Survival of the animal welfare paradigm (as contrasted with a rights-based paradigm creating legal standing for at least some animals) depends on keeping pace with appropriate societal evolution favoring stronger protections for animals. Although evolution of animal welfare protection will take many forms, this Article specifically addresses models for evolving conceptualizations of animals’ property status within the context of animal welfare. For example, in 2015 France amended its Civil Code to change its description of companion animals and some other animals from movable property to ‘living beings gifted with sensitivity’, while maintaining their status as property. This Article will evaluate various possible approaches courts and legislatures might adopt to highlight the distinctiveness of animals’ property status as compared to inanimate property. Although risks are inherent, finding thoughtful ways to improve or elaborate on some of our courts’ and legislatures’ animals-as-property characterizations may encourage more appropriate protections where needed under the welfare paradigm, and may help blunt arguments that animals are ‘mere things’ under the welfare paradigm. Animals capable of pain or distress are significantly different than ordinary personal property, and more vigorously emphasizing their distinctiveness as a subset of personal property would further both animal welfare and human interests.Cupp's 'Cognitively Impaired Humans, Intelligent Animals, and Legal Personhood' in (2016) Florida Law Review analyses
whether courts should grant legal personhood to intelligent animal species, such as chimpanzees, with a particular focus on comparisons made to cognitively impaired humans who are recognized as legal persons even though they may have less practical autonomy than intelligent animals. Granting legal personhood would allow human representatives to initiate some legal actions with the animals as direct parties to the litigation, as is presently allowed for humans with cognitive impairments that leave them incapable of representing their own interests. For example, a human asserting to act on behalf of an intelligent animal might seek a writ of habeas corpus to demand release from a restrictive environment where less restrictive environments, such as relatively spacious sanctuaries, are available. Highly publicized litigation seeking legal personhood in a habeas corpus context for chimpanzees is underway in New York, and the lawsuits have garnered the support of some eminent legal scholars and philosophers. Regardless of its short-term success or failure, this litigation represents the beginning of a long struggle with broad and deep societal implications.
A previous article by the author was quoted and largely followed by a unanimous New York appellate court in Nonhuman Rights Project, Inc v Lavery, the most prominent and controversial appellate decision addressing (and rejecting) legal personhood for chimpanzees thus far. This Article builds on that previous article, which focused on justice arguments based on young children with limited practical autonomy being granted legal personhood status. The New York lawsuits and other significant developments have highlighted important additional issues and nuances since the previous article’s publication. Further, in the previous article the author indicated that additional scholarship was needed addressing justice arguments based on legal personhood being recognized for humans with cognitive impairments not related to typical childhood development – such as humans with significant intellectual disabilities or comatose humans.
This Article analyzes these comparisons based on cognitive impairments not related to childhood, as well as analyzing issues presented by the New York lawsuits. The Article concludes that, like comparisons with young children and intelligent animals, comparisons between intelligent animals and humans with cognitive impairments unrelated to childhood do not support restructuring our legal system to make animals persons. Further, the rights of the most vulnerable humans, particularly humans with severe cognitive impairments, would be endangered over the long term if legal personhood were granted to some animals based on cognitive abilities. Courts should continue to reject animal legal personhood in the lawsuits that will likely continue to be filed in numerous jurisdictions for decades. However, legislatures and courts should embrace societal evolution calling for greater human responsibility regarding our treatment of animals.His 'Human Responsibility, Not Legal Personhood, for Nonhuman Animals' in (2015) 16(2) Engage comments
Three lawsuits filed in New York in late 2013 assert that chimpanzees should be declared legal persons for purposes of seeking a common law writ of habeas corpus: The Nonhuman Rights Project v. Lavery, The Nonhuman Rights Project v. Presti, and The Nonhuman Rights Project v. Stanley. This paper outlines a number of concerns about the legal personhood arguments asserted in the lawsuits. Courts and legislatures should focus on human legal accountability for responsible treatment of nonhuman animals rather than radically restructuring our legal system to make them legal persons. Evolving societal values require evolution of our laws and enforcement of laws to provide more protections to nonhuman animals, and while this evolution should be applauded, it should be processed within an animal welfare paradigm rather than within an animal personhood paradigm.