Aspiring Defenders of Justice Should Acknowledge Chimpanzees as Legal People

Julie Bontems
Environmental Law Society

Hercules and Leo were born and raised without family, confined to a basement lab, drugged, prodded, and held in perpetual captivity in a research facility at the University of Louisiana. Hercules and Leo, two male chimpanzees, have never known freedom. Instead, these sensitive and highly intelligent beings have lived to serve human purposes since birth.

“These are autonomous beings, and the worst thing you can do to an autonomous being is to confine it, to deprive it of its bodily liberty,” said Kevin Schneider, Executive Director of the Non-human Rights Project (NhRP). Schneider’s organization hopes to relocate Hercules and Leo to a sanctuary where they would have space to move freely and interact with fellow chimps.

So, how do we protect these evolutionary relatives of ours from mistreatment? The answer may be the old common law writ of habeas corpus. Schneider and other attorneys at NhRP argue that chimpanzees should be granted legal personhood, which would compel courts to protect basic rights for these animals, including bodily liberty and autonomy.

Schneider and his colleagues are not arguing that chimpanzees are human people, nor that they possess the same emotional and mental capacities as humans. But legal “personhood” would entitle chimpanzees to certain rights which all humans enjoy, regardless of intellectual or emotional capacity.

Of course, the argument for granting legal personhood to nonhuman animals is novel, which may explain why courts hesitate to grant Hercules and Leo a victory. So far, the NhRP has suffered a series of defeats, with the New York Supreme Court Appellate Division First Department’s ruling against them on June 8th.

Some important legal minds oppose granting legal personhood to nonhumans. Professor Richard L. Cupp of Pepperdine University filed an amicus brief in opposition to NhRP, which the Court cited in its June 8th decision. Professor Richard Epstein, now of NYU Law School, has also publicly opposed granting legal personhood to chimpanzees, debating Steven Wise, founder and President of NhRP, on this very issue as early as 2000 on C-SPAN.

“There are many human advocates for animals, but no animals who can speak for themselves… in the end, people like Steven Wise want to stop medical experimentation on chimps – and I’m sympathetic to that – it doesn’t mean I think animals have rights,” said Epstein.

Beyond the legal debate, Hercules and Leo’s case highlights a pressing moral issue, especially as the public awakens to the intelligence of many non-human animals including chimpanzees, whales, and elephants. What separates a fully sentient, naturally autonomous animal from, say, an emotionally or intellectually stunted human being who is nevertheless fully deserving of bodily integrity and freedom?

“What is it about humans which entitles us to protection, but which excludes these animals from that protection, when you can absolutely prove scientifically that animals have remarkably complicated cognitive abilities?” posited Professor David Wolfson, adjunct at NYU Law and partner at Milbank, Tweed, Hadley & McCloy, and who has dedicated much of his pro bono career to animal advocacy.

For those of us who came to law school to protect the vulnerable, wrestling with this question should be a priority. As aspiring advocates for the most oppressed among us, we cannot limit our compassion to humans without serious inquiry into our preconceptions of the bases for rights and freedom – we cannot be advocates for justice without asking about Hercules and Leo.

What is Government of the People?

Gavin Mackie
NYU Law Democrats

In some respects, the United States has come a long way from 1863 when President Lincoln delivered the Gettysburg Address. Lincoln proclaimed a “government of the people, by the people, for the people,” yet only a certain class of white males was allowed to vote and to comprise the government at that time. After decades of persistent advocacy by women and people of color, Lincoln’s vision slowly expanded, and a much broader segment of “the people” gained the right to vote. At the same time, some of those in power have consistently found new ways to restrict access to the franchise.

Often, states turn to redistricting to prevent people from voting. Common schemes concentrate citizens of certain ethnic or racial groups together in a single district, disproportionately limiting the number of representatives they can elect. Other plans dilute voting power by dividing these communities into multiple, majority-white districts, guaranteeing their votes are always outweighed by white votes. Whatever the method, the effect of these race-based redistricting schemes is to reduce, and in some cases eliminate, the ability of the marginalized communities to elect candidates of their choice and to be represented in government.

Some of the worst racially gerrymandered districts are overturned in court. Last term, the Supreme Court addressed redistricting cases from Virginia and North Carolina. Often, gerrymandered districts are upheld despite disproportionately impacting minority communities because these efforts are legal as long as they can be explained on non-racial grounds, though the Supreme Court will hear a case on this issue next term. Whatever the outcome of that case, the issue will ultimately need to be addressed through Congress.

Redistricting is not the only way that states target the voting rights of minority communities. One of the most visible efforts in recent years is an increase in restrictive voter ID laws, which require people to obtain specific forms of government ID before voting. Other efforts include limiting early voting and restricting the days on which early voting occurs. These laws disproportionately affect people living in cities and low-income communities by forcing them to allocate scarce resources to exercising their right to vote. Most states restrict the rights of convicted felons to vote, often for years after they have served their sentence. All of these measures disproportionately affect communities of color.

Just as efforts to restrict voting rights have continued and changed, the resistance has never stopped and is continuing to grow louder. President Obama, along with former Attorney General Eric Holder, has announced a new initiative focused on redistricting reform. Democratic lawmakers have introduced a bill in the House that would require all states to appoint an independent commission for redistricting. Jason Kander, former Missouri Secretary of State, started the organization Let America Vote to combat all manner of restrictive voting laws. Their leadership, as well as that of countless grassroots organizations, provides us with a focus to channel our concerns into collective action.

If we are serious about government of, by, and for the people, we must make a conscious effort to ensure that all people have a voice in that government. To honor that commitment, we cannot let the powerful decimate voting rights for political gain, or restrict ballot access to perceived political opponents. This problem can only be partially solved by the court, and political pressure will be vital to pursing this vision. With the Party of Lincoln once again in control of the federal government, we must continue pushing each other to fulfill his vision for all people.

Robots and Robes: Automation and the Future of Legal Work

Jack Solowey
Staff Writer

Law students are accustomed to job competition. With the advent of technology like JP Morgan’s Contract Intelligence software, said to perform 360,000 hours of loan agreement interpretation in seconds, and with fewer errors than humans, we can now safely add robots to the ranks of our competitors. While existing technology threatens to automate nearly half of the labor market, according to a recent McKinsey & Co. paper, the high-level judgment at the heart of legal practice should protect the profession from complete automation.

If we sort jobs as routine vs. non-routine and cognitive vs. manual, routine manual and routine cognitive jobs are currently the most vulnerable to automation. Daron Acemoglu of M.I.T. and Pascual Restrepo of Boston University found that in routine and manual manufacturing, involving repetitive, labor-intensive processes, “for every robot per thousand workers, up to six workers lost their jobs.” The authors were surprised by the inability of openings in other sectors thus far to offset these losses.

Legal practice includes both routine and non-routine cognitive work, and the former is poised for increased automation. A 2016 paper by Dana Remus of UNC Law and Frank S. Levy of M.I.T. estimated that full implementation of existing automation technology would reduce lawyer hours by 13%.

Job reduction in routinized sectors of the law is, however, projected to be offset by increased demand for highly skilled, non-routine legal work requiring creativity, wisdom, and emotional intelligence, such as counseling clients, negotiating deals, and devising arguments.

Humanistic traits like imagination and empathy have been held up by thinkers like M.I.T.’s Erik Brynjolfsson and Andrew McAfee, authors of The Second Machine Age, as skills that won’t easily be replicated by machines. Jobs that require them – like counseling and caregiving – are thus said to be refuges for human capital.

More pessimistic observers, however, note that even jobs as EQ-intensive as physical therapy have been performed by an Xbox Kinect motion sensor and a monitor. Combine that technology with facial recognition software already said to detect pain in children, and it is possible to imagine that client-service professions will not be completely safe from automation.

There may yet be a domain, however, with no substitute for human work: value judgments.

Imagine the classic ethical thought experiment of the trolley problem. In this scenario, you are at the switch of a runaway trolley. If you do nothing, the trolley will hit one set of innocents, such as a group of schoolchildren. If you choose to act, your only option would be to flip the switch and divert the trolley into other victims, such as a group of senior citizens. Reasonable people disagree about the moral course of action or inaction here. Only the internal scales of our ethical preferences can answer such unsettling problems.

Autonomous vehicles like self-driving cars that are involved in accidents will face real-life versions of the trolley problem. Where decision parameters for identifying the optimal mid-accident route are programmed, they will necessarily entail ethical choices: is pedestrian safety weighted more highly than driver safety? Is the sheer number of pedestrians the criterion for choosing a collision course, or will factors like age, to the extent discernible, matter? Will programs opt for or against “playing god” – will a car stay on a higher-casualty collision course that involves fewer adjustments to its current path?

A recent panel at venture capital firm Andreessen Horowitz’s a16z Tech Policy Summit projected that making these moral judgments before decision parameters can even be programmed will create a new industry of “ethics as a service.” Consultants could advise engineers on how heavily to weight criteria such as predicted number of casualties in their self-driving software. While the field could create openings for moral philosophers, as bioethics did, the general analytical ability and specific fluency in concepts of duty, negligence, and reasonableness should create roles for lawyers as well.

Where local, state, and federal governments address the life or death consequences that will inevitably flow from programming self-driving vehicles, the core trolley problem dilemma will remain disconcerting. As authorities craft vague regulations to sidestep uneasy tradeoffs, lawyers will need to fill gaps and advise programmers on how to comply.

Defining parameters is a field where lawyers have a comparative advantage. Applying that skillset to value judgments may create billable hours well into the automated future.

Professor Profile: A Conversation with Visiting Professor Melissa Murray

Melissa-Murray(1)
UC Berkeley School of Law

Professor Melissa Murray is joining the faculty of NYU Law for the 2017-18 academic year on leave from the University of California, Berkeley School of Law, where she served as interim dean. Murray’s research focuses on the roles that criminal law and family law play in articulating the legal parameters of intimate life, and encompasses such topics as marriage and its alternatives, the legal regulation of sex and sexuality, the marriage equality debate, and the legal recognition of caregiving.

While Murray is only teaching one class during her visit to NYU Law, The Commentator still wanted to give students the chance to get to know more about one of Berkeley Law’s most beloved professors. Over the summer, Professor Murray answered our questions about her relationship with New York City, her family’s Hamilton obsession, and what she’ll miss most about Berkeley (spoiler alert: she doesn’t like socks very much).

The Commentator: We are excited to have you join us at NYU Law for the semester. In what ways are you hoping to engage with communities here in New York City? Are there things you’re looking forward to working on while you’re here? Some non-law related activities you’re looking forward to doing while you’re here?

MM: I love New York City—I was born in Brooklyn and lived in the city after law school.  I’m looking forward to learning from the terrific faculty at NYU, as well as faculty at the area law schools. I’m also excited about having more opportunities to collaborate with organizations like the Center for Reproductive Rights and the National Women’s Law Center—it’s so much easier when you’re on the same coast!  In my free time, I’m looking forward to introducing my kids to the city.  They’re dying to see “Hamilton” on Broadway.  I hope they’re saving their allowances.

What has been your favorite part of teaching at Berkeley? What will you miss most about Berkeley while you’re in New York?

MM: My favorite part of teaching at Berkeley are the fantastic students! I will miss my friends, the California weather, and not wearing socks while I am in New York.

Walk us through an ideal day off—what would you do with a whole day of free time?

MM: Did I mention I have two children under the age of 10?  I haven’t had a free day since 2007.  But if I did, I would sleep late and not make anyone breakfast.  Nor would I bring anyone’s violin to school because he/she forgot it. I’d probably just veg out and read.  

What are you reading right now? Have you read anything over the past year you’d like to share with students?

MM: I just finished reading “Americanah” by Chimamanda Ngozi Adichie, which I loved.  It grapples with questions of race and identity in a way that I found really insightful and illuminating as a first-generation American.  Right now, I’m reading “A Kind of Freedom” by Margaret Wilkerson Sexton, which is amazing.  Full disclosure: Margaret was my student back in 2007.  She was an amazing lawyer, and she’s an even better novelist.  This is a fantastic debut novel!

What is an album or song that you’ve been spending a lot of time listening to lately?

MM: My whole family is obsessed with the “Hamilton” soundtrack.  You really have not lived until you’ve listened to your six-year old belting out, “SON OF A WHORE AND A SCOTSMAN” at top volume. Obviously, we’re terrific parents.

Do you have a go-to recipe to share?

MM: I hate cooking, but when I have to make something impressive, I make Southern Living’s Million Dollar Poundcake, which is made with an insane amount of butter. It’s always a hit, but after eating it, you’ll have a food baby.

So then—the obvious follow-up question: cookie, pie, or cake?

MM: Cupcakes. Always with real buttercream frosting.

What television show that you’d consider a “guilty pleasure” have you been watching lately?

MM: I know it’s anti-intellectual to admit this, but I LOVE TV. I like to watch late at night after my kids have gone to bed and I’m doing mindless tasks (laundry, etc.). Right now, I have a bunch of different shows in rotation: “Game of Thrones,” “The Handmaid’s Tale,” “black-ish,” “Master of None,” “Big Little Lies,” “Insecure,” “Being Mary Jane,” and some BBC stuff like “Victoria” and “The Great British Bake Off,” which I watch with my daughter.

Is there anything else that you’d like to share with NYU Law students that perhaps you haven’t been able to say to us yet?

MM: I’m really looking forward to getting to know you and your school!

Rikers Will Close, but No Time Soon

Victoria Wenger
Prison Reform and Education Project (PREP)

On June 22, New York City Mayor Bill De Blasio released a 51-page report detailing the city’s intention to close down the Rikers Island jail complex. In his letter introducing the plan, the Mayor conceded that the effort to close down Rikers facilities will be no “quick fix,” but rather a “long and difficult path,” which is projected to take as long as a decade.

The Mayor’s intent to close the notorious jail complex was first announced in late March. Celebration by those leading the campaigns to close Rikers dissipated as details of the protracted plan were revealed. Organizers and impacted community members contend that the plan does not show enough urgency to eliminate abuses on the island or offer sustainable alternatives to ensure the rights and safety of detained people.

IMG_2585
Victoria Wenger

“New Yorkers at Rikers – mostly black and brown – continue to suffer in deplorable conditions and face routine human rights abuses,” said Glenn E. Martin, president and founder of JustLeadershipUSA and a leader of the #CLOSErikers movement, “Changes must be made to ensure that people detained at Rikers are in a safe and humane environment until closure is possible.”

The ongoing process to close Rikers Island, and the simultaneous mobilizing efforts to expedite its closure and address the needs of people detained there in the interim, provide unique circumstances for New York City law students to engage with criminal justice law outside the confines of lecture halls. Law students in the United States, and certainly those at the multiple law schools in the New York metro area, are required to take a criminal law course as part of the core doctrinal curriculum. Yet these courses, often taught exclusively through the study of prior court decisions, rarely explore the lived experiences of criminal defendants beyond the brief facts written in case holdings. NYU Law students in particular have the opportunity to bridge this divide by working directly with people who are currently, or were formerly, incarcerated at Rikers.

In collaboration with the Urban Justice Center’s Mental Health Project, NYU Law students can interview people who have been placed in solitary confinement, record their statements, and present them to the NYC Board of Corrections.

“I can’t imagine being beaten by officers, chained hand and foot to a table for four hours a day, and often being denied essential medication, while awaiting trial on an isolated island with no one to see or hear my cries for help,” said Shaina Watrous, a rising 2L at NYU Law. “For the young man awaiting trial, who I interviewed through PREP’s Solitary Confinement Project, this horror was his reality.”

Other law students can learn about the hurdles people face following incarceration by working in partnership with students at St. Francis College in Brooklyn who were formerly incarcerated and are now pursuing undergraduate degrees. And any student can follow, learn from, or even lend support to, the #closeRIKERS campaign.

Unless current plans change, Rikers Island will remain open during the full duration of law school for any student beginning their legal education in New York City this year, and for years to come. While the need to close the infamous jails remains urgent, the process towards that end provides a unique opportunity to learn from the experiences of people who continue to be detained there. The decade ahead is a critical time for people within the legal field to learn from those most impacted by it.

AdVICE: A Trainwreck’s Declassified Law School Survival Guide

Evan Michael Gilbert
Managing Editor

One year ago, I sat in 1L orientation still covered in glitter from the night before. I listened to presenters announce the accolades of those around me. Among my classmates were PhD students, Fulbright scholars, a gold miner, a trapeze artist, an Emmy winner…and me, who earlier that morning had put the coffee grounds where the water goes and the water where the coffee goes.

Law school attracts overachievers and people with resumes longer than my attention span, and it is normal to feel out of place whether you are entering your first year or preparing for the bar (or pre-gaming for bar review, as you do). So here are tips for those of us transitioning from the patron saints of train-wrecks to law students.

I. No one has their life together. That is simply a lie that we tell our employers, our employers tell their clients, and our therapists tell us.

II. Yell “I object.” Cry at a party in a bunny costume. Save Jennifer Coolidge’s dog. Learn about proper perm maintenance. Do whatever it takes to help you feel like you belong.

III. Know that “Just Deserts” is not actually spelled “Just Desserts.” Justice is not some cosmic chocolate karma best served cold. Also know that “primadonna” is actually not “pre-madonna;” Madonna did not usher in a new historic period – it does not go “Modern, Post-Modern, Pre-Madonna, Madonna.” These are things I should have learned before my twenties. But if you are like me, we will just keep this between ourselves.

IV. The concept of “superior” professionalism cultivated in law school is a myth. Supreme Court justices will quote Doctor Seuss and Humpty Dumpty. Professor Arthur Miller will let a student dress in drag and sing law school versions of Judy Garland while Professor Hershkoff dons a fairy costume. A law firm partner will spend an entire interview with you talking about Dorinda from Real Housewives of New York. You can be authentic.

V. If you find yourself in the library late at night and feel the need to dramatically lip-sing along to Britney Spears’ “Hit Me Baby One More Time,” by all means do so. Law School Musical is still casting.

VI. Remember to double check that your headphones are plugged in before playing music in the library. Your tablemates will stare when they hear that you study Civil Procedure while listening to Aqua’s “Barbie Girl.”

VII. There are no right ways to do law school. But there are, I guess, wrong ways. Maybe sitting in the library is wrong for you. Maybe reading every single case about Kesha’s contract disputes as a method of preparing for your contracts exam is wrong, too. But then again, if that is wrong, who even wants to be right?

Above all, remember that law school is not a fishbowl exercise. It may feel as if your peers, your professors, and your future employers are watching you and judging you. Maybe your mother is the guarantor of your overpriced West Village apartment, and it feels like she is watching you, too. Maybe the career center will approach you with specific recommendations about your appearance – to dress more conservatively, or to style more traditionally. It may feel as if everyone expects you to perform the law student role. But remember you do not have to.

You do not have to set foot in the library. You do not have to outline for every class. You do not need to pull all-nighters. Of course, at times you may feel pressure to do so. Sometimes that pressure may even be good. But check in with yourself to see if the pressure derives from personal conviction or from the influence of those who perform the law student role more traditionally than you do.

Confronting the Charlottesville Within Us

Yolanda Borquaye
Opinion Editor

After Charlottesville, friends from across the country called me to check in. Typically, their first remarks were of horror or shock. But for me, horror and shock fell much lower on my list. Instead, I first felt a sense of familiarity.

I remembered my mother’s face as she listened to the news while getting us ready for school. One morning, reporters droned on about how a white man had burned a cross on his black neighbor’s lawn in a town less than two miles away. My mother mumbled that she couldn’t believe “the Klan was resurfacing.”

I remembered the first day of sixth grade when my classmate passed me a note while our English teacher was reading a passage from “Night” by Elie Wiesel. In the note, he had drawn a picture of the Confederate flag with “the South will rise again” written in bubble letters.

I remembered years earlier when our third-grade persuasive writing assignment was to join in on the statewide debate for the new flag that would replace the Confederate bars and stripes flag that was plastered across Georgia’s state buildings. Though in these instances physical violence was absent, the hateful sentiments that enable the kind of physical violence we saw in Charlottesville, colored my childhood memories in Georgia.

And then, I felt confused as people continued describing the events in Charlottesville. As I listened to these well-meaning white friends discuss race in America, I could hear the binary they were creating. They took great care to say that these events were done by “them [over there],” and “we [over here]” would never do that.  It was as if they were trying to create a moral dichotomy that would absolve them their responsibility to dismantle the racism sown into the fabric of American society, as if they were distancing themselves from Charlottesville and failing to wrestle with how they are complicit in American systemic racism.

For them, the issue of race was neatly packaged in morality. It was not the ever-present reality that racism impacts even our smallest interactions. The labels of morality that have been attached to issues of racism fail to illuminate the entire picture of events like Charlottesville. These labels of “good” versus “bad” blind potential allies and all of us subjugated to racism to the reality that though some may not be intentionally racist, the system we all operate in is still racist.

The events in Charlottesville were unmistakably horrific and tragic. But so were the deaths of Philando Castile and the controversial acquittal this past summer that mirrored an age-old pattern. So was the assumption that a 12 year-old child playing with a toy gun was an immediate threat that warranted execution. And so is being followed by a white store clerk who continually encouraged me to buy t-shirts that were on sale at the back of the store in the back after repeatedly insisting that I needed the professional blouses I was touching.

Because of the degrees of violence found within racism, a binary centered on morality makes it easy to move people from one side or the other; to identify a racist or a non-racist.  The physical violence makes it easy to point at and attack the extremists like those seen in Charlottesville, while failing to do the same to the more subtle daily macroaggressions or to the larger system of racism that engulfs us.

Racism is part of the makeup of America regardless of whether you are old or young, or whether you are in the South or the North. Racism infects every facet of our culture like a virus that attacks a kindergarten classroom. Though some students may have to stay home with fevers and chills, while others are simply congested or have a chest cough, they all still have the virus. Racism in America functions the same way.  It operates 24 hours a day, seven days a week, during times of peace and prosperity and times of chaos. Racism is here under the Trump administration and racism was here under Obama’s as well.

It is time we stop looking at it as just a moral issue from which we can exonerate ourselves depending on how close we are on the spectrum to its most ugly parts and instead treat it like the all encompassing, never ending, harsh environment that it is.