From: Katy Barnett <>
To: Matthew P. Harrington <>
CC: Obligations <>
Date: 14/06/2022 23:50:31 UTC
Subject: Re: [EXT] Happy the Elephant

Thanks so much Matthew! This is a very interesting case: I have been waiting for this to be handed down, and I’m really grateful for your summary.

The issue of standing was considered in the ‘Monkey Selfie’ case, where Naruto the crested macaque was purportedly represented in his copyright claim over a “selfie” by People for the Ethical Treatment of Animals (aka PETA). In that instance, a majority of the US Court of Appeals for the 9th Circuit said that PETA had no standing to represent Naruto because it did not have a significant relationship with Naruto (over and above its relationship with any other animal). The minority judge, Judge Smith, said that PETA did not have standing for exactly the reasons you have outlined:

“Animal-next-friend standing is materially different from a competent person representing an incompetent person. We have millennia of experience understanding the interests and desire of humankind. This is not necessarily true for animals.”

I’d observe that the law really does not know how to deal with non human animals as property. In some cases, it treats animals as equivalent to any other kind of inanimate property; in other cases, it treats animals as special, with wants and needs of their own. There have been some calls for a middle-ground category of “sentient” or “living property” which seems to be what the court is implicitly leaning towards in this case. See eg, David Favre, ‘Living Property: A New Status for Animals within the Legal System’ (2010) 93(3) Marquette Law Review 1021; David Favre, ‘Animals as Living Property’ in Linda Kalof (ed) The Oxford Handbook of Animals Studies (2017) 65; Angela Fernandez, ‘Not Quite Property, Not Quite Persons: A ‘Quasi’ Approach for Nonhuman Animals’ (2019) 5 Canadian Journal of Comparative and Contemporary Law 155.

All the best, Katy

Katy Barnett | Professor

Melbourne Law School

Level 7, 185 Pelham Street, Carlton

The University of Melbourne, Victoria 3010 Australia

T: +61 3 9035 4699 E:

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Barnett and Harder, Remedies in Australian Private Law (Cambridge University Press, 2018)

Out now! Barnett and Gans, Guilty Pigs: the weird and wonderful history of animal law (Latrobe University Press, 2022)

On 15 Jun 2022, at 8:27 am, Matthew P. Harrington <> wrote:

External email: Please exercise caution


Colleagues with property case books or preparing materials for Fall might be interested in the case of Happy the elephant, on whose behalf a petition for a writ of habeas corpus was brought on the grounds that she is being “unlawfully confined at the Bronx Zoo in violation of her right to bodily liberty”.


New York’s highest court (the Court of Appeals), held that “[n]othing in our precedent or, in fact, that of any other state or federal court, provides support for the notion that the writ of habeas corpus is or should be applicable to nonhuman animals. The selective capacity for autonomy, intelligence, and emotion of a particular nonhuman animal species is not a determinative factor in whether the writ is available as such factors are not what makes a person detained qualified to seek the writ. Rather, the great writ protects the right to liberty of humans because they are humans with certain fundamental liberty rights recognized by law”.


The court cited significant prudential and policy reasons for its decision:


Granting legal personhood to a nonhuman animal in such a manner would have significant implications for the interactions of humans and animals in all facets of life, including risking the disruption of property rights, the agricultural industry (among others), and medical research efforts. Indeed, followed to its logical conclusion, such a determination would call into question the very premises underlying pet ownership, the use of service animals, and the enlistment of animals in other forms of work. With no clear standard for determining which species are entitled to access the writ, who has standing to bring such claims on a nonhuman animal’s behalf, what parameters to apply in determining whether a confinement is “unjust,” and whether “release” from a confinement otherwise authorized by law is feasible or warranted in any particular case, courts would face grave difficulty resolving the inevitable flood of petitions. Likewise, owners of numerous nonhuman animal species—farmers, pet owners, military and police forces, researchers, and zoos, to name just a few—would be forced to answer and defend those actions.


However, while the court held that nonhuman animals are not “persons” to whom the writ of habeas corpus applies, it also held that New York law already recognizes that they are not the equivalent of “things” or “objects.”   Animals are, therefore, somewhere in a twilight zone between chattel and persons.


[One question not addressed by the court:  If nonhuman animals are sentient beings equivalent to humans, how did Happy the elephant make its wishes known to counsel?  Or, put another way, how exactly did Happy consent to representation by the “Nonhuman Rights Project, Inc”, the named petitioner in the action? Is the activist group a guardian ad litem?  If so, how was it appointed?  Shouldn’t that question have been resolved before addressing the merits? ]


An interesting case for “new property” sections of case books.


The reasons may be found here: