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Our employment discrimination attorneys often talk about the fact that there is no case that you can guarantee a win – mostly pointing to the fact that judges and juries can be very unpredictable. Recently, our wrongful termination discussed that a crazy situation that shows judges doing the unpredictable. (Best Law Read: According To Judges, Are Bumblebees Considered Fish?). Personally, I thought it would be hard to top this, especially so soon. But here we go.

In the New York Court of Appeals, which is the highest state court in New York, the Court was faced with the decision of whether Happy the elephant was entitled to certain human rights – which would necessitate a ruling that Happy was human. Now, in a split 5-2 decision, the high court decided that Happy was not a human, recognizing that holding so would open the door for your dog, Spot, to sue you for a variety of reasons. Can you imagine Bessie the Cow’s lawsuit for sexual harassment after the daily groping of her utters?

However, let’s not focus on the five judges in the majority when we can consider that two judges were voted in favor of holding that an elephant is human in order to grant it human rights. Judges Rowan Wilson and Jenny Rivera jointly provided a dissenting opinion in which they wrote that the elephant is being held in “an environment that is unnatural to her and that does not allow her to live her life. … Her captivity is inherently unjust and inhumane. It is an affront to a civilized society, and every day she remains a captive — a spectacle for humans — we, too, are diminished.”

For the record, I agree that animals should be treated properly and should never be abused. I agreed when public outcry over abuse caused Ringling Bros. to retire its performing elephants in 2016, ending a 145-year tradition. But that does not mean that an elephant is a human such that all laws that apply to human beings would be applied to elephants, giraffes, or cows. The problem with this decision is that two judges decided what they wanted the world to look like and decided the case to match. But this is the role of the legislature to set laws and shape society. The role of the judiciary is to enforce the laws as written as well as judicial precedent.

When judges try to do what they think is right without regard to the laws as written, it is called judicial activism. When juries do this, it is called jury nullification. It happens regularly and is a flaw in a very good system.

But even this flaw serves a purpose. It means that no party should be 100 percent confident in their case. It creates risk for both parties. Risk gives both parties reasons to attempt to resolve their differences before letting an unpredictable judge or jury decide their fate.

If you think you have a perfect case that will surely be decided in your favor, remember judges have ruled that bumblebees are fish and elephants are human.

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