Below is the portion of the transcript in which David Favre discusses his proposal for his new legal tort.
Good morning again. I am so pleased to be able to be here today. Steven Wise and I have interacted over the decades, and one of the last times we interacted was when the option came forward for teaching the first class of Animal Law here at Harvard; Steven Wise applied, I applied, and I believe one or two other people in this room applied. Steven got the job. The Harvard professorship is what kicked off one of the major focal points on animal issues in the United States–waking up the press to realize that there is an issue to deal with.
I am going to have to read my speech. I apologize for that, but this is a brand new idea, it is the first time I have presented it in public, and I only have a half hour to do it. So I need to keep myself focused. The other thing I’d like to say generally is that my speech is not about “why.” My speech is an attempt to create a “how.” How are we going to do this? I think the other speakers this morning have given you a very strong dose of the “why,” and I do not have anything I can add that they have not already said.
In my mind, chimpanzees are beings. They are beings with needs, desires, and predictable patterns of play and food gathering. They have social contact and structure. All of this can be gathered up under the term “interest.” On the basis of science, many, including myself, believe that they are morally and ethically relevant. If we accept all of the positive things that science and ethics suggest to us about chimpanzees, the next questions are, “What is their status within the legal arena? What ought it to be?” It is imperative to turn to the legal system, because there are clearly humans who have no ethical concern for chimpanzees, and the only way to overcome their ignorance and lack of concern is by adopting laws that acknowledge and protect chimpanzees from abusive humans.
What is the present scope of debate for chimpanzees within the legal system? Steven Wise, this morning and through his two books, has suggested a comparative legal analysis by which primates could obtain certain legal rights within our legal system. Other writers promoting legal rights for animals argue that a huge chasm exists between humans and all nonhuman animals that would be bridgeable only with the greatest effort–with a beach assault on the legal status quo. On the south side of the river is the realm of humans within a legal community, and on the north side of the river is a community of things, of property–including animals–not within the legal community. The river, the barrier between them, is the property status of animals. These writers suggest that so long as animals are property they will be excluded from the legal community. Additionally, the legal community they see on the other side is not the one of today, but a different one–one in which all people are vegans and all commercial use of animals is gone. To move from where we are today to this legal community would indeed bridge a wide chasm. But perhaps they are looking in the wrong place. Perhaps the river can be crossed elsewhere. Perhaps it’s not as difficult as they believe. I want to move upstream to find a shallower place to cross the river–not in some future legal community, but in the community of today.
I want to step back from the demands of sweeping legal change. What if we can make progress for chimpanzees without eliminating their property status? What if we can make the legal argument on their behalf without demanding to show that they are like humans? Indeed, if we look at the legal community of today, we find that chimpanzees have already found a series of stepping stones into our legal community, and they are already quietly among us.
As a starting point, we need a conceptual lens with which to view our legal community. After some twenty-five years of pondering this issue, I think the sharpest vision is obtained by an “interest” analysis. This is not something I’ve created or need to describe in great detail for you. A comprehensive analysis was set out fifty years ago, by one of the most luminous deans of Harvard Law School, Roscoe Pound. His five-volume set on jurisprudence uses an interest analysis to explain the basic operations of the legal system. He suggests that the law does not create interests, instead it “finds them pressing for recognition and security.” Within our legal context, what are these interests? Pound suggests that interest “may be defined, as a demand, or desire or expectation which human beings either individually or in groups seek to satisfy.” It is the reality of who we are, and when we try to become social beings and to organize ourselves, that we have interests. The law has been structured to deal with at least some of those interests.
If humans arrive upon the scene with interests attached to them like barnacles, then it is the role of the legal system to first decide which interests are important enough to allow access to judicial resources and second to resolve conflicts between qualifying and competing interests. For example, I may have a desire to shoot my neighbor if I see him beating my dog. I may also have a desire to walk out on my wife of twenty years. But my neighbor and my wife have conflicting interests with me, and the legal system has set up rules to resolve them. However, it would also be unfair to Dean Pound to suggest that he contemplated chimpanzees within the legal community. Within the informational context of his day, that case could not yet be made.
In my mind there are two critical points that serve as stepping stones that must be confronted before bringing chimpanzees across the river from the property status into the legal community. One is of science, and the other is of culture. First, it must be argued that chimpanzees have interests in the same way that humans have interests–interests that are recognizable and knowable by the legal system. Not necessarily the same interests as humans, but interests nevertheless. Second, conceptually, chimpanzees must be found within the community of beings about whom we have moral, and therefore, legal concerns.
The fact that chimpanzees have interests is simply a matter of the observations of science, and I can add nothing to what the prior speakers have said if they have not convinced you. For example, because of the work of the people in this room, we know a considerable amount about those interests, and an objective case can be made in a courtroom. The two books written by Steven Wise contain a number of examples of how science-based information can be brought into a courtroom.
The second stepping stone across the river is to include chimpanzees as beings within our legal community. This issue is more complex–part science, part culture, and part psychological. Obviously the question is not “who is within the physical boundaries of the United States?” but rather “who is within our community that must be taken into account when community decisions are made?” We in the United States are not of one mind on this issue. Some animals, for some purposes, seem to be within our legal community, but other animals, in other contexts, are not within our legal community.
I feel comfortable asserting that chimpanzees, for some purposes, for some of their interests, are presently within our legal community. There are three primary areas we can look to for evidence of this state of affairs: criminal law, civil law, and regulatory law. The first beachhead for all animals on our shore of legal community was in the area of criminal law. Beginning after the Civil War, various states around the country adopted criminal laws to protect animals from unnecessary pain and suffering. The existence of these laws clearly acknowledges the existence of an animal’s interest to be free from unnecessary pain and suffering. In the 1887 case of Stephens v. Mississippi, the court declared: “This statute is for the benefit of animals, as creatures capable of feeling and suffering, and it was indeed intended to protect them from cruelty, without reference to their being property, or to the damages which might thereby be occasioned to their owners.” Today, under state cruelty laws in every state it is illegal to inflict unnecessary pain upon a chimpanzee, and anyone responsible for the care and custody of a chimpanzee has a legal duty to provide care for that chimpanzee. However, this is very simplistic, and there are a number of statutory exceptions to the criminal laws.
A second example of chimpanzee beings within the relevant legal community came with the adoption of the 1985 amendments to the Animal Welfare Act. For the first time, the mental well-being, rather than the physical well-being, of chimpanzees was recognized and supported. The law requires that all holders of chimpanzees have “a physical environment adequate to promote the psychological well-being of primates.” The United States Department of Agriculture [USDA] has developed regulations to deal with this issue, a number of books have been written, lawsuits have been filed, and many conferences have been held over the past decade to develop more fully how this legal obligation should be carried out.
A more recent example, in the civil law area, is from a whole different perspective. Under the Uniform Trust Code of the year 2000, which has been adopted in several states, another long-standing legal barrier has been lowered for animals. Section 408 allows for the creation of trust for the benefit of animals. Not just honorary trusts, which may or may not be enforceable, but trusts in which the animal is the beneficiary, for which the court can substitute trustees, and for which third parties can be appointed as enforcers to assure that the trustees have carried out their obligations. Thus a chimpanzee becomes a legally relevant being, one who has interests that must be protected. This has occurred in the most conservative of legal arenas– trusts and estates.
A fourth and final example of the legal presence of chimpanzees is most interesting and very recent. In 2000, Congress passed the Chimpanzee Sanctuary Act. Underlying the passage of the act was a recognition by Congress that chimpanzees used in research are morally relevant beings, about whom we as a society have obligations. Thus Congress sought to provide some level of retirement for those chimpanzees who have been used for human benefit within the scientific community. Among its many provisions was the acknowledgment of a fundamental interest of chimpanzees–continued life. The law states that a chimpanzee within the sanctuary system shall not be “subjected to euthanasia, except as in the best interests of the chimpanzee involved.” I think this is a powerful statement about the present interests of chimpanzees within our legal system.
These four examples support the position that the gap between humans and chimpanzees is not so great as others suggest. In particular, it should be noted that these points of legal recognition of the interests of chimpanzees have occurred while the animals have the status of property. Property status is not a barrier to the recognition and protection of interests within our legal system. As the above examples suggest, our legislature has the authority to expand the presence of animal interests within our legal system, and my hope is that it will continue to do so. But more needs to done. The presence of chimpanzee interests must be expanded, for they are still not receiving all the protection that they need. And while the legislative arena is always open, I want to suggest that there is another route available–that of common law state courts.
The traditional courts also have the capacity for the expansion of legal recognition of animal interests. In order to give form and substance to this avenue, today I want to urge for the adoption of a new tort: “intentional interference with the primary interest of a chimpanzee.” This tort would allow our civil courts to deal with and resolve conflicts between competing interests of humans and chimpanzees. Under this cause of action the plaintiff would need to prove four elements: 1) the existence of an interest; 2) the interest is of fundamental importance to the plaintiff; 3) the being’s interest has been interfered with or harmed by the actions or inactions of the defendant, and 4) the plaintiff must show that the weight and nature of the interest of the chimpanzee plaintiff substantially outweighs the weight and nature of the interest of the defendant. Before giving more detail regarding the elements of the tort, let me give you three examples, so that you’ll have a context in which to understand what I have in mind. They deal with a hypothetical chimpanzee: Jo Jo.
First hypothetical: Jo Jo lives in the Potsville Zoo. He is one of a group of ten chimpanzees on a three acre tract that is part of a six-million-dollar project the zoo built three years ago. Zoo visitors can see the chimpanzees from five different viewing positions. However, the chimpanzees have the ability to retreat out of view if they wish. There is a trained care giver on duty ten hours a day. The care giver has the following obligations: to observe the chimpanzees for medical needs, to feed them with creative gathering challenges, to assure that their individual interactions do not cause harm, to control humans, and generally, to assure the chimpanzees’ well-being. David Favre, an attorney, files a lawsuit on behalf of client Jo Jo, claiming that regardless of the cage size, Jo Jo is still not able to move about in as large an area as he would in nature, and that the confinement interferes with his fundamental interest in personal freedom. Under my tort, the court would not be able to rule for Jo Jo. Assuming that personal freedom may be a fundamental interest, the zoo has provided an environment that allows significant exercise of the interest of individual freedom of movement. Therefore, the plaintiff will not be able to show a substantial interference with a fundamental interest.
Second example: Jo Jo lives in the basement of the home of Mr. Big Jones, in a commercial five-by-five-by-seven-foot cage. Big Jones collects exotic animals, and he likes to show off Jo Jo to all his beer-drinking friends by banging on the cage to get a reaction out of Jo Jo. After several months in residence, Jo Jo no longer reacts to cage rattling and has cut back on eating the table scraps that Big Jones feeds him. This comes to the attention of attorney David Favre, who brings an action for Jo Jo under this tort, seeking a guardianship for Jo Jo and an injunction requiring the transfer of Jo Jo to better facilities.
The first two elements are easily satisfied. The fundamental interests of Jo Jo are clearly at risk–no socialization, no physical exercise, no enrichment of the environment, lack of appropriate food, and actual psychological abuse. He is basically a living trophy for Big Jones. Therefore the court will move to the fourth element: does the interest of Jo Jo substantially outweigh the interest of Big Jones? The interests of the owner, Big Jones, are personal. He has a modest financial investment in the animal. He feels important as the center of attention within his community of human friends when Jo Jo is in the house. It makes him feel special, providing part of his self-identity. Big Jones’ interests can be fulfilled in other ways and do not justify the interference with Jo Jo’s fundamental interest. Jones’ property interest in Jo Jo is not a defense. The court should be willing to enjoin the continued possession of Jo Jo by Big Jones. Because of the harm caused by Jones, the court could award damages or require title transfer from Jones to a third party without compensation.
Third example (in the middle of course, as I am a law professor): Consider Jo Jo, having lived for twenty years in an institutional lab at Big University, in a cage that meets the requirements of the Animal Welfare Act in physical dimensions. However, he never sees the natural light of the sun or feels the touch of another chimpanzee or a human unless the handlers have come to do a procedure on him. There is nothing for him to do. He has been part of three different scientific protocols over the past fifteen years. If attorney David Favre brings an action for violation of this tort and seeks the removal of Jo Jo from the environment, it should not be too difficult to show the intentional interference with his fundamental interests. The legal focus would quickly turn to element number four, and the court would have to determine whether Jo Jo’s interest clearly outweighs the interest of the owner, Big University.
This is not an abstract argument about the use of animals in research. This will be about a particular chimpanzee at a particular university. Whereas in the past, researchers only had to justify their use of chimpanzees to themselves and did not have to give any weight to the interests of Jo Jo, now under the proposed tort, the university would have to make their case to a judge. Perhaps they could, perhaps they could not. I suspect most often they could not.
Now, let’s go back to the tort and quickly touch upon some of the conceptual components. The premise of a tort is that a duty exists between defendant and plaintiff. I submit that this duty already exists and has been acknowledged within our legal system. Remember that the criminal laws adopted by every state impose both a duty of no harm without justification and an affirmative duty of care. This proposed tort simply allows the recognition of that duty within the civil side of the legal system as well. There are those who might object to this new duty, as it does not impose a legal obligation on the chimpanzee. But we have many duties towards those without capacity to have reciprocal legal duties, for example, infants and insane persons.
The next point deals with the existence of the interest itself. The threshold question requires the court to be convinced that scientific information and not speculation support the claim of the existence of an interest. There should be a dual aspect of this inquiry. First, information about the species generally. Secondly, information about individuals before the court. The last thirty years have produced considerable information about chimpanzees–enough that a court should be comfortable understanding the nature of their interests. Obviously the test cannot be whether humans know everything about a species; we do not even know everything about ourselves. Sufficiency of the knowledge should be judged in the context of the specific interest that is at issue before the court. Satisfying the court as to the base of information is the burden of the plaintiff.
Now what about the fundamental nature of the interest, which is the second element? Only interests of fundamental importance to an animal should go before the court, not the trivial or the obscure. This is about both the reality of limited judicial resources and the political support that will be necessary to sustain a new tort. For the most part, these interests should also be the ones about which the most scientific information exists. This is not a bright line test; it will call upon the court to make a judgment call. The term “fundamental” should be considered in light of our knowledge about what is important to chimpanzees as a species and perhaps to a particular individual. Life is fundamental. Freedom from pain, activity space, reproductive opportunities, and social interactivity are all potentially fundamental. But again, both the individual and the species must be considered. A touchstone for what is fundamental already exists in the legal system in the form of the legislation discussed above.
Actions of the defendant are the third part of the test. It is axiomatic that the plaintiff must show that the defendant is the source of actions causing interference with the plaintiff’s interests. This is fundamental to common-law tort actions, and the usual concepts and theories would apply in this circumstance as well.
Perhaps the most curious part of my test, and the most difficult, is the fourth part, the “substantially outweighs” element. The phrase “substantially outweighs” is in fact very important. If the balance of interests is close, then the human interests should prevail. As my proposed tort is a new approach and will require adjustments on the parts of many people, this power should be exercised only when the case is clear. To do otherwise will result in undermining the public’s confidence in the right of the courts to address these novel issues. While the burden is on the plaintiff, the nature of the claim would normally result in the defendant providing information about the nature of the defendant’s interest. Presumably the plaintiff would initially present a prima facie case that his interest would substantially outweigh the defendant’s, then the burden would shift to the defendant to show that the plaintiff’s interest does not outweigh his own.
The difficult issue the court will face is how to weigh disparate interests. Undoubtedly many issues of morality, money, fairness, and social policy will become intermixed. This difficulty is precisely why it is important to engage the court in the debate about chimpanzees. At the moment, this decision is usually made by the chimpanzee’s owner. This can present significant conflicts of interest, as some owners give no weight to any interest of a chimpanzee.
I have not mentioned the word “standing.” It is not expected that any chimpanzee has the capacity to call a lawyer and ask to initiate a lawsuit, but this is not a bar to creating a tort. Courts regularly adjudicate issues concerning beings who are incapacitated–children, the mentally incompetent, the insane, and the aged. It is beyond the scope of this speech to address who is best to represent the interests of chimpanzees before the courts. Our legal system has mechanisms such as guardianships, next friends, legal representatives, and social workers to deal with this issue. This procedural issue is not a bar to the adoption of the substantive law.
The tort remedy: what might we do, what would be available if we brought an action in this area? Against non-owners of chimpanzees, money damages will normally be sufficient. Against an owner, the remedies will also need to include equitable remedies such as injunctions, which may be necessary to stop certain actions and to improve conditions or remove a chimpanzee from unacceptable conditions. When money is awarded a trust could be used to hold the money for the benefit of the plaintiff chimpanzee.
Another difficult idea that must be dealt with, and I can just touch on it today, is intentionality. If the defendant is not a possessor, keeper, or owner of the plaintiff, then the plaintiff would have to show a knowing interference. (A second possible cause of action, of course, would be the negligent interference of a substantial interest, but that is for another day.). However, if a defendant is a possessor, owner, or keeper of a chimpanzee, then the law should conclusively presume that the person has knowledge of the fundamental interests of a chimpanzee. As a matter of public policy, no human should have the right to control or own an animal as complex as a chimpanzee without such knowledge, and it is therefore appropriate to charge them with the knowledge, whether or not they actually possess it.
Well, I have put before you a different approach. It does not satisfy many of the animal rights activists because it is not absolute, but I think that it is useful because it does what we do with human conflicts of interest–we allow for almost nothing to be absolute, and everything is balanced. To bring animals within this debate through the civil law system, you have to start with what some would consider a fairly low threshold, but others might consider a high threshold. Recognizing a tort of substantial interference with a fundamental right is within the capacity of our courts to do fairly easily. Thank you so much.
Questions and Answers Following the Panel Presentation
Q. This is for David Favre. With respect to the fourth element needed for your proposed tort, don’t you believe that courts will find that almost any economic or scientific purpose of humans outweighs the chimpanzees’ interests?
David Favre: No, I don’t. I believe that courts are quite capable of balancing these things and that courts and judges are quite capable of being educated to believe that the chimpanzee interest has weight. Again, it is also a development. What was the judicial view of the value of a wetlands in 1950? They were swamps to be dug up and gotten rid of, but now you would expect a judge to have the attitude that a wetland is an important ecosystem deserving the protection that the various laws have given to it. So at the same time as I go forward with my proposal from the legal side, it’s also an educational process of the judges to make them more attuned to and in touch with what the underlying philosophies are on this point.
Q. Professor Favre, doesn’t the fourth element of your tort continue to promote the belief that nonhuman interests are subordinate to human interests? Then a follow up is, what if there were such a provision in determining interest based on gender or race? Wouldn’t that have been unacceptable?
David Favre: Not until about thirty years ago. My tort is built towards incrementalism. Yes, it still allows for differences between human beings and nonhuman beings. I have been thinking about this for twenty-five years, and I simply have no other mechanism to start the process of integrating animal interest into our legal system other than slowly. To say that all animals are equal to all humans just gridlocks the legal system. I don’t see any other option. If somebody has another way to do it, I look forward to that proposal.
Q. Steven Wise: If I may say just one thing. The rights that I advocate–the sort of fundamental right, for instance, to bodily integrity, is intended to operate for chimpanzees the way that other fundamental rights operate for human beings. Just like someone could not take me or my children, or Jane, or anyone else, and do invasive research on them, because it might help them, they should not be able to do that to a chimpanzee either. And if I could put David on the spot, David–how would your tort work in that circumstance where, hypothetically, you might be able to do a procedure on a chimpanzee that might indeed advance human interests?
David Favre: Well, I think that is a false premise. I don’t know the fact pattern where you could say “doing x to x chimpanzee is going to produce a saved human life.” The reality of how science works just does not allow that fact pattern to come up. But yes, you are suggesting an absolute right. I am suggesting the relative right of a balancing of interests. But I feel comfortable that in ninety-nine percent of the cases, we end up saving the chimpanzee.
Q. This question is for David Favre. Should individual animal interests be weighed against aggregate human interests? If so, is this fair to animals? If not can animal research ever be justified?
David Favre: That is a very good question. You have gotten down to some of the hard points. For example, if we had a case of a particular chimpanzee against a particular university, that university, as the defendant, has the obligation to make the full defense that what they are doing is in the better interest. I assume that part of their argument could be a sense that they are doing things for science. But what I prefer about my approach is that you get away from this general “good for science, bad for species” debate, to which there is no answer. Instead the question becomes: “what is this facility using this animal for? What exactly are they proposing to do?” I think that we can win that debate quite often, because a lot of animals are not being used in particularly useful and sound scientific manners that are going to produce good information for the broader sense of science. So I want to get away from the “Should we use animals in research?” question and instead talk about a specific animal and a specific research experiment.
Q. This question is for David Favre. Please explain the first element of the tort: what is the interest, and who is the plaintiff, a chimp or a person?
David Favre: The plaintiff is the animal who has the interest, the chimpanzee, the particular being who has interest. The fact that the chimp needs an attorney to make this argument on their behalf is obvious, but the standing goes to the person who has the interest and therefore whose interest is being harmed. An interesting matter, it is going to require a little bit of thinking, because we as human beings all have basic understandings about each other and how we operate and what is important to each other. We discover fairly quickly what is important to other human beings, and do not actually lay this out in any great detail unless you get to really detailed human rights arguments about why we are letting this go forward. Why is it that one particular action is allowed and other actions are not allowed? When it comes to looking at animals of other species, then I do think we are going to have to pause and actually use science as a tool to lay out the argument: “Well this is important. Cats do this, but chimpanzees don’t do that. What is important to a cat versus the chimpanzee?” Some things are perhaps the same, other things are not the same, and we are going to have to look at each individual species.
Q. David Favre, do you have a case in mind for which you plan to use your new tort? If so, can you tell us about it?
David Favre: If I did have a case, I would not tell you about it. Not until I filed the case. I have some hypotheticals in mind. As a typical plaintiff’s attorney, I would want the worst possible facts on the other side, and the least possible justification. I would probably look for a roadside zoo that had a chimpanzee or a primate in captivity where the benefits are almost de minimis, perhaps nonexistent, and the conditions are so bad that even a judge of moderately open mind would agree it was not an appropriate place for the animal. There are such things out there, so it is a matter of committing oneself to the filing of the lawsuit, while the other thing you have to do, of course, is perhaps pick the state. The tort is actually to be adopted by the supreme court of the particular state, and this is a state issue, not a Federal issue, so one would have to give some fair thought to what supreme court would be most open, at this point in time, to considering the tort as a possibility. Fifteen years ago, one would have assumed you would do it in California. That is not the case right now. We would have to take a close look at the best location to do it, and we will so do.
Q. For David Favre or Steven Wise. How, if possible, can we insure others take cases to court that will make good law, not bad law, for the animals? Can we limit the movement of cases to the best ones?
David Favre: The answer is “No.” Anybody can file a lawsuit–that is an American tradition. The practicality of the situation does give some hope that the frivolous suit will not be filed. To bring this first lawsuit is probably a $100,000 project, and it is not likely to be taken up by somebody who does not have resources. If you have that kind of resources, you tend to want to spend it well, and I think the first lawsuits will, in fact, represent considerable effort of legal resources and money to support the activities. There is no way to stop somebody filing a lawsuit, but I think pragmatically it probably is not going to happen.
Steven Wise: I agree with David. The answer is “No.” People have filed bad lawsuits. Luckily they have sunk, and no one pays attention to them. I think it is a $500,000 lawsuit, myself. Just flying Dr. Goodall in from wherever she is to testify will cost $10,000. The number of experts you would have to have if you want to do it right, the number of people who would be working on it would be great. It will be very complex. I have actively discouraged lawyers from filing these lawsuits, because there is little deep, bad law against us. All that is out there, in the cases, are single sentences saying, “Animals do not have rights.” They cite back to another case that says, “Animals do not have rights,” which cites back to another case, which cites back to Blackstone, which cites back to Roman law, and that is all. No court in the last several hundred years has bothered to explain why chimpanzees should not have rights. We do not want to give them the chance to come up with a cockamamie explanation. We would like to present them with powerful facts that exist, and give them the opportunity, those first few times, to do the right thing.
Q. David Favre, you touched on this but if you have anything else to say you can add it now. How would your new tort be created?
David Favre: Common law torts are inherently the product of judicial rumination and decision making, so you could have the legislature create a new tort, that is one route. Otherwise a tort comes into being by the supreme court of the state declaring that it is now a tort. An example of torts that we are not quite sure we want in this society are the rights of fetuses. Some states’ supreme courts have said that fetuses do have certain rights, and others have said they are not going to have rights. I will be an advocate for this tort and it will be published at some point. Then the determination on whether or not the tort can in fact come into being will be whether or not some group of people, plaintiff’s attorneys, can convince a supreme court that this is the appropriate thing to do given our history of jurisprudence and given certain concepts. Although it sounds a little radical to start with, it really is not that different from other things they have done in the past.
Steven Wise: David, the beauty of our common law system is that the judges make the law. Each state supreme court is filled with judges who make law. Much of the state’s laws are made by judges. Judges, if you can convince them, may decide to extend the law a bit to see how it works because they know they made it. If they do not like it and it does not work out, they can unmake it. As opposed to trying to amend the constitution or even getting a state legislature to pass a statute. These are harder things to unmake. Common law torts or common law actions are the easiest sort of lawmaking to reverse, so therefore, one argument is if it is a bad idea, the next time the case comes up you can reverse yourself. That has been done hundreds and hundreds of times.