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Killer Whales Run Amok

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Jim Maloney says:

    Having recently watched the film Blackfish, I was aware that the OSHA decision had gone up, and for the whales’ benefit as well as that of the humans, I was hoping for an affirmance–but wasn’t watching very closely. So this short post caught my eye, and I’m grateful for the heads-up and link to the opinion, which I might otherwise have missed. Now that I’ve gotten what I wished for I find myself swayed by the dissent, though. I agree with the majority in terms of result, but the all-important legal question of “who gets to decide?” looms large. Cert predictions, anyone?

  2. andy says:

    I doubt that Ms. Brancheau’s family and close friends would consider this a fun opinion.

  3. Gerard Magliocca says:

    True, but you could say the same about almost every criminal law and tort opinion.

  4. andy says:

    Right, and that’s why it’s probably best not to describe a judicial opinion that describes the brutal death or maiming of a human being as “fun.”

  5. Gerard Magliocca says:

    I don’t agree, though it’s something that I discuss with my Torts students. Cases are about legal issues (in this case a workplace regulation) and not comments on the underlying facts. Under your definition, there would be no fun cases because there is almost always an aggrieved person. (After all, not getting paid on a contract could be a very serious matter for someone on the edge of bankruptcy.) If you prefer “interesting,” rather than “fun,” that’s fine, but it’s not terminology that I care to distinguish.

  6. Jim Mlaoney says:

    Having been watching this thread, I’ll jump into the fray. Whatever one’s job, there ought to be some “fun” in it. (“All work and no play…”) That goes for law profs, personal injury litigators, physicians, you name it. When I was a paramedic, calls involving trauma were universally thought of as “fun” (whereas those involving patients infested with lice, for example, were not). This was largely because responding to trauma calls got one’s adrenaline flowing and required rapid and skillful execution of essential skills. The “fun” part wasn’t that someone’s arm had been ripped off or that someone had a bullet in his chest. Likewise here, in context.

    Perhaps if a somber tone is to be imposed on this scenario, it is better directed at an appreciation of the underlying situation that led to the case. Orcas, highly intelligent, free-ranging social cetaceans, have been systematically captured, confined, and forced to perform just to get their daily meals. They are prisoners, and they know it. Not infrequently, they lash back at the individuals whom they perceive to be their tormentors. In the film Blackfish, it is shown that Tilikum was by far not the only such whale; perhaps the most disturbing sequence in the film documented another Orca repeatedly pulling his trainer to the bottom, holding him there to the limit of his breathholding capability, then taking him up for another breath and bringing him back down, essentially torturing him. Whether this reflects badly on the individual Orca or on the humans who captured and confined him is a question well worth considering, although that is emphatically not a “fun” thing to have to think about.

    JMM

  7. I agree with the opinion, but we also need to remember that human beings have rights too, and that rights don’t apply to animals only.