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November 14, 2022

How a variation of Dudley & Stephens might be resolved in Ohio under common law necessity doctrines

I hope everyone enjoyed Monday's role play, and kudos to the lawyers who did a great job under challenging circumstances. If folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, a "classic" law professor account of the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of the Wikipedia entry highlights why it is so engaging:

It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300.  The hypothetical involves five cave explorers who are caved in following a landslide.  They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued.  The cavers subsequently decide to kill and eat one of their number in order to survive.  After the four survivors are rescued, they are indicted for the murder of the fifth member.  The prescribed penalty is capital punishment.  Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.

For a wonderful, much shorter and more recent consideration of these issues, one member of my criminal law class nine years ago had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio under its common-law defenses scheme.  That student allowed me to post her analysis, and here is how she sets up the factual context:

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio. The group consists of Hatlen Books, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stevens in Ohio

November 14, 2022 in Class reflections, Recommended scholarship | Permalink

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