Will the Heavens Fall? De-Radicalizing the Precedent-Breaking Decision (pdf file - 151.54 KB)

This article offers an extended analogy for the purpose of posing basic questions about proposals for granting legal rights to some nonhuman animals. The analogy is drawn from the precedent-breaking eighteenth century English case Somerset v. Stewart, which liberated an African slave. The article argues that one can identify features of the eighteenth century debate which illuminate features of today’s debate over proposed uses of centrally important legal concepts for some nonhuman animals. Using the comparison for the limited task of highlighting the complex cultural backdrop in each situation, the article suggests that the comparison helps one see the nature and possibilities of precedent-breaking decisions that rely on various non-legal resources available to judges who, because of conscience, principle, or policy considerations, choose not to follow established precedent.