Thursday, September 17, 2009

Glenn Beck and the marbled murrelets

"Cass Sunstein, Obama's pick for Regulatory Czar, was confirmed in the Senate by a vote of 57-30. How in the world did a guy who thinks that animals should be able to sue human beings in court ever get through the rigorous confirmation process?" -- Comment on Glenn Beck's website (September 14 show recap).

Let's get this out of the way first: I'm reasonably certain Cass Sunstein's mother was not called Mama Cass.

Seriously, for Glenn Beck or anybody else to say Cass Sunstein thinks animals should be able to sue human beings in court is quite a bit like saying Sunstein thinks the First Amendment should guarantee freedom of speech. The First Amendment actually does guarantee freedom of speech, regardless of what anyone thinks it "should" do. And animals already do sue people in court, notwithstanding anything Sunstein has proposed.

Just take a look at the heading and first paragraph of this case, from over twenty years ago:

"NORTHERN SPOTTED OWL V. HODEL 716 F. Supp. 479 (W.D. Wash. 1988)


A number of environmental organizations bring this action against the United States Fish & Wildlife Service ("Service") and others, alleging that the Service's decision not to list the northern spotted owl as endangered or threatened under the Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seq. ("ESA" or "the Act"), was arbitrary and capricious or contrary to law."

The named plaintiff is a species of bird; Donald Hodel was the Secretary of the Interior under President Reagan. "Northern Spotted Owl v. Hodel" is what lawyers and judges call the "style" of the case; that's what laymen would call the "name" of the case.

Of course, the owls themselves didn't file the papers. We've got some pretty good animal trainers at my petting zoo, but I don't think any of them could teach an owl to fill out a form and pay the fee at the local courthouse. As the first paragraph of the case makes clear, however, environmental organizations acted on the owls' behalf.

This isn't an isolated instance; there have been other cases with names that make a zoologist smile. Two of my favorites are Palila v. Hawaii Department of Land & Natural Resources, and Marbled Murrelet v. Babbitt. Again, it was human friends of these birds instigating the lawsuits on their behalf. The same thing happens anytime the plaintiff is anybody besides an adult human being. That is, there have been lawsuits involving children, corporations, ships--you name it.

There is a famous paper from almost forty years ago by Christopher Stone entitled "Should a Tree Have Standing? Toward Legal Rights for Natural Objects." This was long before anybody had heard of Glen Beck, Barack Obama, or Cass Sunstein. Through the wonder of the Internet, we can read the piece online. Here are two bits from Stone's article, particularly relevant to what we're discussing:

"Nor is it only matter in human form that has come to be recognized as the possessor of rights. The world of the lawyer is peopled with inanimate right-holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnerships, and nation-states, to name just a few. Ships, still referred to by courts in the feminine gender, have long had an independent jural life, often with striking consequences. We have become so accustomed to the idea of a corporation having "its" own rights, and being a "person" and "citizen" for so many statutory and constitutional purposes that we forget how jarring the notion was to early jurists."

"It is not inevitable, nor is it wise, that natural objects should have no rights to seek redress in their own behalf. It is no answer to say that streams and forests cannot have standing because streams and forests cannot speak. Corporations cannot speak either, nor can states, estates, infants, incompetents, municipalities, or universities. Lawyers speak for them, as they customarily do for the ordinary citizen with legal problems."

And sixteen years after this was written, back in 1988, lawyers did, in fact, speak for the northern spotted owl. There's nothing new about a creature having its day in court, Mr. Beck.

Edited to correct misspelling of Glenn Beck's first name. I should know better, for all the times my name has been spelled "Bret."

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