I noticed several days ago that Karen Hinton, the PR representative of Steven Donziger and the Lago Agrio plaintiffs, was also the representative of Steven Wise’s Nonhuman Rights Project. What are the chances? I tweeted about the coincidence of her involvement in two cases I’ve been following very closely, which was probably a bad idea, as it got me embroiled in my least favorite kind of argument—a Twitter argument. It’s 2018 and I should know better. It also drew in a writer named Linda Monk, who accused me of “mansplaining,” broke the first rule of HLS (don’t talk about HLS), and engaged in a meta-argument with me about what is or is not an ad hominem argument. You can look up the argument on Twitter if you feel that you want to squeeze the last dregs of misery out of 2018. But Karen and Linda made a point I want to respond to. “What a hypocrite!” they seem to say. “You think that Chevron (by which they mean Chevron Canada) is a legal person that should enjoy the benefits of limited liability in the Lago Agrio case, but you think that Happy the Elephant is not a person and has no right to issuance of a writ of habeas corpus.” So what’s the deal?

Here are some points to begin:

  • The idea of limited liability is not the same as the idea of corporate legal personhood. A corporation does not have limited liability just because it is a legal person. There are many non-corporate forms of organization that have various forms of limited liability protections, for example, limited partnerships, limited liability partnerships, limited liability limited partnerships, and limited liability companies.1 Yet in various contexts (the subject-matter jurisdiction of the federal courts, for example) they are not treated as persons. By the same token, natural persons may have protections from liability, usually by virtue of some office they hold (think of official and diplomatic immunity, various defenses to common-law tort liability when what would otherwise be a tort is committed under color of law, etc.).
  • The rule of limited liability protects the shareholders, not the corporation. We say that a corporation “has limited liability,” but what we really mean is that the shareholders of a corporation (or the limited partners of a limited partnership, or the members of a limited liability company) are not liable for the entity’s breaches of contract or for its torts, except in unusual circumstances where veil-piercing is appropriate. It’s probably easier to accept this rule when a corporation is publicly traded and the shareholders include your local teachers’ pension fund, or when the corporation is a small business owned by someone who otherwise would do business as a sole proprietor, than it is to accept the rule when the corporation is a wholly-owned subsidiary of another corporation. That’s why the plaintiffs’ arguments in Canada weren’t simply deemed frivolous. But taking a view one way or the other about enterprises structuring their affairs to avoid putting all the assets of the overall enterprise on the hook for everything the overall enterprise does has nothing to do with the question of corporate personhood itself. By the way, when I have written about the Canadian case (here, for example), my views have been basically predictive rather than prescriptive: “You are likely to lose this case because the law is settled,” rather than “It is morally right that you lose this case.”
  • The law has rules of limited liability because they are useful, not because of any view about the jurisprudential question about what natural or artificial beings are or are not “persons.” Limited liability for business entities promotes investment. Imagine deciding where to invest your retirement money if you had to worry that if a corporation in which you invested breached a contract or committed a tort you might bear personal liability. Of course, promoting investment isn’t the only social goal, which is why the law has rules about piercing the corporate veil. Something similar happens in (most) cases involving immunity of natural persons: an officer may have immunity in general but not for egregious wrongs, because we balance the importance of ensuring that the officer can do his or her job with other social goals.
  • We need to distinguish the basic law of corporate personhood from issues of constitutional law. Corporations are, in general in the United States, creatures of state law, not federal law. State law gives a corporation the power to sue or be sued, and federal procedural law (FRCP 17(b)(2)) follows state law here. Still, there is a constitutional overlay, because the Due Process Clause protects the “life, liberty, and property” of “persons” from deprivation without due process of law. I think it would be absurd to say that as a blanket rule a corporation is not a person for due process reasons, because the implication of that view is that the state could constitutionally seize the property of a corporation without paying just compensation. But I agree with my interlocutors that many constitutional rights of natural persons make little sense when applied to artificial persons such as business corporations. I am thinking, by way of example, of rights to free exercise of religion.

So my basic response to the charge of hypocrisy is that it compares apples and oranges. Since the rule about limited liability (which is what Karen Hinton and Linda Monk are complaining about in the Chevron case) is independent of the question of whether a corporation is a legal person, I don’t see any force to the charge that I have hypocritically written favorably about limited liability in the Chevron Canada case and unfavorably about personhood in Happy the Elephant’s case.

Now, what about Happy the Elephant? Is he a person? And that is the question. When I wrote that Happy’s personhood or non-personhood was the “whole basis for [Steven Wise’s] quixotic campaign,” Karen Hinton responded: “That is not true. You aren’t reading enough.” Heh. I can read Steven Wise’s web page well enough: “Our litigation team works in tandem with our legislative team to help build a national and global movement to secure legal personhood and rights for nonhuman animals.” And I can read Wise’s legal papers, which are basically all about the legal personhood of the animals he claims to represent.

Let me stipulate that I believe that elephants, like many other animals including the great apes (chimpanzees, gorillas, human beings, etc.), whales and dolphins, and probably others are sentient to a greater or lesser degree, that they are intelligent, that they have complex social structures, and that they feel pain. I abhor cruelty to animals, including cruelty to elephants, and I think that the law ought to punish animal cruelty criminally as a crime against public morals. I do not subscribe to HBO and so have not done as Karen Hinton asked several times and watched the HBO documentary on elephants. But I suspect there is little in it about elephants with which I’d disagree.

Now, why would I deny the legal personhood of an obviously intelligent animal like Happy? You might pause and ask just where the burden of persuasion lies on this question. But leaving that point aside, I’ve previously given several reasons for what I would call the traditional view that in the words of my personal soundtrack to middle school, “people are people” for purposes of the law. Not all of these comments arose in Steven Wise’s cases, by the way; some focus on PETA.

  • Legal persons have rights and duties; non-human animals can have no duties. Happy the Elephant breaks free from the Bronx Zoo, stampedes into your house, and breaks your china. Is he liable for trespass? Of course not. Steven Wise has a dubious reading of John Chipman Gray that he claims shows that a person need only have rights, not duties. The examples Gray gives are from ancient and medieval history: sacred cats in Egypt, farm animals hanged in medieval Europe for crimes, etc.
  • It’s really the interests of the lawyers, not the interests of the animals, that are at stake. We have mechanisms to protect the welfare of animals. Perhaps they ought to be strengthened. If Happy the Elephant is being mistreated, then the state should step in, stop the mistreatment, and punish the wrongdoers. Perhaps the state could even choose to provide that certain animals cannot be owned as property. But when PETA makes a claim for damages supposedly on behalf of animal, it is PETA, not the animal, that has an interest in where the money goes. And when Steven Wise brings a habeas case on behalf of an elephant, he is seeking to create a cottage industry for his group. As I wrote earlier this year: “But if the way we protect animals going forward is through litigation with the animals as plaintiffs, then there will be a regular role for the NhRP in conducting litigation and in shaping the outcomes of particular cases. The NhRP likes to point out that in the past, the law did not consider slaves, for example, as legal persons for many purposes. But once that changed, the former slaves were perfectly capable of asserting their own rights. But if elephants become people, they will never be capable of asserting their own rights and will always need the ‘help’ of the lawyers.” The Ninth Circuit put it better in a PETA case: “Puzzlingly, while representing to the world that ‘animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,’ PETA seems to employ Naruto [the famous monkey from the ‘monkey selfie case’ as an unwitting pawn in its ideological goals.” Nor are these cases just harmless fun for fancy academics. The nature photographer whom PETA sued in the monkey selfie case was financially ruined by the case. And in Wise’s habeas cases, zoos large and small have to incur legal expenses to defend the suits, which in my humble opinion have essentially no chance of success.
  • Law is made by humans for humans. Wise is really asking a question of moral philosophy—how do we define a person, and can the term be made broad enough to include some non-human animals? Now, if we are doing philosophy, I could turn that around and ask whether human beings, even competent adult human beings, always satisfy the usual criteria, either in terms of moral agency or in terms of personal identity. But anyway, here is what I wrote before about the law as a social institution for us:

    If law, or maybe Law, is a social phenomenon, then it’s for us (that is, us humans), and is meaningful to us and only to us. It’s a big part of the way we organize ourselves. Other animals have other systems. Chimpanzees apparently have interesting and sophisticated ways of living together. It just seems like a very basic mistake to treat nonhumans as subjects of the law rather than objects of the law. If you say, “human infants, the insane, etc. lack capacity just as a chimpanzee lacks capacity,” I would answer, “human infants, the insane, etc., are part of humans society in a way that chimpanzees are not.” No doubt intrepid primatologists can insert themselves into a chimpanzee society and participate in it in some way for purposes of study (because unlike chimpanzees, humans are wicked smart and can do things like anthropology and primatology). But that’s for the purpose of study, not for the purpose of leading a life. And a chimpanzee cannot, by its nature, be a part of human society. That’s not to say there’s something wrong or deficient about chimpanzees. That’s just how they are. To repeat, this isn’t a point about the philosophical question of what constitutes a person; it’s a point about whom is the law for. It’s for us.

I want to end with a point that doesn’t really go to personhood, but that goes instead to the misuse of the writ of habeas corpus. Here is what I wrote about one of Wise’s prior unsuccessful battles:

The essence of habeas corpus is unlawful imprisonment. Suppose the judge frees the elephants. Will they be sorry to leave their home at the zoo? Who knows? And where will they go? Where do they want to go? For human beings, freedom is itself something to be valued. But will an elephant in Connecticut be happier or better off being freed? Obviously it won’t be any good for the elephant to wander the streets of Connecticut. The NhRP has an answer to that: order that the elephants be given to the Performing Animal Welfare Society. But suppose the elephants don’t want to be released to the custody of the Performing Animal Welfare Society. Suppose they want to be free. Isn’t that what habeas corpus is for? Well, their desires for freedom aren’t really what the case is about. This just goes to show, in my view anyway, the ridiculousness of the whole project.

  1. I can’t help referring to one of the tweets in my discussion with Linda. She wrote: “Hedge funds do pretty well, and they are private associations with unlimited liability.” I do not understand why she holds this view. A typical structure for a hedge fund is a limited partnership. In an LP the general partner does of course have unlimited liability, but in a typical structure the general partner itself is a limited liability company. There are other structures using LLCs, etc., and while I don’t claim great expertise in the subtle science and exact art of fund formation, I think a fund in which the investors undertake unlimited personal responsibility would be unusual.