18go HARVARD LAW REVIEW [Vol.I12:1834 which our moral judgments would argue otherwise.(Consider,for ex- ample,a case in which someone shot,in cold blood,a person whom the killer reasonably believed to be conspiring to kill others.)In prac- tice,the deterrent value of the law might well be undermined by such an exemption,and it is at least possible that some people would kill in the belief or hope that they would be able to claim an exemption. Cost-benefit analysis has its place,but when a statute forbids"willful killing,"we ought not to allow anything like a cost-benefit exception. A kind of "meta"cost-benefit analysis may well support this judg- ment.If courts engaged in individualized inquiries into the legitimacy of all takings of life,law would rapidly become very complicated,and the deterrent value of the statute might start to unravel-especially if prospective killers are at all attentive to the structure of our jurispru- dence.I have considerable sympathy for Judge Easterbrook's ap- proach to this case;in most ways his approach tracks my own,and I have been tempted to accept his conclusion as well.We part company, I think,only because I am more concerned about the increased uncer- tainty and muffled signals,for courts and prospective killers alike,that would come from finding an "exception"here.See id.at I914-15.I fear the systemic effects of his(not unreasonable)view about this par- ticular case. An implication of my general approach is that the interpretation of statutes,or rules,has an important analogical dimension.The differ- ence between rule interpretation and analogical reasoning is far from crisp and clean.In the interpretation of rules,the ordinary meaning of the terms presumptively governs;but when the application at hand is entirely different from the exemplary or prototypical cases,the ordi- nary meaning may have to yield.In deciding whether the application is in fact different,we are thinking analogously.But because it is rea- sonable to think that this case is analogous to the exemplary ones- because it involved the taking of an innocent life-we do best to fol- low the statutory language. It is for this reason that I do not believe that we should at this time consider legal challenges to the death sentence,as opposed to the con- viction,in this case.Justice West has eloquently argued that the death sentence is constitutionally illegitimate.See infra,at 1897-99(West, J.).I am not sure that she is wrong;nor am I sure that she is right. Most of the time,the Constitution does not permit litigants to "open up"rule-bound law by arguing that it is unreasonable as applied and asking for an individualized hearing on its reasonableness as applied to them.A doctrine that would permit frequent constitutional attacks on rule-bound law would threaten the rule of law itself-increasing un- predictability,uncertainty,and (because judges are merely human) threatening to increase error and injustice as well.There can be no assurance that judges will reach the right outcome once all the facts emerge for individualized decision.But the death penalty is a distinc- HeinOnline--112 Harv.L.Rev.1890 1998-1999
HARVARD LAW REVIEW which our moral judgments would argue otherwise. (Consider, for example, a case in which someone shot, in cold blood, a person whom the killer reasonably believed to be conspiring to kill others.) In practice, the deterrent value of the law might well be undermined by such an exemption, and it is at least possible that some people would kill in the belief or hope that they would be able to claim an exemption. Cost-benefit analysis has its place, but when a statute forbids "willful killing," we ought not to allow anything like a cost-benefit exception. A kind of "meta" cost-benefit analysis may well support this judgment. If courts engaged in individualized inquiries into the legitimacy of all takings of life, law would rapidly become very complicated, and the deterrent value of the statute might start to unravel - especially if prospective killers are at all attentive to the structure of our jurisprudence. I have considerable sympathy for Judge Easterbrook's approach to this case; in most ways his approach tracks my own, and I have been tempted to accept his conclusion as well. We part company, I think, only because I am more concerned about the increased uncertainty and muffled signals, for courts and prospective killers alike, that would come from finding an "exception" here. See id. at 1914-15. I fear the systemic effects of his (not unreasonable) view about this particular case. An implication of my general approach is that the interpretation of statutes, or rules, has an important analogical dimension. The difference between rule interpretation and analogical reasoning is far from crisp and clean. In the interpretation of rules, the ordinary meaning of the terms presumptively governs; but when the application at hand is entirely different from the exemplary or prototypical cases, the ordinary meaning may have to yield. In deciding whether the application is in fact different, we are thinking analogously. But because it is reasonable to think that this case is analogous to the exemplary ones - because it involved the taking of an innocent life - we do best to follow the statutory language. It is for this reason that I do not believe that we should at this time consider legal challenges to the death sentence, as opposed to the conviction, in this case. Justice West has eloquently argued that the death sentence is constitutionally illegitimate. See infra, at 1897-99 (West, J.). I am not sure that she is wrong; nor am I sure that she is right. Most of the time, the Constitution does not permit litigants to "open up" rule-bound law by arguing that it is unreasonable as applied and asking for an individualized hearing on its reasonableness as applied to them. A doctrine that would permit frequent constitutional attacks on rule-bound law would threaten the rule of law itself - increasing unpredictability, uncertainty, and (because judges are merely human) threatening to increase error and injustice as well. There can be no assurance that judges will reach the right outcome once all the facts emerge for individualized decision. But the death penalty is a distincI890 [VOL. 112:1834 HeinOnline -- 112 Harv. L. Rev. 1890 1998-1999
I999] THE SPELUNCEAN EXPLORERS I89I tive punishment (to say the least),and the facts of this case are not likely to be repeated.Perhaps a degree of individualized judgment is constitutionally required before anyone may be sentenced to death.I would be willing to think long and hard about a separate challenge to the death sentence as applied;but I would not decide that issue where, as here,the defendants'challenge is to the conviction rather than the sentence. V It is my hope that a decision of the case along the lines I am sug- gesting would impose some pressure on other institutions to design a statute that makes reasonable distinctions to which this provision, standing on its own,appears oblivious.This is in fact a virtue of the species of textualism that I have endorsed here:the creation of incen- tives for lawmakers,rather than courts,to make appropriate judg- ments about the numerous cases that fall within law's domain. WEsT,J.Trapped in a cave,on the verge of starvation,with no credible hope of timely rescue,five speluncean explorers resolve that their only hope of survival is to eat one of their own.They determine to do so and to throw dice to identify who will be the sacrificial lamb. One member then denounces the plan and withdraws his participation. The group proceeds over his objection,with his dice being thrown for him by another.The dissenting member,by bad luck,loses the throw, is killed,and is eaten by his comrades.The group is soon rescued and hospitalized,but only after the accidental deaths of eight of the rescu- ers seeking to secure their release.The survivors are now charged with murder or,as defined by the relevant statute,with "willfully tak[ing]the life,"N.C.S.A.(N.s.)$I2-A,of another human being, punishable in all cases by death. Under our procedural rules,and acting within its discretion,the jury convened for this case requested that it be relegated only to the role of fact-finder,leaving this Court to determine the legal conclu- sions.The jury found the facts as briefly recounted above,and it is now our obligation to determine whether the defendants'conduct con- stitutes murder.If we decide that it does,then the mandatory pun- ishment under the statute is death,unless commuted to a lesser penalty by the governor of the state. Professor of Law,Georgetown University Law Center. HeinOnline--112 Harv.L.Rev.1891 1998-1999
THE SPELUNCEAN EXPLORERS tive punishment (to say the least), and the facts of this case are not likely to be repeated. Perhaps a degree of individualized judgment is constitutionally required before anyone may be sentenced to death. I would be willing to think long and hard about a separate challenge to the death sentence as applied; but I would not decide that issue where, as here, the defendants' challenge is to the conviction rather than the sentence. IV It is my hope that a decision of the case along the lines I am suggesting would impose some pressure on other institutions to design a statute that makes reasonable distinctions to which this provision, standing on its own, appears oblivious. This is in fact a virtue of the species of textualism that I have endorsed here: the creation of incentives for lawmakers, rather than courts, to make appropriate judgments about the numerous cases that fall within law's domain. WEST, J.* Trapped in a cave, on the verge of starvation, with no credible hope of timely rescue, five speluncean explorers resolve that their only hope of survival is to eat one of their own. They determine to do so and to throw dice to identify who will be the sacrificial lamb. One member then denounces the plan and withdraws his participation. The group proceeds over his objection, with his dice being thrown for him by another. The dissenting member, by bad luck, loses the throw, is killed, and is eaten by his comrades. The group is soon rescued and hospitalized, but only after the accidental deaths of eight of the rescuers seeking to secure their release. The survivors are now charged with murder or, as defined by the relevant statute, with "willfully tak[ing] the life," N. C. S. A. (N. s.) § 12-A, of another human being, punishable in all cases by death. Under our procedural rules, and acting within its discretion, the jury convened for this case requested that it be relegated only to the role of fact-finder, leaving this Court to determine the legal conclusions. The jury found the facts as briefly recounted above, and it is now our obligation to determine whether the defendants' conduct constitutes murder. If we decide that it does, then the mandatory punishment under the statute is death, unless commuted to a lesser penalty by the governor of the state. * Professor of Law, Georgetown University Law Center. 1999] 1891 HeinOnline -- 112 Harv. L. Rev. 1891 1998-1999