Moral and Legal Status of Animals: Tutorial 2 (Case Analysis)

Case Analysis: Analysing the Nonhuman Rights Project Litigation

The learning sequence for these tutorials is designed to assist students to critically analyse the US animal legal personhood case concerning the chimpanzee ‘Tommy’ brought by the Nonhuman Rights Project. After reading and discussing two articles on the topic of legal personhood for animals by key commentators in the field, students analyse the arguments and conclusions made in the ‘Tommy’ case.

Time Allocation

Two 50 minute tutorials. One tutorial for comprehension and class discussion, and one tutorial for case analysis.

Key Inquiry Questions

• What are the different legal and philosophical perspectives concerning the concept of legal personhood for non-human animals?
• How have courts in the US responded to arguments seeking to extend legal personhood to non-human animals?
• What are the prospects for achieving legal personhood for non-human animals in Australia? How could this be achieved (i.e. common law/legislation)?

Student Preparation

Prior to the first tutorial, students are required to read the following:

• Richard A. Epstein, ‘Animals as Objects, or Subjects, of Rights’ (2002) U Chicago Law & Economics, Olin Working Paper No. 171.
• Steven M. Wise, ‘Legal Personhood and the Nonhuman Rights Project’ (2010) 17 Animal Law 1.

Students are also required to listen to the podcast, featuring both Wise and Epstein.

Prior to the second tutorial, students are required to read the following:

• The Nonhuman Rights Project, Inc., on behalf of Tommy, v. Patrick C. Lavery (2014).
• Brief for Petitioner-Appellant, The Nonhuman Rights Project, Inc., on behalf of Tommy, v. Patrick C. Lavery (2016).
• Judgment of Fahey J in The Nonhuman Rights Project, Inc., on behalf of Tommy, v. Patrick C. Lavery (Decided May 8 2018).

TUTORIAL ONE (Comprehension and Class Discussion)

1. Discussion of the Steven Wise article (20 mins)

As a class, work through the following questions:

1. The article opens with the story of James Somerset, a slave born in the 18^th century. Why does Wise commence his discussion of the rights of nonhuman animals with the story of a human slave? (p. 1)
2. Wise defines legal personhood as ‘the capacity to possess at least one legal right’. Do you agree with this? Why/why not? (p. 1)
3. What is the ‘Animal Rights Pyramid’ Wise refers to? (p. 2)
4. What is ‘standing’ and what is its relationship to legal personhood, according to Wise? (p. 3)
5. Why does Wise discuss the cases of Cetacean Community v. Bush and Citizens to End Animal Suffering and Exploitation v. The New England Aquarium?
6. What is the goal of the Nonhuman Rights Project (NhRP), as explained by Wise? (p. 5)
7. Wise explains that a key question for the Legal Working Group at the NhRP is ‘what quality, or qualities, might be sufficient (though not necessary) to generate immunity-rights that protect a being’s fundamental interests’. What do you think of Wise’s argument that humans, great apes and cetaceans all share fundamental interests in ‘bodily integrity’ and ‘bodily liberty’? (p. 6)
8. What do you think of Wise’s thought experiment, based on the case of a comatose infant (Beth)? (p. 6)
9. What is the common law writ of habeas corpus, and why has the NhRP chosen to focus on this writ? (p. 8)

Note: Alternatively/additionally, these questions could be set as comprehension questions as part of preparation for the tutorial.

2. Discussion of the Richard Epstein article (20 mins)

1. Epstein outlines the historical view of ‘animals as objects’. Do you agree that animals should be viewed as legal things? (pp. 2-7)
2. Epstein asks the question: ‘Why is it that anyone assumes the human ownership of animals necessarily leads to their suffering, let alone their destruction?’ Do you agree with his assertion that ‘often, quite the opposite is true’? (p. 10)
3. How does Epstein respond to Wise’s comparison between the status of nonhuman animals in contemporary society and the legal status of slaves throughout history? (p. 11)
4. Epstein argues that ‘…the natural cognitive and emotional limitations of animals, even the higher animals, preclude any creation of full parity [with humans]’ To support this, he questions: ‘What animal can be given the right to contract? To testify in court? To vote? To participate in political deliberation? To worship?’ How do you think Wise would respond to this argument (thinking back to his Animal Rights Pyramid)? (p. 16)
5. Epstein explores two possible grounds for according ‘partial parity’ with humans (i.e. animal rights) – sensation and cognition. What do you think of his conclusions with respect to sensation? (pp. 16-20)
6. In regards to cognition, he outlines Wise’s claim that ‘limited cognitive capacity supports the claims for negative rights’. Do you agree with Epstein’s argument against this claim? (pp. 20-23)
7. What does Epstein mean when he says that ‘[i]n the end, even the proponents of animal rights must adopt an explicit speciesist approach, complete with arbitrary distinctions’? (p. 22)
8. What do you think of Epstein’s arguments relating to animal experimentation? In particular, his argument that granting animals the right to bodily integrity would interfere with their use in medical experimentation, and this should therefore ‘not happen’. (p. 25)
9. How would you characterise Epstein’s overall argument? How do you think Wise might characterise it?

3. Discussion of the Podcast (10 mins)

In light of the discussion of the two articles, invite students to discuss their thoughts on the podcast featuring both authors.

4. Preparation for the Next Tutorial

At the conclusion of the tutorial, remind students that they will need to read the three required readings before the next tutorial. Explain that they may need to research outside of the readings in order to fully appreciate their context. Encourage them to bring printed copies of the readings to class (or have them accessible on a device).

TUTORIAL TWO (Case Analysis)

1. THINK/PAIR/SHARE (15 mins)

Divide the class into pairs. Ask them to discuss their thoughts on the case. Did they find the brief interesting? Were they persuaded by any of the arguments? Did they agree with the judgments?

Bring the class together, and invite them to share some of their discussions.

2. CASE ANALYSIS (45 mins)

2014 Ruling

1. Do you think that the court appropriately weights the significance of the lack of precedent for a claim of habeas corpus relief on behalf of an animal? (p. 3)
2. The court states that ‘the ascription of rights has historically been connected with the imposition of societal obligations and duties’. This is an important starting point for their overall analysis leading to the conclusion that chimpanzees can not claim habeas corpus relief as they cannot uphold societal obligations and duties. Do you agree with this starting point? (p. 4)
3. Do you agree with their conclusion that the legislature is a more appropriate forum for seeking further protections for animals? (p. 6)

NhRP Brief

1. What are the facts of the case and the history of the litigation? (pp. 2-7)
2. In their Statement of Facts, the NhRP seeks to demonstrate that chimpanzees are capable of upholding duties and obligations – did you find this argument persuasive? (pp. 7-22)
3. The NhRP Brief argues that Tommy the chimpanzee is a ‘person’ under the common law of habeas corpus and Art 70 of the CPLR. The first step in their argument is that ‘Person is not synonymous with “human being”’. Do you agree with this statement, and their support for it? (pp. 31-35)
4. A further step in their argument is that ‘Tommy is entitled to common law personhood and the right to bodily liberty as a matter of common law equality’. How do they support this argument? (pp. 23-50)
5. On what grounds do they argue that the ruling in Lavery ‘erroneously held that the capacity to bear duties and responsibilities “collectively” at the level of species is necessary for being a legal “person”’? (pp. 50-61)
6. They conclude their argument by stating that Tommy’s detention is unlawful – do you agree with this conclusion? (pp. 61-65)

Judgment of Fahey J

1. What does Fahey J mean when he says ‘I write to underscore that denial of leave to appeal is not a decision on the merits of petitioner’s claims’? (p. 2)
2. Do you agree with Fahey’s assessment that ‘The Appellate Division’s conclusion that a chimpanzee cannot be considered a “person” and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species’? (p. 4)
3. Fahey explains that in his opinion a preferable approach to the issue before the court would be to focus on ‘whether he or she has the right to liberty protected by habeas corpus’, rather than whether ‘a chimpanzee can fit the definition of a person’. Is this a preferable approach in your opinion? (p. 4)
4. Is it significant that this judge has stated that ‘we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect’? Does this statement surprise you at all? (p. 5)
5. Fahey alleges that the Appellate Division was mistaken in denying habeas relief on the basis that the NhRP were proposing transfer from one form of captivity to another. On what basis does he make this argument? (p. 6)
6. What are the potential implications of Fahey concluding his judgment by stating that ‘[w]hile it may be arguable that a chimpanzee is not a “person”, there is no doubt that it is not merely a thing?’ (p. 7)

SUGGESTED ASSESSMENT TASK

Mock Judgment

Task description and rationale

This task requires students to construct their own judgment in the Tommy case. By building their own judgment, students are given the opportunity to critically evaluate the arguments and conclusions discussed in the tutorial.

Suggested preparation

Expectations regarding style and tone should be made clear in advance. In particular, how a written judgment differs in style from an evaluative essay or reflective writing piece.

Task length

1500 words.

Links to Module Intended Learning Outcomes

1, 2, 3.

Assessment criteria

This assessment requires students to:

• Develop a clear, well-structured and persuasive piece of writing adopting an appropriate judicial style and tone;
• Demonstrate critical thinking and reflection on the arguments discussed in the tutorials;
• Articulately outline their adopted position, with adequate consideration of counter arguments;
• Demonstrate accurate spelling, punctuation and grammar and accurate and comprehensive referencing.

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