By Corinne Spencer

After recent news stories covering the emotional support peacock stopped by airport security and the attack by an emotional support dog that left a Delta passenger with 28 stitches, the Department of Transportation (DOT) is giving airlines the regulatory means to crack down on any and all pets boarding planes unchecked under the label “emotional support” animals (ESAs).

The Americans with Disabilities Act (ADA) protects owners and their animals from discrimination in public places by requiring most restaurants, hotels, and public services to accommodate the presence of service animals.[1] For purposes of the ADA, service animals are narrowly defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[2]  It does not cover ESAs which can be “certified” by various entities without any formalized training required in order to gain designation entitled to some other protections.[3]

The Air Craft Access Act (ACAA) extends similar rules to air transportation allowing passengers with service animals to fly with their animal in the cabin.[4]  However, the ACAA currently provides a broader definition of service animal than the ADA by including more species of animals and includes ESAs.[5]  This overbroad coverage without distinction between types of aid created a loophole many people take advantage of to designate their pets as ESAs and bring them onto planes under ACAA protection, even if they were not the anticipated beneficiary.

The ACAA guidelines for service animals and ESAs  on planes diverge from the general rules for pets on planes which place limitations on size, species, and breed of pet allowed in the cabins.[6]  General airline pet policies require most pets to be held in a cargo space on planes, which is pressurized for their safety and often considered more comfortable for pets because they are not cramped in small spaces with human travelers.[7]  These policies are intended to promote safety, ease of mobility, and accessibility for others in the plane cabin.  However, many pet owners view it as an inconvenience to travel separately. Under the ACAA, service animals are exempt from the policies affecting pet travel and are instead allowed to travel with their owners in the airplane cabin.[8]  The protections provided to service animals under the ACAA were created under the expectation that service animals are highly and specially trained and thus would not raise some of the same concerns as normal pets, such as attacking passengers or defecating in the aisle.  However, since ESAs receive the same ACAA protection to travel in plane cabins without the same level of training and behavioral obedience required of and demonstrated by service animals, this category of pets has caused major disturbance in terminals and in the air.[9]

Many pet owners began registering their average pets through the National Service Animal Registry or similar registries as ESAs and received certification without meeting any requirements or qualifications.[10] This registry’s site explains that any animal can be an emotional support animal, and they “do not need any specific training because their very presence mitigates the symptoms associated with a person’s psychological/emotional disability.”[11] This certification gets pets access to most flights in cabin under a pseudo-service animal identity. However, when these untrained pets defecate in public spaces, attack bystanders, or cause a scene in the way trained service animals would never do, their legitimacy is questioned.[12] Unfortunately, this has impacted the reputation of service animals as well, making some businesses unwilling to accommodate both types of animals, and sometimes explicitly discriminating against legitimate disabled individuals with service animals.[13]

Through the FAA Reauthorization Act of 2018, Congress specifically asked the DOT to implement new definitions and minimum standards for “service animals” in an effort to clear up the currently broad ACAA. [14]  The DOT has responded with a notice of proposed rulemaking (NPRM) to amend the ACAA guidelines to clarify what qualifies as a service animal and allowing airlines to more readily distinguish between true service animals, ESAs, and regular pets. This would ensure those intended to be protected by the ACAA are protected and also close the loophole that caused this problem to begin with. The DOT proposed regulation, titled, “Traveling by Air with Service Animals” redefines the category of protected animals and offers airlines the ability to set restrictions and ask more questions regarding ESAs.[15] The regulation hopes to respond to requests for clarity in policy, consistency between the ADA and ACAA as well as consistency across the airline industry.

First, the DOT seeks to redefine service animal similar to the ADA as “a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[16] Additionally, it specifies Service Animal Handlers as qualified individuals with a disability or their safety assistant, to further limit the use of service animals to passengers with disabilities. [17]  In turn, airlines could distinguish between service animals and ESAs, placing ESAs in the same category as pets.[18]

Second, the regulation sets a guideline for approved species. The DOT proposes that service animals be limited to dogs. While it considered miniature horses and capuchin monkeys as secondary options, both were rejected qualifying “service animal” status based on airplanes’ practical space limitations and close quarters, and comments highlighting the rarity at which these animals serve as service animals for traveling individuals.[19] It’s worth noting that this only means that airlines need not permit them unconditionally. Any airline may still accept these animals on board if they choose through make broader policies than the ACAA minimum requirements.[20]  Additionally, the DOT decided against breed restrictions in favor of an exception for airlines to always refuse service if any animals pose a health or safety threat.[21]  The DOT is still collecting comments on the need for any more limiting restrictions.

The NPRM proposes other general limitations to allow airlines to prioritize the safety of its passengers and staff. These include a tethering requirement so long as it does not interfere with the animal’s service, limitations protecting only one or two service animals per passenger with a disability, and a short list of reasons for which a passenger with a disability and her service animal can be refused service.[22]

The most burdensome impact of the new regulation is a requirement of government-issued forms to fly with a service animal and provide proof of the animal’s training and qualifications. [23]  While this burden will fall on passengers traveling with service animals, it will likely be outweighed by the freedom and safety those passengers and their service animals will enjoy due to the NPRM’s far reaching restrictions on other animals. By reducing the number of unqualified animals flying freely, service animals will face fewer distractions and dangers, while also being able to reclaim their positive reputation that has been stained by ESAs trying to bend the rules.

[1] 42 U.S.C. § 12182(a) (2018).

[2] 28 CFR § 35.104 (2016).

[3] U.S. Dep’t of Justice, Frequently Asked Questions about Service Animals and the ADA 2 (2015),

[4] 49 U.S.C. § 41705 (2018); 14 CFR § 382.117 (2009).

[5] See 14 CFR § 382.117(f) (requiring miniature horses, pigs and monkeys to be accepted unless specific factors find the airline unable to do so, however, listing snakes, spiders, ferrets, and reptiles as species that never need to be recognized as service animals).

[6] See Pets, American Airlines, (last visited Feb. 1, 2020); Pet Travel on Delta, Delta, (last visited Feb. 1, 2020).

[7] See Pet Travel Decisions: Questions About Flying Pets in Cargo, Pet Relocation (Dec. 2011),; Airline Pet Travel in the Cargo Hold,, (last visited Fed. 3, 2020).

[8] For example, airlines with size or weight restrictions on in-cabin pets cannot impose those limits on service animals. See, e.g., Delta, supra note 6 (“If your pet doesn’t fit in a carrier in the seat in front of you, you can ship your pet with our special shipping service Delta Cargo. Remember, special exceptions apply for passengers traveling with service animals”).

[9] See Paulina Firozi, An ‘Emotional-Support Dog’ Attacked Him on a Flight. He’s Suing Delta and the Owner, Wash. Post (May 29, 2019, 4:09 PM),; Hugo Martín, Emotional Support Animals Snap, Bark, and Cause Disruption, Most Flight Attendants Say, LA Times (Sept. 15, 2018, 10:00 AM),

[10] Dawn Gilbertson, American Airlines Flight Attendant Bitten by Emotional Support Dig, Requires Five Stitches, USA Today (July 23, 2019, 6:05 PM) (“Critics have complained passengers are able to get instant certification for an emotional support animal, also called a comfort animal, online, and that many aren’t properly trained.”)

[11] Nat’l Serv. Animal Registry, (last visited Jan. 24, 2020).

[12] See Firozi, supra note 9; Marina Pitofsky, Flight Delayed After Woman Brings ‘Emotional Support Squirrel’ on Plane, USA Today (Oct. 10, 2018, 7:11 AM).  In 2018, a USA Today reporter noted the urge for DOT to regulate emotional support animals recognizing that

[13] See, e.g., Katrina Tilbury, Fake Service Dogs, Real Problems, AP News (May 16, 2018),,-real-problems.

[14] See Traveling by Air with Service Animals, 84 Fed. Reg. 6448, 6451 (proposed Feb. 5, 2020) (to be codified at 14 C.F.R. Part 382); The FAA Reauthorization Act of 2018, Pub. L. No. 115-254, Sec. 437 (October 5, 2018). 

[15] Traveling by Air with Service Animals, 85 Fed. Reg. at 6448.   

[16] Id. at 6474.

[17] Id.

[18] Id. at 6458.

[19] Id. at 6453–54.

[20] Id. at 6458. (“[w]hile the Department proposes to allow airlines to treat emotional support animals as pets rather than service animals, airlines could choose to continue to recognize emotional support animals and transport them for free pursuant to an airline’s established policy.”)

[21] Id. at 6464–65.

[22] See id. at 6476.

[23] Id. at 6475.

10 Wake Forest L. Rev. Online 15

Matthew P. Hooker*

I.  Introduction

When David Slater left his camera unattended in Indonesia, little did he realize the enormous legal battle that would result from that simple act.[1]  With a single snap, a “curious male crested black macaque” named Naruto not only captured an iconic photograph, but also managed to jumpstart a legal campaign to assert animals’ rights to sue in federal court and protect their interests in their created works.[2]  If successful, the lawsuit would have been the first legal declaration that an animal owned property.[3]

Naruto’s case raised intriguing legal questions and stole the public’s attention.  The lawsuit, Naruto v. Slater,[4] even took first place for the U.S. Chamber Institute for Legal Reform’s survey of the “Top Ten Most Ridiculous Lawsuits of 2015.”[5]  The case has been called “curious,”[6] a “stunt,”[7] and simply “absurd.”[8]  But this case, dealing with who owned the resulting “Monkey Selfies” and who could sue to protect those rights, raised intriguing questions about standing for nonhuman entities.[9]  It also raised novel questions regarding authorship under the Copyright Act and how creativity is protected in the United States.[10]

This Article will explore the intriguing and unique case of the “Monkey Selfies” and its implications in a variety of legal spheres.  In Part II, this Article will examine the standing doctrine in general, as well as the legal status of animal standing prior to the Naruto case.  In Part III, this Article will turn to consider the facts and circumstances leading up to the Naruto case, the proceedings in the district court, and the subsequent appeal and opinion.  Part III will also analyze the Ninth Circuit Court of Appeals’ criticism of the binding precedent from the case Cetacean Community v. Bush.[11]  In Part IV, this Article will consider the legal consequences of the Naruto opinion: the split within the Ninth Circuit, the implications for animal standing in the future, and the impact of Naruto on other nonhuman entities, including the case’s effect on the Copyright Act specifically.

II.  Animal Standing Before Naruto

A.     Standing in General

The doctrine of standing is “rooted in the traditional understanding of a case or controversy.”[12]  The United States Constitution only grants federal courts jurisdiction over “cases” and “controversies,” establishing the bare minimum necessary to bring suit in federal court.[13]  Standing under Article III of the Constitution requires three elements: “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”[14]

A plaintiff must also have statutory standing.[15]  “[T]he nonconstitutional standing inquiry is whether a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit.”[16]  To determine statutory standing, one simply examines the statute under which the plaintiff is suing, “a purely statutory inquiry.”[17]

However, statutory standing does not automatically create Article III standing; Congress’s grant of statutory standing cannot compensate for the lack of Article III standing.[18]  If Congress attempted to confer statutory standing on an entity that lacked Article III standing (e.g., an animal), the federal court would be still deprived of subject matter jurisdiction, forcing it to dismiss the case.[19]

B.     The Cetacean Community Case

The primary case addressing animal standing before Naruto was Cetacean Community v. Bush.[20]  In that 2004 case, the Ninth Circuit held that the world’s whales, porpoises, and dolphins possessed Article III standing to sue,[21] yet lacked statutory standing.[22]  The court had to decide whether the “Cetacean Community” could sue in their own name under the Endangered Species Act[23] (“ESA”), the Marine Mammal Protection Act[24] (“MMPA”), and the National Environmental Policy Act[25] (“NEPA”).[26]

The Ninth Circuit held there was no reason why Article III would keep Congress from granting standing to animals.[27]  The court pointed out that fully competent humans are not the only entities to have standing—corporations, partnerships, trusts, children, and mentally incompetent individuals can all have standing.[28]  And Article III does not explicitly exclude animals from its ambit.  Moreover, as the court stated, “Animals have many legal rights, protected under both federal and state laws.”[29]

But the Ninth Circuit drew the line at statutory standing under the ESA, MMPA, and NEPA.[30]  Nothing in those statutes appeared to allow animals themselves to act as plaintiffs.[31]  For example, the ESA’s citizen-suit provision granted standing to “any person.”[32]  But the court held that “[t]here is no hint in the [statutory] definition of ‘person’ that the ‘person’ authorized to bring suit to protect an endangered or threatened species can be an animal that is itself endangered or threatened.”[33]  The court concluded that “[i]f Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.”[34]  Without a “plain[]” statement in the statute authorizing animal standing, the Cetacean Community lacked statutory standing.[35]

C.     Other Cases & Commentary

Cetacean Community also had to address a prior Ninth Circuit case from 1988—Palila v. Hawaii Department of Land & Natural Resources.[36]  There, the court stated that a species of endangered bird had “legal status and wings its way into federal court as a plaintiff in its own right.”[37]  Although this reasoning purported to confer both types of standing on the bird, subsequent cases (even Cetacean Community) held this statement was nonbinding dicta.[38]

Additionally, in 2000, Professor Cass Sunstein wrote that “[u]nder existing law . . . animals lack standing to sue in their own right, for Congress has restricted standing to ‘persons.’  But it also means that Congress can accord standing to animals if it chooses to do so.”[39]  Sunstein articulated the following standard: “[I]t should be clear that the question of whether animals have standing depends on the content of positive law.  If Congress has not given standing to animals, the issue is at an end.”[40]  Sunstein also forecast that Congress might soon begin to confer standing on animals.[41]

III.  The Naruto Case

A.     The Selfies

In 2011, Naruto, a crested macaque, took a series of selfies using photographer David Slater’s camera.[42]  Slater published and sold a book containing some of the photos.[43]  One photo became extremely popular and was circulated on the internet.[44]  Consequently, People for the Ethical Treatment of Animals (“PETA”) filed suit on behalf of Naruto, asserting next friend status, and alleged that Slater committed copyright infringement by publishing the Monkey Selfies.[45]

B.     District Court Proceedings

In its complaint before the U.S. District Court for the Northern District of California, PETA argued that Naruto, not Slater, was the author of the Monkey Selfies.[46]  PETA acknowledged that a “claim of authorship by species other than homo sapiens” might be “novel,” but argued the term “authorship” under the Copyright Act was “sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto.”[47]  PETA sought a variety of forms of relief, including an order permitting the organization “to administer and protect Naruto’s authorship of and copyright in the Monkey Selfies” by giving PETA “all net proceeds from the sale, licensing and other commercial use of the Monkey Selfies.”[48]

In response, Slater filed a Motion to Dismiss for both lack of standing and failure to state a claim.[49]  Slater relied on Cetacean Community, arguing that since the Copyright Act did not explicitly give nonhumans standing to sue for copyright infringement, Naruto could not have standing.[50]  He called the notion that a monkey was an “author” under the Copyright Act a “farcical journey Dr. Seuss might have written.”[51]  While Slater acknowledged there might be good arguments for conferring legal standing on animals in certain circumstances, “especially with regard to legislation enacted to protect the animals in question,”[52] he also asserted that Congress, not the federal courts, was the appropriate entity to confer standing.[53]  But he ultimately rested on the Ninth Circuit’s controlling precedent.[54]

The district court granted Slater’s motion to dismiss, ruling that Naruto lacked standing under the Copyright Act[55] and declining to even discuss Article III standing.[56]  Relying on Cetacean Community,[57] the court ruled that the Copyright Act “does not ‘plainly’ extend the concept of authorship or statutory standing to animals.”[58]  Additionally, the court deferred to the Copyright Office’s interpretation of the statute—the Copyright Office’s Compendium stated that only works created by humans were copyrightable.[59]

C.     Arguments Before the Ninth Circuit

On appeal, PETA raised one issue: whether the fact that “Congress did not expressly grant standing to animals to sue under the Copyright Act” meant that Naruto lacked standing.[60]  PETA characterized this as an issue of first impression and also pointed out that the issue extended beyond animal authorship to questions regarding whether works “independently created by artificially intelligent computers are entitled to copyright protection.”[61]  PETA disagreed with the district court’s reasoning that Naruto lacked standing because the Copyright Act did not expressly give standing to animals: “[T]hat reasoning misses the mark: Congress did not provide an ‘express’ definition at all.  By its silence, Congress accepted the broad constitutional notion of authorship and the judicial construction that had been in place since at least the 19th century.”[62]

PETA also pointed out that a nonhuman can be the author of a copyrighted work.  For instance, 17 U.S.C. § 201(b) makes an employer, necessarily including business entities, the author of certain works.  “This proposition is so firmly established in the jurisprudence that most copyright cases to reach the United States Supreme Court have been filed by authors who are nonhumans, ranging from motion picture studios to music publishers to others.”[63]

PETA encouraged the court to consider the Copyright Act broadly.[64]  It concluded by noting that “if animals cannot be authors, there is no copyright protection for their works.”[65]  That, PETA asserted, was inconsistent with the notion, and prior precedent, that “[c]opyright protection extends to all ‘original works of authorship fixed in any tangible medium’ of expression.”[66]  “There is no doubt that the general public has an interest in works of art, regardless of their authors’ characteristics or attributes.  The tremendous interest in Naruto’s work and Defendants’ attempts to exploit that interest (and to bar others from doing so) only buttresses this conclusion.”[67]

In response, Slater asserted similar arguments to those in his motion to dismiss.  He reasserted that Cetacean Community was controlling because none of the four statutes considered by the Ninth Circuit in that case “expressly excluded non-human animals from having statutory standing, but all four lacked the requisite plain statement indicating legislative intent to take that ‘extraordinary step’ in federal jurisprudence.”[68]  Two of the statutes used the term “person” when conferring standing and two had no express grant of standing at all.[69]  But, according to Slater, the common thread between these four statutes was that none of them explicitly granted standing to nonhuman animals, which was why the plaintiffs in that case failed to establish standing.[70]  Since the Ninth Circuit in that case held that the absence of “clear direction from Congress”[71] precluded animals having standing, Slater argued that “Cetacean Community set forth a straightforward test for nonhuman animal statutory standing, and the Copyright Act fails that test.”[72]  Slater also challenged PETA’s standing to sue as next friend because “PETA did not allege any relationship with Naruto, much less a significant one.”[73]

D. The Ninth Circuit’s Opinion

After oral arguments were held on July 12, 2017,[74] the parties filed a joint motion to dismiss the appeal and vacate the judgment below.[75]  The parties informed that court that they—Slater and PETA, not Slater and Naruto—had entered into a settlement agreement on September 8, 2017.[76]  But the Ninth Circuit refused to dismiss the appeal.[77]  It reasoned that since a decision in this case would address a “developing area of the law,” such a decision would be helpful to lower courts.[78]

The Ninth Circuit affirmed the district court in a published opinion on April 23, 2018.[79]  The court first held that PETA lacked standing as Naruto’s next friend because PETA had failed to establish the requisite significant relationship with Naruto and because animals cannot be represented by a next friend.[80]  But the court held that it also had to consider Naruto’s standing independent of any next friend.[81]  Bound by Cetacean Community, the court concluded that animals can have Article III standing.[82]  But the court expressed reluctance to follow Cetacean Community, suggesting it was incorrectly decided.[83]  This disagreement is discussed more extensively below.

In addressing statutory standing, the court referred back to Cetacean Community, observing that “[i]f Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly” and that the “absence of any such statement” indicated a lack of standing.[84]  To the Ninth Circuit, this was “a simple rule of statutory interpretation.”[85]  The Naruto court then synthesized a bright-line rule: “If an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing.  If the statute does not so plainly state, then animals do not have statutory standing.”[86]

With that clear rule, resolving Naruto’s standing question was straightforward.  Because “[t]he Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute. . . . Naruto lacks statutory standing.”[87]  The Ninth Circuit rejected PETA’s argument about entity standing, noting that corporations have previously been held to be “persons” for both constitutional and statutory standing.[88]

The Ninth Circuit also considered the context of the statute’s language.[89]  The court noted that the Copyright Act refers to “children” of an author.[90]  The Act also discusses the “widow or widower” of an author.[91]  Consequently, “[t]he terms ‘children,’ ‘grandchildren,’ ‘legitimate,’ ‘widow’ and ‘widower’ all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law.”[92] Additionally, the court did not address PETA’s argument that the district court improperly relied on the Copyright Office Compendium.  The Compendium has since been cited as authoritative alongside the Naruto opinion.[93]

Although the court of appeals acknowledged that it was bound by prior Ninth Circuit precedent, it expressed displeasure with the Cetacean Community decision.[94]  The court did not mince words: “Although we must faithfully apply precedent, we are not restrained from pointing out, when we conclude after reasoned consideration, that a prior decision of the court needs reexamination.  This is such a case.”[95]

The Naruto court asserted unequivocally that “[a]nimals have neither constitutional nor statutory standing.”[96]  The court noted that Cetacean Community was the only case to ever hold that animals have Article III standing.[97]  With respect to statutory standing, the court also asserted that animals do not possess any sort of “cognizable interests” and that therefore “they cannot bring suit in federal court in their own names to protect such interests unless Congress determines otherwise.”[98]

IV.  Consequences of Naruto

The Naruto decision provides little resolution to questions of animal standing in general and authorship under the Copyright Act.  This Part considers the consequences of the Ninth Circuit’s opinion in a variety of contexts, exploring the new questions that are raised and the decision’s impact on existing statutes.

A.     Internal Circuit Split

The decision in Naruto revealed a split within the Ninth Circuit.  The Naruto panel did not think animals have any type of standing, in direct contradiction to the Cetacean Community panel.  By calling into doubt Cetacean Community’s rationale and conclusion, the Naruto panel demonstrated a divide within the Ninth Circuit, opening the possibility of subsequent review of the issue.  Ultimately, this decision suggests that the question of Article III standing for animals is not settled law.

For future cases in the Ninth Circuit, Cetacean Community is still binding precedent.[99]  But the criticism by the Naruto court provides fodder for future litigants to argue that an en banc panel of the Ninth Circuit should review and overturn Cetacean Community.  One wrinkle in this, however, is that the Ninth Circuit did decline to reconsider the Naruto case en banc.[100]

For cases outside of the Ninth Circuit, neither Cetacean Community nor Naruto are binding authority.  The Naruto court noted the absence of cases conferring any sort of Article III standing on animals.[101]  Thus, Cetacean Community and Naruto present opposing views that could be implemented in other jurisdictions.

B.     Implications for Animal Standing in the Future

Professor Sunstein’s analysis from 2000[102] is strikingly like the standard articulated by the Ninth Circuit in Naruto.  Sunstein’s position was that “it should be clear that the question of whether animals have standing depends on the content of positive law.  If Congress has not given standing to animals, the issue is at an end.”[103]  The near-identical rule from Naruto (originating from Cetacean Community) serves as a clear call to legislative bodies.  At least in the Ninth Circuit, if citizens want animals to be able to sue in their own right, legislatures must act since the federal courts will not find standing otherwise.

There are many federal statutes that protect animals in some way.[104]  But since none of them explicitly confer standing on the protected animals, Naruto’s bright-line rule would still deprive those animals of standing.  The following Subparts will consider several of those statutes in more depth.

1.     The Humane Methods of Slaughter Act

The Humane Methods of Slaughter Act[105] requires that “the slaughtering of livestock and the handling of livestock in connection with slaughter shall be carried out only by humane methods.”[106]  The Act establishes what methods of slaughter are humane.[107]  However, this Act does not explicitly confer standing on any entity to bring suit to enforce the policies and procedures.[108]  Rather, the Food Safety and Inspection Service (“FSIS”), an agency of the United States Department of Agriculture (“USDA”), enforces this Act.[109]

Although the Humane Methods of Slaughter Act appears to confer some rights on the animals it purports to protect,[110] Naruto precludes those animals from suing to assert their rights.  This lack of standing is amplified since this Act does not even contain a citizen-suit provision.[111]  The addition of a citizen-suit provision authorizing persons to sue for enforcement (compared to FSIS enforcing the Act) would have the potential to create a standing question for animals, depending on how a court would construe that citizen-suit provision.  But the explicit language standard articulated by Naruto would still serve as a substantial barrier.

2.     The Animal Welfare Act

The Animal Welfare Act[112] governs the transportation and treatment of animals in research and exhibition.[113]  This Act explicitly delegates enforcement to the Secretary of Agriculture,[114] which is executed by the USDA and the Animal and Plant Health Inspection Service (“APHIS”).[115]

This Act protects certain animals used “for research, testing, experimentation, or exhibition purposes.”[116]  But none of those animals may sue under this Act, thanks to Naruto.  The only entity authorized to enforce this Act is the Secretary of Agriculture; the Act does not contain a citizen-suit provision.[117]  Moreover, if this Act did grant standing to persons, its definition of “person” would likely not be explicit enough to confer standing on animals.  This Act defines a “person” as “any individual, partnership, firm, joint stock company, corporation, association, trust, estate, or other legal entity.”[118]  Even this broad, all-inclusive language would most likely fall short of Naruto’s explicit language requirement.[119]

3.     The Marine Mammal Protection Act and the Endangered Species Act

The Marine Mammal Protection Act of 1972[120] and the Endangered Species Act of 1973[121] were two of the acts considered in Cetacean Community.[122]  Of course, the court of appeals held that neither contained the requisite explicit statutory language required to confer animal standing.[123]  Thus, again, the construction of these acts, which were designed to protect certain animals, demonstrates the lack of ability for any affected animal to asserts its rights under the acts.

4.     Consequences of Lack of Standing in These Statutes

The implications of animals lacking standing under the above acts may not appear too extreme at first blush.  Yet the main challenge is the very principle of the matter—the very things the acts were intended to protect cannot sue under the statutes to protect and assert their rights.  Of course, the practicalities of animals suing under these statutes is extremely questionable.  How would an animal know it had a right to sue in the first place?  How could it communicate to assert its rights?  How would a court know whether it was properly understanding the concerns raised by the animal?

Moreover, existing enforcement procedures may be sufficient.  For example, the USDA regularly brings enforcement actions against establishments that are alleged to have violated the Humane Methods of Slaughter Act.[124]  Additionally, USDA inspectors with APHIS “conduct routine, unannounced inspections of all facilities licensed or registered” under the Animal Welfare Act.[125]  The USDA may even bring enforcement actions against facilities that fail to comply.[126]  More importantly, APHIS is not wholly insulated from the public; individuals may report potential violations of the Animal Welfare Act.[127]

C.     The Implications of Explicit Legislation

New questions would arise if Congress did pass legislation explicitly conferring standing on animals.  Although such a statute would be compatible with Cetacean Community, the statute would still fail due to lack of Article III standing according to Naruto.  Both Cetacean Community and Naruto used the lack of statutory standing to defeat the plaintiffs’ claims.  In essence, the panels could fall back on their bright-line rule on statutory standing.  But would a court’s rationale change if it no longer had that line of defense?  In the face of a statute explicitly granting standing to animals, would even the Naruto panel still hold that the Article III standing requirement was met?  As discussed above, Congress may only confer statutory standing, not Article III standing, and both are required for a meritorious suit.[128]

It is easy for the Naruto court to speak in footnotes of animals lacking Article III standing when the stakes are not high (having the lack of statutory standing to fall back on).  But it is a wholly new matter for a court to be faced with that question as the ultimately dispositive issue.  Although the Naruto panel considered the issue foreclosed and easily addressed, others have presented arguments suggesting that the constitutional standing issue is not so easily resolved.[129]  The Naruto opinion was arguably written so as to invite en banc review.[130]  Thus, even the Naruto panel may have comprehended that an en banc panel or the Supreme Court might be better suited to consider this question and provide a clear resolution.

D.    Standing for Other Nonhuman Entities

Another area that the Naruto decision implicates is the realm of other nonhuman entities that may “author” certain works that would otherwise qualify for a copyright.  This is specifically relevant in the world of artificial intelligence (“AI”).  Ultimately, the rise of AI poses many of the same questions that Naruto the monkey did.[131]

Although the Ninth Circuit’s opinion in Naruto only addressed the issue of animal standing, the bright-line rule it articulated seems much more broadly applicable and could translate into other spheres.  Under a sort of “transitive property” principle, it could be inferred that unless Congress explicitly grants standing to AI entities, then the works created by those entities cannot be “authored” by the AI.[132]  The Copyright Office’s Compendium’s standard would also preclude AI entities from being authors.[133]

E.     Implications for the Copyright Act Specifically

Although Naruto held that animals do not having standing under the Copyright Act, the opinion left open one major question: if an animal takes a photo, does anyone have rights to that photo?  Is anyone the author?  Regardless of whether the issue is animal authorship or authorship by artificial intelligence, Naruto fails to provide any clarity as to who, if anyone, owns the copyright to a work created by a nonhuman entity.  PETA and Naruto lost their lawsuit on standing grounds; the question of whether Slater or his company held the copyright was never even reached.

Even though PETA lost on essentially every front, one assertion it made may still stand.  Slater may not be the author of the Monkey Selfies; therefore, he cannot assert any copyright interest in the selfies.[134]  This principle is demonstrated in the difficulties the Wikimedia Foundation encountered with the Monkey Selfies, as many of them were uploaded to Wikipedia.[135]  Wikimedia took the position that copyright only existed in human authorship; therefore, the selfies were in the public domain.[136]  Although Slater asserted that he held the copyright and demanded that Wikimedia take the photos down, Wikimedia refused.[137]

Thus, under Naruto and the U.S. Copyright Office’s official position,[138] works created by animals are not copyrightable.  Therefore, nothing prevents others from exploiting or using those works for profit.  For example, Slater sold, and appears to continue to sell, prints of the Monkey Selfie.[139]  Additionally, zoos sometimes generate revenue by selling paintings made by their animals.[140]  Profiting off animal creations, especially when the animal has no possible means of asserting any interest in the work, raises intriguing ethical questions.[141]

Copyright protection exists primarily to promote creativity and secondarily to benefit the author.[142]  Thus, the question is whether withholding statutory standing and authorship from animals furthers those purposes.  If animals are not even recognized as the authors of their creations, then there is no recourse to protect those creations from exploitation.  Just as David Slater continues to sell and profit from photos he himself did not take, so too can zoos and others sell and profit from created works that do not in fact belong to them.  Does this result promote creativity?  Or does it instead merely give profiteers the opportunity to benefit from another’s work without exerting any creative effort themselves?

Granting an animal authorial rights under the Copyright Act, however, would present substantial practical problems.  Animals cannot contract, bargain, or license.  Thus, if the Copyright Act recognized animals as authors, their created works would become stagnant, unable to be used by anyone, even if the purpose was to benefit the animals themselves.  Access to and the opportunity to use others’ created works furthers invention and expression, so long as the author’s rights are still respected.[143]  By granting animals statutory standing and authorship rights, the law would essentially establish an impenetrable monopoly in direct contradiction to the goal of creativity.[144]  An animal would have the rights to its work, but there would be no practical mechanism for facilitating a marketplace for licensing or for others to properly access and use that work, due to the inevitable communication barrier between humans and animals.

The issue becomes even further complicated in situations involving other nonhuman entities such as artificial intelligence.  With artificial intelligence, there is a human creator behind the AI.  But the Copyright Office will register a copyright, “provided that the work was created by a human being.”[145]  If a human created the AI software, then it is possible that the human creator might hold the copyright, even if the AI cannot.[146]

V.  Conclusion

The Monkey Selfie case raises far more questions than answers.  But the questions are important.  Standing is often assumed but it is the foundation of who has access to the courthouse.  The doctrine of standing is the gatekeeper; standing decides who has rights, for a right without recourse is no right at all.

As animals and humans become more intertwined, and as AI becomes more prevalent, the legal questions raised in Naruto will only become more important and pressing.  The Ninth Circuit, thanks to the dispute between the panels in Cetacean Community and Naruto, has the opportunity with en banc review to return to this issue and provide clarity and resolution.  The consequences of such review could be immense.  The court could articulate an entirely new rule granting animals statutory standing.  Or the court could foreclose the issue altogether by agreeing with the Naruto panel that the Constitution itself does not comprehend standing for animals.  The absence of similar cases in other circuits[147] suggests that Supreme Court review is currently unlikely.  But with the internal split in the Ninth Circuit and the existing circuit precedent as to Article III standing, the questions have only just begun.

Naruto’s case ultimately ended with Slater agreeing to donate 25 percent of his future proceeds from use of the selfies to charities protecting crested macaques’ habitats.[148]  But other cases may not end in settlement.  If individuals know that animals have little chance to assert rights through a lawsuit, that knowledge may simply serve as an invitation to test the extents of this “immunity.”  Thanks to animal protection and anti-cruelty statutes, animals are not left entirely vulnerable.  While animals cannot speak for themselves, and the legal system may provide inadequate help, Naruto v. Slater tells us that these issues are far from resolved.

[*]    Copyright © 2020 Matthew P. Hooker. Juris Doctor Candidate, 2020, Wake Forest University School of Law.  B.A., Communications, 2016, Thomas Edison State University.  Executive Editor, Wake Forest Law Review.  Special thanks to my family (especially Chiedza) for their continued love and support during my academic pursuits.

       [1].   This Selfie May Set a Legal Precedent, People for Ethical Treatment Animals (Sept. 22, 2015),

       [2].   Id.

       [3].   Id.

       [4].   888 F.3d 418 (9th Cir. 2018).

       [5].   Lawsuit on Behalf of Monkey Tops Poll of Year’s Most Ridiculous Lawsuits, U.S. Chamber Inst. for Legal Reform (Dec. 21, 2015),

       [6].   Rick Kogan, What We Learn from the Curious Case of the Monkey Selfie, Chi. Trib. (Jan. 26, 2018),

       [7].   Andrew Orlowski, Petty PETA Rapped by Judges over Monkey Selfie Copyright Stunt, Register (Apr. 23, 2018, 6:56 PM),

       [8].   John Bonazzo, People Are Literally Suing Each Other over the Rights to a Monkey Selfie, Observer (July 14, 2017, 1:19 PM),

       [9].   See infra Part IV.

     [10].   See infra Subpart IV.E.

     [11].   386 F.3d 1169 (9th Cir. 2004).

     [12].   Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

     [13].   See U.S. Const. art. III, § 2, cl. 1; see also Spokeo, Inc., 136 S. Ct. at 1547.

     [14].   Spokeo, Inc., 136 S. Ct. at 1547; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).

     [15].   See City of Sausalito v. O’Neill, 386 F.3d 1186, 1199 (9th Cir. 2004).

     [16].   Id.

     [17].   Id.

     [18].   See Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–77 (1992); Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (“If a plaintiff lacks Article III standing, Congress may not confer standing on that plaintiff by statute.”).

     [19].   See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101, 109–10 (1998); Fed. R. Civ. P. 12(b)(1); cf. Doe v. Mckesson, 272 F. Supp. 3d 841, 851–52 (M.D. La. 2017), rev’d on other grounds, 945 F.3d 818 (5th Cir. 2019) (“Plaintiff therefore is attempting to sue a hashtag [#BlackLivesMatter] for damages in tort. For reasons that should be obvious, a hashtag . . . is not a ‘juridical person’ and therefore . . . is patently incapable of being sued.”).

     [20].   Cetacean Cmty., 386 F.3d 1169 (9th Cir. 2004).

     [21].   Id. at 1176.

     [22].   Id. at 1179.

     [23].   16 U.S.C. §§ 1531–1544 (2018).

     [24].   16 U.S.C. §§ 1371–1421h (2018).

     [25].   42 U.S.C. §§ 4321–4347 (2018).

     [26].   Cetacean Cmty., 386 F.3d at 1171–72.

     [27].   Id. at 1176.

     [28].   Id.

     [29].   Id. at 1175.

     [30].   Id. at 1179.

     [31].   Id. at 1176–79.

     [32].   16 U.S.C. § 1540(g)(1)(A) (2018).

     [33].   Cetacean Cmty., 386 F.3d at 1178.

     [34].   Id. at 1179 (quoting Citizens to End Animal Suffering & Exploitation, Inc. v. New Eng. Aquarium, 836 F. Supp. 45, 49 (D. Mass. 1993)).

     [35].   Id.

     [36].   852 F.2d 1106 (9th Cir. 1988).

     [37].   Id. at 1107.

     [38].   See Cetacean Cmty., 386 F.3d at 1173–74 (“Palila IV’s statements are nonbinding dicta . . . . In context, our statements in Palila IV were little more than rhetorical flourishes.”); see also Hawaiian Crow (‘Alala) v. Lujan, 906 F. Supp. 549, 552 n.2 (D. Haw. 1991); Citizens to End Animal Suffering & Exploitation, Inc., 836 F. Supp. at 49.

     [39].   Cass R. Sunstein, Standing for Animals (with Notes on Animal Rights), 47 UCLA L. Rev. 1333, 1335 (2000).

     [40].   Id. at 1359; accord Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) (“[I]f an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing.  If the statute does not so plainly state, then animals do not have statutory standing.”).  Sunstein also stated the rule as being that “[a]s a rule, the question is therefore quite clear: Animals lack standing as such, simply because no relevant statute confers a cause of action on animals.”  Sunstein, supra note 39, at 1359.

     [41].   See Sunstein, supra note 39, at 1359.

     [42].   Complaint for Copyright Infringement & Demand for Jury Trial at 1, Naruto v. Slater, No. 15-cv-4324 (N.D. Cal. Sept. 21, 2016), ECF No. 1 [hereinafter Complaint].  As implied by the term selfie, Naruto took the photos himself.  Id.

     [43].   Tanya Basu, Monkey Should Get Rights to Famous Selfie, PETA Says, Time (Sept. 22, 2015),

     [44].   Id.  “The Monkey Selfies resulted from a series of purposeful and voluntary actions by Naruto, unaided by Slater, resulting in original works of authorship not by Slater, but by Naruto.”  Complaint, supra note 42, at 1.

     [45].   Complaint, supra note 42, at 1–2.

     [46].   Id. at 1–2.

     [47].   Id. at 2.

     [48].   Id. at 9–10.

     [49].   Notice of Motion & Motion to Dismiss at 1, Naruto v. Slater, No. 15-cv-4324-WHO (N.D. Cal. Nov. 6, 2015), ECF No. 28.

     [50].   Id. at 2–3.

     [51].   Id. at 2.

     [52].   Id. at 3.

     [53].   Id.

     [54].   Id. (“Enumerating the reasons why animals should not be able to sue for copyright infringement would serve no useful purpose in this motion since controlling Ninth Circuit authority requires dismissal of this action.”).

     [55].   Naruto v. Slater, No. 15-cv-04324-WHO, 2016 WL 362231, at *4 (N.D. Cal. Jan. 28, 2016).

     [56].   Id. at *2.

     [57].   Id. at *3. “[I]f Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.”  Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004) (quoting Citizens to End Animal Suffering & Exploitation, Inc. v. New Eng. Aquarium, 836 F. Supp. 45, 49 (D. Mass. 1993)).

     [58].   Naruto, 2016 WL 362231, at *3.

     [59].   Id. at *4 (citing U.S. Copyright Office, Compendium of U.S. Copyright Office Practices §§ 306, 313.2 (3d ed. 2017) [hereinafter Compendium]).

     [60].   Opening Brief of Plaintiff–Appellant at 1, Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (No. 16-15469).

     [61].   Id. at 5–6.

     [62].   Id. at 10.

     [63].   Id. at 12–13.

     [64].   Id. at 15.

     [65].   Id. at 16.

     [66].   Id. (quoting Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir. 2006)).

     [67].   Id. at 17.

     [68].   Brief of Defendants-Appellees David John Slater and Wildlife Personalities, Ltd. at 5, Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (No. 16-15469) [hereinafter Answer Brief] (quoting Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004)).

     [69].   Id. at 6 (citing Cetacean Cmty., 386 F.3d at 1176–79).

     [70].   Id.

     [71].   Cetacean Cmty., 386 F.3d at 1178.

     [72].   Answer Brief, supra note 68, at 7.

     [73].   Id. at 9.  Although the Ninth Circuit’s opinion agreed with Slater on this issue, the next friend issue is beyond the scope of this Article, since the Ninth Circuit proceeded to consider Naruto’s standing under Article III and the Copyright Act independent of any next friend.  See Naruto, 888 F.3d at 422 (holding that “Naruto’s lack of a next friend does not destroy his standing to sue, as having a ‘case or controversy’ under Article III of the Constitution”). Judge Smith would have held that the Court’s conclusion as to the next friend issue deprived the Court of jurisdiction, so considering Naruto’s independent Article III and statutory standing were inappropriate.  See id. at 427 (Smith. J., concurring in part).  Although the question of whether next-friend standing is nonjurisdictional is intriguing, exploration of this question deserves its own article.

     [74].   See ECF Nos. 45–46, Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (No. 16-15469).

     [75].   Joint Motion to Dismiss Appeal and Vacate the Judgment at 1, Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (No. 16-15469).

     [76].   Id. at 3–4.

     [77].   Order at 1, Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (No. 16-15469), ECF No. 59.

     [78].   Id. at 2.

     [79].   See Naruto, 888 F.3d at 418, 420.

     [80].   Id. at 421.

     [81].   See id. at 423.

     [82].   Id. at 424–25; Cetacean Cmty. v. Bush, 386 F.3d 1169, 1176 (9th Cir. 2004) (“[W]e see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents.”).

     [83].   Naruto, 888 F.3d at 425 n.7.

     [84].   Id. (emphasis added by the Naruto court) (internal quotation marks omitted) (quoting Cetacean Cmty., 386 F.3d at 1179).

     [85].   Id. at 426.

     [86].   Id.

     [87].   Id.

     [88].   Id. at 426 n.9 (citing Citizens United v. FEC, 558 U.S. 310, 341–42 (2010); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706 (2014)).  The court also pointed out that such organizations are organized by humans, not animals.  Naruto, 888 F.3d at 426 n.9.).

     [89].   Naruto, 888 F.3d at 426.

     [90].   See 17 U.S.C. §§ 101, 201, 203, 304 (2018).

     [91].   See 17 U.S.C. § 203(a)(2)(A) (2018).

     [92].   Naruto, 888 F.3d at 426.

     [93].   See, e.g., 1 Howard B. Abrams & Tyler T. Ochoa, The Law of Copyright § 4:1 n.10 (2018); 1 Katheryn A. Andersen, Law and Business of Computer Software § 2:3 n.1 (2d ed. 2018); 1 Alexander Lindey & Michael Landau, Lindey on Entertainment, Publishing and the Arts § 1:10.50 (3d ed. 2018); 6 William F. Patry, Patry on Copyright § 21:7 n.13 (2018); Ralph D. Clifford, Creativity Revisited, 59 IDEA: L. Rev. Franklin Pierce Ctr. for Intell. Prop. 25, 27 n.9 (2018).

     [94].   Naruto, 888 F.3d at 425 n.7.

     [95].   Id.

     [96].   Id.

     [97].   Id.

     [98].   Id.

     [99].   See id. at 421; see also Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc) (noting that the proposition that “a three-judge panel may not overrule a prior decision of the court” is “unassailable so far as it goes”).

   [100].   See Order at 1, Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (No. 16-15469), ECF No. 74.  The parties did not request an en banc hearing, but one of the judges requested a vote sua sponte.  See id.

   [101].   See Naruto, 888 F.3d at 425 n.7.

   [102].   See supra notes 39–41 and accompanying text.

   [103].   Sunstein, supra note 39, at 1359; accord Naruto, 888 F.3d at 426 (“[I]f an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing.”).  Sunstein also restated the rule thus: “[a]s a rule, the question is therefore quite clear: Animals lack standing as such, simply because no relevant statute confers a cause of action on animals.”  Sunstein, supra note 39, at 1359.

   [104].   See, e.g., 7 U.S.C. §§ 1901–1907 (2018); Animal Welfare Act, 7 U.S.C. §§ 2131–2159 (2018); Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361–1407 (2018); Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2018).

   [105].   7 U.S.C. § 1901.

   [106].   Id.

   [107].   7 U.S.C. § 1902.

   [108].   See 7 U.S.C. §§ 1901–1907.

   [109].   See 9 C.F.R. §§ 300.1, 313.1 (2019).

   [110].   See 7 U.S.C. § 1901.

   [111].   See 7 U.S.C. §§ 1901–1907.

   [112].   7 U.S.C. §§ 2131–2159 (2018).

   [113].   7 U.S.C. § 2131.

   [114].   7 U.S.C. § 2146.

   [115].   See About APHIS, U.S. Dep’t Agric., Animal & Plant Health Inspection Serv., (last modified Dec. 4, 2019).

   [116].   7 U.S.C. § 2132(g).

   [117].   See generally 7 U.S.C. §§ 2146, 2159.

   [118].   7 U.S.C. § 2132(a).

   [119].   See Naruto v. Slater, 888 F.3d 418, 420–22 (9th Cir. 2018); cf. Nonhuman Rights Project, Inc. v. R.W. Commerford and Sons, Inc., 216 A.3d 839, 844–46 (Conn. App. Ct. 2019) (dismissing habeas corpus case on behalf of an elephant because an elephant is not a person).

   [120].   16 U.S.C. §§ 1361–1407 (2018).

   [121].   16 U.S.C. §§ 1531–1544 (2018).

   [122].   See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1171 (9th Cir. 2004).

   [123].   Id. at 1177–78.

   [124].   See Humane Handling Enforcement Actions, U.S. Dep’t Agric., Food Safety & Inspection Serv.,
(last modified Jan. 13, 2020).

   [125].   Animal Welfare Act, U.S. Dep’t Agric., Animal & Plant Health Inspection Serv.,
(last modified Sept. 13, 2019).

   [126].   Id.

   [127].   Animal Welfare Complaint, U.S. Dep’t Agric., Animal & Plant Health Inspection Serv.,
(last visited Feb. 2, 2020).

   [128].   See Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–77 (1992); Cetacean Cmty., 386 F.3d at 1174 (“If a plaintiff lacks Article III standing, Congress may not confer standing on that plaintiff by statute.”).

   [129].   See, e.g., Relators’ Reply Brief at 8–9, State ex rel. Twitchell v. Saferin, 119 N.E.3d 365 (Ohio 2018) (No. 2018-1238); Symposium, Legal Standing for Animals and Advocates, 13 Animal L. 61, 63–65 (2006).

   [130].   See Naruto v. Slater, 888 F.3d 418, 421, 423 n.5 (9th Cir. 2018).

   [131].   See Paul T. Babie, The “Monkey Selfies”: Reflections on Copyright in Photographs of Animals, 52 U.C. Davis L. Rev. Online 103, 116 (2018) (“Today, we live in a world in which the future development of Artificial Intelligence (‘AI’) presents the same challenges of classification canvassed in Naruto: can an artificial consciousness or intelligence constitute a legal personality?”).

   [132].   See Andersen, supra note 93, § 2:3 (“Although advancements in artificial intelligence continue to expand the capacity of robots and computers to design and ‘create’ works using new algorithmic models and processes, only works traceable to a human author are eligible for copyright protection.”).

   [133].   See Compendium, supra note 59, § 313.2 (“Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”).

   [134].   See Complaint, supra note 42, at 1 (“The Monkey Selfies resulted from a series of purposeful and voluntary actions by Naruto, unaided by Slater, resulting in original works of authorship not by Slater, but by Naruto.”); see also 17 U.S.C. § 102(a) (2018) (emphasis added) (granting copyright protection only to “original works of authorship”).

   [135].   See Mailbag: What is Going on with Wikipedia and the Monkey Selfie? We Love Monkeys and Photographers, Let Us Tell You More, Wikimedia Found. (Dec. 22, 2017),

   [136].   See id. (“Because a monkey took the photos, and a monkey cannot claim copyright, those photos are considered to be in the public domain and freely shareable on Wikimedia projects.”).

   [137].   See id.

   [138].   See Compendium, supra note 59, § 313.2 (“The Office will not register works produced by nature, animals, or plants.”).

   [139].   See The Monkey Selfie by David J. Slater, DJS Photography, (last visited Jan. 31, 2020).  The cover of Slater’s book, Wildlife Personalities, also contains the iconic selfie.  See id.

   [140].   See Jane Desmond, Zoos Make Money Selling Paintings Made by Animals. Are They Art?, Wash. Post (Sept. 7, 2016, 8:00 AM),; cf. Kate Good, Elephant Artists? Here’s Why Making an Elephant Paint is Cruel, Not Cute, OneGreenPlanet, (last visited Jan. 31, 2020) (discussing “elephant tourism” and how elephants are taught to paint).

   [141].   See Rain Embuscado, Paintings by ‘Animal Artists in Residence’ at San Francisco Zoo Head to Auction, ArtNet (Apr. 25, 2016),

   [142].   See U.S. Const. art. I, § 8, cl. 8 (“The Congress shall have Power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . .”); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991) (internal citations omitted) (“The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ . . . [C]opyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”); Zechariah Chafee, Jr., Reflections on the Law of Copyright: I, 45 Colum. L. Rev. 503, 506 (1945).

   [143].   See Chafee, supra note 142, at 511 (“Nobody else should market the author’s book, but we refuse to say nobody else should use it.  The world goes ahead because each of us builds on the work of our predecessors.”).

   [144].   See id.

   [145].   Compendium, supra note 59, § 306.

   [146].   See Stuart N. Brotman, The Human Importance of the Monkey Selfie, Brookings Inst.: TechTank (Aug. 12, 2014),  How much human involvement is sufficient is another open question.  For example, PETA did not consider Slater’s involvement in providing the camera to be enough to give him rights to Naruto’s selfies.  See Complaint, supra note 42, at 1 (“The Monkey Selfies resulted from a series of purposeful and voluntary actions by Naruto, unaided by Slater . . . .” (emphasis added)).

   [147].   See Naruto v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018).

   [148].   PETA Statement: ‘Monkey Selfie’ Case Settled, People for Ethical Treatment Animals (Sept. 11, 2017),

By Emma A. Maddux


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.


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),

[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,
/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

[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),

[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

[189]. World Charter for Nature, G.A. Res. 37/7, ¶ 12, U.N. Doc. A/RES/37/7 (Oct. 18, 1982), available at

[190]. Wise, supra note 98; see also Ian Sample, Whales and Dolphins “Should Have Legal Rights,” Guardian (Feb. 20, 2012), (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, (last visited Nov. 12, 2012).

[191]. See generally The Helsinki Grp., Declaration of Rights for Cetaceans: Whales and Dolphins (2010), available at

[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.