Your Client, the Killer Whale

When people have it too good for too long, they start saying silly things in the belief that they are being profoundly serious. Given that premise, it was bound to happen sooner or later. PETA (that’s People for the Ethical Treatment of Animals), has filed a lawsuit in the federal District Court in San Diego, demanding that Orcas, aka killer whales, be declared to have the same rights as humans and therefore under the 13th Amendment to the U.S. Constitution should be freed from slavery in which they are kept by SeaWorld in San Diego. They should then be released to the custody of a legal guardian who would find a “suitable habitat” for them. You could call it a grown-up version (if that doesn’t do violence to the English language) of “Free Willy.”

Now, some poor federal judge in San Diego will have to cope with this meshuggas and come up with some way of tossing it out of court without incurring the wrath of the U.S. Court of Appeals for the 9th Circuit whose fiefdom includes San Diego, and which may just . . . No. Actually we don’t want to go there, or even think about is. But then again, hey man, it’s the Ninth Circuit. So who knows?

This bit of wackiness brings to mind how all this meshuggas got started. Back in 1972, U.S.C. Professor Stone wrote a law review piece entitled Do Trees Have Standing? — Toward Legal Rights for Natural Objects, 45 So. Cal. L. Rev. 450, in which he proposed what the title suggested. It was promptly picked up by Justice William O. Douglas who duly enshrined a citation to it in a Supreme Court opinion, thus putting Professor Stone on the map big time.

We always had trouble with substantive and procedural consequences of that proposition because if you are going to litigate on behalf of a tree as your client (which is why you would want it to have standing), how do you ascertain your client’s intent? Maybe, for all we know, a redwood tree is pining to become a backyard picnic table, as a wit once put it. Which would be bad enough since trees don’t say much. As a songwriter once put it, ” I talk to the trees but they don’t listen to me. . .” So if they don’t talk and don’t listen, it’s kinda hard to commuicate with them and get them to assist counsel in providing them with proper representation.

Then, before you knew it, environmentalits started filing these lawsuits captioned “Arizona Grey Squirrel v. United States,” or somesuch. Alas, no federal judge that I know of had the stones to order the plaintiff’s lawyers to produce the named plaintiff in court and ascertain whether he indeed authorized the filing of that lawsuit in his name. But judges, alas, are not noted for their sense of humor (except, of course, for Judge Alex Kozinski of the Ninth Circuit), so it never came to pass.

On the other hand, his Lordship who gets this case, may want to revive a medieval custom of ordering that the offending lawyer’s hand be chopped off and nailed to the courthouse door pour encouragement les autres. It might work. Then again it might not. Why would I say this? Because no less a personage than Professor Larry Tribe of Harvard has come down on the side of the plaintiffs, arguing that the 13th Amendment was written broadly, to address unforeseen circumstances, and could legitimately be applied to animals.  Gee, we can’t wait to see what professor Tribe will have to say about the involuntary servitude to which cattle, sheep, chickens, et al. are routinely subjected on a large scale. And what about Lassie, and all those laboratory monkeys and  K-9 police dogs? Surely under the Equal Protection Clause of the 14th Amendment they would be entitled to emancipation, and treatment no worse than killer whales. Anything less would be intolerable specieism.

For a copy of the Associated Press article bringing us this dispatch, see David Crary and Julie Watson, SeaWorld Accused of Enslaving Orcas, L.A. Daily Journal, October 26, 2011. Enjoy!

Afterthought. What if this case winds up in the Ninth Circuit, with Judge Kozinski assigned to write the opinion? Wow! That thought opens up possibilties for enriching the decisional law that are mind-boggling. So stay tuned, folks.


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