that all three jurists “resist the question” insisted
upon by the original Justices. The feminist jurists approach the case
from an angle different from the original Justices, and their approach yields an interesting array of resolutions: Justice Cahn
would remand for a more complete development of the facts of the
case;120 Justice Coombs would remand for ajury trial;1 21 andJustice
Stein would reverse outright because the explorers acted only after
the authorities refused to advise them on how to cope with their
dilemma.122
Critical race theory (represented by Justices Calmore and Greene)
is in this case more sharply critical, even angry. Like feminism, race
theory is aware of patterns of subordination that pervaded Lon
124
Fuller’s America.’ 23 Unlike most theories of feminism, however,
critical race theory directly attacks the assumed legitimacy of American democracy. For example, Justice Calmore’s opinion is an ex-5
2
tended indictment of the racist foundations of American culture.’
Justice Greene seems to agree with most of this indictment, for he
accuses the acquittingJustices-implicitly including the feministJustices-of showing an unwarranted sympathy to the “privileged” defendants in this case, in stark contrast to the unsympathetic
treatment accorded defendant Valjean for stealing bread to feed his
family. 126 The broader critique of his and Calmore’s opinions is
that race and poverty differences are not only pervasive in America,
but that elite legal culture enforces these differences in draconian
115. See Laura W. Stein, The Case of the Speluncean Explorers: ContemporaryProceedings, 61
GEo. WASH. L. REV. 1807, 1808 (1993) (opinion of Stein, J.).
116. Id. at 1808; Naomi R. Cahn, The Case of the Speluncean Explorers: Contemporay Proceedings, 61 GEO. WASH. L. REV. 1755, 1760 (1993) (opinion of Cahn, J.).
117. Mary I. Coombs, The Case of the Speluncean Explorers: ContemporaryProceedings, 61
GEO. WASH. L. REV. 1785, 1788-89 (1993) (opinion of Coombs, J.).
118. Cahn, supra note 116, at 1756 (opinion of Cahn, J.).
119. Id. at 1761-63 (contrasting the “ethic ofjustice” with the “ethic of care”).
120. Id. at 1763.
121. Coombs, supra note 117, at 1789-90 (opinion of Coombs, J.).
122. Stein, supra note 115, at 1809-11 (opinion of Stein, J.).
123. See Peller, supra note 109, at 561-66.
124. The feminist Justices in this reconsideration rely more on “cultural” or “liberal”
feminist theories, see Cahn, supra note 116, at 1756-57 (opinion of Cahn, J.), than on
“radical” feminist theories, such as CATHERINE A. MACKINNON, TOWARD A FEMINIST
THEORY OF THE STATE (1990).
125. See John 0. Calmore, The Case of the Speluncean Explorers: ContemporaryProceedings,
61 GEO. WASH. L. REV. 1763, 1774-81 (1993) (opinion of Calmore, J.).
126. Dwight L. Greene, The Case of the Speluncean Explorers: ContemporaryProceedings, 61
GEO. WASH. L. REV. 1790, 1795-96 (1993) (opinion of Greene, J.). Greene argues that
an empathetic approach here “provides options selectively under the criminal laws for
the privileged [the explorers] while denying the same prerogatives to the unprivileged
[Valjean].” Id. at 1794.
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practice (VaIjean as racism) while ignoring the differences doctrinally
(Speluncean Explorers as unconscious racism).
I believe this Symposium on The Case of the Speluncean Explorers is
most valuable, not just as an occasion to praise Lon Fuller, or to
rehash Hart and Sacks and their critics, but as a challenge to feminist and critical race theorists to apply their experiences and insights
to statutory interpretation, and not just to issues ofjurisprudence or
constitutional law.
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