Pepperdine Law School Professor Richard Cupp has posted on SSRN.com an article that is forthcoming in the Florida Law Review entitled Cognitively Impaired Humans, Intelligent Animals, and Legal Personhood.
The article may be downloaded for free at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2775288.
This Article analyzes whether courts should grant legal personhood to intelligent animal species, such as chimpanzees, with a particular focus on comparisons made to cognitively impaired humans who are recognized as legal persons even though they may have less practical autonomy than intelligent animals. Granting legal personhood would allow human representatives to initiate some legal actions with the animals as direct parties to the litigation, as is presently allowed for humans with cognitive impairments that leave them incapable of representing their own interests. For example, a human asserting to act on behalf of an intelligent animal might seek a writ of habeas corpus to demand release from a restrictive environment where less restrictive environments, such as relatively spacious sanctuaries, are available. Highly publicized litigation seeking legal personhood in a habeas corpus context for chimpanzees is underway in New York, and the lawsuits have garnered the support of some eminent legal scholars and philosophers. Regardless of its short-term success or failure, this litigation represents the beginning of a long struggle with broad and deep societal implications.
A previous article by the author was quoted and largely followed by a unanimous New York appellate court in Nonhuman Rights Project, Inc. v. Lavery, the most prominent and controversial appellate decision addressing (and rejecting) legal personhood for chimpanzees thus far. This Article builds on that previous article, which focused on justice arguments based on young children with limited practical autonomy being granted legal personhood status. The New York lawsuits and other significant developments have highlighted important additional issues and nuances since the previous article’s publication.
Further, in the previous article the author indicated that additional scholarship was needed addressing justice arguments based on legal personhood being recognized for humans with cognitive impairments not related to typical childhood development – such as humans with significant intellectual disabilities or comatose humans. This Article analyzes these comparisons based on cognitive impairments not related to childhood, as well as analyzing issues presented by the New York lawsuits. The Article concludes that, like comparisons with young children and intelligent animals, comparisons between intelligent animals and humans with cognitive impairments unrelated to childhood do not support restructuring our legal system to make animals persons.
Further, the rights of the most vulnerable humans, particularly humans with severe cognitive impairments, would be endangered over the long term if legal personhood were granted to some animals based on cognitive abilities. Courts should continue to reject animal legal personhood in the lawsuits that will likely continue to be filed in numerous jurisdictions for decades. However, legislatures and courts should embrace societal evolution calling for greater human responsibility regarding our treatment of animals.