Spelunceans 2

We discussed the opinions of Tatting, Keen, and Handy.


When we returned to Tatting’s opinion, we mostly concentrated on his understanding of the law.

I think that Tatting is meant to illustrate the problems with what Hart called “formalism,” the idea that the role of a judge is to apply rules to cases. (You can see why Hart wanted to put some distance between his theory and formalism.) Tatting is looking for a formula or very specific statute that would enable him to decide the case (Fuller 1949, 631). When he cannot find such a thing, he runs into trouble.

Tatting is undoubtedly the hardest worker on this court. He found legal citations to support Foster’s opinion that Foster did not know about! But when his legal research points in different directions, he finds himself incapable of weighing the different materials he found. Consequently, he cannot reach a decision.


Keen’s holds that when a statute has a plain meaning, that is what judges ought to use. (As with Truepenny, we don’t know what he would do with a case in the penumbra of a law.)

When you look at the dictionary defintion of “willfully,” you can find different meanings, some of which suggest they are guilty and others suggest they are not. Does this show the statute lacks a plain or natural meaning? (In a similar vein, Austin also asked whether the term “take” has a plain meaning in this context.)

Adrián proposed a test: if almost everyone reads the statute the same way, that should count as its plain meaning. And, as it happens, everyone does read the statute the same way in this case. Nice point!

Antonio noted that the same standard could be applied to resurrecting Foster’s idea that laws have purposes. Keen had said that laws have many possible purposes, suggesting that the project of interpreting laws according to their purposes was hopeless. But, Antonio said, if we can use Adrián’s method to favor one dictionary meaning over the others, we can do the same with purposes: if almost everyone believes the purpose of the statute is to deter murder, that is its purpose.

Keen on self-defense

The self-defense exception is awkward for Keen. It is not in the plain meaning of the statute. Not one bit. But the courts have clearly recognized such an exception for years.

As Patrick noted, his position here could be something like, “even if you grant that there is an exception for self-defense, it does not apply to this case because Whetmore was not a threat to the others.” That lets him put off the fact that, on his view, the exception should not be there in the first place.

Indeed, in the end, Keen is willing to say that the Court should take even bad laws literally on the grounds that doing so would force the legislature to revisit and improve them.


Most people think Handy is unprincipled in a bad way. So I tried to put the best face on his opinion. Handy thinks judges should use common sense and popular opinion. Governing wisely is more important than legal reasoning for him.

My own opinion is that he should have jettisoned the part about popular opinion. What would he do if the population wanted to execute a clearly innocent person? I hope he would say no. If so, common sense trumps popular opinion.

Handy’s colleagues have already made the case that judges should stick to their institutional roles. In their view, governing wisely is a job for the government as a whole, judges are only one part of the government with a specific task to play, and they should stick to their task.

On the other hand (sorry!), Handy tells us that they know this is not actually the way it is going to work. If justice is to be done, they are going to have to do it. Handy meets Matthew’s point about passing the buck head on.

Our vote

We had four votes for guilty and fourteen for not guilty.

Truepenny got one vote for best decision, Foster got eight, Tatting one-half (appropriately), Keen three, and Handy none. (I’m always the only one who likes Handy.)

It will be interesting to see if anyone changes their mind in the course of writing the paper.


Fuller, Lon L. 1949. “The Case of the Speluncean Explorers.” Harvard Law Review 62 (4): 616–45.