Richard Cupp


This Article analyzes whether courts should grant legal personhood to intelligent animal species, such as chimpanzees, with a particular focus on comparisons made to cognitively impaired humans whom the law recognizes 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 the law presently allows 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 unanimous New York appellate court quoted and largely followed a previous article by the author in People ex rel. Nonhuman Rights Project, Inc. v. Lavery (Lavery I), a prominent and controversial 2014 appellate decision addressing (and rejecting) legal personhood for chimpanzees. In June 2017, another unanimous New York appellate court agreed with the Lavery I decision in In re Nonhuman Rights Project, Inc. v. Lavery (Lavery II), and the court addressed an amicus curiae brief by the author in explaining its decision. This Article builds on the author’s previous article followed in Lavery I and supported by the reasoning of Lavery II. The previous article 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 necessary to address justice arguments based on the recognition of legal personhood 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 and examines issues presented by the New York lawsuits. The Article concludes that, like comparisons between intelligent animals and young children, 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 the law were to grant legal personhood to some animals based on cognitive abilities. Thus, 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 treatment of animals.

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