No, it’s not the Onion: It’s a real law suit. The Los Angeles Times reports, via ATL:
People for the Ethical Treatment of Animals plans Wednesday to sue Sea World for allegedly violating the 13th Amendment to the U.S. Constitution — which bans slavery — by keeping orcas at parks in San Diego and Orlando, Fla., organization officials said Tuesday.
The lawsuit, set to be filed in San Diego federal court, is considered the first of its kind and, if successful, would represent a large enhancement of the animal-rights movement. Part of the lawsuit asserts that it is illegal to artificially inseminate the females and then take away their babies.
Sea World officials dismissed the lawsuit as a publicity stunt. PETA routinely pickets the park on Mission Bay.
The lawsuit seeks the release of three orcas (also called killer whales) from San Diego and two at Orlando. “All five of these orcas were violently seized from the ocean and taken from their families as babies,” said PETA President Ingred Newkirk.
PETA officials note that the 13th Amendment prohibits slavery but does appear to limit the ban only to human beings. “Slavery is slavery,” said PETA general counsel Jeffrey Kerr.
It sounds nuts, but then they did file in the Ninth Circuit.
JS says:
Hope they have deep pockets for the massive sanctions which are going to be coming their way…
October 26, 2011, 5:10 pmanteus says:
I wonder how they got the consent of their clients to file the lawsuit. screeeeeeeeeeeeeeeeeeeeeee!
October 26, 2011, 5:16 pmGuest13 says:
Unlike the other reconstruction amendments, the 13th doesn’t specifically say “persons” or “citizens”…
October 26, 2011, 5:17 pmAdam says:
If this case does not result in Rule 11 sanctions, they might as well get rid of that rule and admit that there is no sanction for filing frivolous suits.
The fact that it likely will not is why we get strange contortions like Twombly and Iqbal.
October 26, 2011, 5:22 pmyankee says:
Amendments II, IV, V, IX, X, and XIV expressly apply to “people” or “persons,” but XIII does not. So if we just interpret XIII in pari materia, PETA wins!
October 26, 2011, 5:22 pmterraformer says:
I predict the “progressive” wing of the court will be having a “come to originalism” moment within the next 6 months. Otherwise, they may just have to rule in PETA’s favor because without originalism, there is nothing SOLID to hang a denial on this if the term citizen or person wasn’t used.
October 26, 2011, 5:23 pmPandaemoni says:
@JS:
I don’t think there will be any sanctions. They are nuts but they are arguing in good faith for an extension of the law. I’m sure they will readily acknowledge that the amendment has not previously been extended to animals, so they should be fine.
They’ll lose, and I sure hope the court tells them to pay Sea World’s costs, but I don’t think sanctions as such will be handed down.
My dogs are firmly on Peta’s side in this, as they have been arguing for emancipation for some time now.
October 26, 2011, 5:23 pmAdam says:
Right, but I’m not sure where they will find any support for the notion of reading “slavery” to include non-human animals. Also, the fact that the drafters didn’t seem to have any objection to the ownership of livestock (not to mention the implications of finding that it does), probably puts them on thin ice.
October 26, 2011, 5:25 pmAdam says:
That’s what they say, but I do not see the good faith. They can’t have any expectation that they will prevail. That should be enough for sanctions in my view.
Huh? Cost shifting is a sanction.
October 26, 2011, 5:27 pmSoronel Haetir says:
Given that the ban doesn’t even encompass all involuntary service of humans (even where not convicted of crimes) I fail to see how sanctions would not be appropriate in this case.
October 26, 2011, 5:32 pmrumpelstiltskin says:
There is a decent tradition of these sort of shenanigans in the Ninth Circuit; see Cetacean Community v. Bush:
It turns out that whales, like trees, do not have standing:
October 26, 2011, 5:34 pmDSW says:
I wonder if PETA spends much time thinking how best to alienate people who might otherwise be at least partially sympathetic to their cause?
October 26, 2011, 5:37 pmJimbino says:
That’s great! If we could treat them as humans, we could breed them instead of Amerikan babies; they would be more useful, less bother, pollute the planet less and save us some $10,000 that we taxpayers now pay per human kid per year for 13 years of mis-education.
October 26, 2011, 5:39 pmrpt says:
Let’s not be to harsh here. John Kasich took the same position with respect to exotic animals in Ohio earlier in the year.
October 26, 2011, 5:41 pmCletus says:
I’ve long had a non-serious, pet (no pun intended) theory that PETA is a front for a group/agency/organization that wants to discredit animal rights. Because PETA’s publicity stunts make a hell of a lot more sense if one approaches them as intended to paint animal rights advocates as complete idiots.
October 26, 2011, 5:42 pmIspep Teid says:
Why didn’t they just define the term as the “Sonar” or something similar?
October 26, 2011, 5:42 pmSigivald says:
Yankee said Amendments II, IV, V, IX, X, and XIV expressly apply to “people” or “persons,” but XIII does not. So if we just interpret XIII in pari materia, PETA wins
Don’t “slavery” and “involuntary servitude” have meanings, both of which have only ever applied to persons, in any legal context?
The core problem is PETA’s implicit assertion that orcas are persons, which is without precedent in American law, as far as I know. (IANAL.)
October 26, 2011, 5:43 pmMarc says:
PETA general counsel Jeffrey Kerr?
Any relation?
[OK Comments: Nope -- fortunately.]
October 26, 2011, 5:56 pmr2d2 says:
Are you serious? There is plenty solid to “hang a denial” on. They could base it on common current interpretation of the word “slavery,” or they could rely on case law interpreting the 13th Amendment. Believe it or not, originalism isn’t the only remedy for bad law suits.
October 26, 2011, 6:02 pmrumpelstiltskin says:
I don’t see how sanctions are at all likely here.
October 26, 2011, 6:04 pmPeter W says:
There is a serious movement which is attempting to have great apes recognized as persons for legal standing. See, for example, this link
October 26, 2011, 6:04 pmyankee says:
I’m not sure where you find these penumbras and emanations, when the plain meaning of the text obviously contains no such restriction :)
October 26, 2011, 6:05 pmPeter W says:
Click here to read about an effort to have great apes recognized as persons for legal purposes.
October 26, 2011, 6:08 pmFub says:
Just a conjecture.
SURTASS is an acronym for Surveillance Towed Array Sensor System.
The active transmitter(s), LFAS, is a Low Frequency Array System, ie: more than one acoustic transmission transducer. Ordinary SONAR often has only one.
The SURTASS LFAS is also used for long range detection, so it may transmit more powerful acoustic signals than ordinary active SONAR.
Lastly, the generic acronym SONAR can apply to both active devices or systems (transmits sound and listens to the reflection) and passive devices (only listens).
October 26, 2011, 6:18 pmPer Son says:
A corporation is a person so why not an Orca.
That being said, this case should be bounced immediately.
October 26, 2011, 6:23 pmRogue Elephant says:
Does this make my dog a slave, too? – People Eating Tasty Animals
October 26, 2011, 6:25 pmSteve says:
The classic originalist argument is that if you don’t subscribe to orginalism, there is nothing solid to hang any sort of constitutional interpretation on. Setting aside the merits of that argument, there’s nothing particularly special about this case that makes it a challenge for non-originalists. In fact, according to originalists, non-originalism is simple because you can just make it up as you go.
October 26, 2011, 6:27 pmAdam says:
Well. Except the naked women.
October 26, 2011, 6:28 pmThe Crafty Trilobite says:
Considering that the 13th Amendment was probably drafted by whale-oil light, this ain’t a’goin’ nowhere.
October 26, 2011, 6:33 pmAdam says:
Well, that an no non-orginalist feels that one is barred from looking at original intent as one means of construction.
October 26, 2011, 6:34 pmAsher says:
“Also, the fact that the drafters didn’t seem to have any objection to the ownership of livestock (not to mention the implications of finding that it does), probably puts them on thin ice.”
The drafters of the 14th Amendment had no problem with segregation or any form of gender discrimination whatsoever. Of course PETA ought to lose, but there isn’t much of a history of interpreting the Reconstruction-era Amendments in an originalist way. I think it suffices to say, in so many words, that no one today, outside of the plaintiffs themselves, would call this slavery.
October 26, 2011, 6:34 pmRumpelstiltskin says:
Wrong standard. Read Rule 11 again. I’m sure they believe they have “a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.”
October 26, 2011, 6:43 pmanon says:
Much as I can’t stand PETA, much as I love Sea World, down deep, I know it is cruel to keep those animals there.
They are smart, they are swift, they are much too large and intelligent for those tanks.
Now, what could be done with 40 foot deep tank of water? Yeah, dump lawyers in there.
October 26, 2011, 6:53 pmNiTa Law Student says:
Aside from whether orcas have civil rights:
First, what authority gives the plaintiffs a private right of action to enforce the 13th Amendment against a private party? Bivens and section 1983 only work against state and federal actors respectively. right?
Second, does the 13th amendment operate as a constraint on non-state actors like sea world? Is it unlike all the other enumerated rights in that regard? [EV says: Yes as to the absence of a state action requirement, see United States v. Kozminski (1988).]
October 26, 2011, 6:59 pmDjDiverDan says:
My dog, on the other hand, would have to immediately apply for Foodstamps, Unemployment, Welfare, and space in a shelter if she were “Emancipated”. (Who am I kidding – the Dog is the Boss; she tells me when it’s time to get up, when it’s time to feed her, when it’s time to let her out, and when it’s time to go to bed. And unlike my last dog, she refuses to even make the trek down to the end of my driveway to retrieve my newspaper in the morning)
October 26, 2011, 7:04 pmCahlmee says:
If the orcas are legally being subjected to unlawful servitude, then why isn’t swatting a mosquito murder? For that matter, why isn’t taking an antibiotic murder? My guess is that most PETA types would have a British-like take on self defense.
October 26, 2011, 7:12 pmjosh says:
I demand a direct answer from Prof Kerr:
The excerpt from the story says, “‘Slavery is slavery,’ said PETA general counsel Jeffrey Kerr.”
Prof Kerr, I know you titled the post “PETA Tries to Use the Thirteenth Amendment to Free Whales from Sea World,” but did you bury the lede?!?!
October 26, 2011, 7:12 pmyguy says:
No one who believes this has any idea what good faith is.
October 26, 2011, 7:25 pmKazinski says:
I think animals vicious enough to hunt great white sharks should be caged.
October 26, 2011, 7:30 pmFloridian says:
I guess if a zygote can be considered a legal human, then a whale must have some rights . . .
October 26, 2011, 7:36 pmyankee says:
I’m not sure. Is there an implied cause of action under 18 USC 1584? That only applies to “persons,” though, so it wouldn’t apply to this case.
October 26, 2011, 7:45 pmnot a hacker says:
JS: you’re dreaming. That would be very judgmental.
October 26, 2011, 7:49 pmAnonimus says:
If judges can call two men or two women “marriage”, they can call a whale a person just as easily.
A human zygote or a whale zygote?
October 26, 2011, 7:52 pmgeokstr says:
As a matter of fact, that’s how non-originalists define it too. See Wikpedia entry on Critical Legal Theory or any of its spawn.
Reminds me again of Dave Barry, when he ran for POTUS in 2000. From his foreign policy statement:
October 26, 2011, 7:58 pmD.R.M. says:
Nah, usefully, PETA’s already idiots on their own. All that those of us in the conspiracy to discredit animal rights activists have to do to further our aims is fund them.
October 26, 2011, 8:08 pmgbdub says:
Well, if we grant animals legal personhood, then orcas are clearly guilty of homicide (they are after all, “killer” whales). Therefore, Sea World serves as a de facto penitentiary. It has already been determined that involuntary labor of imprisoned criminals does not violate the 13th Amendment, so Sea World is not guilty. Ruling in favor of the defendant.
October 26, 2011, 8:18 pmMark Field says:
yankee’s comments have inspired me to start drafting a lawsuit demanding to free corporations — they’re people, after all — from the oppression of those who claim to own them.
October 26, 2011, 8:21 pmrumpelstiltskin says:
So you don’t think PETA actually believes that the law should reflect their views?
No one who thinks that has any idea what “thinking” is.
October 26, 2011, 8:27 pmBen P says:
I think you’re quite a bit more sure about what “good faith” is than you ought to be.
I’ve personally been part of a number of appeals where we have told our clients they have a snowballs chance in hell of prevailing on appeal. The Court has said “the law is X” before, the lower court said “the law is X.” Our only argument is that we have a strongly held belief that X does not apply in our case and the law “should be Y.” (typically because the law being “X” means our clients are on the hook for a large amount of money)
Having a low chance of success is not in any way determinative of good faith. If people were sanctioned for good faith arguments with a low chance of success, the law would never chance and a common law system would be pointless.
On the other hand, if you think their arguments are made for some reason other than a sincere belief that the law “ought to be Y” such as making a press spectacle, or delay, or undue cost, then you have a basis to assert the need for Rule 11 sanctions.
October 26, 2011, 8:28 pmyguy says:
I presume they believe it; yet we may rest assured they do not do so in good faith, because such faith is inimical to any belief in patent nonsense.
You’re welcome.
October 26, 2011, 8:42 pmEx parte McCardle says:
And yet, yguy, “faith” as it is used in common parlance is entirely coextensive with “belief in patent nonsense.”
October 26, 2011, 8:48 pmmicdeniro says:
NiTa asks: First, what authority gives the plaintiffs a private right of action to enforce the 13th Amendment against a private party? Bivens and section 1983 only work against state and federal actors respectively. right?
Under 42 U.S.C. § 1985, a private party is subject to a claim for relief by the person whose Constitutional rights were violated, with no state action required.
October 26, 2011, 8:53 pmrumpelstiltskin says:
sigh
So no sanctions, then.
October 26, 2011, 8:54 pmcaptcrisis says:
Reads like something white racists would have done in 1875 as a stunt to delegitimize the 13A.
October 26, 2011, 8:57 pmmicdeniro says:
WHOOPS. CORRECTION IN CAPS.
micdeniro says:
NiTa asks: First, what authority gives the plaintiffs a private right of action to enforce the 13th Amendment against a private party? Bivens and section 1983 only work against state and federal actors respectively. right?
Under 42 U.S.C. § 1985, a private party WHO CONSPIRES WITH AT LEAST ONE OTHER PRIVATE PARTY TO VIOLATE A THIRD PARTY’S CONSTITUTIONAL RIGHTS is subject to a claim for relief by the person whose Constitutional rights were violated, with no state action required. (Quote)
October 26, 2011, 9:08 pmMatthew says:
As to the authority, the same authority that lets those who are challenging the constitutionality of the Affordable Health Care Act or any other facial challenge to a federal statute sue. The Supreme Court has long recognized the right to seek equitable relief (not damages) directly under the constitution, as far back as Ex Parte Young. “[I]t is established practice for th[e] [Supreme] Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution.” Bell v. Hood, 327 U.S. 678, 684 (1948). For a lot more on this, see Marsha S. Berzon, Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts, 84 N.Y.U. L.Rev. 681 (2009).
October 26, 2011, 9:12 pmReadery says:
I tend to take the view that the term “party” in the 13th Amendment was intended to have a broader extent than the term “person” in the 5th and 14th. It specifically includes “beings of an inferior order who are altogether unfit to associate with the white man”, and who are permanently unfit for citizenship. The 13th didn’t decide the status of Negroes; it didn’t declare they were fit to be full members of society; it merely prohibited slavery. Some of its supporters voted for it because they regarded slavery as an immoral practice, not because they thought Negroes were the equal of whites.
One could argue it covers “the whole human family” to use the Dred Scott Court’s phrase. I’ve often thought it could be applied to fetuses and lawful enemy combatants, the two modern examples of members of the “whole human family” who are not regarded by the law as persons “in the full sense” of the term, but to whom the 13th Amendment’s broader definition of the term might apply. Both categories, like the newly freed Negros prior to the 14th Amendment, could perhaps be lawfully killed so far as the 13th Amendment was concerned, but perhaps nontheless can’t be required to endure medical experiments not designed to benefit them or to be pressed into other situations similar to traditional slavery.
That said, I don’t understand how any interpretation that takes into account original intent could be thought to extend beyond the Dred Scott Court’s “whole human family”, whatever it may have meant by the phrase. It was human slavery that the Amendment was intended to outlaw. Whatever might be meant by “human,” the 13th Amendment’s framers didn’t intend to outlaw calvary, or farming, or stagecoaches, or any of the millions of other activities that could only be done by domesticated animals at the time.
October 26, 2011, 9:13 pmDonM says:
Previous cases have held that people can be held to service, as in militia service, a military draft, or jury service, or a requirement to repair roads in their district.
The 13th amendment has, by those precedents been limited to the institutional practice of human slavery, as practiced in antebellum US.
PETA loses.
October 26, 2011, 9:13 pmOrin Kerr says:
yguy,
In the law, “good faith” generally just means “genuine belief,” not something like “a belief that is plausible in the situation.”
October 26, 2011, 9:15 pmDonM says:
DJDiverDan:
I think you really have a cat.
October 26, 2011, 9:17 pmyguy says:
The term used was “good faith”, and what I said about it is correct.
October 26, 2011, 9:22 pmCameo says:
So, if PETA wins, would that mean that any orca living in CA or in its coastal waters would be eligible to vote? (Provided, of course, that the orca is at least 18 year old.)
October 26, 2011, 9:25 pmyguy says:
There is no such thing as a genuine belief in patent nonsense. The only thing that remotely resembles it is belief through a desire to remain deceived, and clearly there can be nothing genuine in such desire.
[OK Comments: Coming from a "birther" such as yourself, this is a comment worth considering.]
October 26, 2011, 9:35 pmBob from Ohio says:
Isn’t the key word in Rule 11 “nonfrivolous”?
How is this stunt not “frivolous”?
When the 13A was passed, weren’t horses the primary method of transportation? So, the framers of the 13A were all slavers then?
October 26, 2011, 9:36 pmMatthew says:
Well, the 26th Amendment speaks of “citizens.” And the 14th (which is the primary but not sole grant of citizenship) speaks of persons. The 13th amendment abolished the condition of slavery – it doesn’t speak to the slave being human. (Presumably because those subjected to African slavery were not considered “persons” at the time, so limiting the Amendment to persons would itself have been problematic, although I’m not certain about that.)
October 26, 2011, 9:39 pmSteve says:
Is it your position that there is an objective definition of patent nonsense? Every religion is patent nonsense to somebody, but I’m pretty sure the vast majority of people follow their religion in good faith. I think you’re just trying to redefine “good faith” to mean something other than what it means.
October 26, 2011, 9:41 pmBob from Ohio says:
The 13A does not have to mention “person” or “people” or “citizen” because a “slave” by definition means a “person”.
For instance,
slave [sleɪv]
n
1. (Law) a person legally owned by another and having no freedom of action or right to property
2. (Business / Industrial Relations & HR Terms) a person who is forced to work for another against his will
3. a person under the domination of another person or some habit or influence a slave to television
4. (Business / Industrial Relations & HR Terms) a person who works in harsh conditions for low pay
Find one case or dictionary definition that defines slave as anything but a human being.
October 26, 2011, 9:53 pmMark Field says:
Of course, the slaveholders themselves often defined their slaves as not human beings.
October 26, 2011, 10:00 pmyguy says:
No, I’m saying if there is no way to discern it as such, then justice is exactly as real as Spiderman.
No, I’m just bearing witness to the fact that it’s meaningless if these fruicakes can fairly be said to believe what they profess in good faith.
October 26, 2011, 10:31 pmEvan says:
Okay then; where did the orcas let PETA sue on their behalf?
October 26, 2011, 10:37 pmMike Hansberry says:
When in doubt, read the directions.
October 26, 2011, 10:38 pmPettifogger says:
But that was 150 years ago. An evolving sense of decency informs us that animals have rights, too, and we must respect those rights, or so some would say. Appeals to originalism don’t appeal to people who reject originalism, which PETA necessarily does.
Gbdub had an interesting point. Are we to give orcas rights without responsibilities? To my mind, rights without responsibilities are a non sequitur. But I’m sure PETA would be happy enshrining that concept into the law as well.
October 26, 2011, 11:03 pmadjunct says:
Orin Kerr says:
yguy,
In the law, “good faith” generally just means “genuine belief,” not something like “a belief that is plausible in the situation.
No. This is not the standard for Rule 11.
Under Rule 11(b)(2), a party needs to make a “a nonfrivolous argument” for extending, modifying, or reversing existing law or for establishing new law.
The “nonfrivolous argument” requirement was added precisely to permit sanctioning parties who made objectively ridiculous arguments, regardless of their “genuine belief” in those ridiculous arguments.
So, the notes to Rule 11 state clearly that the requirement that the argument be “nonfrivolous” “establishes an objective standard, intended to eliminate any ‘empty-head pure-heart’ justification for patently frivolous arguments.”
The question therefore is whether, under an objective standard (regardless of what PETA believes) its argument is frivolous.
October 26, 2011, 11:22 pmGary Britt says:
Next month PETA is planning on suing in California for the right of Whales to marry. Next year they have a lawsuit in the works for whales to be able to marry dolphins because some whales were born thinking they are dolphins apparently.
Gary
October 26, 2011, 11:29 pmSteve says:
We could always make the orcas gather in groups of 12 on social media.
October 26, 2011, 11:34 pmSteve says:
How many hard drives do you have in your computer?
October 26, 2011, 11:36 pmJ. Aldridge says:
Doesn’t sound anymore of a stretch then the court finding a written right to privacy under their electron microscope.
October 26, 2011, 11:59 pmErik says:
I think this could save them from Rule 11 sanctions for the 13th Amendment claim. However, if the statute they’re trying to use to give them standing is 42 U.S.C. 1985, I can’t see how they possibly could have a good faith argument on how the people in the statute include Orcas when it is clear that they’re resting their argument for the 13th Amendment on the fact that “person” isn’t mentioned.
Either way, I should think this’ll get kicked for failure to state a claim pretty early on, but I do wonder if there will be sanctions. In my non-expert opinion, I’d say no for the Constitutional claim, but, unless there is a statute that gives standing that could even arguably be expanded to include Cetaceans, I think they should be appropriate on those grounds.
October 27, 2011, 12:06 amJoe Horton says:
I’m kinda surprised that no one’s suggested that a whale should be viewed as 3/5 of a person.
October 27, 2011, 12:08 amJoe Horton says:
October 27, 2011, 12:10 amArthur Kirkland says:
The “personhood” statute promoters seem similar to PETA in this regard; does anyone genuinely and realistically believe a personhood statute is going to be held to overrule a woman’s rights concerning abortion or contraception, or to make murders of people who discard extra embryos at fertility clinics? Personhood arguments seem frivolous by prevailing legal (and other) standards, although I have no doubt the true believing crusaders (such as those of PETA) act in earnest.
I have never understood why I can crush crickets with impunity, shoot a deer for the hell of it, or flush a sickly goldfish down a toilet, but am forbidden to sell perfectly good horse meat, to beat a dog to death as I can a snake, or to shoot a kitten the way I can shoot a squirrel.
October 27, 2011, 12:29 amDoc Rampage says:
In fairness to PETA, I don’t think they view this as a frivolous case. To see their point of view, think of what would happen if we encountered an alien species with a language and civilization. Many people, maybe most, would want them considered people and to have the benefits of the people under the constitution, including the 13th.
A lot of people think of whales (and/or apes) as being examples of just such a case, but with language and non-materialistic civilization that are just too different from ours for us to recognize. They believe that all of this has been “scientifically” proven.
I’m sure that those who brought this lawsuit (some of them, anyway) honestly think that they will be able to prove all of this in court since they are sure that it is all proven by science (a common conceit of many moderns is that they are scientific, consequently everything they believe MUST be scientific).
I don’t think it is necessary to accuse these people of bad faith when their actions can be explain by a common variety of pseudo-scientific superstitious confusion.
October 27, 2011, 1:09 amLarryA says:
Now if I could only get our cat on board. OTOH in that case I’m probably the one who should be arguing for emancipation.
October 27, 2011, 1:34 amNAME REDACTED says:
Nonsense, they don’t need anything solid to hang it on. For a judicial liberal “because we said so” is good enough.
October 27, 2011, 1:41 amSara B says:
If PETA wants to be consistent, then they need to advocate for the freedom of service animals too.
Service animals are generally not treated as pets…they are forced to train for and perform unnatural (to them) acts…work all hours of the day/night…literally put into involuntary servitude to their masters
All of which sounds like slavery to me. Of course, coming out publicly against kindly service animals would show them in an even worse light than this embarassing whale advocacy!
October 27, 2011, 3:49 amMalvolio says:
Is that a real question? A corporation represents the interests of several natural persons acting collectively, that’s why it’s a person under law. I am not a cetologist, but I don’t think small whales are usually acting as the agents of human individuals.
No, that isn’t true. Typical descriptions of marriage written prior to the emergence of gay marriage often omitted an references to the parties being of opposite sexes. You can make policy arguments or religous arguments against gay marriage, but it’s dishonest to pretend that that it’s a bizarre re-definition on the order of SeaWorld being called a slave plantation.
What do you call dozens of lawyers drowned in an empty orca tank? A good start.
Try the veal.
October 27, 2011, 4:51 amBen P says:
Have you ever managed to get Rule 11 sanctions on someone? I haven’t. You’re asserting a very narrow reading of the rule.
Rule 11 says
The only time I’ve even come close was an employment case where the Plaintiff’s lawyer put his client’s story straight into a complaint without bothering to verify whether it was a complete and total fabrication even as to the fact that his client had actually been an employee of the place she claimed to have been fired from. They nonsuited that one. I’ve simply never seen Rule 11 sanctions for a legal argument, no matter how bad.
October 27, 2011, 7:35 amadjunct says:
As to Rule 11, the point is that Orin’s view (and others’ view) that subjective good faith enough protects a ridiculous lawsuit from Rule 11 is simply wrong. So, in other words, just because I believe, with all my heart, that whales should be protected by the Constitution does not immunize me from sanctions. The argument has to be objectively nonfrivolous: there must be some reasonable legal basis for my contention. My “pure heart” does not protect my “empty head” in bringing meritless claims.
As the Sixth Circuit put, in upholding sanctions this year, subjective good faith doesn’t cut it. “The current version of the rule, however, “establishes an objective standard, intended to eliminate any ‘empty-head pure-heart’ justification for patently frivolous arguments.” FED. R. CIV. P. 11 Advisory Committee Notes (1993 Amendments); Tahfs v. Proctor, 316 F.3d 584, 594 (6th Cir. 2003) [**12] (“A good faith belief in the merits of a case is insufficient to avoid sanctions.”).
Rule 11 sanctions are imposed frequently enough. They’re no dead letter.
I’m not saying they’re inevitable here. What I am saying is that commenters have been using the wrong standard. The right one has sharper teeth.
October 27, 2011, 8:25 amCarl N. Brown says:
Recalling my junior high school civics and history classes held during the 1960s Civil War centennial, it is perfectly obvious that this country fought a war between the slave states and the free states for the porpoise of freeing the whales of Sea World.
October 27, 2011, 8:59 amrob bob says:
Yes, but according to the lefties that doesn’t necessarily matter and we can make things up as we go. Just call it the spirit of the law extended to conform with the progressive times. Nation of men, not laws. Etc.
October 27, 2011, 9:04 amSteve says:
You’re assuming PETA has no problem with service animals, which strikes me as a pretty silly assumption, and in fact it isn’t true.
October 27, 2011, 9:45 amBob from Ohio says:
Well, give me one case to start.
October 27, 2011, 9:49 amSteve says:
No, I meant my question more literally. If you have two hard drives, the one that has control of the system is called the master and the other is called the slave. See here.
October 27, 2011, 10:19 amCereally says:
All this over fish?
:)
October 27, 2011, 10:54 amSarcastro says:
Yes, this is indeed what liberals think!
All their writing about legal theories is just eyewash for naked legal realism.
We must look beyond their words in journals and legal opinions and attack the man behind the curtain!
Pay no attention to all that straw coming out of his wastecoat.
October 27, 2011, 11:08 amgeokstr says:
Yeah, and we’ve come so far since then that the Swiss have now enshrined it in their constitution that broccoli has rights too, and dignity as well. Can the Progressives here be far behind?
October 27, 2011, 11:19 amKen Arromdee says:
By this reasoning, babies have no rights.
October 27, 2011, 11:20 amDotar Sojat says:
Emancipate them, but if they still want to be fed, they will have to work. Of course, the work will never pay off the food account, so they will always have to perform. This “shareperformer” status will be enforced by the new Jim Orca laws…………..
October 27, 2011, 11:32 amAdam says:
What’s nonfrivolous about this?
Which is what I said in the first place. It’s next to impossible, and, in my view, that is a major flaw in the system that has led to serious distortions in pleading standards rather than dealing with the problem of frivolous suits directly through the appropriate use of sanctions.
In other words, my view is that a case like this should result in sanctions. That is not inconsistent with your (and others) expressed view this case will not result in sanctions. You’re probably right. I find that disappointing.
October 27, 2011, 11:56 amgbdub says:
Babies (and other minors) have rights, but they are limited – they can’t vote, for one, and they can be “enslaved” to perform manual labor (in the household). Once they reach maturity and are recognized as having the full assortment of rights associated with personhood, they also have additional responsibilities.
Likewise, (large, furry) animals are usually recognized as having a real but limited set of rights – freedom from abuse and (in the case of domestic animals) neglect.
Anyway my point was to emphasize that PETA hasn’t thought this all the way through. If all animals are “persons”, then certainly what some animals do to other animals must be considered criminal, and we would need to deal with that. Even if you limit it to animals above a certain level of cognitive ability, dolphins (and orcas, which are more precisely big dolphins rather than whales) have been known to murder and rape other dolphins. Great apes conduct warfare with competing groups of apes. And on and on…
You can’t on the one hand say “animals are people” and then on the other hand excuse their behavior by saying, “well they’re just animals”.
October 27, 2011, 11:59 amFub says:
My friend Ishmael asked me to ask this of the constitutional lawyers here.
If whales are ruled to be persons, can our friend Ahab marry one?
October 27, 2011, 12:01 pmrarango says:
and thus doth the law continue to make an ass of itself
Genuinely sad
October 27, 2011, 12:14 pmClark says:
Ishmael asks me to give you a message: “Call me.”
October 27, 2011, 12:15 pmNickM says:
The meaning of PETA to orcas – Please Eat The Attorney.
Nick
October 27, 2011, 12:44 pmyguy says:
Setting aside the patent absurdity of the parallel to pro-lifers, “prevailing legal standards” are not the proper benchmark for pronouncing anything patently nonsensical, especially in a legal environment wherein absurdity is increasingly canonical.
But you’re not looking at why people remain mired in such confusion, and it’s never a result of good faith.
Yes it is.
Of course, because before then almost nobody was crazy enough to think two men could be married, so the opposite sex requirement was, for practical purposes, universally understood – certainly more so than, say, the applicability of the ex post facto clause to criminal statutes exclusively.
October 27, 2011, 12:51 pmAdam says:
I’m not sure these are “rights” or rather limitations on how human must act with respect to animals.
Oh, I’m sure they have, but they also know there is no way they will win anything with this suit, so those implications are academic.
October 27, 2011, 1:04 pmgbdub says:
Well yes, the limitations are on humans, but the limitations exist because we have determined that our behavior towards animals must be limited in a distinctly different way than our behavior toward inanimate objects. We do this because of the animals ability to feel the effects of abuse and neglect. There are no criminal sanctions for neglecting your pet rock or failing to water a houseplant. You can be sanctioned for abusing your own pet, even though by doing so you are not violating the rights of any human being.
If we aren’t recognizing that animals have (limited) rights, we’ve certainly crafted a legal and moral system that acts as though we have. After all, a right is functionally nothing but a restriction on how others must behave towards the holder of that right.
October 27, 2011, 1:33 pmFantasiaWHT says:
This is a great reason to advocate the abolishment of common law and let laws be made and changed only by bodies of elected representatives.
Basically the way you are describing good faith (which may or may not be the way it is applied in the courts) makes sanctions pointless so long as your lawyer is smart enough to admit they are asking for a change in the law, no matter whether the court even has the power to change the law.
October 27, 2011, 1:46 pmAdam says:
Sort of. I guess I tend to think of rights as restrictions on government power. If a state, for example, wanted to repeal all it’s animal cruelty laws, it would be free to do so. Abused chickens would have no standing to argue that doing so violated their rights, nor anyone else on their behalf.
October 27, 2011, 4:09 pmMike s. says:
Why not just repeal the 13th amendment so lawyers who file lawsuits like this can be sold into chattel slavery? I suspect it would put a stop to this nonsense.
October 27, 2011, 4:14 pmCommenter says:
On the question of whom the 13th Amendment applies to, you might want to have a look at Slaughter-House Cases, 83 U.S. 36, 69 (1872) (“That a personal servitude [in the text of 13th Amendment] was meant is proved by the use of the word ‘involuntary,’ which can only apply to human beings.”)
Concerning whether a lawsuit may in good faith be used solely to make a political statement, even when it stands no chance of success, you might want to have a look at Saltany v. Reagan, 886 F.2d 438 (D.C. Cir. 1989) (reversing trial court’s order denying Rule 11 sanctions for filing suit which had no chance of success, in order to make a political statement).
October 27, 2011, 5:20 pmscoops says:
Who is going to depose the whales to know if they are being kept involuntarily?
October 27, 2011, 6:08 pmSeamus says:
This is utter crap. See, for example, the three-fifths clause, which uses the term “other persons” to mean “slaves.”
October 27, 2011, 6:50 pmMichael McNeil says:
dolphins (and orcas, which are more precisely big dolphins rather than whales)
Orcas and dolphins are themselves varieties of whales, so your “more precisely” qualification is nonsensical.
October 28, 2011, 12:31 amCarl N. Brown says:
You know this issue is important when it is a subject for Deon Cole’s Racial Perspective on Conan.
October 28, 2011, 10:46 amErik says:
Well, that’s because the framers were far more enlightened than half this country 100 years later. The works of John C. Calhoun dehumanized slaves even more than slavery itself did. So, while the framers of the Constitution bent over backwards to avoid mentioning the word “slavery,” it was a different world when the 13th Amendment was ratified.
I don’t think this has any bearing whatsoever on this case, however. Even if you’re not an originalist, the meaning of “slavery” has not changed dramatically. I think it might arguably include certain debt slavery practices (the typical scenario would involve loaning someone money at exorbitant rates to move to a new country and then force them to work for you essentially forever to pay off the debt). The meaning of the word has not yet changed to include non-humans. And even if you have a good faith argument that it should, the meaning of person has not yet expanded to include other animals (and I can’t see how it even arguably could), so the whales lack standing. [tongue in cheek hyperbole]Of course, Dred Scott lacked standing as well…[/hyperbole]
October 28, 2011, 11:34 amSeamus says:
That suggests that at least half the country *did* believe that slaves were persons, which pretty well falsifies the claim that “those subjected to African slavery were not considered ‘persons’ at the time.” By the way, among those regarding slaves as person was Chief Justice Taney: “It will be observed, that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves.” Scott v. Sandford, 60 U.S. 393, 403 (1857).
Oh, and I’d like to see some quotations from Calhoun denying that slaves were “persons.”
October 28, 2011, 2:21 pmMatthew Carberry says:
Does it matter that orcas are mostly black with a smaller percentage of white skin?
October 28, 2011, 7:09 pmChris Travers says:
Are cars and robots protected too? Inquiring minds want to know!
October 30, 2011, 9:36 amseaman says:
Read the complaint here.
October 30, 2011, 1:10 pm