Most Letters Blogatory posts are about international judicial assistance or other areas of private international law, but I do have a few other topics to which I return from time to time. For several years beginning in 2015, I wrote a lot about Donald Trump. I have a bunch of posts against abolition of the leap second. And I have written repeatedly about the absurd campaign to declare chimpanzees and elephants to be persons in the law (see my archive here). But in general, I like to follow the Ghostbusters’ rule: “don’t cross the streams.”
EGON SPENGLER: There's something very important I forgot to tell you. PETER VENKMAN: What? EGON SPENGLER: Don't cross the streams. Peter looked side to side. PETER VENKMAN: Why? EGON SPENGLER: It would be bad. PETER VENKMAN: I'm fuzzy on the whole good/bad thing. What do you mean, "bad"? EGON SPENGLER: Try to imagine all life as you know it stopping instantaneously and every molecule in your body exploding at the speed of light. RAY STANTZ: Total protonic reversal. PETER VENKMAN: Right, that's bad. Okay, important safety tip. Thanks, Egon.
In other words, don’t try to eke some private international law insights out of Trump posts. Don’t try to tie the leap second to the Service Convention. But I have to cross the streams to write about today’s case of the day, Community of Hippopotamuses Living in the Magdalena River v. Ministerio de Ambiente y Desarrollo Sostenible (S.D. Ohio 2021).
The underlying case is in Colombia, where apparently hippopotamuses have the capacity to sue. These particular hippopotamuses are the descendants of animals that Pablo Escobar imported and kept in his private zoo. When Escobar was killed, the hippos and their descendants began roaming free in Colombia. Because they are an invasive, non-native species, they pose a threat to the local ecosystem:
They’re eating massive quantities of foliage and thereby threatening the food supply for native species on the Magdalena River like otters, spectacled caimans, and turtles. The hippos’ voluminous poop (sorry) is also altering local waterways’ chemistry and oxygen levels, which can lead to algae blooms that sicken people and wildlife alike. The hippos have also been straight-up attacking people, chasing them around, and even seriously injuring one man in May 2020.
There’s now a debate between those who want to euthanize the hippos and those who merely want to sterilize them. A Colombian lawyer, claiming to represent the hippos, brought a suit in Colombia arguing for sterilization over euthanasia. The setup of the lawsuit, incidentally, is almost a perfect illustration of the absurdity of asserting that it’s really the hippos, not people interested in the hippos’ welfare or in balancing the hippos’ welfare with the needs of the ecosystem, who are making the claim. If hippos were the kind of creature that could tell you what they want, do you think they would say, “we prefer to be euthanized,” “we prefer to be sterilized,” or “we are quite happy eating massive quantities of foliage and depositing voluminous poop in the local waterways?” It’s just a bunch of silly handwaving to say, “I am a lawyer representing these animals in court,” instead of saying, “I am a lawyer representing the views of some people about what is best for these animals,” or perhaps more realistically, “I am a lawyer representing my own views about what is best for these animals.”
Anyway, the lawyer wanted to get some evidence in the United States, and so he brought a 1782 application in Cincinnati. A magistrate judge issued an order authorizing issuance of a subpoena, which the Animal Defense League has trumpeted as the first time a US court has recognized a non-human animal as a person.
There is a sense in which this is correct, but let me give a few cautions. First, this was an ex parte application, granted without any opportunity for opposition. Second, the judge gave no reasons and did not really even indicate she was aware of what she had done. Third, the application itself does not argue for the view that “hippopotamuses are people,” but instead contents itself with saying that under Colombian law, hippopotamuses are people. So this is hardly a landmark decision.
What should we make of the decision? Is it right or wrong? Despite my often-expressed view that the “animals are people” campaign is absurd and misguided, I am not sure that the 1782 decision was wrong. The question is really whether the hippos are “interested persons,” who under Section 1782 have standing to request judicial assistance. Take the following example. In US law, generally speaking, a trust is not an entity that has the capacity to sue or be sued. A trustee may sue or be sued. But that’s just a quirk of our law based mostly on legal history. I could well imagine that in other systems, a trust or its analogue could sue or be sued. Probably it doesn’t make sense for a US court to deny judicial assistance by inquiring too closely into differences between the foreign country’s views on who is or is not a legal “person” and our own views. On the other hand, perhaps “hippos are persons” is a step too far in the direction of absurdity. But we live in absurd times.