NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT

In the Matter of a Proceeding under Article 70

of the CLPR for a Writ of Habeas Corpus Index No. 162385/15

THE NONHUMAN RIGHTS PROJECT, INC.,

on behalf of TOMMY

Petitioner-Appellant,
v.

PATRICK C. LAVERY, individually and as

an officer of Circle L. Trailer Sales, Inc., DIANE
L. LAVERY, and CIRCLE L. TRAILER SALES,
INC.

Respondents-Respondents

LETTER-BRIEF OF AMICUS CURIAE RICHARD L. CUPP JR.1 IN

OPPOSITION TO PETITIONER-APPELLANT’S APPEAL OF DENIAL
OF PETITION FOR WRIT OF HABEAS CORPUS AND ORDER
TO SHOW CAUSE

Printed on Recycled Paper

1
Richard L. Cupp Jr. is the John W. Wade Professor of Law at Pepperdine University School of
Law. This affiliation is noted for identification purposes only.
I. PRELIMINARY STATEMENT

In December, 2015 the Supreme Court of the State of New York, County of

New York, denied the motion of Petitioner-Appellant Nonhuman Rights Project

Inc. (hereafter “NhRP”) for an Order to Show Cause and Writ of Habeas Corpus.

This Letter-Brief argues that the New York Supreme Court, Appellate Division,

First Department, should deny the NhRP’s appeal of that ruling.

In appropriately declining to sign the NhRP’s proposed order to show cause,

the trial court wrote: “Declined, to the extent that the courts in the Third Dept.

determined the legality of Tommy’s detention, an issue best addressed there, &

absent any allegation or ground that is sufficiently distinct from those set forth in

the first petition (CPLR 70039b)[)].”

The Appellant Division, Third Department ruled against the NhRP’s petition

for a writ of habeas corpus for a chimpanzee in a unanimous opinion in People ex

rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148 (3d Dept. 2014),

leave to appeal denied, 26 N.Y.3d 902 (2015). The NhRP asserts that Lavery

“relied almost exclusively” on two law review articles that I authored. Appellate

Brief at 50.

1
 I have published several scholarly articles related to nonhuman animal legal

personhood.2 My two articles cited by Lavery are Children, Chimps, and Rights

Arguments from “Marginal” Cases, 45 AZ. ST. L. J. 1 (2013) and Moving Beyond

Animal Rights: A Legal/Contractualist Critique, 46 SAN DIEGO L. REV. 27 (2009).

See Lavery, 124 A.D.3d at 151. Much of this amicus curiae Letter-Brief is

excerpted from two more recent articles: Cognitively Impaired Adults, Intelligent

Animals, and Legal Personhood, 68 FLA. L. REV. __ (forthcoming, 2017, available

at http://ssrn.com/abstract=2775288); and Focusing on Human Responsibility

Rather than Legal Personhood for Nonhuman Animals, 33 PACE ENVTL. L. REV.

517 (2016).

II. THE NHRP ASSERTED CHIMPANZEES’ ABILITY TO BEAR

DUTIES AND RESPONSIBILITIES IN THEIR EARLIER TOMMY
LAWSUIT THAT WAS REJECTED

The NhRP argues that “the Second Tommy petition presented substantial

new grounds not previously presented and determined in response to Lavery.”

2
Richard L. Cupp Jr., Cognitively Impaired Humans, Intelligent Animals, and Legal
Personhood, 68 FLA. L. REV. __ (forthcoming, 2017, available at
http://ssrn.com/abstract=2775288); Richard L. Cupp Jr., Focusing on Human Responsibility
Rather than Legal Personhood for Nonhuman Animals, 33 PACE ENVTL. L. REV. 517 (2016);
Richard L. Cupp Jr., Human Responsibility, Not Legal Personhood, for Nonhuman Animals, 16
ENGAGE Iss. 2 (2015); Richard L. Cupp Jr., Children, Chimps, and Rights Arguments from
“Marginal” Cases, 45 AZ. ST. L. J. 1 (2013); Richard L. Cupp Jr., Moving Beyond Animal
Rights: A Legal/Contractualist Critique, 46 SAN DIEGO L. REV. 27 (2009); Richard L. Cupp Jr.,
A Dubious Grail: Seeking Tort Law Expansion and Limited Personhood as Stepping Stones
Toward Abolishing Animals’ Property Status, 60 SMU L. REV. 3 (2007).

2
Appellant’s Brief, p. 29. The alleged “new grounds” are affidavits

“demonstrat[ing] that chimpanzees routinely bear duties and responsibilities and

therefore can be ‘persons’ even under the erroneous Lavery holding.” Id.

However, this is not a new issue in the litigation. The NhRP asserted in its first

brief in the original Tommy Fulton County lawsuit filed in 2013 that chimpanzees

possess moral agency, and it cited expert affidavits in support of this assertion. The

brief stated:

Chimpanzees appear to have moral inclinations and some level of

moral agency; they behave in ways that, if we saw the same thing in
humans, we would interpret as a reflection of moral imperatives
(McGrew Aff. at ¶26). They ostracize individuals who violate social
norms (McGrew Aff. at ¶26). They respond negatively to inequitable
situations, e.g. when offered lower rewards than companions
receiving higher ones, for the same task (McGrew Aff. at ¶26). When
given a chance to play economic games, such as the Ultimatum Game,
they spontaneously make fair offers, even when not obliged to do so
(McGrew Aff. at ¶26).

Petitioner’s Memorandum of Law in Support of Motion for Order to Show Cause

& Writ of Habeas Corpus Granting the Immediate Release of Tommy, Nonhuman

Rights Project Inc. v. Lavery, State of New York, Supreme Court County of

Fulton, Dec. 2nd, 2013, at page 32 (available at

http://www.nonhumanrightsproject.org/wp-

content/uploads/2013/12/Memorandum-of-Law-Tommy-Case.pdf

The brief also asserted:

3
 The evidence that chimpanzees and humans share the capacity for
“autonomy” is strong (King Aff. at ¶¶ 11; Osvath Aff. at ¶ 11).
Autonomous behavior demonstrates that a choice was made; it was
not based on reflexes, innate behaviors, or any conventional
categories of learning, or concept formation (King Aff. at ¶¶ 3-4).

Id. at page 9.

Essentially, the new affidavits submitted by the NhRP following the Lavery

decision simply repeat and provide more details on issues that the NhRP

previously raised in its original Tommy lawsuit that was dismissed.

III. THE NHRP’S BRIEF FAILS TO RECOGNIZE THE DISTINCTIVE

NATURE OF HUMANS’ AND THEIR PROXIES’ CAPACITY TO
BEAR LEGAL DUTIES

The NhRP’s efforts to utilize additions to previous expert affidavits and

some new expert affidavits to strengthen the argument already made in the original

Tommy lawsuit that chimpanzees have some sense of moral responsibility in their

relationships is the most notable distinction between the original Tommy lawsuit

and the present Tommy lawsuit. This is in response to the Lavery court’s

unanimous decision recognizing that chimpanzees are not persons in our legal

system because they are not capable of bearing legal duties. Lavery, 124 A.D.3d at

152.

The Lavery court’s focus was on legal accountability, not on whether

chimpanzees have some sense of accountability. (“Needless to say, unlike human

beings, chimpanzees cannot bear any legal duties, submit to societal

4
responsibilities or be held legally accountable for their actions”). Id. Whether

chimpanzees could be described as having some capacity for moral responsibility

in their relationships is quite obviously not the pertinent question regarding legal

personhood under our human legal system. Common sense suggest that ants,

whose ability to work together for the greater good of their colony is observable

even by non-experts, could probably be described as having something like a sense

of responsibility toward the other ants in their colony or to the colony as a whole.

Across many species of animals, mothers and, among some species, fathers

demonstrate characteristics that probably could be described in terms of a sense of

responsibility for their young offspring. Absent this capacity for responsibility in a

parent, in many species the young would die. Perhaps any type of mature animal

that lives cooperatively in some kind of family or group normally has something

like a sense of responsibility to the other animals in the family or group.

But of course we do not assign legal duties to ants or to any other

nonhuman animals. The pertinent question is not whether chimpanzees possess

anything that could be characterized as a sense of responsibility, but rather whether

they possess a sufficient level of moral agency to be justly held legally accountable

as well as to possess legal rights under our human legal system. When, in 2012, an

adult chimpanzee at the Los Angeles Zoo beat a three-month-old baby chimpanzee

in the head until the baby died, doubtless no authorities seriously contemplated

5
charging the perpetrator in criminal court.3 Similarly, when, in 2009, a chimpanzee

attacked a woman in a manner that police described as “unprovoked” and as

“brutal and lengthy,” causing severe, life-threatening injuries, doubtless no

authorities seriously considered bringing criminal battery charges against the

chimpanzee.4

According to the NhRP website, NhRP President Steven Wise has a poster at

his home office that reads “[w]e may be the only lawyers on earth whose clients

are always innocent.”5 This makes the point. As confirmed by the unanimous

Lavery decision, our legal system appropriately does not view chimpanzees as

possessing sufficient moral agency to be accountable under our human legal

system. Lavery, 124 A.D.3d at 152. A typical prosecutor in the United States

would not even entertain the idea of seeking to impose legal responsibilities on

chimpanzees based on the concept of moral responsibility.6 Whether chimpanzees

3
Adult Chimpanzee Kills Baby Chimp in Front of Shocked Los Angeles Zoo Visitors, CBS
NEWS (June 27, 2012), http://www.cbsnews.com/news/adult-chimpanzee-kills-baby-chimp-in-
front-of-shocked-los-angeles-zoo-visitors/ [https://perma.cc/AK4E-Z3GS].
4
Stephanie Gallman, Chimp Attack 911 Call: ‘He's Ripping Her Apart’, CNN (Feb. 18, 2009),
http://www.cnn.com/2009/US/02/17/chimpanzee.attack/index.html?iref=24hours
[https://perma.cc/SS3H-MQTJ].
5
Michael Mountain, At Sundance, A Triumph for “Unlocking the Cage”, NONHUMAN RIGHTS
PROJECT (Jan. 29, 2016), http://www.nonhumanrightsproject.org/2016/01/29/at-sundance-a-
triumph-for-unlocking-the-cage/ [https://perma.cc/QY9S-ZAJE].
6
Authorities restrain, confine, or even kill chimpanzees and other animals if they are a threat to
humans or to other animals (whether ever killing a violent chimpanzee is ever appropriate is
highly questionable, other than in a situation involving an imminent and very serious threat
where no other options are available). This is based on a perceived need to protect humans,
animals, or property, rather than based on a conclusion that the animal is morally blameworthy.
6
possess some degree of a quality that could be described as moral responsibility is

irrelevant; they can only interact with our society in a manner that suggests they

should be legal persons with rights and duties if they have sufficient moral agency

to be generally held accountable under our laws.

The NhRP’s brief argues that “[t]he two Cupp articles merely set forth one

professor’s personal preference for a narrow philosophical contractualism that

arbitrarily excludes every nonhuman animal, while including every human being,

in support of which he cites no cases.” Appellant’s Brief at 54. An amicus brief

filed opposing the appeal of the original Lavery case responded to a similar

assertion by the NhRP that practically no philosophers have supported “rights for

being human” by noting “the vast western philosophical canons to the contrary.”7

But at an even more fundamental level, the NhRP’s brief is incorrect in

seeking to pigeonhole the connections between rights and duties that are at the

foundation of our society and our legal system narrowly into any “branch” of an

abstract academic philosophical theory, with the apparent implication that the

connections should be accepted or rejected based on whatever views are currently

fashionable among academic philosophers. Noting that courts do not feel bound by

7
Brief of Amicus Curiae Bob Kohn Against Issuance of Writ of Habeas Corpus at 17,
Nonhuman Rights Project, Inc. v. Lavery, No. 518336/2014, (N.Y. App. Div. 2014),
http://www.nonhumanrightsproject.org/wp-content/uploads/2014/06/16.-Brief-of-amicus-curiae-
Bob-Kohn-against-issuance-of-writ-of-habeas-corpus.pdf [https://perma.cc/Y4SQ-Z6NQ].
7
strict adherence to the formal confines of competing academic philosophical

theories would be quite an understatement. Philosophical theories may be useful to

courts in some endeavors, such as understanding or explaining the foundations of a

society, but abstract theoretical philosophy is merely a tool at best. Courts seek

justice and are influenced by a multitude of factors, rather than deferring to the

shifting sands of current majority, minority, and majority and minority branch

positions among theoretical academic philosophers, most of whom have no legal

training or experience.

Similarly, the observations and analyses in my law review articles regarding

our society and legal system broadly connecting the concepts of rights and duties

since our foundation as a nation are not a call for judicial endorsement of any

formal academic philosophical theories—or their branches—in all of their

particulars. Focusing legal personhood on humans and their proxies is not

arbitrary, but rather a recognition that requiring legal accountability to each other

as the norm in a community of humans is at the core of our human society and its

legal system. John Locke’s contractualist assertions were appropriately important

to our nation’s founders, and thus are important to understanding the foundations

and core of our society.8 But our founders viewed Locke’s ideas as a useful tool for

8
See, e.g., Eric G. Luna, Sovereignty and Suspicion, 48 DUKE L. J. 757, 859 (1999) (“Locke’s
writings were a primary authority for the Colonists, and his social contract furnished the political
theory for both the American Revolution and the framing of the Constitution.”).
8
explaining the foundations of a democratic society rather than treating

contractualism – much less any of its branches – as a formal academic

philosophical theory that must be embraced in all of its particulars as set forth by

scholars.

The history of rights expansion in our society has been a history of focusing

on the humanity of those who were previously denied rights. As stated in Article I

of the United Nation’s Declaration of Human Rights adopted after the atrocities of

World War II, “All humans are born free and equal in dignity and rights. They are

endowed with reason and conscience and should act toward each other in a spirit of

brotherhood.”9 Even the rights evolution of humans with limited autonomy, such

as children and individuals with significant cognitive impairments,10 has

appropriately focused on those individuals’ belonging in the human community as

the basis for granting them rights.11

9
United Nations, Universal Declaration of Human Rights, Art. I, Dec. 10th, 1948 (available at
http://www.un.org/en/universal-declaration-human-rights/). Regarding our legal system’s
eventual recognition of slaves as full humans deserving of rights, the famed primatologist Frans
de Waal wrote: “rights are part of a social contract that makes no sense without responsibilities.
This is the reason that the animal rights movement's outrageous parallel with the abolition of
slavery -- apart from being insulting -- is morally flawed: slaves can and should become full
members of society; animals cannot and will not.” Frans B.M. de Waal, We the People: And
Other Animals . . ., NY TIMES, Aug. 20th, 1999 (available at
http://www.emory.edu/LIVING_LINKS/OurInnerApe/pdfs/WePeople.html).
10
This Letter-Brief will use the term “cognitive impairments” to refer to all human cognitive
limitations, including those related to childhood and intellectual disabilities, as well as being
comatose or being impaired due to an injury, illness, or medical condition.
11
The children’s rights movement’s focus on children’s humanity is addressed in is more fully
addressed in Richard L. Cupp, Children, Chimps, and Rights Arguments from “Marginal”
Cases, 45 AZ. ST. L. J. 1, 10-17 (2013). The rights movement for individuals with significant
9
 While there may be no case law prior to Lavery expressly rejecting habeas

corpus for animals because no reported lawsuits had previously made such a

radical assertion, courts have readily rejected analogous claims. For example, when

a lawsuit was brought seeking application of the Thirteenth Amendment to the

Constitution of the United States to orcas held in captivity, a district court

dismissed the lawsuit in a short opinion because the Thirteenth Amendment

“applies to persons, and not to non-persons such as orcas.” Tilikum ex rel. PETA,

Inc. v. Sea World Parks & Entm’t Inc., 842 F. Supp.2d 1259, 1263 (S.D. Cal.

2012).

IV. AMONG BEINGS OF WHICH WE ARE AWARE, APPROPRIATE

LEGAL PERSONHOOD IS ANCHORED ONLY IN THE HUMAN
COMMUNITY

As explained by the philosopher Carl Cohen, “[a]nimals cannot be the

bearers of rights because the concept of right is essentially human; it is rooted in

the human moral world and has force and applicability only within that world.”

Carl Cohen & Tom Regan, THE ANIMAL RIGHTS DEBATE 30 (2001). Our society

and government are based on the ideal of moral agents coming together to create a

system of rules that entail both rights and duties. Being generally subject to legal

cognitive impairments’ focus on those individuals’ humanity as the basis of their rights is
addressed in Richard L. Cupp Jr., Cognitively Impaired Humans, Intelligent Animals, and Legal
Personhood, 68 FLA. L. REV. __ (forthcoming, 2017, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2775288). Although our society’s history
entails denying rights to some humans, it has never extended rights beyond humans and their
proxies.
10
duties and bearing rights are foundations of our legal system because they are

foundations of our entire form of government.

We stand together with the ideal of a social compact – one might call it a

moral community – to uphold all of our rights, including our inalienable rights.12

As stated in the Declaration of Independence, “to secure these rights, governments

are instituted among men, deriving their just powers from the consent of the

governed.” THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). One would

be hard-pressed to convince most Americans that this is not important, as from

childhood Americans learn it as a bedrock of our social structure. It is not

surprising that the American Bar Association’s section addressing civil liberties

was until 2015 called “The Section of Individual Rights and Responsibilities.”13

This does not require viewing every specific protection of a right as

corresponding to a specific duty imposed on an individual. The connection

12
Of course, we have in some instances shamefully failed to follow this ideal, such as in
allowing the odious institution of slavery. Because noncitizen humans, even noncitizen unlawful
enemy combatants, are human, recognizing some rights for them is consistent with our
foundational societal principles. We assert some responsibilities for noncitizens as they interact
with our society in addition to recognizing that they have some rights as they interact with our
society.
13
See Proposal to Amend §10.1(a) of the ABA Constitution and Bylaws to reflect the name
change of the Section of Individual Rights and Responsibilities to the Section of Civil Rights and
Social Justice, Aug. 3-4, 2015 (explaining that the name was being changed from the Section of
Individual Rights and Responsibilities to the Section of Civil Rights and Social Justice because
“[t]he Section's activities have always been grounded in Constitutional rights and principles, but
have expanded beyond that,” leading to confusion regarding the section’s focus), available at
http://www.americanbar.org/content/dam/aba/directories/policy/2015_hod_annual_meeting_11-
2.docx.

11
between rights and duties for personhood is in some aspects broader and more

foundational than that. It comes first in the foundations of our society, rather than

solely in analysis of specific obligations and rights for persons governed by our

laws. As the norm, we insist that persons in our community of humans and human

proxies be subjected to responsibilities along with holding rights, regardless of

whether a specific right or limitation requires or does not require a specific duty to

go along with it.

It misses the point to argue, as the NhRP seems to do (Appellant’s Brief, pp.

57-58), that personhood is unrelated to duties because bodily liberty is an

immunity right that does not require capacity. First, as explained above, this is too

narrow a conceptualization of connections between rights and duties: although

rights and duties are broadly connected in the foundations of our society, not every

specific right needs to correlate with a specific duty. Further, whether bodily

liberty requires capacity and hence duties does not control the question of

personhood, since the personhood of humans lacking capacity, such as those with

significant cognitive limitations, is anchored in the responsible community of

humans, even if they cannot make responsible choices themselves.

Humans’ personhood is not based on an individual analysis of intellect, but

rather on being part of the human community where moral agency sufficient to

accept our laws’ duties as well as their rights is the norm. The NhRP’s argument

12
does not avoid the problem that a chimpanzee, although an impressive being we

need to treat with exceptional thoughtfulness, should not be considered a person

within our intrinsically human legal system, whereas humans – including humans

with significant cognitive limitations – should be recognized as persons.

Professor Wesley Hohfeld wrote about the form of rights and duties between

persons in the early twentieth century, and the NhRP’s Appellate Brief seeks to

invoke his analysis to argue for chimpanzee legal personhood. Appellate Brief, pp.

56-57. Perhaps the most basic problem with the NhRP’s argument is that we are

dealing with a question that must precede the Hohfeldian analysis of the forms of

rights granted to persons. Professor Hohfeld’s description of rights assumed it was

dealing with the rights of persons.14 This case’s issue revolves around who is a

member of society eligible for those rights and protections; in other words, who is

a person. This is a foundational question that is not answered by Hohfeldian

analysis.15

14
Professor Hohfeld stated, “[S]ince the purpose of the law is to regulate the conduct of human
beings, all jural relations must, in order to be clear and direct in their meaning, be predicated of
such human beings.” Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in
Judicial Reasoning, 26 YALE L.J. 710, 721 (1917).
15
“[S]ince Hohfeld's theory is largely descriptive, it does not really tell us what grounds our
duties and, thus, what ultimately grounds rights. While Hohfeld's theory may help us to identify
and explicate legal issues, it is not a method for determining social and legal philosophical
issues.” Thomas G. Kelch, The Role of the Rational and the Emotive in a Theory of Animal
Rights, 27 B.C. ENVTL. AFF. L. REV. 1, 9 (1999).
13
 It is sometimes asserted that since we give corporations personhood, justice

requires that we should give personhood to intelligent animals. However, this

argument ignores that corporations and other entities granted personhood in the

United States are created by humans as a proxy for the rights and duties of their

human stakeholders.16 They are simply a vehicle for addressing human interests

and obligations.

The Appellant’s Brief argues that “if humans bereft even of sentience are

entitled to personhood, then this Court must either recognize Tommy’s just

equality claim to bodily liberty or reject equality.” Appellant Brief, p. 49. Although

not described as such in the Appellant’s Brief, reasoning along these lines is often

referred to by philosophers as “the argument from marginal cases.” See Richard L.

Cupp Jr., Children, Chimps, and Rights Arguments from “Marginal” Cases, 45

AZ. ST. LAW J. 1, 22-28 (2013). The concept of an “argument from marginal cases”

has an unsettling tone, because most of us do not want to think of any humans as

being “marginal.” The pervasive view that all humans have distinctive and

intrinsic human dignity regardless of their capabilities may have cultural, religious,

or even instinctual foundations.

16
This is addressed in more depth in Richard L. Cupp Jr., Moving Beyond Animal Rights: A
Legal/Contractualist Critique, 46 SAN DIEGO L. REV. 27, 52-63 (2009) (analyzing the history of
corporate personhood being consistently defined as a proxy for human interests under all major
theories seeking to explain corporate personhood).
14
 All of these foundations would on their own present enormous challenges

for animal legal personhood arguments to overcome in the real world of law, but

they are not the only reasons to reject the arguments. Humans with significant

cognitive impairments are a part of society’s community, even if their own agency

is limited or nonexistent. Among the beings of which we are presently aware,

humans are the only ones for whom the norm is capacity for moral agency

sufficiently strong to function within our society’s legal system of rights and

responsibilities. Further, it may be added that no other beings of whom we are

presently aware living today (even, for example, the most intelligent of all

chimpanzees) ever meet that norm. Recognizing personhood in our fellow humans

regardless of whether they meet the norm is a pairing of like “kind” where the

“kind” category has special significance—the significance of the norm being the

only creatures who can rationally participate as members of a society subject to a

legal system such as ours.

Morally autonomous humans have unique natural bonds with other humans

who have cognitive impairments, and thus denying rights to them also harms the

interests of society—we are all in a community together. Infants’ primary identities

are as humans, and adults with severe cognitive impairments’ primary identities

are as humans who are other humans’ parents, siblings, children or spouses.

15
 Humans have all been children and humans in general relate to children in a

special way. Further, we all know that we could develop cognitive impairments

ourselves at some point in our lives, and this reminds us that humanity is the most

defining characteristic of persons with cognitive impairments.

Thus, recognizing that personhood is anchored in the human moral world

does not imply that humans with significant cognitive impairments are not persons

or have no rights. As explained by Professor Cohen, “[t]his criticism . . .

mistakenly treats the essentially moral feature of humanity as though it were a

screen for sorting humans, which it most certainly is not.”17 It would be a serious

misperception to view the Lavery decision as actually threatening to infants and

others with severe cognitive impairments in finding connections between rights

and duties. This misperception would reflect an overly narrow view of how rights

and duties are connected.

Regarding personhood, they are connected with human society as a whole,

rather than on an individual-by-individual capacities analysis.18 Again, appropriate

legal personhood is anchored in the human moral community, and we include

humans with severe cognitive impairments in that community because they are

17
COHEN & REGAN, supra note 35, at 37.
18
Of course, individual capacities are relevant to some specific rights (for example, the right to
vote). They are not relevant to humans’ personhood.
16
first and foremost humans living in our society.19 Indeed, as noted above, the

history of legal rights for children and for cognitively impaired humans is a history

of emphasis on their humanity. See, e.g., RICHARD FARSON, BIRTHRIGHTS: A BILL

OF RIGHTS FOR CHILDREN 1 (1978) (asserting that denying rights to children denies

“their right to full humanity”). The Lavery court noted that “[t]o be sure, some

humans are less able to bear legal duties or responsibilities than others. These

differences do not alter our analysis, as it is undeniable that, collectively, human

beings possess the unique ability to bear legal responsibility.” Lavery, 124 A.D.3d

at 152 n.3.

V. ANIMAL LEGAL PERSONHOOD AS PROPOSED IN THE TOMMY

LAWSUIT WOULD POSE THREATS TO THE MOST
VULNERABLE HUMANS

A danger that is underestimated and far out on the horizon may be more

likely to advance from threat to harm than a similar danger that is immediate and

clearly seen. One of the most serious concerns about legal personhood for

intelligent animals is that it presents an unintended, long-term, and perhaps not

immediately obvious threat to humans—particularly to the most vulnerable

humans.

19
Further, the status quo views humans as persons based on their humanity, and infants and other
cognitively impaired persons are unquestionably included. It is rejecting this status quo in favor
of an approach that denies membership in the human community as the foundation for
personhood that would create risk for cognitively impaired humans, not maintaining the status
quo.
17
 Among the most vulnerable humans are people with significant cognitive

impairments that may give them no capacity for autonomy or less capacity for

autonomy than some animals, whether because of age (such as in infancy),

intellectual disabilities or other reasons. To be clear, supporting personhood based

on animals’ intelligence does not imply that one wants to reduce the protections

afforded humans with cognitive impairments. Indeed, my understanding is that the

NhRP seeks to push smart animals up in legal consideration, rather than to pull

humans with cognitive impairments down.

However, good intentions sometimes create disastrous results. There should

be deep concern that over a long horizon, allowing animal legal personhood based

on cognitive abilities could unintentionally lead to gradual erosion of protections

for these especially vulnerable humans. The sky would not immediately fall if

courts started treating chimpanzees as persons. As noted above, that is part of the

challenge in recognizing the danger. But, over time, both the courts and society

might be tempted not only to view the most intelligent animals more like we now

view humans but also to view the least intelligent humans more like we now view

animals.

Professor Laurence Tribe has expressed concern that the approach to legal

personhood set forth in a much-discussed book by NhRP President Steven Wise

might be harmful for humans with cognitive impairments. Mr. Wise’s book,

18
Rattling the Cage, was published in 2000, and it broke new ground in setting forth

arguments for intelligent animal legal personhood. STEVEN M. WISE, RATTLING

THE CAGE (2000). In 2001 Professor Tribe stated “enormous admiration for [Mr.

Wise’s] overall enterprise and approach,” but cautioned:

[o]nce we have said that infants and very old people with advanced
Alzheimer’s and the comatose have no rights unless we choose to
grant them, we must decide about people who are three-quarters of the
way to such a condition. I needn’t spell it out, but the possibilities are
genocidal and horrific and reminiscent of slavery and of the holocaust.

Laurence H. Tribe, Ten Lessons our Constitutional Experience Can Teach us

About the Puzzle of Animal Rights: The Work of Steven M. Wise, 7 ANIMAL L. 1, 7

(2001).

Mr. Wise later responded in part: “I argue that a realistic or practical

autonomy is a sufficient, not a necessary, condition for legal rights. Other grounds

for entitlement to basic rights may exist.”20 But Mr. Wise also noted that, in his

view, entitlements to rights cannot be based only on being human.21 I did not find

in the Appellant’s Brief an explanation of why, despite Mr. Wise’s apparent view

that being part of the human community is not alone sufficient for personhood; he

and the NhRP think courts should recognize personhood in someone like a

permanently comatose infant. If the argument is that the permanently comatose

20
Steven M. Wise, Rattling the Cage Defended, 43 B.C. L. REV. 623, 650 (2002).
21
Id. at 650–51. I disagree with Mr. Wise and believe that treating humans distinctively makes
sense because the human community is in fact distinctive in important aspects.
19
infant has rights based on dignity interests, but that dignity is not grounded in

being a part of the human community, why would this proposed alternative basis

for personhood only apply to humans and to particularly intelligent animals?

Would all animals capable of suffering, regardless of their level of intelligence, be

entitled to personhood based on dignity? If a rights-bearing but permanently

comatose infant is not capable of suffering, would even animals that are not

capable of suffering be entitled to dignity-based personhood under this position?22

The implications of some alternative non-cognitive approach to personhood that

rejects drawing any lines related to humanity may be exceptionally expansive and

problematic.

22
In his book DRAWING THE LINE, Mr. Wise seems to argue that under equality principles,
granting rights to a “baby born into a permanent vegetative state” or to a man with an IQ of ten
supports granting rights to what he describes as “Category 2” animals in terms of autonomy
values. See STEVEN M. WISE, DRAWING THE LINE: SCIENCE AND THE CASE FOR ANIMAL RIGHTS
238 (2002). In Category 2, he includes animals such as dogs, African Elephants, and African
Grey Parrots, which are known to probably have relatively strong intelligence. Id. at 241. He also
asserts that, with animals that are lower on the probability scale of practical autonomy, there is a
point at which the disparities in autonomy between the animals and a man with very low
intelligence “become small enough to allow a judge to distinguish rationally between that
creature and a severely [mentally disabled] man. At some point, the psychological and political
barriers to equality for a nonhuman animal with a low autonomy value become insuperable.” Id.
at 238. But what if we consider the baby born into a permanent vegetative state instead of an
adult with a severe cognitive disability (who may, despite his disability, have some abilities)?
Would an equality argument based on individual autonomy, if accepted, suggest personhood for
many, many more animal species that may have autonomy equal to or less than that of an adult
with a severe cognitive disability but more autonomy than that of an infant born into a
permanently vegetative state? In light of our recognition of the legal personhood of an infant
born into a permanently vegetative state, how many (or how few) animals would not merit
personhood if an equality argument based on individual autonomy were accepted?
20
 Further, regardless of the NhRP’s views and desires regarding the rights of

cognitively impaired humans, going down the path of connecting individual

cognitive abilities to personhood would encourage courts and society to think

increasingly about individual cognitive ability when we think about personhood.

Over the course of many years, this changed paradigm could gradually erode our

enthusiasm for some of the protections provided to humans who would not fare

well in a mental capacities analysis. Deciding chimpanzees are legal persons based

on the cognitive abilities we have seen in them may open a door that swings in

both directions regarding rights for humans as well as for animals, and later

generations may well wish we had kept it closed.

VI. THERE IS NO CLEAR OR EVEN FUZZY LINE REGARDING HOW

FAR ANIMAL LEGAL PERSONHOOD, IF RECOGNIZED, MIGHT
EXTEND

The NhRP has stated that a goal of using these lawsuits is to break through

the legal wall between humans and animals.23 But we have no idea how far things

might go if the wall is breached. One might suspect that many advocates would

push for things to go quite far.

23
“Our goal is, very simply, to breach the legal wall that separates all humans from all
nonhuman animals.” Michael Mountain, Lawsuit Filed Today on Behalf of Chimpanzees Seeking
Legal Personhood, NONHUMAN RIGHTS PROJECT (Dec. 2, 2013),
http://www.nonhumanrightsproject.org/2013/12/02/lawsuit-filed-today-on-behalf-of-
chimpanzee-seeking-legal-personhood/ [https://perma.cc/6BDE-85B8].
21
 As noted above, in the real world law does not fit perfectly with any single

philosophical theory or other academic theory because courts are intensely

conscious of the practical, real world consequences of their decisions. One

practical consequence that should be expected if the legal wall between animals

and humans is broken through is the opening of a floodgate of expansive litigation

without a meaningful standard for determining how many of the billions of animals

in the world are intelligent enough to merit personhood. The consequences of this

lawsuit are not, in any way, limited to only the smartest animals.

How many species get legal personhood based on intelligence is just the

start. Once the wall separating humans and animals comes down, that could serve

as a stepping stone for many who advocate a focus on the capacity to suffer as a

basis for granting legal personhood. Animal legal rights activists do not all see eye

to eye regarding whether they should focus on seeking legal standing for all

animals who are capable of suffering or on legal personhood and rights for

particularly smart animals like chimpanzees. However, these approaches may only

be different beginning points with a similar possible end point.

The intelligent animal personhood approach is more pragmatic in the short

term, because the immediate practical consequences of granting legal standing to

all sentient animals could be immensely disruptive for society. We do not have

much economic reliance on chimpanzees, there are relatively few of them in

22
captivity compared to many other animals, and we can recognize that they are

particularly intelligent and closer to humans than are other animals. Thus, it is

perhaps tempting to some to believe that granting personhood to chimpanzees

would be a limited and manageable change. But if that were accepted as a starting

position, there is no clear or even fuzzy view of the end position. It would at least

progress to assertions that most animals utilized for human benefit have some level

of autonomy interests sufficient to allow them to be legal persons who may have

lawsuits filed on their behalf on that basis. NYU School of Law Professor Richard

Epstein has recognized the slipperiness of this slope, pointing out that “[u]nless an

animal has some sense of self, it cannot hunt, and it cannot either defend himself or

flee when subject to attack. Unless it has a desire to live, it will surely die. And

unless it has some awareness of means and connections, it will fail in all it does.”

Richard A. Epstein, Animals as Objects, or Subjects, of Rights, in ANIMAL RIGHTS:

CURRENT DEBATES AND NEW DIRECTIONS 154 (Cass R. Sunstein & Martha C.

Nussbaum eds., 2004).

Opening the personhood door to the more intelligent animals would also

encourage efforts to extend personhood on the basis of sentience rather than solely

seeking extensions based on autonomy. The implications of much broader potential

expansion of legal personhood based on either autonomy definitions or sentience

could be enormous and are not limited simply to chimpanzees.

23
VII. CONCLUSION: APPLAUDING AN EVOLVING FOCUS ON
HUMAN RESPONSIBILITY FOR ANIMAL WELFARE RATHER
THAN THE RADICAL APPROACH OF ANIMAL LEGAL
PERSONHOOD

When addressing animal legal personhood, the proper question is not

whether our laws regarding animals should evolve or remain stagnant. Our legal

system will evolve regarding animals and indeed is already in a period of

significant change as society is demanding better treatment of animals. At one

extreme, some might argue that our laws and enforcement of those laws regarding

animal protection are adequate and require no further significant evolution. Such

an approach is unrealistic and undesirable.24 Arguing that courts should grant legal

personhood to animals is at the other extreme, and, as described above, could

wreak disastrous consequences.

A centrist alternative to these extremes involves maintaining our legal focus

on human responsibility for how we treat animals, but applauding changes to

provide additional protection where appropriate. As emphasized by the Third

Department In unanimously dismissing the NhRP’s Lavery appeal, the Third

Department emphasized that “[o]ur rejection of a rights paradigm for animals does

not, however, leave them defenseless,” and that the NhRP “is fully able to

24
See Richard L. Cupp Jr., Animals as More than “Mere Things,” but Still Property: A Call for
Continuing Evolution of the Animal Welfare Paradigm, 82 CINN. L. REV. __ (forthcoming 2016,
available at http://ssrn.com/abstract=2788309) (arguing that society is appropriately demanding
evolution of the animal welfare paradigm to provide greater protections for animals).
24
importune the Legislature to extend further legal protections to chimpanzees.”

Lavery, 124 A.D.3d at 152-53. As a society we need to continue our evolution

toward increased protection of animals, but they should not be made legal persons.

Respectfully submitted,

___________________________________
Richard L. Cupp Jr.
John W. Wade Professor of Law
Pepperdine University*
School of Law
Malibu, CA 90263
(310) 506-4658

*Affiliation noted for identification purposes only.

November 14th, 2016

25