Wake Forest Law Review

WE, THE CITIZENS OF MARYLAND, TRUSTING IN GOD, THE SUPREME RULER OF THE UNIVERSE, PLEDGE FAITH IN OUR BROTHERS WHO GAVE THEIR ALL IN THE WORLD WAR TO MAKE THE WORLD SAFE FOR DEMOCRACY. THEIR MORTAL BODIES HAVE TURNED TO DUST. BUT THEIR SPIRIT LIVES TO GUIDE US THROUGH LIFE IN THE WAY OF GODLINESS, JUSTICE, AND LIBERTY.
WITH OUR MOTTO, “ONE GOD, ONE COUNTRY AND ONE FLAG,” WE CONTRIBUTE TO THIS MEMORIAL CROSS COMMEMORATING THE MEMORY OF THOSE WHO HAVE NOT DIED IN VAIN.

By: Robert Tucci

On Wednesday, October 18, 2017, the Fourth Circuit issued a published opinion in American Humanist Association v. Maryland-National Capital Park & Planning Commission. Several residents of Prince George’s County, Maryland, along with the American Humanist Association (“AHA”) – a non-profit organization dedicated to upholding the founding principle of separation of church and state – brought suit against a Maryland government agency, claiming that the government’s maintenance of a 40-foot tall World War I Latin Cross monument violated the Establishment Clause. The district court granted summary judgment for the government, and the plaintiffs appealed. The Fourth Circuit reversed and remanded the decision of the lower court, finding that the Cross violated the second and third prongs of the Lemon test.

Facts and Procedural History

On September 28, 1919, several private organizers held a groundbreaking ceremony on land owned by the city of Bladensburg, Maryland, to begin erecting a giant 40-foot Latin Cross memorial. The Cross was built next to a pre-existing plaque which was placed to honor 49 World War I United States soldiers. To fund the construction of the Cross, the private organizers obtained funding from private donors. The donors were required to sign a pledge sheet, which recognized the existence of “one god” (text of pledge sheet above).

The private organizers ran out of money in 1922 to continue funding the project. As a result, a local post of the American Legion stepped in to continue fundraising and construction of the Cross. Several of the Legion’s fundraising and memorial services concerning the Cross, both before and after construction was completed, contained exclusively sectarian Christian activities. Such activities included prayers at invocations and benedictions, Sunday worship service, speaker-led prayers, and singing Christian hymns. The Legion completed construction in 1925, and placed the four-story tall Latin Cross in the median of a three-way highway intersection in Bladensburg.

On March 1, 1961, the Maryland-National Capital Park and Planning Commission (“Commission”), a Maryland government agency, obtained title to the Cross and the land beneath it. The Commission claimed it acquired the Cross for safety reasons due to the proximity of the Cross to a busy highway. Since 1961, the Commission has spent $117,000 to maintain and repair the Cross, with an additional $100,000 set aside in 2008 for future repairs.

The Cross is part of the Bladensburg Veterans Memorial Park. All other monuments in the park are ten feet tall or shorter, devoid of religious iconography, and located at least 200 feet from the Cross. The Legion’s symbol (a small star inscribed with “U.S.”) is attached near the top of the Cross, and an American flag resides near the Cross. The plaque honoring the 49 soldiers sits on an obscured corner on the Cross’s rectangular base, and has been weathered to the point of being illegible.

The AHA and several non-Christian residents of Prince George’s County, who faced multiple instances of unwelcome contact with the Cross while driving, filed suit against the Commission, claiming that the Cross amounts to government affiliation with Christianity. The AHA and residents sought a declaratory judgment that the Commission’s conduct violates the Establishment Clause and the plaintiffs’ constitutional rights, an injunction enjoining the Commission from displaying the Cross on public property, nominal damages, and attorney’s fees and costs.

Both sides filed cross-motions for summary judgment, with the district court granting summary judgment to the Commission. The district court found that the Commission and Cross satisfied the three prong test set out in Lemon v. Kurtzman. The plaintiffs subsequently appealed to the Fourth Circuit.

Do Plaintiffs Have Standing to Sue?

The Court first analyzed the Commission’s argument that the plaintiffs lack standing to bring suit. The Commission contended that the plaintiffs had not “forgone any legal rights” as a result of the Commission’s conduct. The Court rejected this argument, stating that “[a]n Establishment Clause claim is justiciable even when plaintiffs claim noneconomic or intangible injury.” Specifically, the Court found that the non-AHA plaintiffs have standing due to their alleged unwelcome direct contact with the Cross, and that the AHA has standing to sue because an association can sue on behalf of its members if the members would also have standing to sue on their own.

Does Van Orden Control?

The Court then turned to the Commission’s argument that the holding in Van Orden v. Perry, rather than the Lemon test, should control. Van Orden dealt with a similar issue of whether a monument displaying the Ten Commandments on government property violated the Establishment Clause. The Court acknowledged that the plurality opinion in Van Orden is favorable to the Commission, but declined to follow it due to Justice Breyer’s controlling (and limiting) concurrence.

In his concurrence, Justice Breyer lays out several non-exhaustive factors for evaluating monuments eliciting both a secular and non-secular purpose, including: (1) the circumstances surrounding the monument’s placement; (2) its physical setting; and (3) the length of time it remains unchallenged. However, the Court noted that Justice Breyer reaffirmed Lemon by saying that it is a “useful guidepost[],” and remains a “more formal Establishment Clause test[].” Thus, the Court chose to apply the Lemon test, while giving due consideration to the Van Orden factors.

Does the Bladensburg Cross Satisfy the Lemon Test?

Next, the Court analyzed whether the Bladensburg Cross is constitutional under the Lemon test. A government display is constitutional under the Lemon test if it satisfies three prongs: (1) the display has a secular purpose; (2) the display does not have a “principle or primary effect” that advances, inhibits, or endorses religion; and (3) the display does not foster “an excessive entanglement between government and religion.” If the display violates even one prong, it is unconstitutional.

Secular Purpose

The Court held that the Cross satisfied the first prong of the Lemon test. The Court acknowledged that it is a fairly low burden to establish a secular purpose for a government display, because even if the display has “dual legitimate purposes” (one secular and one sectarian), it still satisfies the first prong of the Lemon test. The Commission articulated several secular reasons for displaying and maintaining the Cross, including ensuring safety near a busy highway, and the preservation of a significant war memorial. The Court found these to be legitimate secular reasons, thus finding that the Cross satisfied the first prong of the Lemon test.

Primary Effect

Next, the Court held the Cross violated the second prong of the Lemon test. The Court found the relevant question under the second prong to be “does the practice under review in fact convey a message of endorsement or disapproval of religion?” The Court stated that this question must be answered from the perspective of a “reasonable observer” – someone who “must be deemed aware of the history and context of the community and forum in which the religious speech takes place.” Therefore, the Court found that a detailed factual analysis of the Cross’ meaning, history, and secularizing elements was required to determine its primary effect.

Under the “meaning” inquiry, the Court concluded that the Latin cross is the “preeminent symbol of Christianity,” one that is not a symbol of any other religion. The court went on to say that even the Latin cross’ supposed secular symbology of death and memorialization is tied to the Christian sectarian teaching of Jesus Christ’s death and resurrection. Further, the Court found the Latin cross differed from other religious monuments, like the Ten Commandments, as it is not tied to the United States’ history and government.

Turning to the “history” inquiry, the Court found that, while the history of Latin Cross’ in general favors the plaintiffs, the history of the Bladensburg cross does not favor either party over the other. The Court centered its analysis around the fact that the Cross has a “semisecular” history, as it has been the object of both sectarian Christian activities – including Christian prayers, Sunday services, and fundraising using the donor’s pledge above – and secular Veterans-focused ceremonies.

Finally, the Court determined that, while the Cross does contain a few secular elements, they are easily overshadowed by the sectarian ones. In coming to its conclusion, the Court cited the fact that the Cross is much larger than the rest of the monuments in the Bladensburg Veterans Memorial Park, is 200 feet or more from any of the other monument, and that the “immense size and prominence of the Cross necessarily ‘evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones'” (referencing the Latin crosses in Arlington Cemetery).  Additionally, the Court emphasized the fact that the Christian iconography of the Cross was clearly visible to observers, while the secular symbols were hidden or obscured.

Ultimately, the Court concluded that a reasonable observer would “fairly understand the Cross to have the primary effect of endorsing religion,” as the factors above “collectively weigh in favor of concluding that the Cross endorses Christianity – not only above all other faiths, but also to their exclusion.” Thus, the Court held that the Cross violated the second prong of the Lemon test.

Excessive Entanglement

Lastly, the Court held that the Cross violated the third prong of the Lemon test. In coming to this determination, the Court said that excessive entanglement with religion “is a question of kind and degree,” and may include “pervasive monitoring or other maintenance by public authorities.” The Court found the Cross excessively entangles the government with religion for two reasons: (1) the Commission owns and maintains the Cross and the property it is displayed on, and (2) the Commission is displaying the “hallmark symbol of Christianity” in a very dominant and visible fashion that excludes all other religious iconography and tenants.

Conclusion

The Forth Circuit held that the Commission’s ownership and maintenance of the Bladensburg Cross violates the second and third prong of the Lemon test, and is an unconstitutional government endorsement of religion under the Establishment Clause. The Court reversed the decision of the district court and remanded the case for further proceedings.

By John Van Swearingen

On February 6, 2017, the Fourth Circuit issued a published opinion in the civil case Beck v. McDonald. The plaintiffs appealed the dismissal of their case for lack of subject-matter jurisdiction. In the United States District Court for the District of South Carolina, the plaintiffs brought suit under common-law negligence, the Privacy Act of 1974, 5 U.S.C. § 552(a) (2012) (“Privacy Act”), and the Administrative Procedure Act, 5 U.S.C. §§ 701–706 (2012) (“APA”) following data breaches at the William Jennings Bryan Dorn Veterans Affairs Medical Center (“Dorn VAMC”). The district court dismissed all claims against the Dorn VAMC, holding the court lacked subject-matter jurisdiction since, due to the speculative nature of the claimed injuries, the plaintiffs lacked Article III standing to bring their negligence and Privacy Act claims. The plaintiffs also could not establish standing for injunctive relief under the APA due to their speculative claims. The Fourth Circuit affirmed the district court’s dismissal, holding that the plaintiff’s claimed injuries were speculative, and therefore, the plaintiffs did not satisfy the injury-in-fact requirement for standing.

Facts and Procedural History

On February 11, 2013, a laptop containing the personal information of around 7,400 patients was either misplaced or stolen from the Dorn VAMC. The Dorn VAMC failed to utilize the proper procedures for handling and storing unencrypted patient data. Dorn VAMC notified every patient tested with the laptop and offered each affected individual a free year of credit monitoring. The laptop was never found.

Plaintiffs filed suit on behalf of themselves and the assumed class of 7,400 affected persons. The claims included common-law negligence, declaratory relief and monetary damages under the Privacy Act, and injunctive relief under the APA.

Regarding the Privacy Act claims, the plaintiffs alleged “embarrassment, inconvenience, unfairness, mental distress, and the threat of current and future substantial harm from identity theft and other misuse of their Personal Information.” Further, the plaintiffs claimed that they were required to purchase credit monitoring services, monitor financial statements, and move their bank accounts to different institutions.

Regarding the APA claims, the plaintiffs sought to enjoin the Dorn VAMC from transferring any new patient information until the facility could demonstrate adequate security measures. The plaintiffs also sought an order requiring the Dorn VAMC to identify and destroy any improperly-maintained records.

A second set of plaintiffs brought suit against the Dorn VAMC regarding the July 2014 loss of four boxes of pathology reports. The boxes contained the information of some 2,000 individuals. These plaintiffs sued on behalf of themselves and this second presumptive class. The claims involved almost identical factual and legal issues as those of the first set of plaintiffs, and the cases were consolidated.

The district court dismissed all claims against the Dorn VAMC for failure to allege injury-in-fact necessary to satisfy Article III standing requirements. Therefore, the district court held, it lacked subject-matter jurisdiction. The plaintiffs appealed.

Article III Standing for Threatened Injuries

The injury-in-fact requirement for Article III standing was recently explored by the Supreme Court in Clapper v. Amnesty Int’l USA, No. 11–1025, (U.S. Feb. 23, 2013). In Clapper, the Court held that a “threatened injury must be certainly impending” in order to satisfy the injury-in-fact requirement for Article III standing. Further, a plaintiff could not “manufacture standing” by taking preventative measures against a non-imminent, uncertain harm.

The Negligence and Privacy Act Claims

The Fourth Circuit analyzed the plaintiffs’ claims under Clapper and found that neither the common-law negligence claims nor the Privacy Act claims met the standard of “certainly impending” injury.

Here, the plaintiffs did not plead that the loss of their personal information resulted in any actual harm due to identity theft. The plaintiffs lack evidence of any kind to support that their information was stolen for the purposes of exploitation through identity theft. Thus, plaintiffs’ claims are only speculative in nature – they do not “certainly impending” harms.

Clapper also held that a plaintiff could establish injury-in-fact by showing that a “substantial risk” of impending harm forced the plaintiff to incur costs to mitigate or avoid the harm.

Here, the plaintiffs plead that one-third of health-care data breaches result in identity theft, and the Dorn VAMC’s offer of free credit monitoring was a concession that the risk to plaintiffs was reasonably likely.

The Fourth Circuit noted that, if one-third of breaches result in identity theft, two-thirds do not, and therefore, the risk is not substantial. Further, notion that a harm is “reasonably likely” to occur does not render that risk of harm “substantial” or “imminent.”

Finally, the Fourth Circuit noted that, since the risk of identity theft was merely speculative, the plaintiffs here could not manufacture standing by incurring costs associated with identity theft protection services. Thus, since the injuries claimed under common-law negligence and the Privacy Act were only speculative – and therefore not “certainly impending – the plaintiffs lacked Article III standing.

The APA Claims

The APA confers standing to any “adversely affected” party suing thereunder, and thus, the plaintiffs do not require Article III standing to sue under the statute. However, City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983), which governs the standing requirements of a plaintiff seeking injunctive relief, requires a plaintiff to show that the threat of injury must be “real and immediate.” A “conjectural” or “hypothetical” threat will not merit injunctive relief. The test, therefore, echoes the language of Clapper.

Here, the plaintiffs plead that their information was taken in two separate data breaches, but they lacked a factual basis to assert any future breaches by Dorn VAMC past a mere possibility. Thus, the plaintiffs lacked standing to seek injunctive relief under the APA.

                                                                    Disposition

The Fourth Circuit affirmed the district court’s dismissal of the plaintiffs’ claims for lack of subject-matter jurisdiction. The speculative nature of the plaintiffs’ claims under common-law negligence and the Privacy Act meant the plaintiffs failed to establish the “injury-in-fact” requirement for Article III standing. Further, the speculative nature of the plaintiffs’ claims under the APA failed to meet the standing requirement for injunctive relief. Thus, the plaintiffs failed to establish standing for all claims, and dismissal for lack of subject-matter jurisdiction was proper.

By Taylor Ey

On August 6, 2015, the Fourth Circuit issued its unanimous, published opinion in the civil case of Cahaly v. LaRosa.  This case involves Mr. Robert Cahaly’s (“Plaintiff”) constitutional challenge of South Carolina’s anti-robocall statute (S.C. Code Ann. § 16-17-446(A)), asserting that the statute violates the First Amendment.  After applying the Supreme Court’s 2015 test in Reed v. Town of Gilbert, the Fourth Circuit decided that South Carolina’s statute did not survive strict scrutiny.  However, it also decided that Cahaly lacked standing to bring his other constitutional challenges.  Cahaly also sought damages from law enforcement officials, Paul C. LaRosa, III, and Reginald I. Lloyd (“Defendants”), who arrested him.  The Court affirmed the district court’s grant of summary judgment in favor of defendants.

Applying Reed to Determine Content Neutrality

The Fourth Circuit applied the test in Reed to determine whether the statute’s restriction was content-neutral based restrictions on speech.  The statute prohibits robocalls that are “for the purpose of making an unsolicited consumer telephone call” or are “of a political nature including, but not limited to, calls relating to political campaigns.”

Under Reed, as a threshold inquiry, courts assess whether the law is content neutral on its face.  Next, if facially neutral, courts ask whether the law cannot be justified without reference to the content of the regulated speech or adopted by the government because of a disagreement with the message the speech conveys.

Applying Reed, the Fourth Circuit found that the statute is content based on its face.  The statute forbids calls with a consumer or political message and does not apply to calls made for any other purpose.

Because the Regulation Is Content Based, the Court Applied a Strict Scrutiny Analysis  

To survive strict scrutiny, the government must prove that the restriction furthers a compelling government interest and is narrowly tailored to further that interest.  In this case, South Carolina asserted its interest was to “protect residential privacy and tranquility from unwanted and intrusive robocalls.”  The Fourth Circuit assumed that it was a compelling interest.  However, it held that the statute was not the only way to serve this interest, and thus the statute was unconstitutional.  The Court further stated that the statute was underinclusive.

Plaintiff Lacked Standing to Assert Compelled-Speech Challenge

Additionally, Cahaly raised a compelled speech challenge, which the Defendants appealed.  Defendants argued that Calahy did not suffer an “injury in fact,” and therefore did not have standing to challenge the exceptions to the statute.  The Fourth Circuit agreed because Cahaly was not charged with a violation of the statute.  Because the district court ruled for Cahaly, stating that the exceptions were unconstitutional, the Fourth Circuit vacated the district court’s judgment on this issue.

The Fourth Circuit Affirmed the District Court’s Grant of Summary Judgment

The arresting officer had probable cause to arrest Cahaly for violating the anti-robocall statute.  Officer LaRosa had six witnesses who described the robocalls, a recording of a phone call, and an investigation that connected the phone number to Cahaly.  This evidence was sufficient to give probable cause, and therefore the Court affirmed.

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By Paige Topper

On June 8, 2015, in the civil case of Pender v. Bank of America Corp., a published opinion, the Fourth Circuit reversed the district court’s dismissal of the case for lack of standing. The Fourth Circuit found that William Pender and David McCorkle (“Plaintiffs”) had both statutory and Article III standing for their ERISA violation claim against NationsBank (“Bank”).

NationsBank Lined Its Own Pockets

In 1998, the Bank amended its contribution plan (“401(k) Plan”) to allow eligible participants a one-time opportunity to transfer their account balances to the Bank’s benefit plan (“Pension Plan”). Unknown to the participants the two plans operated differently in key ways. The 401(k) Plan accounts reflected the actual gains and losses of the participants’ investment options, meaning the money that 401(k) Plan participants directed to be invested in particular investment options was in fact being invested in those specified options. On the other hand, Pension Plan accounts reflected the hypothetical gains and losses of the participants’ investment options. Moreover, Pension Plan participants’ selected investment options were disregarded because the Bank invested the Pension Plan assets at its discretion. This discretion enabled the Bank to invest in options with a higher rate of return and retain the extra money in each Pension Plan participants’ accounts.

In 2000, the IRS opened an audit of the Bank’s plans and concluded that the transfers violated the Internal Revenue Code and the Treasury Regulations. As a result of the audit, the Bank and IRS entered into a closing agreement, in which the Bank paid a $10 million fine and returned the Pension Plan accounts to a new special-purpose 401(k) plan.

Plaintiffs were participants who elected to transfer their account balances into the Pension Plan. In 2004, Plaintiffs filed a complaint against the Bank in the District Court for the Southern District of Illinois alleging that the Bank violated ERISA § 204(g)(1) by decreasing the participants’ accrued benefit through the Pension Plan. The case was transferred to the Western District of North Carolina, where both parties moved for summary judgment. The District Court granted the Bank’s motion and dismissed the case on the basis that Plaintiffs lacked standing.

Plaintiffs Had Statutory Standing Under ERISA § 502(a)(3)

Under § 502(a)(3), a plaintiff may obtain “appropriate equitable relief” for any act or practice, which violates an ERISA provision. Here, the Fourth Circuit asked (1) did the transfers violate an ERISA provision and (2) does the relief Plaintiffs seek constitute “appropriate equitable relief?”

The Fourth Circuit concluded that the transfers violated ERISA § 204(g)(1), which provides that a plan amendment may not decrease a participant’s accrued benefit. The Fourth Circuit explained that a contribution plan’s separate account feature, which allots for contributions and actual earnings and losses with the risk of investment allocated to the participant, constitutes an accrued benefit that may not be decreased. The Pension Plan decreased this accrued benefit because there was no guarantee that the Bank’s gamble in other investment options would return at least the same amount as the investment options selected by each participant.

Furthermore, Plaintiffs sought appropriate equitable relief. Plaintiffs asked for the profit the Bank made using their assets (also known as “accounting for profits”). The Supreme Court has noted that an accounting for profits is an equitable remedy. Thus, the Fourth Circuit found Plaintiffs equitable relief appropriate in this case.

Plaintiffs Had Article III Standing

The three requirements for Article III standing are an injury in fact, causation, and redressability. The Fourth Circuit dismissed the Bank’s argument that Plaintiffs did not have standing because they had not suffered a financial loss. The injury-in-fact requirement is not limited to financial losses. The Fourth Circuit indicated that an injury refers to the invasion of a “legally protected interest.” Here, Plaintiffs suffered an individual loss, the difference between the profit the Bank earned from investing their assets and the amount the Bank paid to them.

The Fourth Circuit was unpersuaded by the Bank’s argument that the closing agreement between the IRS and the Bank mooted Plaintiffs’ claim. While the closing agreement restored the separate account feature to Plaintiffs and subjected the Bank to a fine, it did not force the Bank to give back its profit from the transfers. As a result, Plaintiffs still had a claim to relief.

Plaintiffs’ Claim was Not Barred by the Statute of Limitations

Since ERISA does not provide a statute of limitations, the Fourth Circuit applied the most analogous state-law statute of limitation: imposition of a constructive trust. Both North Carolina and Illinois recognize the remedy of a constructive trust. The statute of limitations is five years in Illinois and ten years in North Carolina.

Under the choice-of-law rules, the Fourth Circuit found that the Seventh Circuit’s choice-of-law rules would apply. The Seventh Circuit looks to the forum state (Illinois) as the starting point unless another state has a significant connection to the parties and the transaction and is more compatible with the federal policies underlying the federal cause of action. Due to this exception, the Fourth Circuit determined that North Carolina’s ten-year statute of limitations would apply. The decision to permit the transfers of the 401(k) Plan assets took place in North Carolina and all relevant witnesses resided in North Carolina. In addition, North Carolina’s longer limitations period advanced ERISA’s core policy to protect the interests of participants in employee benefit plans by providing for appropriate remedies, sanctions, and ready access to Federal Courts. Plaintiffs filed suit well within the statute of limitations (in six years) and thus were not time-barred by the applicable ten-year limitations period.

Fourth Circuit Reversed District Court’s Decision that Plaintiffs’ Lacked Standing

The Fourth Circuit held that Plaintiffs had both statutory and Article III standing for their ERISA violation claim. Furthermore, the Plaintiffs’ were not barred from bringing their claim due to the limitations period. Thus, the Fourth Circuit reversed the District Court’s grant of summary judgment for the Bank, vacated the portion of the District Court’s order denying Plaintiffs’ motion for summary judgment on lack of standing, and remanded for further proceedings.

By Emma A. Maddux

Introduction

In November 1983, two-year-old baby Tilikum was torn from his family near Iceland and sold to an entertainment enterprise. He was forced to perform eight times a day, seven days a week and he shared a small metal compartment with two other captives. Tilikum has been attacked several times; he has had his skin cut and his skull rammed in. Because of his constant distress, he makes rapid circles in confinement, cries out in panic, and gnaws until his teeth turn to pulp. He is in chronic pain and he spends a significant amount of time in isolation as punishment. Because Tilikum has grown to be a large male, his captors force him onto his back and masturbate him repeatedly to collect his semen.

However, Tilikum is incredibly intelligent. Like most of us, under normal conditions, he would exhibit complex social, cognitive, and communicative behavior. He would have a particular dialect and would share this dialect with his pod-mates. He would voluntarily father children and his mate would teach the youngster by setting an example, distributing punishment, and encouraging good behavior. Tilikum would exhibit feelings like joy, sadness, embarrassment, and pain. He would be self-aware and, like most humans, he would recognize his own reflection. Yet, Tilikum knows no natural family and no natural life. He is a whale and he knows no justice, either.[1]

Tilikum is the property of SeaWorld.[2] SeaWorld stores Tilikum in a barren concrete tank that is proportionally equivalent to a six-foot-tall man living on one-half of a volleyball court.[3] The walls of the tank are acoustically reflective and are comparable to a human “living captive in a room covered with mirrors on all walls and the floor.”[4] In the wild, Tilikum would swim approximately one hundred miles per day; at SeaWorld, Tilikum spends time either in a performance tank (holding approximately 1/10,000 of the minimum volume of water journeyed in nature) or a holding tank (about 1/100,000 of the minimum volume).[5] Only two of SeaWorld’s tanks are as deep as Tilikum is long.[6] Tilikum would normally live sixty-plus years in nature; however, he has already exceeded his life expectancy in captivity, which is approximately eight years.[7]

Based on these and similar facts, People for the Ethical Treatment of Animals (“PETA”) initiated a lawsuit against SeaWorld in October of 2011.[8] The plaintiffs were five “wild-captured” orcas named Tilikum, Katina, Corky, Kasatka, and Ulises (“Plaintiffs”); PETA was named as their Next Friend.[9] In a case of first impression, the Plaintiffs asked the District Court for the Southern District of California to grant declaratory and injunctive relief on the basis that SeaWorld’s actions violated the Thirteenth Amendment prohibitions of slavery and involuntary servitude.[10] The Plaintiffs argued that the Thirteenth Amendment prohibitions apply regardless of the victim’s identity (the Thirteenth Amendment does not use the word “persons”), and its application has been expanded over the past decades such that it applies to this case in principle.[11] On February 8, 2012, the district court released a short, unpublished opinion concluding that the Plaintiffs lacked Article III standing but noting explicitly that animals do have legal rights.[12]

The district court’s holding in Tilikum’s case is, in fact, a legal error that aptly illustrates the enigmatic nature of Article III standing. When bringing a claim in court, a plaintiff must meet four preliminary requirements (Levels).[13] The first of these Levels, Level 1, is the foundational requirement of “Legal Personhood.”[14] Level 2 is “Legal Rights Possessed,” including claim rights (the power to sue) and immunity rights (the power to be free from certain encroachments—i.e., bodily harm).[15] One who lacks power to sue may still maintain immunity rights, which are legally exercisable by a third party.[16] Then, the court must assess Level 3: Does the plaintiff possess “a private right of action bestowed by statute, constitution, treaty, or common law?”[17] Finally, only after a determination that the plaintiff is a legal person (Level 1) who possesses a legal right (Level 2) and a private right of action (Level 3), must the court address Level 4 “standing.”[18]

Article III standing is a minimal requirement that jurisdictionally limits federal courts to “cases and controversies.”[19] Standing merely requires that a party have “a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.”[20] Article III standing has three requirements: the plaintiff must have suffered an injury-in-fact, the injury must be fairly traceable to the defendant’s actions, and the injury must be likely to be redressed by a decision in the plaintiff’s favor.[21]

Many courts, like the court in Tilikum’s case, confuse standing with the other Levels.[22] “If Level 4 standing is properly reached, the question of whether a nonhuman animal plaintiff suffered a redressable injury caused by the defendant should rarely pose an obstacle.”[23] For example, Tilikum’s mistreatment, unnatural captivity, and compulsory labor is undoubtedly “fairly traceable” to SeaWorld.[24] Furthermore, Tilikum’s injuries would clearly be redressed by a favorable decision (whether through compensation, return to the wild, or a grant of a more reasonable living situation with a third party). Thus, Article III standing poses no obstacle on these facts.

Accordingly, by admitting that animals have legal rights, the court implicitly admitted that the whales met both Level 1 Legal Personhood and Level 2 Legal Rights Possessed.[25] The Thirteenth Amendment, of course, has a private right of action, so Level 3 was met.[26] Yet, the court refused to even hear the case based on the weak assertion that the Plaintiffs did not meet the minimal standing requirement. This opinion evidences a much more pervasive and problematic ideology that has permeated our legal system. What the court does not want to say—though what it actually holds—is that Tilikum lacks Article III standing because he never gets to Level 4 analysis. Tilikum, a complex cognitive and social being, lacks legal personhood entirely. In being denied the status of Level 1 Legal Personhood, Tilikum has no capacity to possess any legal right and is, on that basis, denied any and all justice afforded by our laws.

Of course, it is thus ironic that legal persons are not necessarily natural persons—a legal person is a fictional character defined by his (or her or its) ability to possess legal rights.[27] It is important to note that courts recognize an expansive list of legal persons, including, but not limited to, viable[28] and nonviable[29] fetuses, humans without brains,[30] governments,[31] corporations,[32] and trusts.[33] Though humans share ninety-nine percent of our DNA with certain nonhuman animals (which is a lot more than we share with a ship or a corporate entity), nonhuman animals are excluded from the extensive list of legal persons.[34] This exclusion is perplexing in light of the fact that the majority of legal entities lack one fundamental characteristic that human and nonhuman animals share: the breath of life. Despite the expansive definition of the legal person, nonhuman animals have been unanimously denied Level 1 status in court opinions that disguise the issue as deficient standing.

The purpose of this Comment is to document the progression of legal thought regarding Article III standing for nonhuman animals. Because the concept of standing has been inextricably intertwined with legal personhood and legal personhood has been the true obstacle to the recognition of Article III standing, this Comment will focus on three stages of animal law jurisprudence. Part I will focus on the “past” (property framework), which denied nonhuman animals any opportunity for standing and effectively provided minimal legal protection. Part II will explore the “present” (legislative framework). Modern legislation has unquestionably expanded protections for nonhuman animals, while maintaining the bias of the past and only nominally addressing the dubious standing barrier. Finally, Part III will address the “future” (dignity-rights, actual enforcement, and fundamental rights) of animal standing. With expanding societal support, the future of animal standing will rely on a jurisprudential revelation that animals must be afforded legal personhood, even if only to enforce already existing rights or immunity rights through third parties.

I. Past-Property Framework: Antiquated Notions and Absence of Standing

Man has long cultivated a legal system that serves his needs at the expense of less vocal constituents. Unable to command any legal voice, aliens,[35] black slaves,[36] and women[37] were all once deprived of fundamental legal rights to which they are now unanimously entitled.[38] This manmade hierarchy “has long and explicitly dominated the political and legal relationships between humans and nonhuman animals in the Western tradition.”[39] Modern society has witnessed an unprecedented rise in human rights,[40] while nonhuman animals are trapped in the shackles of ancient property laws, deprived of the most fundamental legal protections.[41]

This Part will focus on the anachronistic property framework that has defined (and confined) animal legal rights for centuries and continues to define modern legislative “protections” of nonhuman animals. A legal person is “an entity with the capacity for legal rights.”[42] A legal thing is “an entity with no capacity for legal rights” entitled only to treatment “as property about which legal persons have legal rights and duties.”[43]

The legal thinghood of nonhuman animals originated in ancient Near Eastern Law and Mesopotamian “Cosmology.”[44] It was cultivated by Greek and Roman law, which ranked legal rights and duties based on importance and usefulness to man.[45] This egocentric perception of justice drifted into English and American common law through the writings of William Blackstone and James Kent.[46] Thus, the lowly status of nonhuman animals remained unquestioned as centuries of precedent created a “great divide” between humans and all other living creatures.[47]

Disputes over acquisition of animals ferae naturae provide extensive common law discussion of the animals-as-property regime. A famous property law case, Pierson v. Post,[48] involved a dispute over the ownership of a fox carcass where Pierson had “uncourteously” (though lawfully) captured the fox pursued by Post.[49] Naturally, Judge Tompkins consulted various ancient writers, including Puffendorf, Fleta, Bracton, and Bynkershoek.[50] He concluded that a property right arose from Post’s occupancy of the fox, which took force when he deprived the fox of its “natural liberty.”[51] The “Lockean dissent” used the writings of Barbeyrac to justify a property right in favor of Pierson arising out of pursuit of the fox.[52]

Geer v. Connecticut[53] provides another lengthy discussion of the property status of ferae naturae nonhuman animals, buttressing its decision with aspects of Greek and Roman law.[54] In Geer, the Supreme Court deviated from the individual property theory, upholding a Connecticut statute that prohibited the exportation of game birds lawfully killed in the state because it did not violate the Commerce Clause.[55] The majority opined: “[T]he fundamental principle upon which the common property in game rests have undergone no change . . . .”[56] In so holding, the Court expressed its sentiment that ferae naturae nonhuman animals were owned by states on behalf of their citizens and that, thus, the rule of occupancy did not prevent Connecticut’s prohibition based on a collective property theory.[57]

Nonetheless, Justice Field’s dissent in Geer ultimately prevailed when Geer was overturned in Hughes v. Oklahoma.[58] Field wrote: “Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture.”[59] The original reasoning in Geer was dismissed as an expression of “the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.”[60] Thus, the individual ownership (or actual occupancy) theory was reinstated as the prevailing method for granting property rights in nonhuman animals.[61]

In accordance with ancient theories regarding property law, courts have determined that owners of useful domestic animals might be permitted to recover more than owners of nonuseful domestic animals because useful domestic animals are more valuable property. In Sentell v. New Orleans & Carrolton Railroad Co.,[62] the U.S. Supreme Court declared useful domestic animals (like oxen) to be “perfect and complete” personal property because they afforded economic value to their owner.[63] In doing so, the Court rejected a Louisiana statute conferring property rights over dogs, which have no economic value.[64]

Legal thinghood of nonhuman animals is further evident in the application of anticruelty statutes. Such statutes do not grant legal rights to nonhuman animals but rather limit man’s capacity to exercise dominion over nonhuman animals in a cruel or vindictive way.[65] In State v. Bogardus,[66] a Missouri court reversed the cruelty conviction of a man who “tossed pigeons into the air, then shotgunned them to demonstrate his skill.”[67] The court determined that such cruelty was justified by “man’s enjoyment of his legitimate dominion over the brute creation.”[68] Similarly, in Stephens v. State,[69] the court stated that anticruelty statutes were not intended to “place any unreasonable restriction on [the nonhuman animals’] use or the enjoyment to be derived from their possession.”[70]

Although the majority opinions regarding anticruelty cases serve only to reemphasize man’s domination in a manmade hierarchy, courts do recognize the capacity for change. In Stephens, the court admitted: “Cruelty to a [nonhuman animals] manifests a vicious and degraded nature, and it tends inevitably to cruelty to men. Animals . . . which are capable, perhaps, of feeling as great physical pain or pleasure as ourselves deserve, for these considerations alone, kindly treatment.”[71] Moreover, the court on rehearing in Bogardus indicated regret on permitting such cruelty to go unpunished:

It may be that the day will come when sentiments of mercy and humanity shall have so far advanced, with the progress of refining thought, that the man who can so estimate a fleeting satisfaction above a life, however lowly, which only Omnipotence can bestow, will be regarded as exceptionally selfish and cruel. But no such feeling prevails to-day [sic].[72]

Thus, while recognizing that scientific and humanitarian advancement could justify altering the legal framework upon which we examine nonhuman animals, the common law remains trapped by ancient property law framework.

Ancient reasoning has permeated the modern legal system relegating nonhuman animals to the legal status of mere property,[73] while ancient property cohorts, such as slaves, women, and children, have long since been released from their bondage. In State v. LeVasseur,[74] the Hawai’i Court of Appeals concluded that theft of a dolphin was theft of personal property.[75] The court turned to ancient Roman law regarding animals, ferae naturae, to make a determination that the appellant’s actions “interfer[ed] with the rightful possession of such a [nonhuman animal].”[76] The court also referred to Blackstone’s commentaries.[77]

Justice Holmes aptly noted: “[W]e have adopted the Roman law as to animals ferae naturae.”[78] Steven Wise documents:

In all ways relevant, American common law follows Roman law through (1) citing Justinian’s Digest or Institutes, (2) citing such common law writers as Bracton, Blackstone, and Kent who adopted the essentials of Roman law, (3) citing such leading cases as . . . Pierson v. Post, Geer v. Connecticut . . . [and] (4) simply calling Roman law the common law.[79]

The danger of precedent is just this sort of reliance on “values [of] the past merely for having been.”[80] Judges do not attempt to justify the relegation of all nonhuman animals to mere property; this premise is simply accepted.[81] Thus, the legal framework of every nonhuman animal remains totally unexamined, while modern scientific advancements have instructed mankind on Darwin’s theory of evolution (disrupting our egocentric hierarchy), nonhuman animal emotionality, and nonhuman animal self-awareness.[82] The decisions of many do not mitigate the persistence of an unjustifiable wrong.

II. Present-Legislative Framework: Expanding Standing Through Semiprotective Legislation

The present state of the law pertaining to nonhuman animals is riddled with the antiquated property notions of the past. Nonetheless, animals now have more protection than ever in the modern legislative environment, though this is only an incremental step forward. The federal government has implemented a set of legislative prerogatives intended to protect the interests of nonhuman animals, establishing a marked difference in the legal treatment of nonhuman animals.[83] This Part will focus on the role of the Animal Welfare Act (“AWA”) and Endangered Species Act (“ESA”) in expanding the theoretical concept of standing for nonhuman animals.

Signed into law in 1966, the AWA attempts to provide minimum standards of treatment for nonhuman animals used in research, exhibition, and transport, as well as set requirements for dealers.[84] Although the AWA merely establishes husbandry and transportation requirements, its current provisions are considered to be a “considerable expansion of the statute’s original purpose and scope.”[85] Some argue, nonetheless, that the minimal protections of the AWA do “not create meaningful limitations on experimentation even in cases in which the procedures cause tremendous, obvious suffering.”[86] For example, the AWA sets minimum cage requirements for rats, mice, guinea pigs, dogs, cats, and primates used for research in laboratories.[87] Yet, the AWA permits laboratories to conduct “writhing tests,” where an anaesthetized animal is injected in the abdominal cavity and researchers count how many times it writhes in pain over a specified time period.[88] Thus, the minimal protections of the AWA are far outweighed by its toleration for “writhing tests” and other forms of barbaric torture.[89]

There is no private right of action under the AWA, and the United States Department of Agriculture (“USDA”) maintains broad discretion about whether or not to enforce its provisions.[90] However, due to lack of resources and AWA enforcement being generally of low priority, there is an overall consensus that USDA enforcement is inadequate.[91] The standing requirement for federal agencies is defined by the Administrative Procedure Act, which requires plaintiffs to have prudential standing (a showing that the plaintiff is within the “zone of interest” that Congress sought to protect) in addition to meeting traditional Article III (constitutional) requirements.[92] This is considered to be a “quite generous standard” that is “not especially demanding” and dependent on whether Congress “intended to preclude a certain class of plaintiffs from bringing an action.”[93] Although various groups have attempted to get courts to grant a private right of action under the AWA, they have been entirely unsuccessful.[94] Courts have ultimately concluded that enforcement of the AWA is at the mercy of the USDA.[95]

The ESA, which became law in 1973, recognizes that natural heritage is of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.”[96] The ESA strives to “protect and recover imperiled species and the ecosystems upon which they depend.”[97] Steven Wise notes: “In some respects, [the ESA] has even reversed the traditional incommensurability between human and nonhuman interests, treating endangered species as bearing ‘incalculable value’ and affording them ‘the highest of priorities,’ even over the economic priorities, of human beings.”[98] Accordingly, unlike the AWA, the broadly written standing provision of the ESA has been interpreted to permit “any person to commence a civil suit.”[99] Yet, courts have generally rejected cases brought by nonhuman animal plaintiffs for the protection of their rights under the ESA. Instead, the standing requirement of injury-in-fact is said to hinge on a “particularized” showing of injury to human plaintiffs.[100] So long as the injury “affect[s] the [human] plaintiff in a personal and individual way,” he meets the standing requirement under the ESA.[101] Thus, the ESA marks both an expansion of the societal approach to protecting nonhuman animals and a reinforcement of the past-property framework that continues to deny justice to those with the most cognizable interests at stake.

In sum, the principles upon which the AWA and the ESA were founded mark an expanded view of the value of nonhuman animals to modern society; however, lackluster enforcement evidences that the past-property framework still pervades legal thought.

III. Future-Fundamental Framework: Theories of Standing Based on Fundamental Principles and Creative Enforcement

The day may come, when the rest of the animal creation may acquire those rights which never could have been witholden from them but by the hand of tyranny . . . . A full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month, old. But suppose the case were otherwise, what would it avail? The question is not, Can they reason? Nor, Can they talk? But, Can they suffer?

Jeremy Bentham[102]

Bentham captures two major theories for granting legal rights to nonhuman animals. The first, explicated by Steven Wise, involves granting animal legal personhood based on animal autonomy—in other words, permitting nonhuman animals of certain autonomy to have equal status under the law as humans of full autonomy, humans of comparable autonomy, or (at least) humans of no autonomy.[103] The second, explicated by Cass Sunstein, involves granting animal legal personhood to protect and foster the animal’s capabilities—that is, negative rights to prevent suffering in animals capable of suffering and to ensure that the capabilities of nonhuman animals count in the balance of the law.[104] Some argue that these are two distinct and relatively incompatible theories.[105] However, they are not irreconcilable when understood in the greater framework of a progressive liberal democracy.

These two theories of animal legal personhood may be contrasted with the tort theory proposed by David Favre. It has been argued that Favre’s theory is similar to that of Cass Sunstein, but such argument is misguided.[106] Sunstein explicitly notes that, in his view, “property does fit very poorly with how people should think, on reflection, about other living creatures.”[107] Favre’s tort theory, in contrast, does not seek to change the legal status of nonhuman animals but rather seeks to change the nature of the ownership right itself.[108] In other words, the nonhuman animal maintains “equitable self-ownership” such that a nonhuman animal plaintiff may “prevail against anyone who harms a fundamental interest of the animal, if the human defendant’s interests do not substantially outweigh the interests of the animal.”[109] Thus, Favre seeks to change enforcement rights and legal protection of animals without directly confronting the traditional property framework binding nonhuman animals in law.[110]

Yet, for Wise and Sunstein, true protection of the interests of nonhuman animals must come from a willingness to see certain (if not all) nonhuman animals as legal persons—the property interest is insufficient.[111] Great apes, for example, are comparable to humans cognitively, socially, and communicatively.[112] Like humans, great apes—our nonhuman genetic relatives—suffer from isolation, abuse, neglect, and torture.[113] Yet, humans subject them to “invasive, painful experiments, probably because of the cruel irony that they are so similar to us.”[114] Where the interests at stake are as fundamental as bodily integrity, liberty, and pursuit of happiness, and the circumstances so desperately deprive even the most sentient creatures of these interests, Wise and Sunstein correctly argue that animal legal personhood is the future. It is the only way to ensure respect for these interests—the only way to protect animals from “unconscionable barbarity.”[115]

As mentioned in the Introduction, standing (as it is traditionally employed) is not the underlying issue that prevents animals from bringing claims in court. Standing for animals in the future will depend upon the willingness of society to recognize nonhuman animals as legal persons deserving fundamental protections in law.[116] This Part of the Comment will discuss the future of animal legal personhood, a status that will permit animals to stand on their own feet, thereby changing animal standing as we know it. First, it is necessary to discuss the two theories of legal personhood posited by Wise and Sunstein. Second, this Part will provide a discussion of several legal strategies that might prove useful to protect the fundamental interests of nonhuman animals.

A. Two Theories of Entitlement to Legal Personhood Status

Steven Wise argues that “the overarching values and principles of traditional Western law—fairness, liberty, equality, and integrity in judicial decision making demand that dignity rights be extended to all qualified to receive them irrespective of their species.”[117] Dignity rights typically include the right to bodily integrity and the right to liberty.[118] According to Wise, dignity rights are derived from realistic autonomy, which is less than full Kantian autonomy.[119] Realistic autonomy most captures the expected autonomy of human beings, as well as the autonomy actually protected by judges.[120]

The mortar holding Wise’s theory together is the concept of equality.[121] That is, the dignity-rights theory claims comparative autonomy should furnish comparative legal rights.[122] Under an absolute equality standard, nonhuman animals who maintain full Kantian autonomy are entitled to dignity rights equal to those of humans who possess full Kantian autonomy;[123] nonhuman animals who maintain a realistic autonomy are entitled to dignity rights equally proportionate to those granted to humans maintaining a realistic autonomy.[124] At the very least, Wise claims that fundamental fairness and equality demand that nonhuman animals who possess either a full Kantian autonomy or a realistic autonomy be entitled to dignity rights granted to humans who lack any autonomy whatsoever (i.e., a human vegetable or a fetus).[125] Therefore, based on a measurement of autonomy, nonhuman animals achieve legal personhood status and are able to more adequately protect their fundamental legal interests.

Alternatively, Cass Sunstein argues that animal legal personhood (or at least a nonproperty framework) is clearly justified by the capacities of nonhuman animals.[126] Sunstein is particularly concerned with animals’ capacity to suffer and suggests a balancing of interests.[127] He states: “There is no good reason to permit the level of suffering that is now being experienced by millions, even billions of living creatures.”[128] His chief complaint is that the property status of nonhuman animals neither reflects nor protects animal capability, and thus the interest of nonhuman animals does not count at all.[129] He posits: “[S]uffering and harm to animals should count,” and “any measures that impose suffering and harm should be convincingly justified.”[130] He further points out that it may be necessary “to destroy the idea of ownership in order to make, simply and all at once, a statement that the interests of animals count, and have weight independent of the interests of human beings.”[131] Thus, a mere change in rhetoric could make a significant change in practice.[132]

Sunstein’s theory would require courts and lawmakers to use modern science (rather than ancient prejudice) to weigh the interests of nonhuman animals against the interests of humans.[133] He concedes that human interests will sometimes outweigh animal interests but argues that such an approach is far superior to current practice that refuses to consider any interest of nonhuman animals.[134] Furthermore, once animal interests count, Sunstein argues that many human practices will no longer be justified.[135] Thus, he warns that “in the long run, our willingness to subject animals to unjustified suffering will be seen as a form of unconscionable barbarity—not the same as, but in some ways morally akin to, slavery and the mass extermination of human beings.”[136]

The approaches put forth by Wise and Sunstein are consistent on at least three fronts. First, Wise and Sunstein agree that the current property status of nonhuman animals is insufficient to protect their relative interests.[137] To the extent that humans consider themselves owners of other living beings, there is no way to protect the autonomy, dignity, or capacities of nonhuman animals.[138] Second, Wise and Sunstein agree that legal rights afforded to nonhuman animals are to some extent relative.[139] This is evident in Wise’s argument that legal rights may be based on the full Kantian autonomy or realistic autonomy of nonhuman animals, as well as his suggestion that dignity rights might be granted proportionately based on the comparative realistic autonomies of human and nonhuman animals. Similarly, Sunstein proffers a balancing-of-interests approach with particular emphasis on making the capacity for nonhuman animal suffering count. Third, Wise and Sunstein agree that humans should be willing and able to attempt to justify the treatment of nonhuman animals.[140] Both theorists would abolish many current practices, which subject nonhuman animals to unjustified inhumane invasions of their interests.[141]

In sum, both Wise and Sunstein offer theories that provide a framework under which to analyze a change in the legal thinghood status of nonhuman animals. While Wise argues that nonhuman animals are entitled to legal personhood status based on autonomy, Sunstein argues that animal legal personhood status more aptly accounts for nonhuman animal capacities. These two theories, however, are not mutually exclusive and tend to agree on at least three major premises supporting such a change in the future. Accordingly, it is necessary to discuss legal tools that might be used to enforce legal rights of nonhuman animals.

B. Implementation of Nonhuman Animal Standing Through Legal Repudiation of Thinghood Status

Future standing for nonhuman animals is immensely dependent on society’s perception of competing principles.[142] Such a determination, Steven Wise offers, is relative and

will crucially depend upon such subjective and shifting elements as a judge’s sense of appropriateness and right; her credit of the authority of competing sources of law; her core beliefs about how the world should work; her tendencies to focus upon similarities or differences; her imagination, intuition, and judgment; and her desire and ability to harmonize incommensurable principles while preserving the integrity of what she most highly values.[143]

The law is necessarily precedential in nature, and progressive action is easily subverted by the need to seem reliable, even where the law is reliably wrong.[144] Yet, fundamental pillars of law, such as liberty and equality, may overpower longstanding precedent in circumstances where modern science, societal understanding, and moral perception become precisely aligned.[145]

Standing for nonhuman animals is in no way inhibited by their nature or inability to communicate fluently through verbal language.[146] To the contrary, nonhuman animals, like human incompetents, may bring their claims through guardians.[147] Nonhuman animals would be represented by human beings who are committed to their well-being and legal success.[148] This strategy is currently used for any person or entity that lacks ordinary human competence.[149] Adult human proxies, for example, are currently used to protect the interests of children, those in a vegetative state, and corporate entities.[150] As with any of those litigants, the identity of the human representing the nonhuman animal is important, and “only an empathetic decisionmaker committed to ascertaining the best interests of a very different non-human can be expected to have any chance of success.”[151] Yet, the ability of incompetents to embark on litigation by human proxy is highly valued.[152]

In choosing who might represent a nonhuman animal in court, Steven Wise discusses two tests currently used when standing for an incompetent.[153] The first of these is the best interests test, which permits “a substitute decision-maker to exercise an incompetent’s power rights by objectively ascertaining the relief that will result from the proposed actions . . . .”[154] The second of these is the substituted judgment rule, in which the court “dons the ‘mental mantle of the incompetent’ and substitutes itself for the individual in the decision-making process.”[155] These tests not only serve as blueprints for how the representation of nonhuman animals might proceed but also reemphasize the importance of protecting the choice, even choice-by-proxy, of incompetents.[156] Thus, the inability of nonhuman animals to exercise normal human competence is not a justifiable barrier to the recognition and adjudication of legal rights.[157]

Accordingly, future standing of nonhuman animals will depend on progressive use of traditional legal tools brought through legal guardianship. It has been argued that common law writs, enforcement of current legislation, and recognition of fundamental constitutional guarantees might provide nonhuman animals with the protections they deserve.

In 2007, Steven Wise founded a “Legal Working Group” entitled the Nonhuman Rights Project, whose task is to get a court to recognize legal personhood for a nonhuman animal.[158] Wise has identified several common law writs that might be promising in this endeavor.[159] In particular, numerous aspects of the classic writ of habeas corpus are being examined by the nonhuman rights group, including the following:

the circumstances under which the writ may be used by third parties or used to transfer custody rather than as a release from custody; when the writ is superseded by constitutional or statutory writs of habeas corpus and when these writs merely supplement the common law; . . . and under what circumstances a third party may assert another’s right under common law habeas corpus.[160]

The Nonhuman Rights Project is also studying the ancient common law writ of de homine replegiando (replevin of the person).[161] In contrast with the writ of habeas corpus, the writ of de homine replegiando “is not a summary writ and one is entitled to trial by jury.”[162] Finally, the Nonhuman Rights Group is analyzing numerous “antebellum statutory causes of action” once used to challenge the condition of slavery.[163]

Yet, success at common law will depend on the ability to convince a judge that the law warrants her break from precedent.[164] Wise and the Nonhuman Rights Project are prepared to face and demolish the legal divide between humans and nonhuman animals.[165] The group will focus on the “Normative Model,” which provides a macroscopic perspective of equality as judged in light of societal, political, and legal context.[166] Wise has identified Judge Posner’s nine bases contributing to judicial decision making.[167] Furthermore, the group is developing “a hierarchy of common law American state jurisdictions according to their perceived receptivity or hostility to certain key legal arguments in favor of nonhuman animals’ legal rights.”[168] Eventually, the group may be able to provide algorithms for predicting the success of gaining animal legal personhood at common law.[169]

Others argue that the future of nonhuman animal standing rests squarely in the enforcement of current law.[170] Cass Sunstein, for example, argues that “there should be extensive regulation of the use of animals in entertainment, scientific experiments, and agriculture.”[171] In other words, the legal framework (or at least some of it) already exists, but enforcement is lacking. Furthermore, Sunstein contends that stronger enforcement of state anticruelty laws could provide additional protection of the fundamental interests of nonhuman animals.[172] One current problem with state anticruelty statutes is that “protection will come only if the prosecutor decides to provide it,” and, with limited budgets, enforcement of these laws is not a high priority.[173] Perhaps permitting anticruelty law to be enforced both publicly and privately would more aptly protect nonhuman animals.[174] With enforcement comes added jurisprudential stability and the sense that “law actually means, in practice, what it says on paper.”[175]

Furthermore, Sunstein contends that attention should not only be focused on the “enforcement gap” but also on currently unprotected areas of the law.[176] He argues that increased regulation will create assurances against nonhuman animal suffering.[177] A future of increased regulation coupled with procedural reform could allow a lawyer to say, “I am here representing a particular animal plaintiff who has been harmed by a particular human’s failure to provide food and water,” rather than “I am here representing a particular human plaintiff who has been harmed by a particular human’s failure to provide food and water to an animal.”[178]

The case that inspired this Comment, PETA v. SeaWorld, illustrated that the future of Article III standing for nonhuman animals may be obtained through creative use of fundamental legal rights and principles. While the courts are currently reluctant to recognize that nonhuman animals may have fundamental legal rights and therefore are entitled to legal personhood status (as Level 2 standing requires satisfaction of Level 1), the Thirteenth Amendment argument in that case is compelling in the context of the widespread growth of human rights in international law.

Section one of the Thirteenth Amendment declares that “neither slavery nor involuntary servitude . . . shall exist within the United States . . . .”[179] It makes no textual reference to “persons” or the identity of the victim. Furthermore, “our Constitutional jurisprudence is the story of the courts interpreting, applying, and expanding Constitutional protections to new groups and circumstances.”[180] Accordingly, in 1883, the U.S. Supreme Court declared that the Thirteenth Amendment was “self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.”[181] In Jones v. Alfred H. Mayer Co.,[182] the U.S. Supreme Court concluded that the Thirteenth Amendment applied to private race discrimination.[183] In United States v. Kozminski,[184] the U.S. Supreme Court applied the Thirteenth Amendment to two mentally retarded men who were forced to work on a farm in poor conditions and isolation.[185] The Court further expanded Thirteenth Amendment protections to include “special vulnerabilities” of the victim.[186] Thus, this expansion of Thirteenth Amendment jurisprudence arguably envisions a private cause of action tailored to the special vulnerabilities of nonhuman animals.

Courts have long recognized the malleability of constitutional application, and such a “principle to be vital must be capable of wider application than the mischief which it gave birth.”[187] Various international instruments have illustrated the growing value of nonhuman life, rendering increased probability that the future of animal standing will be achieved through the recognition of certain fundamental rights (i.e., freedom from slavery and involuntary servitude).[188] The preambular text of the United Nations World Charter for Nature recognizes that “[e]very form of life is unique, warranting respect regardless of its worth to man, and, to accord other organisms such recognition, man must be guided by a moral code of action . . . .”[189] Members of the international community have suggested that binding customary international law is rapidly developing that would ensure whales the legal right to life.[190]

In sum, the future of nonhuman animal standing depends on the recognition of animal legal personhood. Part III.A discussed two theories of animal legal personhood: first, the equality-based dignity rights approach and second, the capacities approach. These two approaches are not inconsistent, as some may argue. Part III.B put forth several methods of implementing legal personhood for nonhuman animals and thereby gaining increased capacity for nonhuman animal standing.

Conclusion

On May 22, 2010, in Helsinki, Finland, a group of experts (dubbed “The Helsinki Group”) concluded the Declaration of Rights for Cetaceans: Whales and Dolphins.[191] The document is essentially a bill of rights meant to protect the fundamental interests of some of the world’s most highly intelligent creatures. The preambular text reads:

Based on the principle of equal treatment of all persons; Recognizing that scientific research gives us deeper insights into the complexities of cetacean minds, societies and cultures; Noting the progressive development of international law manifests an entitlement to life by cetaceans; we affirm that all cetaceans as persons have the right to life, liberty, and wellbeing.[192]

We no longer live in a world where “person” means human being, where “animal” means mere property, and where homo sapien (meaning “wise man”) reigns as dominant master to all other living creatures. The law is changing and expanding.

This Comment has argued that the law has witnessed an incremental expansion in the recognition of legal standing for nonhuman animals. Part I discussed the past-property framework that continues to plague modern legal thought (and jurisprudence) pertaining to nonhuman animals. Part II exposed the legislative expansion brought about by the Animal Welfare Act and the Endangered Species Act. It was argued that these legislative enactments represented both a recognition of increased value of nonhuman animals and the continued pervasiveness of the past-property framework through minimal enforcement. Finally, Part III explicated two theories of animal legal personhood and how those theories might translate into pragmatic application of standing for animals. Thus, this Comment is intended to both document a legal expansion and promote academic conversation about the future of legal standing for nonhuman animals.

Confucius taught this ancient proverb: “By three methods we may learn wisdom: first, by reflection, which is noblest; second, by imitation, which is easiest; and third, by experience, which is bitterest.”[193] When it comes to nonhuman animals, legal thought has been plagued by wisdom sought only from imitation and limited experience. Thanks to scientific progress, the Darwinist movement, and recurring interaction with nonhuman animals in the wild and in captivity, our experience with nonhuman animals has grown immensely. Yet, before now, entirely lacking from jurisprudential thought was reflection; that is, humans have not been willing to question the fact that the law has failed to reflectively address “the underlying presumption of human superiority . . . .”[194]

In changing forever the legal status of slaves, Abraham Lincoln said, “In giving freedom to the slave, we assure freedom to the free.”[195] Likewise, in providing Thirteenth Amendment protection for highly cognizant nonhuman animals, we ensure freedom from slavery among humans. PETA v. SeaWorld has failed humans just as it has failed Tilikum and his pod-mates. The law should not endorse human-inflicted suffering, whether directed at other humans or at nonhuman animals, on the basis of an unjustifiable technicality that disproportionately affects one faction of the sentient population. Equality, though it may consider capabilities or qualities,[196] does not consider arbitrary, man-made classifications, like race or species. It is, therefore, time to stand for nonhuman animals and transform normative principles into positive law.

[1]. This is an adaptation of the facts underlying PETA v. SeaWorld. See generally Complaint for Declaratory and Injunctive Relief, Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. SeaWorld Parks & Entm’t, Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 2012) (No. 11cv2476) [hereinafter Complaint]. In response to this unprecedented lawsuit, Harvard law professor and constitutional scholar Laurence Tribe explained:

[T]he Constitution is an essentially aspirational document. Its bold language and broadly expressed principles offer themselves to each generation as we struggle to define our national values in an ever-changing world. Ours is a vibrant Constitution, more than capable of warding off past evils while also speaking to circumstances in which we come to recognize that familiar principles apply in ways previously unforeseen. So it seems to me no abuse of the Constitution to invoke it on behalf of non-human animals cruelly confined for purposes of involuntary servitude.

Jennifer O’Connor, The Case Forever Known as Tilikum v. SeaWorld, PETA Files (Feb. 9, 2012), http://www.peta.org/b/thepetafiles/archive/2012/02/09/the-case-forever-known-as-tilikum-v-seaworld.aspx.

[2]. See infra Part I (describing the antiquated property status of nonhuman animals as developing from ancient bias and persistently permeating modern legal thought).

[3]. Complaint, supra note 1, ¶ 19.

[4]. Id. ¶ 22.

[5]. Id. ¶ 37.

[6]. Id. ¶ 38.

[7]. Id. ¶ 20. In fact, female orcas live up to 90 years in the wild but have an average life span of only 8.5 years in captivity. Id.

[8]. See id. ¶ 1.

[9]. Id.

[10]. Id. ¶ 1–2.

[11]. Id. ¶¶ 102–11.

[12]. Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. SeaWorld Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1264 (S.D. Cal. 2012).

[13]. Steven M. Wise, Legal Personhood and the Nonhuman Rights Project, 17 Animal L. 1, 2 (2010).

[14]. Id.

[15]. Id.

[16]. Id. at 3.

[17]. Id.

[18]. Id.

[19]. U.S. Const. art. III, § 2.

[20]. Sierra Club v. Morton, 405 U.S. 727, 731 (1972).

[21]. Bennett v. Spear, 520 U.S. 154, 163 (1997).

[22]. Wise, supra note 13, at 4.

[23]. Id.

[24]. See id. at 4–5 (“A chimpanzee confined to a tiny cage or injected with a deadly microbe, or a dolphin enslaved in an amusement park, has a clear stake in the controversy; both are obviously suffering injuries that are fairly traceable to the defendants and both are redressable by a favorable decision.”).

[25]. Id. at 4 (“As should be plain, implied in a court’s discussion of Level 4 standing is its understanding that a plaintiff has met the requirements of Levels 1 through 3.”).

[26]. U.S. Const. amend. XIII.

[27]. Wise, supra note 13, at 5 (“[C]urrently all humans are legal persons, while all nonhuman animals are legal things. A court confronted with a plaintiff’s claim to possess any legal right need only determine the plaintiff’s species. If the plaintiff is human, the answer is, ‘It is possible that the plaintiff has the legal right she claims.’ If the plaintiff is a nonhuman animal, the answer is, ‘Impossible.’”).

[28]. See David Kader, The Law of Tortious Prenatal Death Since Roe v. Wade, 45 Mo. L. Rev. 639, 643 n.24 (1980).

[29]. Various state courts permit both viable and nonviable fetuses to sue for wrongful death. See, e.g., Mone v. Greyhound Lines, Inc., 331 N.E.2d 916, 919–20 (Mass. 1975); Wiersma v. Maple Leaf Farms, 543 N.W.2d 787, 792 (S.D. 1996). Furthermore, unborn fetuses are legal persons under the Due Process Clause of at least one state constitution. See Mallison v. Pomeroy, 291 P.2d 225, 228 (Or. 1955).

[30]. Guardianship of Doe, 583 N.E.2d 1263, 1268 (Mass. 1992).

[31]. 4 Roscoe Pound, Jurisprudence 195, 197–98 (1959).

[32]. E.g., Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Tauza v. Susquehanna Coal Co., 115 N.E. 915, 917 (N.Y. 1917).

[33]. Steven M. Wise, Rattling the Cage Defended, 43 B.C. L. Rev. 623, 654 (2002).

[34]. See generally Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals (2000) (arguing in favor of legal rights and legal personhood for chimpanzees and bonobos).

[35]. People v. Hall, 4 Cal. 399, 404–05 (1854) (justifying prohibition of Chinese witnesses from testifying in cases involving a white person by stating that the Chinese race is one “whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point”).

[36]. Dred Scott v. Sandford, 60 U.S. 393, 403, 407 (1856) (stating that blacks “of the African race” were not citizens as they were “beings of an inferior order” who “had no rights the white man was bound to respect”) superseded by constitutional amendment, U.S. Const. Amend. XIV.

[37]. In re Goodell, 39 Wis. 232, 245 (1875) (denying women the ability to practice law in front of the Supreme Court of Wisconsin as it would be contrary to “the order of nature”).

[38]. Steven M. Wise, How Nonhuman Animals Were Trapped in a Nonexistent Universe, 1 Animal L. 15, 17 (1995) (“‘[D]eliberate reconsiderations’ led to the discard of legal principles grounded upon the alleged natural inferiorities of the female, Chinese, and black.”).

[39]. Steven M. Wise, The Legal Thinghood of Nonhuman Animals, 23 B.C. Envtl. Aff. L. Rev. 471, 472 (1996).

[40]. Jerome J. Shestack, The Jurisprudence of Human Rights, in 1 Human Rights in International Law: Legal and Policy Issues 78 (Thomas Meron ed., 1984).

[41]. Wise, supra note 38 (“Today the common law denies justice to all nonhuman animals.”).

[42]. Wise, supra note 39.

[43]. Id.

[44]. See generally id. (documenting how “the legal thinghood of nonhuman animals stems from the most primitive legal systems known”).

[45]. See id. at 489–505.

[46]. Id. at 525, 529.

[47]. Wise, supra note 34, at 268 (“For four thousand years, a thick and impenetrable legal wall has separated all human from all nonhuman animals.”).

[48]. 3 Cai. 175 (N.Y. 1805).

[49]. Id. at 179.

[50]. Id. at 177–79.

[51]. Id. at 179–80.

[52]. Id. at 182.

[53]. 161 U.S. 519 (1896), overruled by Hughes v. Oklahoma, 441 U.S. 322 (1979).

[54]. Id.

[55]. Id. at 529.

[56]. Id.

[57]. Id.

[58]. Hughes, 441 U.S. 322.

[59]. Id. at 334–35 (citing Geer, 161 U.S. at 539–40 (Field, J., dissenting)).

[60]. Id. at 335 (quoting Toomer v. Witsell, 334 U.S. 385, 402 (1947)).

[61]. Id. (concluding that “challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources, and therefore expressly overrule Geer”).

[62]. 166 U.S. 698, 701 (1897).

[63]. Id. at 701.

[64]. Id.

[65]. See Wise, supra note 39, at 541.

[66]. 4 Mo. App. 215 (1877)

[67]. Wise, supra note 39, at 542.

[68]. Bogardus, 4 Mo. App. at 219. The court also determined that “[i]t is certainly the policy of every government to encourage those recreations which serve as manly exercises, and yet do not necessarily lead to protracted pain in the lower animals.” Id. at 217. And further, “[t]he individual who finds a healthful recreation in gunning or fishing can hardly be told that this must not be gained at the expense of his dumb subjects.” Id. at 219.

[69]. 3 So. 458 (Miss. 1888).

[70]. Id. at 458–59.

[71]. Id. at 459 (emphasis added).

[72]. Bogardus, 4 Mo. App. at 219–20.

[73]. Wise, supra note 39, at 535 (“[T]he common law of every American state whose appellate courts have discussed the matter recognizes wild nonhuman animals as belonging either to no one or to everyone in common, making them the property of the first human who possesses them.”).

[74]. 613 P.2d 1328 (Haw. Ct. App. 1980).

[75]. Id. at 1331.

[76]. Id.

[77]. Id. The court also rejected the appellant’s “lesser of two evils” defense, which was based on national policy (as expressed in statutory protections for marine mammals and animal welfare) for protecting dolphins. Id. at 1332–34. The court concluded that the crime of property theft was, indeed, a greater evil as a matter of law than that sought to be prevented by alleged enforcement of national legislative policies. Id. This is one example of how our concept of legal rights regarding nonhuman animals, even in the present environment of legislative protectionism, is hindered by ancient property rationales.

[78]. Oliver Wendell Holmes, Jr., The Common Law 33 (Mark D. Howe ed., 1963) (1881).

[79]. Wise, supra note 39, at 535–36.

[80]. Id. at 545.

[81]. Id.

[82]. For further discussion of how the past-property framework has pervaded the legal treatment of nonhuman animals, see generally Wise, supra note 38; Wise, supra note 39.

[83]. Animal Welfare Act, 7 U.S.C. § 2131 (2006); Endangered Species Act, 16 U.S.C. §§ 1531–44 (2006).

[84]. 7 U.S.C. § 2131; see also Animal Welfare Act, USDA Nat’l Agric. Library, http://awic.nal.usda.gov/government-and-professional-resources
/federal-laws/animal-welfare-act (last modified Nov. 2, 2012).

[85]. Joseph Mendelson, III, Should Animals Have Standing? A Review of Standing Under the Animal Welfare Act, 24 B.C. Envtl. Aff. L. Rev. 795, 795 (1997).

[86]. Taimie L. Bryant, Sacrificing the Sacrifice of Animals: Legal Personhood for Animals, the Status of Animals as Property, and the Presumed Primacy of Humans, 39 Rutgers L.J. 247, 250 (2008).

[87]. 7 U.S.C. § 2132(g).

[88]. Bryant, supra note 86; see also T.J. Ness, Models of Visceral Nociception, 40 ILAR J., no. 3, at 119, 122 (1999).

[89]. Bryant, supra note 86.

[90]. Id. For information about ways to increase enforcement of the AWA through the recognition of a private cause of action or standing under the Administrative Procedure Act, see Katharine M. Swanson, Note, Carte Blanche for Cruelty: The Non-Enforcement of the Animal Welfare Act, 35 U. Mich. J.L. Reform 937, 937 (2002).

[91]. Bryant, supra note 86; Mendelson, supra note 85.

[92]. Mendelson, supra note 85, at 803 (discussing the “zone of interest” requirement of prudential standing).

[93]. Id. at 804.

[94]. Int’l Primate Prot. League v. Inst. of Behavioral Research, Inc., 799 F.2d 934, 937 (4th Cir. 1986), cert. denied, 481 U.S. 1004 (1987) (denying standing under the AWA, claiming that plaintiffs failed to establish that the AWA affords a private cause of action and giving great weight to the policy that animal welfare not impede scientific progress); People for the Ethical Treatment of Animals v. Institutional Animal Care & Use Comm. of Univ. of Or., 794 P.2d 1224, 1225 (Or. Ct. App. 1990) (adopting International Primate Protection League’s reasoning and refusing to permit private enforcement of the AWA).

[95]. PAWS v. U.S. Dep’t of Agric. Animal & Plant Health Inspection Serv., No. 95-4719, 1996 WL 524333, at *2 (E.D. Pa. Sept. 9, 1996) (“It may be unfortunate that a person or group with a special interest in animal welfare does not have standing to take legal action in cases of inhumane treatment. Nevertheless, Congress has seen fit to rely upon the Secretary’s discretion in such matters and has not provided a private right of action under the Act.”).

[96]. U.S. Fish and Wildlife Serv., ESA Basics 1 (2011), available at http://www.fws.gov/endangered/esa-library/pdf/ESA_basics.pdf.

[97]. Id.

[98]. Steven M. Wise, Hardly a Revolution—The Eligibility of Nonhuman Animals for Dignity Rights in a Liberal Democracy, 22 Vt. L. Rev. 793, 840 (1998) (citing Tenn. Valley Auth. v. Hill, 437 U.S. 153, 188 (1978)).

[99]. Lujan v. Defenders of Wildlife, 504 U.S. 555, 557–72 (1992).

[100]. Id. at 560 n.1.

[101]. Id.

[102]. Jeremy Bentham, The Principles of Morals and Legislation 310–11 n.1 (Prometheus 1988) (1781).

[103]. Wise, supra note 98, at 900–10.

[104]. Cass R. Sunstein, The Rights of Animals, 70 U. Chi. L. Rev. 387, 401 (2003).

[105]. See Bryant, supra note 86, at 253–54.

[106]. Id. at 292.

[107]. Sunstein, supra note 104, at 400.

[108]. Bryant, supra note 86, at 292.

[109]. Id.

[110]. Id. at 283.

[111]. See Sunstein, supra note 104, at 399–400 (conceding that increased protection could occur without changing the property status of nonhuman animals, but stating that, in his view, “the idea of ‘property’ does fit very poorly with how people should think . . . about other living creatures”). See generally Wise, supra note 98.

[112]. Bryant, supra note 86, at 262–63.

[113]. Id.

[114]. Id. at 263.

[115]. Sunstein, supra note 104, at 389.

[116]. Wise, supra note 98, at 797–98; see also Bryant, supra note 86, at 295 (“Direct challenge of human presumed entitlement is important as well.”).

[117]. Wise, supra note 98, at 796.

[118]. Id. at 797.

[119]. Id. at 798.

[120]. Id.

[121]. Id. at 900 (“[N]onhuman animals who possess a range of autonomy are entitled to dignity-rights as a matter of equality.”).

[122]. Id. at 798 (“Together liberty and equality demand that the arguments for and against extending dignity-rights to nonhuman animals maneuver within familiar barriers that courts have erected against arbitrariness, irrationality, total subjectivity, invidiousness, and other forms of special pleading that are routinely excluded from human rights decision-making.”).

[123]. Id. at 900.

[124]. Id.

[125]. Id. at 910.

[126]. Sunstein, supra note 104, at 400–01.

[127]. Id. at 400 (“Bentham was right to place the emphasis on whether and to what extent the animal in question is capable of suffering. If rats are able to suffer—and no one really doubts that they are—then their interests are relevant to the question how they can be expelled from houses.”).

[128]. Id. at 401.

[129]. Id. at 399–400.

[130]. Id. at 394.

[131]. Id. at 399.

[132]. Id. at 399–400 (“[I]n my view, the idea of ‘property’ does fit very poorly with how people should think, on reflection, about other living creatures.”).

[133]. Id. at 400.

[134]. Id. at 393–94, 401 (stating that, while it is not necessarily impermissible to kill nonhuman animals for food, “it is entirely impermissible to be indifferent to their interests while they are alive”).

[135]. Id. at 401.

[136]. Id.

[137]. See generally Sunstein, supra note 104; Wise, supra note 98.

[138]. See generally Sunstein, supra note 104; Wise, supra note 98.

[139]. See generally Sunstein, supra note 104; Wise, supra note 98.

[140]. See generally Sunstein, supra note 104; Wise, supra note 98.

[141]. See generally Sunstein, supra note 104; Wise, supra note 98.

[142]. See Steven M. Wise, Animal Thing to Animal Person—Thoughts on Time, Place, and Theories, 5 Animal L. 61, 66–67 (1999) (“A lawyer thinking of bringing a suit in the coming decade to establish the legal personhood of any non-human animal should wet her thumb, hold it to the winds of history, and ask, ‘Is the time ripe?’”).

[143]. Wise, supra note 98, at 797–98.

[144]. Martha C. Nussbaum, Animal Rights: The Need for a Theoretical Basis, 114 Harv. L. Rev. 1506, 1526 (2001) (book review) (“The most difficult question is how law, that very conservative and precedent-driven discipline, can be made to listen to the new knowledge we have acquired.”). For example, it is commonly regarded as fact that most nonhuman animals have complex thoughts and feelings, an ideology not present when the great legal wall between humans and nonhuman animals was erected. See David Brown, New Experiment Finds Rats Are Capable of Empathy, News & Observer, Dec. 9, 2011, at 14A. For more documentation on emotionality in nonhuman animals, see generally Jeffrey Masson, When Elephants Weep (1994); Martha Nussbaum, Frontiers of Justice 392–401 (2006); Margaret Talbot, Birdbrain, New Yorker (May 12, 2008), http://www.newyorker.com/reporting/2008/05/12/080512fa_fact_talbot.

[145]. See generally Wise, supra note 142 (providing guidance on how one could mount a successful challenge to the “animals are property” status).

[146]. Susan Goldberg, Of Gametes and Guardians: The Impropriety of Appointing Guardians Ad Litem for Fetuses and Embryos, 66 Wash. L. Rev. 503, 505–06 (1991) (“Courts derive authority to appoint guardians ad litem from statutory provisions, procedural rules and their own inherent equity power.”).

[147]. Wise, supra note 142, at 65 (“Guardianship is often suggested as an appropriate vehicle [for bringing claims on behalf of nonhuman animals].”).

[148]. Sunstein, supra note 104, at 391–92; Wise, supra note 98, at 885.

[149]. Sunstein, supra note 104, at 391–92; Wise, supra note 98, at 885.

[150]. Sunstein, supra note 104, at 391–92.

[151]. Wise, supra note 98, at 884.

[152]. Id. at 878 (“Every state has statutory or common law guardianship procedures that allow a substitute decision-maker to exercise an incompetent’s power-rights in her own best interests.”). Furthermore, Wise contributes: “[A] choice emanating from even a flickering autonomy is more highly valued, irrespective of whether the actions are rational or reasonable or often even inimical to one’s own best interests, than is any specific choice.” Id. at 873–74. As stated by the California Court of Appeals: “Allowing someone to choose . . . is more respectful of an incompetent person than simply declaring that such a person has no more rights.” Conservatorship of Drabick, 245 Cal. Rptr. 840, 855 (Cal. Ct. App. 1988), superseded in part by statute, Cal. Prob. Code § 2355 (Deering 2012), as recognized in Conservatorship of Wendland, 28 P.3d 151 (Cal. 2001). In other words, the exercise of choice by proxy is highly respected, even where actual choice is impossible.

[153]. Wise, supra note 92, at 878–79.

[154]. Id. at 879.

[155]. Id. at 879–80.

[156]. Id. at 879.

[157]. Id.

[158]. Wise, supra note 13, at 5.

[159]. Id. at 8.

[160]. Id. at 9.

[161]. Id.

[162]. Id.

[163]. Id. at 9–10.

[164]. See Wise, supra note 142, at 64 (explaining how judges’ differing “jurisprudential philosophies” will impact the reception of creative legal strategies).

[165]. See Wise, supra note 13, at 5.

[166]. Id. at 10.

[167]. Id.

[168]. Id.

[169]. Id. at 11.

[170]. Sunstein, supra note 104, at 391.

[171]. Id. at 389.

[172]. Id. at 390.

[173]. Id.

[174]. Id. at 390–91.

[175]. Id. at 391.

[176]. Id. at 391–92.

[177]. Id. at 392.

[178]. Bryant, supra note 86, at 254 (emphasis added) (“The human plaintiff may have been injured, but the human’s injury is distinguishable from that of the animal.”).

[179]. U.S. Const. amend. XIII, § 1.

[180]. Complaint, supra note 1, ¶ 106.

[181]. The Civil Rights Cases, 109 U.S. 3, 20 (1883).

[182]. 392 U.S. 409 (1968) (providing for an expansion from the former requirement of state action with regard to race discrimination).

[183]. Id. at 413.

[184]. 487 U.S. 931 (1988).

[185]. Id. at 940.

[186]. Id. at 952.

[187]. Weems v. United States, 217 U.S. 349, 373 (1910).

[188]. See generally International Covenant on Civil and Political Rights, Dec. 19, 1966, S. Treaty Doc. 95-18, 999 U.N.T.S. 171; Slavery Convention of 1929, Dec. 7, 1953, 182 U.N.T.S. 51; Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc A/RES/217 (III) (Dec. 10, 1948), available at http://www.un.org/en/documents/udhr/.

[189]. World Charter for Nature, G.A. Res. 37/7, ¶ 12, U.N. Doc. A/RES/37/7 (Oct. 18, 1982), available at http://www.un.org/documents/ga/res/37/a37r007.htm.

[190]. Wise, supra note 98; see also Ian Sample, Whales and Dolphins “Should Have Legal Rights,” Guardian (Feb. 20, 2012), http://www.guardian.co.uk/world/2012/feb/21/whales-dolphins-legal-rights (discussing an international movement granting the right to life for whales and dolphins based on their intellectual capability and state of nonhuman personhood). Just as the Declaration of the Rights of Man was a key component of the French Revolution, recent proposals found in the Declaration of the Rights for Cetaceans: Whales and Dolphins may be evidence of a paradigm shift on the movement for legal rights of certain, highly intelligent nonhuman animals. See generally Sample, supra. For more information about the Declaration, see Session: Declaration of Rights for Cetaceans: Ethical and Policy Implications of Intelligence, Advancing Sci. & Serving Soc’y, http://aaas.confex.com/aaas/2012/webprogram/Session4617.html (last visited Nov. 12, 2012).

[191]. See generally The Helsinki Grp., Declaration of Rights for Cetaceans: Whales and Dolphins (2010), available at www.cetaceanrights.org/pdf_bin/helsinki-group.pdf.

[192]. Id. at 5.

[193]. Adina L. Kalet et al., Promoting Professionalism Though an Online Professional Development Portfolio: Successes, Joys, and Frustrations, 82 Acad. Med. 1065, 1065 (2007).

[194]. Bryant, supra note 86, at 295.

[195]. 5 Abraham Lincoln, Annual Message to Congress (Dec. 1, 1862), in Collected Works of Abraham Lincoln 518, 537 (Roy P. Basler ed., 1953).

[196]. See supra Part III.A (discussing theories of nonhuman animal legal personhood based on capabilities or qualities, which implicitly makes the necessary distinction between a slug and a whale, great ape, or elephant).

* J.D. Candidate 2013; Fordham University, B.A. 2010. Dedicated to Sophi and Ari, a daily source of inspiration and affection. Many thanks to my family for their encouragement and support.