Eric Posner on Corporate Personhood

Stop Fussing Over Personhood

Tommy lives in a cage in the town of Gloversville, N.Y. He has filed apetition for a writ of habeas corpus with a state court, asking for release from captivity. But Tommy is a chimpanzee (the petition was filed on his behalf by an animal rights group), and New York grants the right of habeas review to “persons.”

So Tommy must persuade a judge that he is a person if he is to have his day in court. He and the craft company Hobby Lobby—which operates according to its owners’ Christian convictions, and is mounting a religious freedom challenge to the contraception mandate in Obamacare—have become an unlikely pair in an ideologically tinged battle over what a “person” is. There has been much mockery of the idea that “corporations are people, my friend,” as Mitt Romney put it. But if you think it matters whether the law calls a chimpanzee, corporation, or even human zygote a “person,” you are making a fundamental error about how the law works.

From a legal standpoint, there is nothing remarkable about a chimpanzee claiming to be a person. Indeed, there are a number of cases that have been brought by animals—including a palila, a marbled murrelet, and a spotted owl. All of these animals sought to enforce their rights under the Endangered Species Act, under a provision that gives “persons” the right to bring suit.