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Journal of Animal Law Vol 3.Pdf VOL. III 2007 JOURNAL OF ANIMAL LAW Michigan State University College of Law J O U R N A L O F A N I M A L L A W VOL. III 2007 TABLE OF CONTENTS ARTICLES THE HUNT FOR MERCY Jay Surdukowski …………………………………………………………………………………1 The British historian Thomas Macaulay wrote in the second chapter of his history of England: “the Puritan objected to bear-baiting, not because it gave pain to the bear, but because it gave pleasure to the spectator.” Catholic Church Father St. Thomas Aquinas noted that cruelty to animals is shunned in scripture for its capacity to provoke the same in us; an “injury of an animal leads to the temporal hurt of man.” Immanuel Kant wrote: “[H]e who is cruel to animals becomes hard also in his dealings with men.” A frequent question asks whether animal laws are passed as a mercy to individual animals or if they are human-centered in their intention, crafted to alleviate the harm to people that comes from harming animals. The Hunt for Mercy examines the largest animal law debate in history – the English ban on foxhunting – to see whether a discourse of mercy or human- centeredness prevails. ADVANCING ANIMAL RIGHTS: A RESPONSE TO JEFF PERZ’S “ANTI-SPECIESISM,” CRITIQUE OF GRAY FRANCIONE’S WORK AND DISCUSSION OF MY BOOK SPECIESISM Joan Dunayer………………………………...……………………………..……………………17 In this response to Jeff Perz’s “Anti-Speciesism” (Journal of Animal Law, Volume 2, 2006), Joan Dunayer refutes Perz’s charges that her book Speciesism appropriates and misrepresents the work of Gary Francione. She also critiques aspects of Francione’s animal rights theory and discusses ways in which Speciesism represents progress beyond that theory. Dunayer demonstrates that Francione’s guidelines for abolitionist action are needlessly complex and actually allow for “welfarism”; she proposes a different approach. In addition, Dunayer redefines speciesism, expanding and refining the concept by distinguishing between different types of speciesism. Finally, she outlines the legal rights that all nonhuman beings should possess. J O U R N A L O F A N I M A L L A W VOL. III 2007 TABLE OF CONTENTS DETERMINING THE VALUE OF COMPANION ANIMALS IN WRONGFUL HARM OR WRONGFUL DEATH CLAIMS: A SURVEY OF U.S. DECISIONS AND LEGISLATIVE PROPOSAL IN FLORIDA TO AUTHORIZE RECOVERY FOR LOSS OF COMPANIONSHIP Marcella Roukas……………...………………………………………………………………… 45 The law in United States categorizes animals as personal property. As a result, recovery of damages for the loss of a companion animal is often times the fair market value. This inflexible approach to companion animals fails to distinguish between personal property such as a chair and a beloved pet. Needless to say, awarding damages at fair market value serves as little or no deterrence for the tortfeasor. This is especially true in cases where the companion animal lacks pedigree or special training. However, some decisions have authorized human guardians of companion animals to plead and recover the “unique value” of the companion animal. Such decisions reflect a shift in the court’s view of companion animals, which acknowledges public policy concerns for the guardian of the companion animal. This article discusses the law in United States on companion animals and proposes legislative action in the state of Florida for the recovery of the “loss of companionship” for owners of companion animals. “LIVE ANIMALS”: TOWARDS PROTECTION FOR PETS AND LIVESTOCK IN CONTRACTS FOR CARRIAGE Erin Sheley………………………..……………………………………………………………...59 This article maps the current legal and logistical circumstances of animals in transportation, with a focus on commercial airlines and meat industry trucking practices, and proposes novel ways of utilizing the existing common law of contract adjudication to win stronger protections for such animals, even absent the fulfilled dream of statutory reform. In particular, it argues that courts should utilize two well-established doctrines of contractual interpretation--unconscionability and unenforceability as against public policy--to arrive at more humane results for animals. ANIMAL LOVERS AND TREE HUGGERS ARE THE NEW COLD-BLOODED CRIMINALS?: EXAMINGING THE FLAWS OF ECOTERROISM BILLS Dara Lovitz....................................................................................................................................79 Animal lovers and tree huggers were once deemed peaceful and benevolent activists. As our nation witnessed the increase in powerful lobbying on behalf of wealthy industries, that identity has been shattered by offensive epithets and reckless generalizations. Now those who preach kindness to the non-human species and respect for the environment are dumped into the same category as the group of individuals who fly planes into buildings and don explosive materials in high-traffic areas - those whose every violent action is designed to maim or murder a large number of innocent civilians. The defective grouping resulted from the gross mistake of legislatures across the country that enacted the fundamentally flawed so-called “eco terror bills.” DANGEROUS DOG LAWS: FAILING TO GIVE MAN’S BEST FRIEND A FAIR SHAKE AT JUSTICE Cynthia A. McNeely & Sarah A. Lindquist………………………………………….…...…..…99 Compared to other non-human animals, dogs generally share a privileged relationship with humans. This 12-14,000-year-old union translates today into nearly 68 million domesticated dogs living in United States households. Dogs once had free reign to run through rural and even urban communities, but growing human populations and their similarly growing intolerance toward free-roaming dogs have initiated a government crackdown. Tethering dogs in yards has resulted in an unnatural state which studies indicate actually facilitates more humans receiving dog bites. Recent government trends have been to classify dogs “dangerous” to force “irresponsible owners” to better control their dogs. While some “owners” are undeniably irresponsible and deserve to be held accountable, a fair analysis of some of the factual situations underlying dangerous dog classifications indicates that too many local governments declare dogs dangerous who are not truly dangerous. The classifications are generally based upon political pressure and governments’ fear of being legally held liable for any future attacks that might occur. Combined with media-inflamed reports of rare, vicious dog attacks, many local governments are classifying dogs “dangerous” for engaging in normal and harmless dog behaviors such as running up to and barking at people. With the United States human population now at more than 300 million, it is foreseeable that this trend is only going to continue as developable land decreases, forcing humans to live closer together and to come into greater contact with neighbors' dogs. NOTES & COMMENTS CHANGING THE TAX SYSTEM TO EFFECT HUMANE TREATMENT OF FARM ANIMALS Eden Gray (George Washington University Law Schoo)………………………………………159 The meat, egg, and dairy industries in the United States slaughter over ten billion land animals each year. The majority of these animals are raised on capital intensive factory farms. Large farming operations use factory farms to cut production costs and thereby increase their profit margins. Although this industrialization of the animal agriculture business reduces monetary costs, it causes immense suffering to the farm animals and raises significant costs to society, including a reduction in the number and profitability of family farms, an increase in the health risks related to meat consumption, a proliferation of damage to the environment, and a rise in threats to farm workers’ health. Current federal and state legislation fails to protect farm animals from the cruel, inhumane conditions common on factory farms. This paper discusses changes that could be made to the tax code to provide incentives to farms to treat farm animals more humanely. PETS: PROPERTY AND THE PARDIGM OF PROTECTION Brooke J. Bearup (Michigan State University College of Law)……………….……………….173 This article touches on the evolution of property classifications through history and suggests that the time has arrived for society to re-conceptualize its view on animals as personal property. Re- categorizing animals as equivalent, sentient beings has the potential to affect current search and seizure practices under the Fourth Amendment to the Constitution. This article proposes policy changes that could significantly benefit neglected and abused animals, while still recognizing the fundamental liberty interests of pet owners. 2006-2007 CASE LAW REVIEW Kathryn Leonard.…………………………………………………………………………………….…193 J O U R N A L O F A N I M A L L A W VOL. III 2007 EDITORIAL BOARD 2006-2007 Editor-in-Chief BROOKE J. BEARUP Managing Editor JOSEPH G. CALHOUN Articles Editor CAMILLE R. KAM Executive Editor JORDAN PLENER Associate Editors JACQUELINE DELUCA JENNIFER FIORE MATTHEW JONES JENNIFER MARIUCCI SARAH MORGAN SUZANNE WASNER KATHRYN LEONARD Faculty Advisor DAVID FAVRE J O U R N A L O F A N I M A L L A W VOL. III 2007 PEER REVIEW COMMITTEE 2006-2007 FERNANDO ARAÚJO TAIMIE L. BRYANT DAVID CASSUTO DAVID FAVRE, CHAIR REBECCA J. HUSS PETER SANKOFF STEVEN M. WISE The Journal of Animal Law received generous support from the Animal Legal Defense Fund, The Michigan State University Council of Graduate Students, the Detroit & MSU College of Law Alumni Association, and the Student Bar Association of Michigan State University College of Law. Without their generous support, the Journal would not have been able to publish and host
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