What can a fifty year-old hypothetical about human cannibalism concocted by the late Lon Fuller teach us about the Supreme Court's recent foray into the affirmative action debate in twenty-first century America? Indeed, what can a tax law professor and a labor law professor add to the cacophony of voices of leading constitutional law scholars on the Court's most important pronouncement on race in a generation? We make a rather modest claim, based on teaching both of these cases in our one-week Introduction to Law classes for incoming first year students, that a helpful way to view Grutter v. Bollinger is through the lens of The Case of the Speluncean Explorers. Legal scholars have issued dozens of new “opinions” on the hypothetical legal issue in that case to take into account contemporary legal theories developed in the past fifty-five years. This article is the first to take the opposite approach and view a real-life legal issue through the eyes of the fictional Justices in The Case of the Speluncean Explorers. This article also is the first to consider the applicability of Fuller's hypothetical outside the context of statutory construction.
Paul L. Caron & Rafael Gely, Affirmative Refraction: Grutter v. Bollinger Through the Lens of the Case of the Speluncean Explorers, 21 Const. Comment. 63 (2004)