Of Chimps and Men

Animal Welfare vs. Animal Rights and How Losing the Legal Battle May Win the Political War for Endangered Species

American law has historically viewed nonhuman animals as property whose interests are balanced against those of humans—a so-called “welfarist” view of animals. In contrast, animal-rights proponents argue that animals are legal persons entitled to a slate of rights regardless of the inconvenience for humans. Animal advocates of both stripes—dissatisfied with welfarist statutes such as the Endangered Species and Animal Welfare Acts—have taken their causes to the courthouse. After discussing the relevant history and theory, this Note pragmatically weighs the merits of both the welfarist and rights-based approaches to cause lawyering for endangered-species protection from both extinction and cruelty. The Note concludes that activists’ finite energies may be better spent petitioning the legislator instead of the judge. Cause lawyers nonetheless may help win the political debate by engaging in “litigation capitulation”—making the polity aware of current legal shortcomings by bringing juicy, sympathetic animal cases to court that are likely to suffer a high-profile, unpopular defeat.

The full text of this Note is available to download as a PDF.