Primate Rights

A New York state appeals court has rejected a request to issue a writ of habeas corpus to free two chimpanzees who are kept in cages — one in a warehouse in Gloversville, New York, and the other in a storefront in Niagara Falls, New York.  The writ sought to have the primates moved from their cages to an animal sanctuary.

article-2034439-0dbb7fa500000578-543_306x338In the case, the New York courts were presented with expert evidence “that chimpanzees exhibit many of the same social, cognitive and linguistic capabilities as humans and therefore should be afforded some of the same fundamental rights as humans.”  In a nutshell, however, the court of appeals concluded — correctly, in my view — that the fact that chimpanzees exhibit some humanlike characteristics is simply not enough to make them “persons” in the eyes of the law.  The court reasoned that “[t]he asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions.”  And, the court added, the flip side of personhood would mean that chimpanzees could be held criminally accountable for killing or injuring humans — something that has not been done, obviously, because chimpanzees do not have moral culpability for such acts, nor do they have the capacity to understand the proceedings against then or to assist in their own defense, which is what courts typically look for in deciding whether a defendant is competent.

You can read the court of appeals decision here.

Although I think the law cannot recognize primates like chimpanzees as “people,” with all of the rights of people, that doesn’t mean they shouldn’t be afforded some rights, beyond being viewed as mere property.  The court of appeals’ decision summarizes expert evidence that indicates that chimpanzees have an impressive array of qualities that we associate with thinking beings, such as “recognizing themselves in reflections,” “setting and acting toward goals such as obtaining food,” “communicating about events in the past and their intentions for the future, such as by pointing or using sign language,” “protecting others in risky situations, such as when relatively strong chimpanzees will examine a road before guarding more vulnerable chimpanzees as they cross the road,” “making and using complex tools for hygiene, socializing, communicating, hunting, gathering, and fighting,” “counting and ordering items using numbers,” “showing concern for the welfare of others, particularly their offspring, siblings, and even orphans they adopt,” and “resolving conflicts” and “apologizing.”

At some point, we need to ask ourselves — do creatures that exhibit these kinds of qualities and characteristics really deserve to be put into cages at the whim of whoever purchases them?

The End Of Privacy As We Know It

The right to personal privacy isn’t a right that is specifically recognized in the Constitution or the Bill of Rights, but it has been a recognized area of the law for decades, as well as a treasured ideal for many Americans.  For many people, the right to be left alone is an important one.

But this is another area where technology is simply changing the game.  Whether it is cookies left on personal computers that lead to pop-up ads that are specifically targeted to your website viewings, search engines that can sift through mounds of news stories, photos, and data in split seconds whenever a name is entered, tracking mechanisms on cell phones, surveillance cameras on every street corner, drones in the air, computer hacking, or listening devices that are routinely used by governmental entities, technology makes the ability to maintain some zone of privacy harder and harder.

20130203_adde1Social media also has had a significant impact.  Anyone who likes the convenience of Facebook as a way to keep in touch with their old friends, family members and colleagues is giving up a piece of their privacy.  And when technology and social media meet, the erosion can become even more pronounced.

Consider the news that a software developer has used the advances in facial recognition software to develop an app that allows you to take a photo of a stranger in a public place and immediately run a search for the identity of that person through Facebook.  It’s called Facezam, and it’s apparently going to launch on March 21, although Facebook is raising questions about whether the software is in compliance with the Facebook privacy policy.  But even if Facebook quashes the idea as to Facebook, you would imagine that the app could be modified to be applied to search through other sources of photos.

It’s creepy to think that random strangers, simply by taking your picture in a public place and unbeknownst to you, could then find out who you are and, if they’re so inclined, track you down.  One person in the story linked above describes that concept as the end of anonymity in public places, and I think that’s right.  If you want to guard against it, you can withdraw from any social media, refuse to get your photo taken, avoid going out in public except in disguise, avoid any travel, and stay in your room.  Those aren’t especially attractive options, are they?

Welcome to the Brave New World!

 

Looking To Fill The “Stolen Seat”

Last night President Trump nominated Neil Gorsuch, a judge on the federal 10th Circuit Court of Appeals, to fill the vacant seat on the United States Supreme Court.  His formal nomination triggers the start of what will undoubtedly be a bruising confirmation process, with some Democrats already promising to do everything they can to prevent seating Gorsuch on the high court.

US-POLITICS-COURT-NOMINATIONThere are three reasons for this.  First, the Supreme Court has assumed an increasingly important role in the American political process over the last 70 years, with people at all points on the political spectrum looking for the judiciary to recognize a new right, provide a remedy, issue an injunction, or overturn a statute or executive action.  The Supreme Court is the head of the judicial branch, and every year, the Court accepts and decides cases that require it to tackle difficult issues — some constitutional, some statutory, some procedural — that can have broad ramifications for people, businesses, the legal system, and how government works.

Second, as the importance of the Supreme Court has increased, the process for nominating, reviewing, and approving potential Supreme Court justices has changed.  Republicans blame Democrats for the growing politicization of the Supreme Court confirmation process, and Democrats blame Republicans, but no one doubts that we have moved into a new era of “extreme vetting.”  Nominees not only have their credentials, backgrounds, and prior opinions scrutinized for the tiniest kernel of a potential argument against nomination, but advocacy groups immediately declare sides and start their scorched-earth campaigns before the nomination speech is even completed.  Last night, only a few minutes after Gorsuch was nominated by President Trump, an anti-confirmation demonstration began on the Supreme Court steps, and opponents of the Gorsuch nomination appeared on the cable news shows, describing him in the darkest, most ominous terms imaginable.

And third, the atmosphere has become even more poisonous because the seat on the Supreme Court Gorsuch has been nominated to fill has been vacant for almost a full year, and the Republicans in the Senate refused to take any action on Merrick Garland, the jurist that President Obama nominated to fill that seat.  That’s why the New York Times, in an editorial today, calls the vacancy the “stolen seat” — reasoning that if the Senate had just acted properly last year, Garland would have been confirmed, and the balance of power on the Supreme Court would already be changed.  The Times editorial castigates the Senate Republicans for obstructionism and abuse of power in their treatment of the Garland nomination, but seems to also implicitly encourage — with a wink and a nod — Senate Democrats to respond to the Gorsuch nomination in kind.

So now we’ve got a Supreme Court nominee who has served on the federal appellate bench for 10 years, has all of the educational bona fides you would wish, and is classified by some as a “very conservative” judge.  I’m interested in seeing how the confirmation process plays out and what is brought out about Gorsuch’s background and judicial opinions — but that means the confirmation process has to actually start.  Here, too, as in other areas I’ve pointed out recently, Congress needs to do its job.  The Republicans need to shut up about the “nuclear option” that Harry Reid unwisely imposed, and the Democrats need to get over the Garland nomination inaction, and both sides need to acknowledge that the Supreme Court has nine seats that can only be filled if the Senate acts and start to address the Gorsuch nomination on its own merits.

One other thing:  as the current Supreme Court justices age, delay and inaction is not an option.  If we don’t get over this self-imposed roadblock to the proper functioning of our government, we might soon have another vacancy to fill, and another.  If the Republicans and Democrats don’t get over their political titting for tatting, we might end up with a gradually vanishing Supreme Court.

Peanuts Envy

Should people who have peanut allergies be permitted to pre-board airplanes, along with the folks in wheelchairs?

That’s the subject of a complaint filed last week with the Department of Transportation by Food Allergy Research and Education (“FARE”), a group that advocates on behalf of people with food-borne allergies.  It alleges that American Airlines is breaking the law and discriminating against those who have adverse physical reactions when exposed to peanuts by not accommodating them and allowing them to pre-board with others.

90634998-280x186For its part, American Airlines — which doesn’t serve those little bags of peanuts to its passengers, incidentally — notes that it limits pre-boarding to people with physical disabilities that require them to get assistance in making it down the jet bridge and into their seats.  AA states that its planes are cleaned regularly, but the cleaning efforts, and for that matter the air filtration systems on the planes, are not designed to remove all traces of nut allergens. The airline states that it cannot establish “nut-free zones” on its planes, and it does not prevent other passengers from bringing nuts on board.

FARE contends that people with peanut allergies, and those who are traveling with them, should be permitted to pre-board so they can wipe down the seats, armrests, and trays, or even cover them.  It notes that, unlike American Airlines, Delta allows peanut allergy sufferers to pre-board upon request.

It’s one of those weird issues that seem to crop up more and more in the modern world.  There’s no doubt that people who have peanut allergies can have severe reactions when exposed, up to and including going into anaphylactic shock.  At the same time, it doesn’t seem like people with peanut allergies really need pre-boarding to the same extent that, for example, people in wheelchairs do.  People with peanut allergies don’t require physical assistance, and even if they need to wipe down their seats, there seems to be no reason why that can’t be done when they board with everyone else, as part of the settling-in process that inevitably occurs when people board planes.

If people with peanut allergies can pre-board, doesn’t that open up pre-boarding to people with other conditions who could plausibly claim they should be accommodated, too?  People with fear of crowds, for example, could argue that they shouldn’t be required to wait in the packed-in throng on the jet bridge, which could provoke an anxiety attack.  And peanut allergy pre-boarding seems to open the door to potential abuse, because airlines have no way of knowing whether someone who claims to have an allergy really does.  Speaking as someone who has seen fellow travelers push the envelope on carry-on items and in jostling for early boarding, I’m guessing that if FARE prevails on its complaint we’re going to see a huge spike in claimed peanut allergies.

Sick Subculture

In case you missed it, there’s a trial underway in Florida in which Terry G. Bollea — better known to the world by his stage name of Hulk Hogan — is suing Gawker.com for posting a grainy, secretly recorded video on its website that purportedly shows the retired wrestler having sex with a friend’s wife.

ap_651364014819_-_h_2016Normally I wouldn’t care about a tawdry legal clash between a fringe celebrity who claims invasion of privacy and a website like Gawker.com, but yesterday I happened to read a news story about one piece of testimony in the case that stopped me in my tracks.  The testimony came when a former Gawker editor-in-chief, Albert J. Daulerio, was being questioned about what he considered newsworthy and where he drew the line when it came to posting sex videos of celebrities.

“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” the lawyer asked.

“If they were a child,” Daulerio answered.

“Under what age?” the lawyer asked.

“Four,” Daulerio responded.

Gawker later said that Daulerio was being “flippant” because, you know, people are always flippant when they are being questioned by a lawyer in a legal proceeding.

Have we really come to this point?  I can’t imagine why any adult would record a sex tape, much less why anyone would want to watch it — but to suggest, even in a “flippant” way, that sex tapes of children would be newsworthy and should be posted on the internet is, in a word, sick.  Any website that would articulate such an editorial policy isn’t really a “news” website at all, but just a mechanism for feeding the voyeuristic interests of a seamy underside of American culture.

There are important legal issues to  be explored at the intersection of the internet, the First Amendment, and the privacy rights of celebrities large and small.  No doubt the Hulk Hogan lawsuit against Gawker will help to develop the law in that area, but it’s also obviously exposing something equally important about the internet — something that is small and sick and sad about our society.  Have we touched bottom yet?

Vets End

For decades it squatted on the west bank of the Scioto River, directly across from downtown Columbus — a bland, nondescript, hunched building, instantly forgettable to all who drove past it, noteworthy only for its absolute, unflinching genericness.

The Franklin County Veterans Memorial was home to trade shows and auto shows and generic meetings of groups.  No one really cared much about it, one way or the other.  And when Franklin County Commissioners voted to demolish the building as part of a plan to add some much-needed dash and character to the west bank of the river, no one really cared much one way or the other about that, either — with one striking exception.

For one group, Veterans Memorial was a grotesque living reminder of a horrible few days — a period in their lives that was so terrible that just looking at the building and parking lot brought back soul-crushing recollections of angst and strain, panic and pressure, and the ultimate in testing nightmares.  That is because, for years and years, every new law school graduate who wanted to be licensed to practice law in Ohio had to come to Veterans Memorial in Columbus and sit in its cavernous main room to take the multi-day bar exam.

After three years of law school, your professional and financial future rode entirely on your performance on one test.  It was an all-or-nothing proposition:  pass, and you went on to become a practicing lawyer; fail, and . . . well, failure was unthinkable.  Everyone who has taken the bar exam remembers the sense of suffocating pressure, the grim expressions of their fellow test-takers, and the oppressive atmosphere in that testing room.

Some lawyers who successfully navigated the bar exam make jokes about it now, much like people who’ve been through a painful divorce attempt awkward humor about it.  But the jokes aren’t funny, and every lawyer knows it.  Deep down, every lawyer in Ohio is secretly thrilled that Vets Memorial has been reduced to rubble, and that the ugly physical reminder of their ugly rite of passage is no more.  We are free.

Good riddance!  May the rubble itself burn in hell.

Forcing Adherence To The Law

We may be on the verge of a new era in personal choice and personal responsibility:  Ford is getting ready to roll out a new car that simply will not allow you to exceed the speed limit.

From a technology standpoint, the Ford S-Max is an interesting step forward.  The car will come equipped with a camera that will read speed limits posted on roadside signs.  The S-Max will then automatically adjust the amount of fuel to the engine to prevent the car from reaching speeds above that posted limit.  So, rather than using braking action to control speed, the S-Max will use the operation of the engine itself to prevent any lawlessness by the lead-footed driver.

The Ford S-Max is in line with a recent trend to use technology to force adherence to the law, whether it is through electronic ankle bracelets that control where people can and cannot go or proposals for cars that require you to pass a breathalyzer test or to fasten your seat belt before the ignition will engage.  Leave aside the issue of whether requiring complete compliance with the law at all times is always safe and smart — there are circumstances, for example, when exceeding the speed limit to get out of the way of other vehicles in a merging situation is the only prudent course — and consider, instead, what such technological controls do to affect concepts of personal morals and to encourage governmental intrusion into personal choice.

If you have no ability to break certain laws, do you even need to develop a personal code of ethical behavior that will apply to your daily life and help to guide your actions?  If you can’t make the wrong choice, what does the concept of personal choice really mean?  And if we start to accept routine technological controls on our behavior, will government entities be tempted to increase the range of controls, by enacting new laws that regulate behavior and by requiring further technological limitations on our ability to act freely?

The Ford S-Max is a long way from futuristic, sci-fi worlds where computer chips are implanted into human brains to rigorously control behavior, but every journey begins with a single step.  I’m not going to be in the market for an S-Max — if the choice is left up to me.