Animal Rights on the Road to Personhood

When life is classified biologically, it is also defined legally.1 Thus is formed the tension between the natural and juridical worlds.2 Whether animal rights can ever fall within the ambit of personhood will depend as much on the findings of cognitive science as on the evolution of legal remedies.3 Indeed, the foundations for nonhuman personhood are being laid in a growing body of litigation and scholarship at the borderlands of science and civil justice.

This article collects recent and notable publications concerning animal rights, nonhuman cognition and legal personhood. Due to the enormous body of publications on each of these subjects, this bibliography makes no pretense to comprehensiveness. It is only meant as a guide to some select and new materials on these emerging issues.

CASES

Nonhuman Rights Project, Inc. ex rel. Hercules and Leo v. Stanley, 2015 N.Y. Slip Op. 25257 (Sup. Ct. N.Y. County 2015)
“The similarities between chimpanzees and humans inspire the empathy felt for a beloved pet. Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed. Courts, however, are slow to embrace change, and occasionally seem reluctant to engage in broader, more inclusive interpretations of the law, if only to the modest extent of affording them greater consideration. As Justice Kennedy aptly observed in Lawrence v Texas, albeit in a different context, “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” (539 US 558, 579 [2003]). The pace may now be accelerating. (See Obergefell v Hodges, US , 135 S Ct 2584, 2595 [2015] [granting right to marry to same sex couples and acknowledging that institution of marriage has evolved over time notwithstanding its ancient origins]).For now, however, given the precedent to which I [Hon. Barbara Jaffe] am bound, it is hereby ORDERED, that the petition for a writ of habeas corpus is denied and the proceeding is dismissed.”

Nonhuman Rights Project, Inc., ex rel. Kiko v. Presti, 124 A.D.3d 1334, 999 N.Y.S.2d 652 (4th Dept 2015)
“[E]ven assuming, arguendo, that we agreed with petitioner that Kiko should be deemed a person for the purpose of this application, and further assuming, arguendo, that petitioner has standing to commence this proceeding on behalf of Kiko, this matter is governed by the line of cases standing for the proposition that habeas corpus does not lie where a petitioner seeks only to change the conditions of confinement rather than the confinement itself (see generally People ex rel. Dawson v Smith, 69 NY2d 689, 690-691 [1986]; Matter of Berrian v Duncan, 289 AD2d 655, 655 [2001]; People ex rel. McCallister v McGinnis, 251 AD2d 835, 835 [1998]). We therefore conclude that habeas corpus does not lie herein.”

Nonhuman Rights Project, Inc., ex rel. Tommy v. Lavery, 124 A.D.3d 148, 998 N.Y.S.2d 248 (3rd Dept 2014)
“Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights — such as the fundamental right to liberty protected by the writ of habeas corpus — that have been afforded to human beings.”

State v. Fessenden, 355 Or. 759, 333 P.3d 278 (Or. Sup. Ct. 2014)
“Ongoing litigation in the United States seeks to establish legal personhood for chimpanzees, see Charles Siebert, The Rights of Man … and Beast, N.Y. Times, Apr. 27, 2014, at MM28 (describing suits filed by the Nonhuman Rights Project on behalf of three chimpanzees), and India’s Central Zoo Authority recently banned the exhibition of dolphins after concluding that their status was closer to that of “non-human persons.” As we continue to learn more about the interrelated nature of all life, the day may come when humans perceive less separation between themselves and other living beings than the law now reflects. However, we do not need a mirror to the past or a telescope to the future to recognize that the legal status of animals has changed and is changing still, or to agree with defendants that, at this moment in time, Oregon law does not protect animal life to the same extent or in the same way that it protects human life.”

Tilikum v. Sea World Parks & Entertainment, Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 2012)
“Even though Plaintiffs lack standing to bring a Thirteenth Amendment claim, that is not to say that animals have no legal rights; as there are many state and federal statutes affording redress to Plaintiffs, including, in some instances, criminal statutes that “punish those who violate statutory duties that protect animals.” Cetacean, 386 F.3d at 1175. While the goal of Next Friends in seeking to protect the welfare of orcas is laudable, the Thirteenth Amendment affords no relief to Plaintiffs.”

BOOKS

Animal Law: Cases and Materials (5th ed. Carolina Academic Press 2014)
“Animal law is, in its simplest (and broadest) sense, a combination of statutory and decisional law in which the nature—legal, social, or biological—of non-human animals is an important factor. The fifth edition is updated significantly, while continuing to present a cohesive format that touches on many areas in which animals affect legal doctrines, case law, and legislative direction. Because animal law is not a traditional legal field, the book is largely framed according to traditional legal headings such as tort, contract, criminal and constitutional law. Each chapter sets out cases and commentary where animal law continues to develop its own doctrine. An important chapter on the commercial use of animals, introduced in the third edition, has been further updated with recent cases and statutory developments covering the significant areas of agriculture and biomedical research.”

Animal Law: Welfare, Interests and Rights (2nd ed. Walters Kluwer 2014)
“This book encompasses many of the diverse issues of how the legal system does now and in the future should deal with animal-human relationships.”

International Issues in Animal Law: The Impact of International Environmental and Economic Law upon Animal Interests and Advocacy (Carolina Academic Press 2012)
“Addressing the interests of non-human animals in an era of globalization requires consideration of a wide range of international influences upon domestic caselaw, policy, and legal doctrine. International agreements and decisions affect much more than simple cross-border transactions in animals or animal-related products and can also impact what individual countries may or may not do internally to address animal cruelty, health, consumer protection interests, cultural preservation, conservation, species preservation, and a host of other issues in their national laws and regulations.
For the first time, materials from a variety of sources are brought together in a single volume which permits instructors and students to focus directly on the complex interaction which occurs between domestic animal law and various international regimes. Key multilateral environmental agreements, such as the Convention on Biological Diversity, the Convention on Trade in Endangered Species, and the International Convention on the Regulation of Whaling, are all considered. The General Agreement on Tariffs and Trade, and the WTO’s Sanitary and Phytosanitary Measures Agreement, and its Technical Barriers to Trade Agreement are also examined to illustrate that international economic law is no less significant in shaping domestic animal measures than are the more well-known environmental agreements. Additionally, efforts to advance animal interests through regional law, nonbinding international standards, or grass-roots efforts such the proposed Universal Declaration on Animal Welfare are also explored.”

Worldview of Animal Law (Carolina Academic Press 2011)
“This is the first book of its kind — an exciting and illustrative survey of the way different countries and cultures treat animals under the law. Given the breadth and scope of the legal treatment of animals around the world, the book presents selected issues and laws in a text that is readable and helpful to a wide range of readers, including undergraduate and post-graduate courses in sociology, cultural anthropology, international law, animal law, and animals in society. The book is also accessible to readers not matriculating through formal coursework, and provides any reader with a solid understanding of the varied treatment and approaches taken by countries around the world in connection with animals used in every area.”

BOOK CHAPTERS

Introduction: Consciousness and Emotions in the Natural World in Animal Experience (Open Humanities Press 2014)
“This “living” book about life explores the nature and meaning of the emotional lives of nonhuman animals, focusing on how those lives are communicated to other living creatures (such as human beings) via affective states. By examining the emotional lives of animals and how they are communicated, we hope to re-examine how human beings interact with, and relate to, other living creatures that are capable of experiencing emotional lives.”

Volume VII: The Human Mental Machinery (National Academies Press 2014)
“Humans possess certain unique mental traits. Self-reflection, as well as ethic and aesthetic values, is among them, constituting an essential part of what we call the human condition. The human mental machinery led our species to have a self-awareness but, at the same time, a sense of justice, willing to punish unfair actions even if the consequences of such outrages harm our own interests. Also, we appreciate searching for novelties, listening to music, viewing beautiful pictures, or living in well-designed houses. But why is this so? What is the meaning of our tendency, among other particularities, to defend and share values, to evaluate the rectitude of our actions and the beauty of our surroundings? What brain mechanisms correlate with the human capacity to maintain inner speech, or to carry out judgments of value? To what extent are they different from other primates’ equivalent behaviors?

In the Light of Evolution Volume VII aims to survey what has been learned about the human “mental machinery.” This book is a collection of colloquium papers from the Arthur M. Sackler Colloquium “The Human Mental Machinery,” which was sponsored by the National Academy of Sciences on January 11-12, 2013. The colloquium brought together leading scientists who have worked on brain and mental traits. Their 16 contributions focus the objective of better understanding human brain processes, their evolution, and their eventual shared mechanisms with other animals. The articles are grouped into three primary sections: current study of the mind-brain relationships; the primate evolutionary continuity; and the human difference: from ethics to aesthetics. This book offers fresh perspectives coming from interdisciplinary approaches that open new research fields and constitute the state of the art in some important aspects of the mind-brain relationships.”

SCHOLARLY ARTICLES

Animal Rights without Controversy, 70 Law & Contemp. Probs. 117 (2007)
“Many consumers would be willing to pay something to reduce the suffering of animals used as food. The problem is that existing markets do not disclose the relevant treatment of animals, even though that treatment would trouble many consumers. Steps should be taken to promote disclosure, so as to fortify market processes and to promote democratic discussion of the treatment of animals. In the context of animal welfare, a serious problem is that people’s practices ensure outcomes that defy their existing moral commitments. A disclosure regime could improve animal welfare without making it necessary to resolve the most deeply contested questions in this domain.”

Animals as Vulnerable Subjects: Beyond Interest-Convergence, Hierarchy, and Property, 16 Animal L. 65 (2009)
“This Article presents a new paradigm, premised on the equal protection principle, for the legal regulation of human interactions with domestic animals: Equal Protection of Animals (EPA). EPA combines the insights of vulnerability theorists with the equal protection principle and capability theory to create a mechanism for recognizing the equal claims of human and nonhuman animals to protections against suffering. Under such an approach, domestic animals – like humans – have claims to food, hydration, shelter, bodily integrity (including avoiding pain), companionship, and the ability to exercise and to engage in natural behaviors of movement.
Existing animal welfare and anti-cruelty laws, despite their stated purposes, fail to protect animals adequately. This Article identifies the ontology of the problem as interest-convergence, famously described by Derrick Bell in the desegregation context. The privileged (humans in this case) protect the disadvantaged (animals) only when their interests align. Because humans profit economically and socially from the exploitation of animals, interests often diverge. When this divergence occurs, all protections for animals are placed in jeopardy. Unlike protections for other disadvantaged groups, there is no constitutional or other legal floor guarding the basic liberties of animals. Interest convergence results in what I [Ani B. Satz] term “legal gerrymandering for human interest,” or the redrawing of the natural baseline of protections for animals to further human use of animals. In addition to undermining fundamental protections for animals against abuse and suffering, legal gerrymandering creates inconsistencies that violate legal norms of precedent and procedure. Specifically, I address differential treatment of animals of the same legal and species classes as well as different treatment of scientific evidence in animal law as opposed to other legal contexts.
While some scholars seek to address the problem of inadequate animal protections, their proposals – treating animals as legal persons or quasi property – suffer two shortcomings. First, under traditional rights- and interests-based reforms, strong human rights or interests in using animals will always trump animal rights or interests, even with regard to avoiding some types of suffering. Second, existing scholarship is entrenched in a paralyzing debate about whether categorizing animals as “persons” instead of “property” will improve their legal protections. EPA does not have these limitations. EPA seeks to maximize the basic capabilities of human and nonhuman animals within the same population, addressing the hierarchy problem that human rights and interests are privileged over those of animals. Human claims to maximize basic capabilities cannot be valued above nonhuman animal claims for the same. Further, EPA directly considers animal capacities without regard to category; there is no need to categorize animals as persons or as a special form of property.”

Anticruelty Statute: A Study in Animal Welfare, 1 J. Animal L. & Ethics 175 (2006)
“Animal welfare advocates claim that animal exploitation and humane treatment can coexist with respect to the use of animals for food, experimentation, hunting, and other human benefits. These advocates recognize that existing anticruelty statutes, which embody the idea that animals should not subjected to unnecessary suffering, have many deficiencies – most notably, as Professor Gary Francione has pointed out, they include wholesale exemptions for institutional uses of animals. However, these advocates nevertheless claim that anticruelty statutes can be reformed, either legislatively or judicially, to narrow these exemptions and ascribe more weight to an exploited animal’s interest in not suffering.
This article reveals that, although legislatures could certainly require better treatment of exploited animals, a law that does not challenge the underlying exploitation itself can at best prevent suffering that is in excess of what is required to carry out the exploitation. As the very nature of animal exploitation requires the infliction of tremendous suffering, the amount of excess suffering that a reformed anticruelty statute could prevent is minimal. This article also reveals that courts do not have the discretion to interpret anticruelty statutes more broadly for a variety of reasons, including the constitutional requirement of fair warning. This article concludes that anticruelty statutes, while noble in theory, are ineffective in practice precisely because they do not challenge the underlying exploitation of animals, but instead focus on humane treatment. This article provides greater support for the argument that animal advocates should adopt Professor Francione’s rights-based strategy that eschews unworkable ideas of humane treatment and instead focuses on abolition.”

Any Animal Whatever? Harmful Battery and Its Elements as Building Blocks of Moral Cognition, 124 Ethics 750 (2014)
“The main questions for future research in the dynamic field of moral psychology include how the mind computes representations of battery, murder, negligence, and other harmful trespasses and how these computations and the negative emotions they elicit are related to the complex cognitive and socio-emotional capacities that humans share with other animals. In this paper, I [John Mikhail] draw upon cognitive science and legal theory to examine the simplest part of the first question: how the mind computes representations of harmful battery. The paper contends that the key elements of the prima facie case of harmful battery appear to form critical building blocks of moral cognition in both humans and nonhuman animals. By contrast, the rules and representations presupposed by familiar justifications or affirmative defenses to harmful battery appear to be uniquely human. The paper also argues that many famous thought experiments in ethics and many influential experiments in neuroscience and moral psychology rely on harmful battery scenarios without acknowledging this fact or considering its theoretical or empirical implications. The unifying factor in all of these studies appears to be goal-directed harmful contact, inflicted without consent or justification.

Part I outlines the main elements of the prima facie case of harmful battery, including voluntary act, harmful or offensive intent, and harmful contact, as they are generally conceived by the common law of torts. Unlike a typical legal commentary, however, these elements are examined here with an eye toward what they might reveal to us about the rich internal structure of human — and perhaps also nonhuman — moral psychology. Part II adds more texture to the inquiry by considering the primary defenses to battery in both morality and law, with special emphasis on different types of consent. The guiding idea of Parts I and II is that, unlike the prima facie case of harmful battery, which implicates aspects of moral judgment that might plausibly be shared with nonhuman animals, the mental operations presupposed by these affirmative defenses point us toward elements of moral cognition that may be distinctively human. In Part III, I examine eight prominent research endeavors in ethics and cognitive science — including influential work by Philippa Foot, James Rachels, Thomas Nagel, Christopher Boorse and Ray Sorenson, Fiery Cushman, Liane Young and Rebecca Saxe, Eliot Turiel, and Kiley Hamlin — and argue that all of these inquiries appear to rely on harmful battery scenarios without explicitly acknowledging this fact or considering what it might suggest for issues of experimental design, data interpretation, or theory construction. In Part IV, I conclude by considering how the main arguments of the paper might bear on Darwin’s idea that “any animal whatever” would acquire a moral sense or conscience under the right circumstances.”

Argument for the Basic Legal Rights of Farmed Animals, 106 Mich. L. Rev. First Impressions 133 (2008)
“The arguments for the fundamental legal rights of any being, human or nonhuman animal, are strongest when they are most firmly grounded on accepted legal principles. Therefore, in arguing for the fundamental rights of a nonhuman animal, I [Steven M. Wise] rely upon bedrock principles of Western law: liberty and equality. Liberty entitles one to be treated a certain way because of characteristics one may possess. Presently for humans, some irreducible degree of bodily liberty and bodily integrity are everywhere protected. If we trespass upon this deeply personal liberty, we commit the terrible wrong of treating a person as a thing. Equality means that likes should be treated alike and unalikes can be treated unalike.”

Brazilian Animal Law Overview: Balancing Human and Non-Human Interests, 6 J. Animal L. 81 (2010)
“This paper offers a conceptual analysis of the state of Animal Law in the Brazilian system. It discusses how the Brazilian judiciary respond to the animal rights debate. It also asks how the Brazilian courts have developed the debate and decided in some of the cases pro interest of animals such as Festival of Oxen, cockfighting, and principally habeas corpus for animals. Additionally, it explores the effects of unique provision of the Brazilian Constitution stating that the government shall protect the fauna and species, prohibiting the cruelty to animals. Thus, this paper shows that this debate offers a pattern of understanding of how the Brazilian legal system operates.”

Case for Legal Personhood for Nonhuman Animals and the Elimination of their Status as Property in Canada (Masters Thesis, Faculty of Law, U. Toronto 2013)
“This article proposes that the legal relationship between humans and nonhuman animals in Canada must be redefined. It will be shown that the current Canadian legal system is based on the assumption of human superiority, which has resulted in the interests of nonhuman animals being given little to no legal consideration since at law they are merely property. This conceptualization of our relationship with nonhuman animals, and the resulting harm that it causes to them is in direct conflict with developments over the last century in science, ethics, and the laws, policies and jurisprudence of various countries. These developments support the argument that nonhuman animals are entitled to have their interests considered in law. This article proposes that the relationship in Canada be redefined to eliminate the property status of nonhuman animals, and that the new relationship should take the form of nonhuman animals being granted the status of legal persons.”

Cognitive Rights for the Neighbors of Humanity, N.Y.L.J., July 28, 2015, at 5
“Unprecedented in human time is the realization that the sum of cognitive sentient life does not end with people. From scientific revelations about the inner workings of animal consciousness, to the hybridization of people and technology, to the development of artificial intelligence, the line of beings seeking admission to the big tent of “human” rights is getting longer. And personhood, the embodiment of human justice, is evolving from the fountainhead of cognitive rights.
The earth is host to innumerable species, from the durable extremophiles that inhabit lava tubes on the ocean floor to fresh water ephemera that exist for only a day. Their sheer numbers make mankind a minority in the biological catalog, but distinct in terms of intelligence. And since the departure of Neanderthals from the playing field, the high castle of human cognition has been unassailed. However, our perception of cognition is changing.”

Constitutional Inclusion of Animal Rights in Germany and Switzerland: How Did Animal Protection Become an Issue of National Importance?, 18 Soc’y and Animals 231 (2010)
“Provisions for animal rights have been included in the national constitutions of Switzerland (1992, 2000) and Germany (2002). Protective constitutional inclusion is a major social movement success, and in view of the other movements also seeking increased political visibility and responsiveness, it is worth asking how and why nonhuman animals were allowed into this realm of political importance. This research seeks to explain how animal activists achieved this significant goal in two industrialized democracies. Using an approach drawn from the mainstream canon on social movements, this comparative study attempts to show how cultural factors, institutional selectivity, and the influence of spontaneous events, along with the tactic of “frame-bridging,” determined the success of both movements.”

Dog in the Fight — U.S. v. Hargrove and Why Americans Should Care About Sentencing Guidelines in Animal Cruelty Cases, 40 Rutgers L. Rec. 249 (2013)
“The Fourth Circuit’s decision in U.S. v. Hargrove [701 F.3d 156 (2012)] was correct as a matter of law and policy. However, Hargrove is not simply about whether the parties or the district court calculated the advisory Guideline sentence range correctly, or whether Hargrove’s sentence was substantively reasonable. Instead, Hargrove presents an opportunity to start a policy discussion about imposing harsher penalties when animals are intentionally tortured and mercilessly killed due to the deliberate and premeditated acts of individuals who show an utmost indifference to life. Sentencing policies should be proportionate to the horrific nature of these crimes, not only as a matter of law, but as one of values, ethics, and morals.”

Empathy with Animals: A Litmus Test for Legal Personhood?, 19 Animal L. 1 (2012)
“This is one of the fundamental questions that frame the study of animal law: To what extent should nonhuman animals be considered legal persons? Of course, this question presupposes that we share or can arrive at a common and stable conception of legal personhood. In fact, there are a variety of conceptions of legal personhood. This Introduction will explore one in particular and, in the process, question the extent to which simply being born Homo sapiens satisfies the potentially complex and demanding requirements of being a legal person. This argument will lead us to reframe animal law a bit and question whether we protect animals by focusing on their status or whether we are better off focusing on the status of humans – and not so much who we are but who, as legal persons that constitute legalities, we ought to be.”

Exploring Animal Rights as an Imperative for Human Welfare, 112 W. Va. L. Rev. 403 (2010)
“It is contended, for example, that the criterion for legal protection should be a living entity’s ability to suffer, as non-human animals certainly can and do. It is further contended that non-human animals, like humans, are “subjects of a life” with beliefs, desires, emotions, identity, and other attributes of personhood that support the recognition of rights, and in that sense are equal. Another perspective explains that animal rights theory is grounded in principles of “justice,” which reject the use of animals as property. That is to say animals have equal inherent value as humans and therefore are entitled to the same considerations as humans when decisions that affect their interests are being made. The second critical argument in support of more legal protection for animals posits that protecting animals from cruelty is also a way of protecting humans from interpersonal violence. Having concluded that people who abuse animals eventually become cruel to humans, it is argued that early identification and punishment of animal abusers also promote human interests. This argument is compelling, yet controversial. Those who disagree with these claims have contested their theoretical foundations and accept the permissibility of animal exploitation. The claim that consciousness should be the baseline for legal rights has been challenged, and it has been argued that animals do not have comparable capacities of personhood to humans. These claims have produced harsh accusations from both sides. The willingness of humans to exploit animals for their benefit has been labeled homocentric, narcissistic, and parasitic, while animal advocates’ preoccupation with animal rights has been called fanatical and misanthropic.

But even the most casual contact with some animals can reveal that they are feeling, conscious beings with a sense of self and are capable of suffering. In fact, it is suspected that in some matters animals may even be more perceptive than humans. Why, then, do humans continue to treat animals cruelly? This Article explores why these two seemingly persuasive arguments in support of animal rights have not produced dramatic changes in the legal rules regarding exploitation of animals as a source of food, clothing, research, entertainment, and income, among other things. It shows that these claims reflect a highbrow approach that is detached from the realities of societal ordering, and cultural reality in the United States and around the world.”

Growing Up with Animal Law: From Courtrooms to Casebooks, 60 J. Legal Educ. 193 (2010)
“Over the past eighteen years I [Bruce A. Wagman] have had the rare privilege of riding on the waves of intellectual, legal and academic development of the field of animal law. I started by incorporating isolated bits of pro bono work into a civil litigation practice and in 1996 I began teaching animal law. Since late 2005 my work has consistently been more than 90 percent animal law. I have had the honor of teaching full semester animal law classes more than twenty times at four Bay Area law schools, guest lecturing and speaking at conferences and classes in other schools across the nation, and co-authoring Animal Law: Cases and Materials, originally published in 2000 and now in its fourth edition. Each day I am grateful for the gift of this practice, the result of a truly providential mix of coincidence and circumstance. My path as a lawyer for the animals, and as an animal law professor and lecturer, has paralleled the incredible growth in the field. During my tenure in animal law’s thrall it has become a rapidly growing, vital social justice movement. It has developed much like environmental law, its natural older cousin, which attracted so many in the 1960s and 1970s. Given that animal law and I have grown up together, I have been asked to write this article, which will discuss our mutual path in practice and academia.”

Integrating Animal Interests into Our Legal System, 10 Animal L. 87 (2004)
“This article explores the obstacles to obtaining legal rights for animals, both within the animal rights movement and within the broader political context. The author [David S. Favre] examines in which arena legal change might best be sought – the courts, the legislature, state governments, or the federal government. Finally, it makes a number of suggestions as to what type of laws would be the most successful in advancing the interests of animals.”

Legal Personhood and the Nonhuman Rights Project, 17 Animal L. 1 (2010)
“The defining moment for the eighteenth century slave James Somerset [Somerset v Stewart, 98 Eng. Rep. 499 (1772)] was when he became legally visible. He was a legal thing when he landed in England in 1769, having been captured as a boy in Africa, then sold to a merchant in Virginia, Charles Steuart, for whom he slaved for two decades. As a legal thing, James Somerset existed in law for the sake of Charles Steuart, for legal things, living and inanimate, exist in law solely for the sakes of legal persons. They are invisible to civil judges in their own rights. Only legal persons count in courtrooms, or can be legally seen, for only they exist in law for their own benefits. Legal personhood is the capacity to possess at least one legal right; accordingly, one who possesses at least one legal right is a legal person. James Somerset’s legal transubstantiation from thing to person at the hands of Lord Mansfield in 1772 marked the beginning of the end of human slavery. Persuading an American state high court to similarly transform a nonhuman animal is a primary objective of the Nonhuman Rights Project.”

Living on the Edge: The Margins of Legal Personhood, Symposium Foreword, 39 Rutgers L. J. 237 (2008)
“In January 2008, at the Association of American Law Schools’ annual meeting, the Jurisprudence Section conducted a panel on “The Margins of Legal Personhood.” The goal of this panel was to draw (or sever) connections between and among different “marginal” entities: the psychopath, the animal, and the embryo or fetus. As is perhaps immediately apparent, these entities are not marginalized in a political sense, but rather lie at the margins of our moral and legal communities. Prima facie, they may have some, but lack all, of the capacities necessary for full membership. Because they live on the edge, we must question whether they may be held responsible and whether they have rights. And, throughout our analysis, we should remain consistent – the test for one entity should apply to another, absent some principled distinction between them. The articles in this symposium take seriously these concerns with regard to animals, abortion, and psychopathy. This brief Foreword serves both to introduce the ideas presented in the articles and to attempt to draw connections between them.”

Moving Beyond Animal Rights: A Legal/Contractualist Critique, 46 San Diego L. Rev. 27 (2009)
“Since important legal victories against racial discrimination and other forms of discrimination in the 1950s and 1960s, many legal scholars and lawyers have been increasingly attracted to the “romance of rights.” For these scholars and lawyers, analogies to the civil rights movement seem especially appealing as vehicles for achieving societal change in new fields. Animal Law is perhaps the fastest growing field of study in American legal education and scholarship, and calls for legal rights for some or all animals are rapidly expanding. This Article critiques comparisons between rights sought for animals and rights assigned to infant humans, mentally incapable adult humans, and corporations. It argues that legal and societal reforms regarding animals are better suited to social contract – contractualist – ideals than to creation of new rights. Contrary to the increasingly frequent assertions of some animal rights theorists, appropriate treatment of animals in a manner that benefits society’s overall interests is attainable through focusing on human responsibility for animal welfare under social contract principles. Developing an artificial construct of formal rights for animals would be harmful both to humans and, ultimately, to animals.”

Pawing Open the Courthouse Door: Why Animals’ Interests Should Matter When Courts Grant Standing, 80 St. John’s L. Rev. 455 (2006)
“The issue of standing is of serious import to the protection of animals as it is the threshold issue before the merits of the case can even be considered. While the relief sought in these suits is generally an injunction to stop the mistreatment of the animals and/or to have the animals removed from the custody of the abusers, the current law forces plaintiffs to generate bases for standing that are essentially unrelated to the relief sought. As a result, the standing alleged in these suits is a legal fiction, since the injury being pleaded is often not the injury with which the parties are typically concerned. To avoid these legal fictions, courts faced with the standing issue should become more progressive by viewing animals as beings with independent interests. This would not require an abandonment of the legal classification of animals as property; rather, courts could recognize that animals are a special type of property entitled to certain legal protections not afforded to typical inanimate objects.”

Rights of Animals: A Very Short Primer, SSRN (2002)
“Do animals have rights? Almost everyone believes in animal rights, at least in some minimal sense; the real question is what that phrase actually means. By exploring that question, it is possible to give a clear sense of the lay of the land—to show the range of possible positions, and to explore what issues, of theory or fact, separate reasonable people. On reflection, the spotlight should be placed squarely on the issue of suffering and well-being. This position requires rejection of some of the most radical claims by animal rights advocates, especially those that stress the “autonomy” of animals, or that object to any human control and use of animals. But this position has radical implications of its own. It strongly suggests, for example, that there should be extensive regulation of the use of animals in entertainment, in scientific experiments, and in agriculture. It also suggests that there is a strong argument, in principle, for bans on many current uses of animals.”

Role of the Animal Law Clinic, 60 J. Legal Educ. 263 (2010)
“What is an animal law clinic and why do we need one? These are the questions I [Kathy Hessler] hear regularly from people interested in the field. Law professors who teach in other clinics wonder why I would spend time developing an animal law clinic when, as they say, there are so many more pressing legal needs. Some of those who teach or practice animal law wonder why I consider it important to spend my time and resources teaching a small number of students how to practice law rather than teaching more students in larger lecture courses or handling a larger number of cases myself. . . . Though the force of legal reasoning has not often been applied to the circumstances in which animals find themselves, there is significant social utility in doing so, as I will describe below. The context for this discussion is clinical legal education. I am a firm believer in the necessity of clinical legal education and the importance of animal law clinics. In this article I will address my thinking as it has developed thus far in response to the above questions, and invite reactions and dialogue from readers.”

Similarity or Difference as a Basis for Justice: Must Animals Be Like Humans to Be Legally Protected From Humans?, SSRN (2005)
“The argument that justice requires better treatment of animals frequently rests on the idea that like entities should be treated alike. The claim is, since animals are like humans as to capacities of cognition and suffering, animals should be legally protected from the types of exploitation and harms from which humans are already legally protected. This article argues that this type of similarity argument is flawed on theoretical and pragmatic grounds. By contrast, developments in securing legal justice in other social justice contexts, such as feminist and disability rights advocacy, suggest that equal treatment based on similarity as the predominant value is yielding to equality based on other values, such as diversity and inclusivity. Activists for animals can contribute to these alternative pathways to justice by choosing projects that stem from an anti-discrimination stance as opposed to those that originate in an ideological argument of similarity to humans.”

Standing Upright: The Moral and Legal Standing of Humans and Other Apes, 54 Stan. L. Rev. 163 (2001)
“The law typically treats great apes and other non-humans as property and not as persons. This is so, even though great apes have cognitive abilities that exceed those of some mentally-deficient humans. Nevertheless, these humans are entitled to the full range of personhood rights, while apes are entitled to none of them. Without attempting to resolve this discrepancy, I [Adam J. Kolber] suggest more modestly that those rights we do extend to apes under the Animal Welfare Act might be more easily safeguarded if we were to extend legal standing to apes, allowing suit to be brought on their behalf by human guardians. Doing so would not require us to view apes as persons but would provide increased protections for these surprisingly intelligent creatures.”

Vulnerable Victims: Increasing Animal Cruelty Sentences to Reflect Society’s Understanding of the Value of Animal Lives, 45 Conn. L. Rev. CONNtemplations 31 (2012-2013)
“More should be done to deter animal cruelty. Crush videos, which depict horrific acts of animal cruelty, should be banned. The advisory Guidelines range — as well as the five-year statutory maximum sentence for animal cruelty cases — should be substantially increased. Additionally, courts should continue to impose severe sentences upon those who subject animals to senseless and deadly violence. In so doing, the law will recognize the intrinsic value of animals as conscious, living creatures worthy of legal and constitutional protection.”

Writ De Homine Replegiando: A Common Law Path to Nonhuman Animal Rights, 25 Geo. Mason U. C.R. L.J. 159 (2015)
“This article argues that the writ de homine replegiando offers legal “things” the opportunity to challenge their legal “thinghood” and establish their rights to bodily liberty. The possibilities afforded by this writ (and likewise by the writ of habeas corpus), have become particularly significant in light of the Tilikum decision, as a common law writ will dispense with the need to persuade a court that a legislature intended to include a nonhuman animal within its meaning. However, the writ de homine replegiando has neither been sought on behalf of a nonhuman animal nor used in an American court for more than 150 years.
This article seeks to reintroduce the writ. Part I of this article reveals the writ’s origins in English common law and how it operated. Part II discusses the writ’s use in the United States by a variety of “legal things” to challenge their detentions, including human slaves, prisoners, and children, and the implications these decisions have on the potential modern use of the writ by nonhuman animals. Finally, Part III, explores the current viability of the writ in United States jurisdictions, analyzes the writ’s status in each state, and considers challenges to the writ based on the principle of desuetude. This article concludes that there is no legal justification for limiting the writ’s use to human beings, and that it remains available to challenge an unlawful confinement in many states.”

NEWS ARTICLES

Change of Heart, Chron. Higher Ed., Nov. 27, 2011
“Let’s step back from the rational principles employed by many animal-advocacy philosophies to examine the emotional and spiritual connections that, for many, produced the desire for change in the first place. Stepping back allows us to ask different questions about our relationship with animals: What mechanisms of language sorted all living things into only two categories called “humans” and “animals”? What practices in capitalism rendered some animals as killable commodities? What religious practices gave only some of us souls? What scientific data render some animals as wild and others as domesticated? What stories support the view that animals could and should be exploited for human benefit? And what, exactly, counts as exploitation?

How do we interact with and connect with real animals, and how do those connections reflect (or not) current ethical thinking about animals? How well are our relationships with animals reflected in culture today? Do these stories adequately portray the way we feel with and about animals? When and under what circumstances do we get our relationships with animals “right,” and how can those examples serve as a model for treatment of other animals? Examining the ways that emotion, connection, and stories have constructed our current world can build new strategies for change.”

Chimps Are People, Too? Lawsuit Will Test That Question, NPR, Dec. 3, 2013
“Is a chimp, living as a pet in the home of Patrick and Diane Lavery in Gloversville, N.Y., really enslaved and entitled to his freedom? Does the 26-year-old Tommy, who scientists argue is cognitively similar to humans, deserve some of the same rights as Homo sapiens?”

Chimp’s Day in Court: Inside the Historic Demand for Nonhuman Rights, Wired Mag., Dec. 6, 2013
“What Wise and the members of his Nonhuman Rights Project assert is both simple and radical: that personhood — the legal prerequisite for having rights of any sort at all — should no more be based on species classification than it is on skin color. Instead, the lawsuits argue that personhood derives from cognitive and emotional qualities that chimpanzees, like humans, possess in abundance. Tommy and Kiko and Hercules and Leo are not humans, acknowledges Wise, deserving full human rights. They shouldn’t have a right to vote, or to enter a restaurant or a public school. But they and every other captive chimpanzee are enough like us to have a right not to be owned and imprisoned against their will. If it’s not realistic to release them into a wild they’ve never known, they might be sent to chimpanzee sanctuaries, free to live with a modicum of the liberty they deserve. Not because we’ve deigned to be nice to them, but because it’s their right.”

He Kicked a Stray Cat, and Activists Growled, N.Y. Times, Sept. 30, 2014, at A1
“Not long ago, animal cruelty was “considered a side issue, relegated to something a few overpassionate people cared about, basically,” said Assemblywoman Linda B. Rosenthal of the Upper West Side, who has backed several bills strengthening animal cruelty laws. “Now, it’s a mainstream concern.””

Morality: It’s Not Just for Humans, CNN, Jan. 19, 2013
“You might think of “morality” as special for humans, but there are elements of it that are found in the animal kingdom, says [Frans] de Waal — namely, fairness and reciprocity. His latest study, published this week in the journal Proceedings of the National Academy of Sciences, suggests that chimpanzees may show some of the same sensibility about fairness that humans do.”

Pets in France Get Legal Status as ‘Living Beings Capable of Feelings’, ABA J, Apr. 18, 2014
“Pets in France are no longer just “movable goods” as a result of a bill passed by the National Assembly. The new bill amends the civil code to describe animals as “living beings capable of feelings,” according to the International Business Times. Lawmakers acted on Tuesday after nearly 700,000 people signed an online petition seeking a more modern definition of animal. The Telegraph, Mail Online and RFI also have stories. The new law is expected to allow pet owners to claim damages for suffering when their animals are killed, according to IBT. It will also have an impact in divorce cases, according to divorce lawyer Franck Mejean.”

Scientists Demonstrate Animal Mind-Melds, N.Y. Times, July 14, 2015, at D4
“In a pair of studies published on Thursday in the journal Scientific Reports, the researchers report that rats and monkeys can coordinate their brains to carry out such tasks as moving a simulated arm or recognizing simple patterns. In many of the trials, the networked animals performed better than individuals.”

Should a Chimp Be Able to Sue Its Owner?, N.Y. Times, Apr. 27, 2014, at MM28
“Under the partial heading “The Nonhuman Rights Project Inc. [Nh.R.P.] on behalf of Tommy,” the legal memo and petition included among their 106 pages a detailed account of the “petitioner’s” solitary confinement “in a small, dank, cement cage in a cavernous dark shed”; and a series of nine affidavits gathered from leading primatologists around the world, each one detailing the cognitive capabilities of a being like Tommy, thereby underscoring the physical and psychological ravages he suffers in confinement.
Along with chimps, the Nh.R.P. plans to file similar lawsuits on behalf of other members of the great ape family (bonobos, orangutans and gorillas) as well as dolphins, orcas, belugas, elephants and African gray parrots — all beings with higher-order cognitive abilities. Chimps were chosen as the first clients because of the abundance of research on their cognitive sophistication, and the fact that, at present, there are sanctuaries lined up to take in the plaintiffs should they win their freedom. (There are no such facilities for dolphins or orcas in the United States, and the two preferred sanctuaries for elephants were full.).”

Slave by Any Other Name Is Still a Slave: The Tilikum Case and Application of the Thirteenth Amendment to Nonhuman Animals, 19 Animal L. 221 (2013)
“On its face, the Thirteenth Amendment outlaws the conditions and practices of slavery and involuntary servitude wherever they may exist in this country– irrespective of the victim’s race, creed, sex, or species. In 2011, People for the Ethical Treatment of Animals, on behalf of five wild-captured orcas, sued SeaWorld for enslaving the orcas in violation of the Thirteenth Amendment. The case presented, for the first time, the question of whether the Thirteenth Amendment’s protections can extend to nonhuman animals. This Article examines the lawsuit’s factual, theoretical, and strategic underpinnings, and argues that the district court’s opinion ultimately dismissing the suit failed to address the critical issues that animated this case of first impression: Who “counts” as a legal person for the purposes of law? Is it time to recognize nonhuman animals as legal persons, based on progressing scientific and normative views? What principles underlie the Thirteenth Amendment? When and how does the application of the Constitution expand? Can the meaning of the Constitution evolve to encompass the interests of nonhuman animals? Drawing on the United States Supreme Court’s long history of evolving constitutional interpretation, this Article presents four theories of constitutional change, under which the meanings of ‘slavery’ and ‘involuntary servitude’ are expansive enough to include nonhuman animals. Despite the district court’s decision, the case can be properly viewed as the first step toward the legal recognition that the Thirteenth Amendment protects the rights of nonhuman animals to be free from bondage.”

AMERICAN LAW REPORTS

Application of Section 1 of 13th Amendment to United States Constitution, U.S. Const. Amend. XIII, S 1, Prohibiting Slavery and Involuntary Servitude—Labor Required by Law or Force Not as Punishment for Crime, 88 A.L.R.6th 203 (2013)
“Enacted in 1865, Section 1 of the 13th Amendment to the United States Constitution, U.S. Const. Amend. XIII, S 1, provides that neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. This language was intended to prohibit all forms of involuntary labor and maintain a system of completely free and voluntary labor throughout the United States, not solely to abolish chattel slavery. Many courts have addressed application of Section 1 of the 13th Amendment to labor required by law or force not as punishment for crime. For example, the court in Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. Sea World Parks & Entertainment, Inc., 842 F. Supp. 2d 1259, 88 A.L.R.6th 725 (S.D. Cal. 2012), found that Section 1 of the 13th Amendment’s prohibition of slavery and involuntary servitude applied only to human beings or persons, so that orca whales acting by their next friends lacked standing to bring an action against the operator of a sea aquarium alleging that the orcas were being forced to labor in captivity. This annotation collects and discusses cases that have addressed application of Section 1 of the 13th Amendment, prohibiting slavery and involuntary servitude, to labor required by law or force not as punishment for crime.”

Validity, Construction, and Application of Animal Welfare Act (7 U.S.C.A. SS 2131 et seq.), 74 A.L.R. Fed. 2d 275 (2013)
“The Federal Animal Welfare Act, 7 U.S.C.A. SS 2131 et seq., was enacted to protect animals, as well as their owners, from certain types of harm. Specifically, the Act was meant to ensure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment, to assure the humane treatment of animals during transportation in commerce, and to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen. Courts have adjudicated the applicability of the Act in particular contexts. For example, in 907 Whitehead Street, Inc. v. Secretary of U.S. Dept. of Agriculture, 701 F.3d 1345, 74 A.L.R. Fed. 2d 655 (11th Cir. 2012), the court held that a museum devoted to, and located at the former residence of, a famous author was an “animal exhibitor” under the Animal Welfare Act, since the museum, which had 50 to 60 cats roaming freely on the grounds which were enclosed by a brick fence, engaged in “distribution” of animals within the meaning of 7 U.S.C.A. S 2132(h). The museum, the court found, distributed the cats in a manner affecting commerce every time it exhibited them to the public for compensation and it broadcast images of the cats online and used them to attract visitors through advertising materials. This annotation discusses all of the cases in which the courts have construed or applied the Federal Animal Welfare Act, 7 U.S.C.A. SS 2131 et seq.”

What Constitutes Offense of Cruelty to Animals—Modern Cases, 6 A.L.R.5th 733 (1992)
“Prosecutions for the offense of cruelty to animals have been instituted for shooting, burning, or beating an animal, failure to provide necessary care to an animal, and for acts relating to organized fights between animals. Whether a conviction results may turn on a variety of factors—evidence presented by the prosecution that the alleged act occurred; evidence presented by the defendant that the alleged act was a necessary act of discipline or was in protection of a person or of property; and the court’s ruling on the statutory wording as to the degree of intent with which the defendant must have acted. In the recent case of Regalado v United States (1990, Dist Col App) 572 A2d 416, 6 ALR5th 1178, a prosecution for beating a puppy, the court held that the evidence supported an inference of discipline crossing over the line to cruelty and held that the statute under which the plaintiff was charged did not require proof of specific intent to injure or abuse an animal but required only proof of general intent with malice. This annotation collects and analyzes the cases decided in or after 1950 that discuss what constitutes the offense of cruelty to animals.”

BIBLIOGRAPHIES

ABA Animal Law Committee
“Our Mission: To address all issues concerning the intersection of animals and the law to create a paradigm shift resulting in a just world for all. Our Work: The status of animals in our legal system, and in our society at large, is in flux, and attorneys are discovering innovative ways to use the rule of law in many different arenas to create a just world for all. These arenas involve a vast array of human/animal interactions, including estate planning for companion animals, due process protections in dangerous dog/reckless owner laws, appropriate compensation when an animal is killed or injured, protections against breed discrimination, standards of care and accountability for animals used in industry and agriculture, expanding notions of what constitutes “cruelty to animals,” and the competing interests of wild animals and humans in dwindling resources.”

Animal Law eJournal (SSRN)
Social Science Research Network up-to-date collection of legal and non-legal scholarship concerning the rights and roles of animals in human society.

Animal Legal and Historical Center Web Site (Michigan State University)
“On this site you will find a comprehensive repository of information about animal law, including: over 1200 full text cases (US, historical, and UK), over 1400 US statutes, over 60 topics and comprehensive explanations, legal articles on a variety of animal topics and an international collection.”

Animal Rights in the Human Legal System, LLRX, Feb. 20, 2012
“The struggle for human rights has gone on for ages, but the story of animal rights has only begun to be told. There are many facets to this emerging area of law, which mediates the tension between human needs and animal welfare. Its jurisprudence takes into account the various roles that society has assigned to animals, e.g., companion, servant or object, as well the implications of their participation or use in different sectors of modern life. Some of the key legal areas of confluence include: (1) animal rescue; (2) protective legislation; (3) law enforcement and forensics; (4) elder care and end of life issues; (5) abuse registries; (6) environmental hazards; (7) witness assistants and therapeutic and service roles; and (8) development of advanced degrees and specialization in animal law. Our legal system must legislate and adjudicate for animals as well as human beings Thus, the evolution of animal rights might have a corollary impact on human rights. For example, a statute interdicting animal cruelty can rest on its own merits or on its implications for human behavior. Although animals have no vote in the human management of their affairs, their place in our laws is undeniable. This article is a compilation of new and notable legal resources on animal rights and welfare.”

Animals: Ethics, Rights & Law—A Transdisciplinary Bibliography (2014)
“This bibliography is not exhaustive, however, at least with regard to books, it well represents the available literature. I [Patrick S. O’Donnell] have included only a comparatively few number of journal articles, being far more selective here in order to keep the list manageable. Indeed, toward that end—with a few exceptions—I chose ‘about 1980’ as an arbitrary cut-off date (thus one should not assume anything before that period is somehow without merit). Should you know of a book or article conspicuous by its absence (i.e. you’re fairly convinced of its high quality), please let me know. Some of the titles do not, strictly speaking, fall within the categories of ethics, rights, and law. In such cases, I’ve included them either because they touch upon presuppositions, assumptions or premises essential to this or that argument found in the literature, or, they are exceptionally lucid with respect to a subsidiary topic within animal ethics, rights, and law. Finally, much of this list in its first draft would not have been possible without the excellent bibliography in the first edition of Angus Taylor’s wonderful book, Animals and Ethics: An Overview of the Philosophical Debate (2003).”

Articles and Books by the Nonhuman Rights Project (NhRP)
“The Nonhuman Rights Project is the only organization working through the common law to achieve actual LEGAL rights for members of species other than our own. Our mission is to change the common law status of at least some nonhuman animals from mere “things,” which lack the capacity to possess any legal right, to “persons,” who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them. Our first cases were filed in December 2013, and this year we will file as many suits as we have funds available. Your support of this work is deeply appreciated.” See also Court Cases by the Nonhuman Rights Project.

International and Foreign Animal Law (Pace Law Library)
“This guide focuses on resources for research in animal rights law and includes links to primary and secondary sources.”

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1 See Richard Black, Species Count Put at 8.7 Million, BBC, Aug. 23, 2011. See also Matt McCall, Chimpanzees Deemed Endangered by U.S.—What’s It Mean?, Nat’l Geo. News, June 12, 2015 (linking wild and captive animals under Endangered Species Act).

2 See Ken Strutin, Animal Rights in the Human Legal System, LLRX, Feb, 20, 2012.

3 See Ken Strutin, Cognitive Rights for the Neighbors of Humanity, N.Y.L.J., July 28, 2015, at 5 (“Being human is not the summit but the starting point of a constitutional interpretation of personhood. Modern thinking embroidered by advances in genetics and biotechnologies are opening up settled questions about personhood, dignity and liberty. So the debate is no longer about the origin of species but their future.”). Interestingly, many of the collective terms for animals in the English language bespeak very human qualities, such as a “wisdom of wombats,” a “parliament of owls,” and an “exaltation of larks”. See List of English Terms of Venery, by Animal (Wikipedia).

Posted in: Animals and the Law, Ethics, Human Rights, Legal Ethics, Legal Research
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