Hounded, Cowed, & Badgered

Imagining reform beyond the animal law ghetto

Not to grouse, but the latest crush video ban can safely be characterized as addressing only niche cruelty. There are dozens if not hundreds of other forms of abuse that would rate higher on my agenda. But two recent pieces have made me think more broadmindedly (yes, I know how it's spelled) about the prospects for real change to our laws on animals. A vegan animal-law agenda like mine shares almost nothing with the animal-law agendas, to the extent they exist, of most Americans and of almost all legislators. One could be excused for giving up on the idea of animal law reform entirely.

The question is if there is any common ground for improving the lot of animals being abused, ideally by banning that abuse. The Journal of Legal Education has a provocative piece on this subject, "The Future of Animal Law: Moving Beyond Preaching to the Choir," by Megan A. Senatori and Pamela Frasch. The authors study the environmental movement and identify four "levers" for social justice: (1) emphasizing human interests, (2) finding credible witnesses to highlight abuses, (3) building "outsider buy-in", and (4) political pressure. I'm sure scholars of social justice could find other impetuses/foci for change but the piece is convincing on the ones it identifies.

I had these ideas in mind when I read a recent post by the always knowledgeable Michael Markarian. He has a few proposals that would appeal to the human interest in cutting the federal deficit, and which have the potential for big public buy-in. With the caveat that I'm a political outsider myself, I wouldn't give favorable odds on the most cost-saving of the proposals. Animal industries have a far reach, and would likely fight any pro-animal change in farm-subsidy or predator-control policy.

With the above caveat reiterated, the best shot seems to be limiting the use of animals in research. This guess is somewhat counterinutive, given Senatori's and Frasch's comments on the credibility of scientists as witnesses to abuse. But there is enough hostility to science among conservative religious legislators that there might be votes there. Defunding primate research has the potential for tremendous public buy-in. And if reformers need credible witnesses, Matthew Broderick and Helen Hunt spring to mind, given their past work ;)

Thank you, Markarian, Senatori, and Frasch, for making animal law reform seem possible, if not imminent.

Back!

Well, it's been a while. Loyal readers, please accept my apologies for the long silence. I'm giving this blog another go at it. I resolve in the new year to resume posting, at least once a week, and to make my posts a little more readable.

What developments have I missed? The ABA Journal has a nice rundown of recent animal law cases and laws including, as a timely tie-in, BP's agreement, following a lawsuit, to develop protocols for burning oil, in order to avoid harming sea turtles. Also mentioned are SCOTUS's invalidation of an anti-cruelty law in United States v. Stevens, a law in Massachusetts (text here) that makes devocalization of cats and dogs more difficult, and the Ninth Circuit's upholding of a California law banning meat from downed animals in National Meat Association vs. Brown. I'd also add the controversy over Cass Sunstein's scholarship on standing for animal advocates.

This article gets extra credit for generally avoiding the cardinal sins of animal law reportage: using puns that minimizing animal suffering or the efforts of animal advocates, overstating the level of change achieved, and accepting industry lines on abuse. The lack of callous puns is a welcome contrast to the National Meat Association decision, which refers to both "hogwash" and "horse sense." To quote Shaun Martin: "knee-slapper[s], to be sure." The decision, however, does have an interesting section on how states can regulate the slaughter of animals, while avoiding federal preemption. It holds "states are free to decide which animals may be turned into meat."

There are a couple of missteps--using "animal welfare" and "animal rights" interchangeably, and the implication that Animal Liberation Front used lawsuits as a tactic--but overall, a fine description of the state of animal law in the U.S.

"A pioneer in the field of animal law"

The Bellingham Herald has a good profile on local (blog) hero Adam Karp. Gary Francione has argued that, in order to be effective, animal rights advocates pushing for incremental legislative reform must make clear that the ultimate goal is abolition of animal use. I, and many others, have complained that linking animal cruelty with abuse of humans shifts the focus from animals, who are in fact suffering from their own exploitation. In terms of rhetoric, it doesn't get much better than Karp's comment on an instant-euthanization ordinance: "It's a violation of an animal's right to live."

See also this post on a 2006 profile of Karp.

New Ibrahim article on factory farms

Arizona professor Darian Ibrahim has posted a fantastic new article on corporate law, market pressures, and "humane" animal products, which will appear in a forthcoming issue of Law & Contemporary Problems. It's called A Return to Descartes: Property, Profit, and the Corporate Ownership of Animals.This piece, like his previous work on the law and animal experimentation and anti-cruelty statutes, shows the failure of the law to protect animals in any meaningful way. We wonder if it's too soon to make conclusions about the consumer demand for foods produced under less oppressive conditions, given how recently that demand has arisen and the growing media interest in animal welfare, but believe that Ibrahim is correct that there's no way for low prices and decent living conditions for animals to coexist. As with many hard-line animal law arguments, the conclusion reveals a malaise about not only the state of the current law, but the prospect of future legal reform. In that spirit, but probably preaching to the choir, why not become a vegan?

In da courts, in da statehouses, in da papers (catching up edition)

Since the posting pace has slackened, HC&B has no doubt missed much. To round out 5766, a rundown of recent animal law stories. It's a hodgepodge.

• (Anti-)circus news: S. 2699, a bill which would ban circuses (but not zoos) from using on elephants either 1) items which "may reasonably result in harm," harm being defined fairly expansively to include items which "pinch", or 2) restraining chains, has passed the Massachusetts Senate and is making its ways through committees in the House. One wonders whether circuses can control/exploit these animals without hurting them. Also, advocates in San Jose can protest Ringling Bros. outside the HP Pavilion. (Hat tip: An Animal-Friendly Life.)
• Experts on animal custody disputes post-Katrina: Steven Wise in the Austin American-Statesman: "The argument that the dogs have been abused is, at its heart, an argument about class and racism." Also, David Favre, quoted in the Concord Monitor: "The law is absolutely muddled."
• Into the mainstream ... The New York Times discovers animal law (reprinted at Book of Joe). Despite some missteps--an emphasis on the quirky, the idea that pets are not considered property in some states--this is a decent introduction to the issues involved in companion animal law practices. Also animal lawyers come in #9 on the "10 Hot Jobs for 2007."
• A grand jury refused to indict under a NY aggravated cruelty statute criminalizing "intentionally caus[ing] serious physical injury" when defendants allegedly slit a dog's throat and threw him out the window of a car.
• A bill has passed the California Legislature which would let the department of consumer affairs regulate pet stores. (Hat tip: GEARI.) Per the Bee, the legislation which passed was a compromise with pet stores, which "prefer to negotiate the specifics with a regulatory agency instead of the Legislature." Sweet capture.
• Michigan's first vet mal case (and some legislative reform brewing).

Upcoming conferences

Animal Rights 2006 is going on August 10th-14th in Washington D.C. On the program are many animal law presentations, including ones on animal law in other countries and legal issues involving animal activists, as well as a newcomer orientation by a student expert on animal law. In October, Lewis & Clark will be hosting its long-running animal law conference, with this year's theme being Market Revolution: Recognizing Animals' Intrinsic Values. Among the interesting presentation topics are a presentation by Jonathan Lovvorn, who published a provocative defense of animal welfare in the last Animal Law, on "Using Environmental Law to Help Animals."

Update: Also in D.C., Taking Actions For Animals is taking place September 2-5. The speakers' list is a who's who of animal rights and animal welfare organizations. Among the legal heavyweights are busy Jonathan Lovvorn, David Wolfson, and the Animal Legal Defense Fund's Joyce Tischler.

Update II: Fellow Chicagoland residents, DePaul law school and the International Institute for Animal Law are presenting a symposium titled "Punishment and Sentencing of Animal Abusers" on October 19. It's at the DePaul Center in downtown Chicago from 3:00-6:00 pm and is open to the public.

New scholarship by Taimie L. Bryant

June promises an abundance of scholarly articles on animals and the law. A new issue of Animal Law Review and the first Journal of Animal Law and Ethics should ship, with a new Journal of Animal Law to follow shortly thereafter. Plus, we anticipate provocative student notes and comments from law reviews and specialty journals across the country.

Law professors Taimie L. Bryant and Darian M. Ibrahim are two scholars who are publishing all over the place this summer, and doing so from an abolitionist perspective that is lacking in much animal law scholarship. (Shout out, Gary L. Francione!) We've enjoyed reading early drafts of two Ibrahim articles (on the weakness of anticruelty laws and the failure of the Three Rs of animal research) and look forward to reading a forthcoming piece on corporate ownership of animals. We're embarrassed to say, however, that we somehow missed the ascension of another star in Bryant. (For earlier animal-related work, check out Bryant on the Animal Voices show [mp3] with Francione and as a speaker on this Animal Law Review superstar panel [pdf].)

Bryant has drafts for four articles on animal law and advocacy coming out soon and all are great reads. (Each can be downloaded from her UCLA bibliography.) "Trauma, Law, and Advocacy for Animals" outlines the posttraumatic stress advocates may endure after repeated exposure to legally sanctioned violence against animals and proposes areas of legislative reform and legal representation which may counter the effects of this trauma. "Animals Unmodified: Defining Animals/Defining Human Obligations to Animals" argues that reform efforts should permit animals to live their lives on their own terms by examining the interests of those who would use animals and impose duties on them. In a similar vein, "Similarity or Difference as a Basis for Justice: Must Animals be Like Humans to be Legally Protected from Humans?" embraces an antidiscrimination approach to reform, as opposed to one predicated on the similarity of nonhumans to humans.  And "Mythic Non-violence" contrasts the rhetorical "violence" attributed to animal activists with the actual violence that the law permits against animals.

One of the most powerful threads in Bryant's work is her preference for policies which place the burden on animal users to justify their conduct. While acknowledging that the Animal Welfare Act does not impose any meaningful burden of justification on those it regulates, Bryant points to other duty-based laws, like NEPA, which could serve as models, as well as policies like wildlife corridors which already benefit animals. She also cites the Family and Medical Leave Act and the Americans with Disabilities Act as good, albeit imperfect, examples of laws which make institutions change, rather than forcing individuals to obtain relief on an individual level. At the same time, Bryant acknowledges the usefulness of weaker, even symbolic, legislation, like "guardian" language and Spay Days, as a way to educate the public.

Bryant's analysis can lead to some shocking places. We found ourselves reading some parts of "Animals Unmodified" defensively. Why should our duties to animals not extend to the bacteria we kill every day by washing our hands (or, say, beyond animals to plants), she asks? Our knee-jerk response: Why should they? We confess to lacking the imagination to envision a world where human interests were but one of many to be furthered. But the hard cases are important ones to think about.

Bryant approaches her case studies with a nuanced, detailed understanding of the dynamics of advocacy and the facts of the given situation, something she shares with professor Ibrahim. She is also able to link a fairly radical theoretical stance with concrete legislative proposals and analyses, and, importantly for us, she never throws up her hands and says "Legal change? Forget it!" One cannot read about the institutional abuse of animals without realizing the tremendous political and economic power wielded by institutions which use animals. It is noteworthy then that, after reading through hundreds of Bryant's pages on how the law fails animals, each of her pieces has a kernel of hope that the project of pro-animal law is a worthy one.

Loss of companionship trial in Oregon

Steve Mays has a great article in today's Oregonian on a potentially groundbreaking case going to trial this week in Clackamas County. The defendant Raymond Weaver allegedly ran over the Greenup family's companion dog several times, killing him.  Weaver has already been convicted of first degree animal abuse in criminal court. What is interesting about the civil trial is that the plaintiffs may recover damages for loss of their dog's companionship.

There has been much recent legal scholarship addressing the question of how humans should be compensated when an animal they keep as a companion is killed or injured. A central idea is that animals should be valued in the legal system on a different basis than their fair market value. A few courts have considered the emotional bond between a wronged animal and its human companion in assessing damages arising from a tort. In Brousseau v. Rosenthal (one of the "Greatest Hits of Animal Law") a New York court considered the plaintiff's bond with a puppy who died as the result of plaintiff's negligence.

What the court has allowed in this case, however, is a separate tort for loss of companionship. According to Mays's article, the elements of the tort require the plaintiff Greenups to prove "Weaver acted intentionally, that he intended to destroy the relationship between the Greenups and Grizz [their companion dog] and that the relationship had a value." The Greenups's attorney, Geordie Duckler, was successful in 2001 in getting an Oregon court to recognize the tort in a case involving a plaintiff's dog who was killed with an arrow. It was the first court ever to do so. That case settled out of court but this one appears to be going to trial. Here's hoping Duckler makes history again.

For animal law fans, the Mays article is also worth reading for the impressive array of animal experts he contacted. This provides a rare opportunity for HC&B to act like A3G: All you fellows in the audience, shout out to the Practioners (Duckler! Breyer!). Ladies, let's here it for the Scholars (Favre! Wise! Waisman!). Now, everyone, for the animals! Thank you, Oregon!

Profile of Chris Wencker

The Arizona Daily Star has a profile today of local practitioner Chris Wencker, with talking heads from other Arizona people concerned with animal welfare. The article has several interesting bits, most prominently the reference in the headline and throughout the article to "animal welfare law." It seems apt to describe the approach (or perhaps resigned prognosis) of Wencker, who is quoted as noting a "big move toward granting animals a status that's better than property," but not so much better as to deprive humans of the right to use animals for food or science. Most materials we see regarding the study of law and animals call this field of legal studies "animal law." Understandably more rights-oriented folks, like Gary Francione, use the term "animal rights law." See here. "Animal welfare law" is surely something easier to sell to apolitical organizations, like the animal law section of the Arizona Bar Association, per Wencker, or the ABA's Animal Law Committee, which  claims it will cause a paradigm shift that takes into account "legitimate business and economic interests, and humane concerns." Last and maybe least.

Are there self-identified animal law practitioners who think that animal welfare is too big of a concern in U.S. law? Our suspicion is that there are few such people because the interests of animals are so poorly protected by the law that the status quo is probably pretty good enough for business. In addition, calling a discipline "animal law" grants the animals some uniqueness as subjects, above the law's applications to animals in torts, regulatory law, etc. This blog has adopted the broad term this statement to be inclusive, although it is obviously anti-anti-animal.

Wencker's statement that the law is lagging behind social change is borne out by recent nutty legislation in his state designed to make future reform difficult.

Harvard moot court results

Belated kudos to the participants in Havard's National Animal Advocacy Competitions, which was held over last weekend. Kudos especially to those receiving honors. For a look at potential future animal law specialists, check out the best briefs.