Reviewed by Ronald K. L. Collins

Modern life is linked to law. Whether in terms of property, business, crime, personal liability or constitutional issues, little in our daily lives is free of the law. And the law itself is very much shaped by great cases – the ones that cast the longest shadows.

We know about some of those great cases, such as Brown v. Board of Education, regarding racial justice, and Miranda v. Arizona, regarding criminal justice. But there are lesser known great cases, ones that raise important questions, such as: Is murder ever justified? Can cannibalism ever be lawful?

These are among the questions Allan C. Hutchinson examines in his new book. With narrative style, legal acumen and down-to-earth clarity, he presents eight great cases in Anglo-American law that are both fascinating and informative. In the process, he explains how and why the law often works as it does, remaining duly mindful of the circumstances – cultural, political, economic and human – that mold the law. Those circumstances, or “stories,” bring a welcome contextual dollop to the book.

In the arc of time, few cases can be considered truly great. As Hutchinson posits, the greatness of a case has less to do with its “formal attributes” - whether it was consistent with the framers’ original intent, for example, or whether it followed precedent - than with traits he describes as substantive appeal, rhetorical success, political acceptability and adaptability to changing circumstances. In other words, does the outcome or judgment in a case “strike the right chord with its audience”?

“Great cases,” he writes, “are only as authoritative as the political and moral values they represent and by whose forbearance they are held in place.”

But the matter is not simple. For one thing, there is a counter view, namely, that law is by its very nature constrained – based more on principles than popularity; more on precedent than politics. And more dependent on long-held cannons of judgment than on ever-changing context. This, in turn, raises at least one key question about the role of judges and what they should or should not do.

Is Eating People Wrong? captures the flavor of judge-crafted common law dating from the 11^th century. The book is at its best when it discusses the history and evolution of great common-law cases, such as those involving the law of private property, torts (civil law wrongs) and contracts. Such cases enabled judges to take the liberty of molding the law, and such judicial liberties may be justified because common-law rulings can be set aside by legislative enactments.

Similarly, judges make law in constitutional cases, although no judge (liberal or conservative) will admit it. Importantly, such judgments cannot be overruled by a legislature. Two famous examples are Brown and Miranda, both of which Hutchinson discusses.

The point, Hutchinson stresses, is that judges have a huge capacity to develop and apply the law in creative ways: they are not “automatons of popular myth.” Hence, be leery of what John Roberts (now Chief Justice) said when as a nominee testifying before the Senate Judiciary Committee he saw it as his job “to call balls and strikes and not to pitch or bat.” That’s a nice metaphor, but don’t place too much analytical stock in it.

The matter, however, does not end there, which brings us back to Miranda.

The story of Ernesto Miranda, a rapist of notoriety in American criminal justice, is an absorbing one Hutchinson tells vividly. Today, it is common knowledge that between the time of arrest and any pertinent questioning, police are required to advise suspects of their Miranda rights. When Miranda was decided, Justice Byron White, writing in dissent, complained that the Supreme Court’s holding departed “from a long line of precedent.” Indeed it did, but that made no matter: Chief Justice Earl Warren, the one-time prosecutor from Alameda County, wanted to usher in a revolution in criminal justice, much as he had done earlier when he authored Brown and thereby ushered in a revolution in constitutional justice.

The revolution was barely won, however, when new battles began.

Although Hutchinson identifies some broad categories in which the Supreme Court has cut back on Miranda, his discussion would have been better had he noted the numerous exceptions to the landmark ruling. Still, as Hutchinson mentions, in 2000 the Court declined to expressly overrule Miranda. Notably, the author of that opinion was Chief Justice William Rehnquist – the same jurist who for years led the charge to overrule the case. This fact is absent from the author’s narrative, as is Rehnquist’s statement that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture … subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling.” The former proposition is true, while the latter is surely suspect.

Miranda’s fate thus exemplifies a way of overruling a great case without formally doing so. As with Roe v. Wade, the controversial abortion case, the modern trend is to functionally overrule a landmark precedent by riddling it with exceptions over time.

Occasionally, great cases emerge even when judges hold steadfast to precedent, although it means stomaching an apparent injustice. Regina v. Dudley & Stephens, the case that gave rise to the title of Hutchinson’s book, is one such case. A case of cannibalism, it pits the letter of the law against the human condition.

It is hard to imagine why the law would ever countenance cannibalism. Still, one would be hard pressed to find explicit prohibitions of it in state laws. Idaho is an exception: Its laws make it a crime to “willfully ingest the flesh or blood of a human being.” So, if one does that, is the flesh-eating or blood-drinking violator automatically guilty? Not always. Idaho’s law might allow cannibalism if “the action was taken under extreme life-threatening conditions as the only apparent means of survival.” Here’s where context comes in.

In 1884, four men planned to sail from Southampton, England, to Sydney, Australia. They encountered rough seas, abandoned ship and then rallied for their lives in a flimsy 13-foot craft with no fresh water and but two tins of turnips. After a few weeks, no rescue was in sight, the rations were gone, and a gravely ailing and delirious 17-year-old cabin boy was dying. Given the circumstances, the captain said a prayer and, aided by another, killed the boy. The survivors then drank his blood.

As fate had it, the three men were rescued. Two of them were later  tried for murder. The defendants pleaded necessity: They had to do what they did to survive. The cabin boy probably would have died soon anyway. Unconvinced by that defense, the English judges sentenced the men to death by hanging. Queen Victoria, mirroring public sentiment, commuted their sentences to six months.

Hutchinson’s book gives us some interesting food for thought. Should judges, being bound by existing law, have no choice but to leave questions of mercy to a higher executive power? Are such matters best saved for the legislature, as in the case of the Idaho statute with its necessity defense? Should such matters be entrusted to common-law judges to develop a narrow “necessity defense,” as the Canadian High Court has done? These are the questions; the answers vary.

Is Eating People Wrong? is a delightful book. Read it, ponder it, discuss it, debate it. Savor it.

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Ronald K. L. Collins is the Harold S. Shefelman scholar at the University of Washington Law School; co-author, most recently, of We Must Not Be Afraid to Be Free: Stories of Free Expression in America (Oxford University Press, 2011); and editor of The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010).

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