上海交通大学：《法律与道德》课程教学资源（案例）洞穴奇案50周年续写，哈佛法律评论原文

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 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. 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. 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.) § 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 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 "[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 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, 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 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. 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 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,1 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.) 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