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Animals in Court: Does Personhood Matter?

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In 1386, a female pig was put on trial in France for causing the death of a child by tearing his face and arms.  Trials such as this were not uncommon in medieval Europe. As E.P. Evans describes in The Criminal Prosecution and Capital Punishment of Animals, the same procedural rules applied to human and animal defendants, and the defense counsel for animals often raised complex legal arguments on their behalf.  In this case, the sow was found guilty, and under the law of “eye-for-an-eye,” the tribunal ordered that she be maimed in the head and upper limbs and hanged in the public square.

Animals today hold a very different place in our law.   As the subject of extensive legal protections and the beneficiaries of private trusts, they are no longer defendants in our courts, but rather aspiring plaintiffs.

Earlier this week, a series of habeas corpus petitions were filed on behalf of chimpanzees being held in confinement for various purposes in the state of New York.  (Court documents available here). The petitions, filed on behalf of the chimpanzees by the Nonhuman Rights Project, ask the court to recognize that the chimpanzees are legal persons with a right to bodily liberty, and to order that they be moved into the care of the North American Primate Sanctuary Alliance.  This is the first time that a habeas petition has been filed on behalf of an animal in the United States.

Of the many important and interesting issues raised by these petitions, I will in this post focus the significance of granting legal personhood to animals.

While courts in the US have not previously been asked to recognize an animal as a person with a common law right of liberty, they have been confronted with a remarkable number of cases in which animal species are listed as lead plaintiffs—most often in suits brought to enforce provisions of the Animal Welfare Act (AWA) and Endangered Species Act (ESA).  In one such case, the Ninth Circuit ruled that the endangered bird species at issue was a party with “legal status and wings its way into federal court as a plaintiff in its own right.”

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30 Pound Turkeys, 30 Million Pounds of Antibiotics

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Since 1960, the weight of an average live domesticated turkey has nearly doubled from around 15 to 30 pounds.   And current estimates are that 30 million pounds of antibiotics are used in livestock production per year (which represents 80 percent of the total volume of antibiotics sold in the United States for any purpose).  These two facts are related.

The use of antibiotics in livestock is often not for the purpose of curing disease, but rather for the purpose of growth promotion—a practice that has arisen with the intensification of livestock farming.  Although the mechanism underpinning their action is unclear, it is believed that the administration of antibiotics at non-therapeutic doses suppresses sensitive populations of bacteria in the intestines, helping animals digest their food more efficiently.

This non-therapeutic use of antibiotics continues despite clear evidence that the overuse of important antibiotics for humans in the livestock industry spreads dangerous antibiotic resistance. Read More

Are Dogs People?

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In a fascinating opinion piece in the New York Times this past weekend, neuroeconomist Gregory Berns writes: “For the past two years, my colleagues and I have been training dogs to go in an M.R.I. scanner — completely awake and unrestrained.  Our goal has been to determine how dogs’ brains work and, even more important, what they think of us humans.  Now, after training and scanning a dozen dogs, my one inescapable conclusion is this: dogs are people, too.”

As Berns explains, his research found a striking similarity between dogs and humans in the structure and function of a part of the brain known as “the caudate nucleus.”  It was previously known that in humans, the caudate plays a key role in positive emotions, including the anticipation of things we enjoy, such as food, love, and money.    What Berns and his colleagues discovered is that in dogs, the caudate is activated when they are exposed to hand signals indicating food, the smells of familiar humans, or the return of their owners.   While Berns emphasizes that these findings do not “prove that dogs love us,” he concludes that “using the M.R.I. to push away the limitations of behaviorism” suggests that dogs have “emotions just like us.”

There is much thought-provoking material to write about in this opinion piece (including the fact that they “treated the dogs as persons,” with consent forms, the right to withdrawal, etc.), but what I want to focus on in this post is the premise that neuroscience can resolve contested questions about the existence of mental states—in animals, or even in humans.

The allure of this use of neuroscience is that it seems to work around a classic philosophical problem known as “the problem of other minds,” which refers to the puzzle of how one knows whether someone or something, other than oneself, has a mind.  Read More

Anonymity is Not Privacy (and Why it Matters)

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Anonymity is not just an aspect of privacy and recognizing their difference reveals a powerful and poorly understood set of legal tools for facilitating and controlling the production of public goods.  This is the central claim of my newest article (SSRN draft available here).

Three examples illustrate the scope of the under-explored ways in which anonymity is currently used in our law.

  • The first is from June 1997, when many residents in the Boston neighborhood of Allston learned to their anger that Harvard University had spent the previous 8 years secretly acquiring over 50 acres of Allston real estate.  It did so using buying agents, which can generally protect their principal’s anonymity—even by falsely stating that they are not agents.
  • The second is from Election Day 2012, when many voters who had shared photos of their completed ballots on Facebook and Twitter learned, to their surprise, that they had violated their states’ elections laws in doing so.   They did not know that anonymity in voting was not just a right, but also a requirement.
  • The third is from a 2006 lawsuit over the control of thousands of tissue samples being used in research at Washington University.  When many of the research participants sought to withdraw their tissue from future research, in response to what they saw as a breach of their consent, they were shocked to learn that the university could refuse and extinguish their rights of withdrawal by anonymizing their tissue samples.

These varied uses of anonymity in our law—as a right when purchasing land, a requirement in voting, and a trigger than extinguishes rights in biomedical research—may appear to be unrelated.  But I argue that they are in fact all part of a cohesive and previously unrecognized class of rules that use anonymity not to protect privacy, but rather to incentivize or control the production and circulation of information and other socially desirable goods. Read More

Chimpanzee Research and Animal Rights

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Last month, two federal agencies took steps that together may come close to ending research on chimpanzees in the United States.

First, the Fish and Wildlife Service (FWS) proposed to list all chimpanzees, including those in captivity, as endangered.   (Currently, only wild chimpanzees are listed as endangered, while captive chimpanzees are listed as threatened).  This would require that almost all research on chimps be done with a permit, and the agency has suggested that these permits may only be granted for research that enhances the propagation or survival of the chimpanzee species.

Second, the National Institutes of Health (NIH) decided that more than 300 of the approximately 360 research chimpanzees that it owns will be retired and moved into sanctuaries.  This decision was based on an Institute of Medicine report finding that most current research on chimpanzees is unnecessary, and that chimps should be used only when public health is on the line, no other animals are appropriate, and ethical experiments on humans are not possible.  On the basis of these findings, the NIH is planning to keep a colony of about 50 chimps available for research that is not possible in any other way.

Comparing these two agency actions raises an interesting question:  In evaluating whether research on chimpanzees is ethical, does it matter whether the beneficiary of the research is the chimpanzee or the human species, and if so, on what grounds?   Read More