Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Happy’s Hapless Helpers

An elephant holding a brush in its trunk and using it to paint paint an elephant

In a short decision, a New York appellate court affirmed the denial of a petition for a writ of habeas corpus brought by Steven Wise and the Nonhuman Rights Project on behalf of Happy the Elephant. This was no surprise, particularly because the same court had reached the same decision in a case brought by the same lawyers just three years ago. Indeed, Mr. Wise sought to have the case heard in another part of the state in order to get around the court’s earlier rejection of his theories, claiming, in a bit of refreshing candor, that the case should be heard in remote Orleans County, which had no connection at all with the case, because the courts in the Bronx, where Happy lives, “aren’t amenable to his arguments.”

I could mock the Nonhuman Rights Project all day for wasting the time and money of their opponents and misusing the courts in a quixotic and meritless quest to show that some nonhuman animals are legal persons instead of, you know, focusing on animal welfare laws or other steps that could actually help the animals they care about. But instead, I will just briefly restate a few of my points from many prior posts:

  • The lawsuit is more about the interests of Mr. Wise and the NhRP than it is about Happy. If Mr. Wise should ever find a judge willing to rule in his favor, what will he have accomplished? He won’t have won freedom for Happy, who will not be roaming the streets of the Bronx anytime soon. He will instead have created a cottage industry in which animal rights lawyers can use the courts to advance their own agendas, not the animals’ agendas, or in damages cases such as the cases that PETA sometimes brings (e.g., the “Monkey Selfie” case), a cottage industry in which animal rights lawyers can use the courts to fundraise and to profit.
  • The lawsuit is deeply confused about the idea of personhood in any case.
  • The law is a human institution, made for humans, by humans.
  • Lawsuits like this impose real costs on the animal owners that must defend them, and in the case of the Bronx Zoo, which owns Happy, must defend them through multiple appeals. Perhaps this did not occur to a tenured professor like Mr. Wise.

How is it that so many smart people can spend so much time, money, and energy to accomplish so little? Is there not something more productive they could be doing, even in the realm of animal welfare? Perhaps the phenomenon of lawyers seeking the great writ for elephants is an example of the “overproduction of elites.” Perhaps we have too many highly educated people with not enough useful work to do.

Because the NhRP does not “know when to fold ’em,” the next stop is the New York Court of Appeals, which could agree to hear a discretionary appeal.

Ted Folkman

6 responses to “Happy’s Hapless Helpers”

  1. hardreaders

    Hey now, habeas for elephants is no laughing matter. What if Congress decided one day to sequester an elephant in a mousehole? Pachyderm habeas could be very useful in that case!

    All (or some) kidding aside though, I could turn the question around and ask what you get out of mocking these folks? By the way, from what I can tell, it seems like both the trial court here, and at least one Court of Appeals judge in an earlier case, were fairly sympathetic to the arguments being made. So are you mocking those judges too? And Prof. Tribe, who seems to be on board as an amicus? Likewise, the trial court here expressly noted that it was constrained by binding precedent, and the judge in the earlier case emphasized that the CoA decision was not on the merits. So I don’t see how you can be so confident in describing the cases are “meritless”.

    I’m not a covert shill for them, nor do I necessarily agree with any of their positions, but I just wonder why you are so dismissive? Just because they haven’t carried the day so far, doesn’t mean their efforts are “quixotic”. As Prof. Balkin has noted, legal theories are only “off the wall” up until the moment they become “on the wall”. Witness Bush v. Gore. I’m not endorsing the particular theories in that case of course, but it is a prime example. To me, animal personhood–under limited circumstances and for limited purposes at least–doesn’t sound much more farfetched than corporate personhood. But yet all the very serious people swear by the latter and insist that it must never be questioned.

    As to your claim about “overproduction of elites”, perhaps you do have a point there. Maybe it would be more beneficial to society if, say, highly educated, upper echelon lawyers put their efforts toward defending massive transnational corporations that profit from child slavery. We can always use more of that. Seriously though (and this also goes to your first bullet point), as I understand it, there already exists what they believe is a better home for Happy at a sanctuary elsewhere. The only problem is how to get her from point A to B. Aside from habeas, what else can they do? I suppose they could pull a Brad Pitt from 12 Monkeys, but that doesn’t seem too realistic.

    Last, to your four bullet points:
    (1) I already noted above that it doesn’t seem like the goal is just to put Happy out on the street, so that point might be a bit of a strawman. Also, I don’t quite understand what you mean by “the animals’ agendas”. If you’re truly saying animals, or at least Happy, has her own unique agenda, that seems like an argument *for* personhood in this case. And likewise that would allow the possibility that the Zoo’s agenda doesn’t necessarily align perfectly with Happy’s. (I’ll avoid touching on the damages cases because those are fairly different wax orbs.)
    (2) I’m not at all immersed in the subject, and even if I were, that’s something where folks debate for pages and pages, but very briefly, I’ll just repeat what I said above about the trial court and CoA judge. They both devoted some time to analyzing the issues, and neither of them seemed to view the theories as confused.
    (3) No quarrel with any of this per se, but I also don’t see how it rules out potential success by the plaintiffs down the road. Obviously it would take humans (judges, legislators, or ballot initiatives, etc.) to implement animal personhood if it happened. That doesn’t mean it won’t or can’t happen. Just like it required humans to implement corporate personhood, and that did happen.
    (4) Before delving into this one, I’ll just step back and note that it’s interesting that you immediately sympathize with the “animal owners”/the institution. What about the zoo patrons? Putting aside taking care of the animals themselves, isn’t the point of a zoo to benefit the zoo-going public? (I suppose there are a few millionaires who have private zoos just to entertain themselves, but that’s a whole different story.) In all seriousness, I am curious what the potentially affected community–which for the Bronx Zoo is obviously quite extensive–thinks about this.
    Anyway, I question a little the suggestion that this case is incurring substantial costs for the zoo. Of course, all litigation has costs, but this case seems quite removed from say the Apple/Samsungs or Oracle/Googles out there. For one, it’s habeas for crying out loud! Yes, I take it some expert affidavits were exchanged, but it doesn’t seem like there was heavy document or deposition discovery, which usually would be the culprits in driving up costs. Also, it is the Bronx Zoo as well as a nonprofit, so I would hope or assume they are getting help pro bono or at least at a fairly discounted rate. Moreover, if the case is truly so meritless as you say, I don’t see what’s stopping the zoo from seeking to recoup costs and attorneys’ fees. Last, I don’t get the need for a gratuitous pot shot against the legal academy, although it does seem to be everyone’s favorite punching bag these days. I think you have a small factual slipup though. As best as I can tell, Mr. Wise has only ever been an adjunct or a lecturer at various places (including your alma mater at one point). So it wouldn’t be correct, although certainly flattering, to call him a “tenured professor”.

    It might be unbearable cognitive dissonance at this point, but I do want to thank you for posting this and spurring my mental gears into action (while I’m annihilating the midnight electrons monitoring the encouraging developments out of Joe-gia). And in general I appreciate all of your blog output, which is consistently informative and thought-provoking. Congratulations on your “tinth” anniversary and keep up the great work.

    Reply
  2. Ted Folkman

    Thanks for this comment, hardreaders, and thank you for the kind words about the blog’s anniversary! There is a lot to say in response. On the big-picture question about mockery, I just tend to see the “animals are people” effort as an enormous waste of intellectual and financial energy that could, if redirected in a more useful way, actually do something for animal welfare via legislation, and almost as the apotheosis of the kind of thinking about rights that has turned democratic politics upside-down.

    Think about what it means to say that an elephant is a person with rights. It means that some human being goes to court to enforce what he or she says are the rights of the elephant. In other words, it’s a way to try to enact that person’s political agenda without the inconvenience of persuading his or her fellow citizens. That, I suppose, is the fundamental objection. And in cases like the Monkey Selfie case, you can bankrupt nature photographers in the process, or obtain money that you can use for whatever purposes you say benefit the monkey! (Including, maybe, compensation for the monkey’s advocates?) I think it will be interesting to see what happens when people finally bring lawsuits seeking to enforce the rights of, say, rivers that have been declared legal persons in New Zealand (https://www.nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/). I think it will be an incoherent mess and a distraction from the real work of, say, passing environmental laws or passing laws to recognize indigenous peoples’ rights.

    To your point about the animals’ agendas, I wasn’t serious when I used the phrase in the article. Happy the elephant doesn’t have an agenda, right? The only agendas here are the agendas of the human beings.

    Is it a straw man to say that the point of the argument is not to put Happy on the street? I don’t think so. Habeas corpus is a procedure that provides a remedy against illegal imprisonment. The animal rights lawyers don’t want to free Happy from imprisonment, they want to imprison her somewhere that, they think, would be better for her.

    In terms of my sympathies: I do sympathize with the animal owners, but mostly because of the time and expense they have to waste defending these lawsuits. My real sympathy is with the elephants. If it is true that elephants are mistreated in zoos, isn’t the sensible, efficient thing to do to pass new laws regarding how elephants are treated, or forbidding zoos from owning them, or something? Is asking a New York State judge to make a radical decision that depends on a novel (and, I would say, surely incorrect) point of moral philosophy really the best thing to do? Maybe if one is a law professor.

    Finally, because you raise the point about corporate personhood, you might be interested on the post I wrote on that topic some time ago (https://lettersblogatory.com/2018/12/21/persons/). I don’t read your comment to say, either explicitly or implicitly, that it’s hypocritical to say that corporations are people but elephants are not. But others have, and for the reasons I give in the prior post, that’s a bad argument that compares apples to oranges.

    Anyway, thank you for engaging with my post. As you know if you’ve read for a while, I almost never mock anyone. But I do make an exception for the “animals are people” crowd.

    Reply
  3. hardreaders

    Thanks for replying! Sorry if my initial comment seemed like something of a Gish gallop; that was not my intent at all. And in that spirit, I’ll try to be more targeted in this further response.

    First, I still haven’t put much thought toward the selfie case, and while I might have heard about the NZ river thing at the time, it hadn’t really crossed my mind at all until you brought it up. So again, I think I need to ponder those more offline before weighing in.

    Second, and if I’m mischaracterizing this, call me out for it, but it seems like a lot of what you say boils down to the argument that it’s anti-democratic (small d, of course) to file these kinds of cases and the plaintiffs ought to be seeking recourse via the political process. I can totally understand that sentiment, and sometimes I have the same instinctive reaction myself at times. But then what are public law plaintiffs to do when they think their cause is righteous, but the ruling party is hostile to them or, conversely, is protective of a politically-connected adversary? Should they just give up? It seems to me that’s one reason to have the judicial process, as an alternative channel. For example, in this case, it doesn’t seem too realistic to require the plaintiffs to lobby, say, the NYS legislature to change the law in a way that’s detrimental to the Bronx Zoo. That’s not ever going to happen. I think it’s very similar to the climate change cases. Say what you will about the plaintiffs and their legal theories, but clearly they view their cause as incredibly urgent, and it’s not like they’ve been getting a super-warm (no pun) reception even from past Democratic administrations. (Maybe Biden truly will be different, I think the jury’s still out there.) Here too, being relegated to the political process is often cold comfort (no pun again).

    Third, and relatedly, I think (and again, I could be wrong) you’re sort of making a walk/chew gum argument that any litigation effort inherently detracts from other things like lobbying. But I think the movement, such as it is, is probably big enough that they can do multiple things at once. In other words, I don’t see why it’s so bad that these folks presumably decided, based on their skillsets and available resources, to specialize on the litigation front, leaving others who are more capable to do lobbying etc.

    Fourth, I’m no habeas scholar, but my understanding is that not everyone takes the same narrow view of its capabilities. Some would say its a lot more flexible and expansive, and can be relevant in situations like this. Again, at least some of the NYS judges, who aren’t exactly lightweights or small-town nobodies, think the habeas arguments have some merit. And like I said, I’m fully aware the plaintiffs don’t want Happy to be “100% free” in the sense of being returned to whatever her original habitat was. I’m not so versed in all the particulars, but maybe there are good practical and logistical reasons why her original habit isn’t currently suitable. But I think it’s a little unfair to say the plaintiffs want to “re-imprison” her somewhere different. In any case, that seems like a merits argument as to which is actually better, and if Bronx Zoo is truly superior based on all the evidence, then yes, I agree the plaintiffs should lose. It doesn’t seem too dissimilar from disputes that happen all the time over what habitat is appropriate for endangered species.

    Fifth, I’ll be glad to study your corporate personhood writings in more depth later (so thanks!), but quickly, and to be clear, I’m not complaining about limited liability for corporations etc. I’m well aware of the things you mentioned in that post about the purposes and mechanisms of it, and that it can be changed at any time as a matter of state law. Obviously it’s not hypocrisy for limited liability to exist but yet Happy can’t abscond from the zoo, because, as you note, that’s apples/oranges. I was thinking more of the hypocrisy around corporate personhood to the extent it gives rise to rights for corporations, and it seems like we may be more on the same page there. But even if one thinks corporate rights are the bee’s knees (ok, that one was intended), that would tend to bolster my point. Humans decide what the law is, and at least for the time being, humans have determined that intangible, inanimate legal entities have some rights. So it doesn’t seem like all that much of a stretch for humans to make a similar determination that in some cases, tangible, animate creatures like elephants could also have a few specific rights.

    Last, I really think there are so many more deserving targets of mockery out there, but maybe I’m now succumbing to the walk/chew gum argument myself? 🙂

    Even though I talked a good game about brevity at the start, it looks like I fell short (intentional again), so if you bothered to read all this way, thanks!!

    Reply
    1. Ted Folkman

      You are right—a lot of what I say boils down to favoring democratic politics over “rights talk.” The answer to not getting what you want is usually to work harder to persuade your fellow citizens or to compromise, not to insist that what you want is actually a right, that is, to take it out of the realm of politics and put it in the realm of courts and lawyers. Or at least that’s how it should be. You’re not entitled to have everything you want! But I am not going to write a whole book about this in the comments section.

      Reply
      1. hardreaders

        Briefly this time (truly!), I agree the clash of democratic process vs. rights is a quite thorny one and as I mentioned I struggle with it all the time too. Getting a very satisfactory resolution to the dilemma is way beyond my pay grade, and like you said, well exceeds the scope of blog comments. I will just say that while I agree the “rights” part can get excessive at times, in my view the excess isn’t evenly distributed. To me, the abuses are far more extreme and dangerous when it comes to things like corporate personhood rights, weaponizing the 1A–speech and religion–against totally uncontroversial and essential economic regulation and civil rights legislation, the 2A, which of course is already a weapon to begin with :), and even 5A takings, which I consider a kind of “right”. Going the other direction, the abuses, such as they are, in Happy’s case, etc. seem to pale in comparison. But I recognize that others may see it differently. Thanks for indulging me in this fun (I hope) discussion and enjoy the weekend!

        Reply
  4. Elephant Habeas: The NhRP's Colorado Case Is Dismissed | Letters Blogatory

    […] in posts where I spell out my thoughts on the whole thing, you might be interested in reading Happy’s Hapless Helpers and […]

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

Thank you for commenting! By submitting a comment, you agree that we can retain your name, your email address, your IP address, and the text of your comment, in order to publish your name and comment on Letters Blogatory, to allow our antispam software to operate, and to ensure compliance with our rules against impersonating other commenters.