Revisiting Fuller's Famous Spelunkers

Were four entrapped spelunkers, whose hunger ultimately drove them to eat the fifth member of their group, guilty of murder, and should their sentence—death by hanging—be upheld? Those were the questions at hand in the mock appellate case presented at the Harvard Law Review’s annual spring forum on the 50th anniversary of the publication of Professor Lon Fuller’s famous article, “The Case of the Speluncean Explorers.”

In the article—one of the most frequently cited pieces to appear in the Law Review—Fuller imagined a hypothetical case of trapped explorers who drew straws to select the unlucky member of their party to be eaten. In Fuller’s account, the four survivors were tried, convicted, and sentenced to hang. They appealed. Fuller included a series of opinions—ultimately upholding the sentence —that captured and satirized schools of statutory interpretation and adjudication from his era.

To mark the anniversary, the Law Review solicited six new opinions on the case from judges and scholars and staged the mock trial. Presiding over the appellate-level challenge to the spelunkers’ conviction were moot court justices HLS Professor Alan Dershowitz, Chicago Law School Professor Cass Sunstein ’78, George Washington University Professor Paul Butler ’86, and Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit.

The Honorable Nancy Gertner of the U.S. District Court of Massachusetts for the Seventh Circuit argued for the petitioner-defendants, and Judge Douglas Woodlock of the same court presented the prosecution’s appeal. The judges were split 2-2. Dershowitz and Butler
decided for the petitioners-defendants, and Sunstein and Easterbrook upheld the conviction, with the caveat that the punishment be overturned.

The moot court judges’ written opinions will appear in the June issue of the Law Review along with opinions by Judge Alex Kozinski of the Ninth Circuit and Professor Robyn West of Georgetown University Law Center and a foreword by Professor David Shapiro ’57.