The Evolution of Animal Law Since 1950

WellBeing International WBI Studies Repository

2003

The Evolution of Animal Law since 1950

Steven M. Wise

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Recommended Citation Wise, S.M. (2003). The evolution of animal law since 1950. In D.J. Salem & A.N. Rowan (Eds.), The state of the animals II: 2003 (pp. 99-105). Washington, DC: Humane Society Press.

This material is brought to you for free and open access by WellBeing International. It has been accepted for inclusion by an authorized administrator of the WBI Studies Repository. For more information, please contact [email protected]. The Evolution of Animal Law since 1950 7CHAPTER

Steven M. Wise

ver the last half century, the nineteenth century, Radford explains penalties for violating state anti-cru- law has assumed an increas- that “while this legislation imposed elty statutes have gotten tougher Oingly important place in ani- restrictions on how animals could be and tougher, but the statutes them- mal protection even as it has begun treated, none of it—nor, indeed, any selves apply to fewer and fewer per- to point in the direction of true legal enacted subsequently—change [sic] petrators of nonhuman animal pain rights for at least some nonhuman the traditional legal status accorded and suffering. animals. In this chapter I briefly dis- to animals by the courts.”2 That sta- First, there has been a stiffening of cuss five aspects of the law: anti-cru- tus was as property3, and property penalties for conviction. In 1950 the elty statutes; the necessity of obtain- generally lacks rights. barest handful of state legislatures ing standing to litigate on behalf of There is no federal anti-cruelty had enacted anti-cruelty statutes that the interests of nonhuman animals; statute in the United States. But, were felonies or that even provided evolving protections for great apes; according to American law professor for a maximum penalty exceeding the movement toward legal rights for David Favre, the anti-cruelty statutes one year of imprisonment.8 The prob- at least some nonhuman animals; and of the fifty states “are so similar in lem of low penalties, Favre says, “is the state of legal education concern- nature and the issues so fundamental the ultimate weakness of most ing animal protection. that there is very little variation in [anti]cruelty statutes, for no matter judicial outlook around the coun- how expansive the language, if the try.”4 In 2002 these statutes strongly punishment is not sufficient, then no Anti-cruelty resembled not just each other, but real deterrent against the acts also the anti-cruelty statutes that exists.”9 The maximum penalty that a Statutes existed in 1950, in 1900, and, indeed, criminal statute allows is an impor- “Anti-cruelty” is not necessarily syn- in 1850.5 Radford says that, in both tant benchmark. It signals to a judge onymous with “animal welfare.” the United States and the United how opposed legislators think a soci- British law professor Mike Radford Kingdom, “(t)he gist of the offense” ety actually is to a particular wrong, notes that to today is as it has been for nearly two for it sets the stiffest penalty that a cause an animal to suffer unnec- hundred years, “the infliction of wrongdoer who commits a crime in essarily, or to subject it to any unnecessary abuse or unnecessary or the most unimaginably horrific way— other treatment which amounts unjustifiable pain and suffering upon or who commits it repeatedly—can to an offence of cruelty, is self-ev- an animal.”6 In neither country, suffer. Because a judge usually will idently detrimental to its welfare. explains the leading American legal not impose a penalty near the maxi- To that extent, there is a degree encyclopedia, has it been “the pur- mum for a first or “run-of-the-mill” of affinity between cruelty and pose of such statutes to place unrea- offense, the typical penalty for cruel- welfare, but the two are far from sonable restrictions upon the use, ty will remain low so long as the max- being synonymous: prejudicing enjoyment, or possession of animals imum penalty remains low. This prob- an animal’s welfare does not of or to interfere with the necessary dis- lem has begun to ease. While most itself amount in law to cruelty.1 cipline or government of animals.”7 anti-cruelty statutes continue to be “Anti-cruelty” is also not synonymous The last half-century has seen two misdemeanors, or lesser crimes, by with “animal rights.” Speaking of the significant changes in American anti- 2002 thirty-four American states and entire body of legislation in the area cruelty statutes, and they are rapidly the District of Columbia had enacted of nonhuman animal welfare in the trending in opposite directions. The at least one felony anti-cruelty

99 statute. Felonies generally are under- ically exempting customary hus- of “standing.” It allows persons to sue stood to be graver crimes that carry bandry practices indicate that, but for to redress an injury that they, and longer sentences of imprisonment.10 the exemption, such practices would only they, have suffered as a result of The second trend has been more be determined to be cruel.”15 an illegal act. Their remedy may indi- ominous for nonhuman animals, The same problem exists for the rectly protect nonhuman animals because many of the humans who millions of nonhuman animals forced who are being injured at the same commit forms of institutionalized cru- to be subjects of biomedical research. time. And that is all the protection elty have been exempted from the The only American biomedical re- that nonhuman animals ever get from reach of anti-cruelty statutes. The searcher convicted under an anti-cru- the civil law. most notorious example is that of non- elty statute—perhaps the only one I limit my discussion of standing to human animals raised and killed for ever charged—was Edward Taub. Even how it operates in America’s federal food. According to the U.S. De- his conviction for failing to provide courts and focus on common ways in partment of Agriculture’s National necessary veterinary care to a monkey which it has an impact on litigation Agricultural Statistics Service, in 1998 named Nero was reversed on appeal, that seeks to protect the interests of approximately 9,443 million nonhu- on the ground that the Maryland anti- nonhuman animals. Bear in mind man animals were killed for food in the cruelty statute under which he was that the struggle of judges with what United States; these include cows, charged was addressed to “unneces- may appear to be a straightforward pigs, sheep, chickens, turkeys, and sary” or “unjustifiable” pain or suffer- standard has led to a federal law of ducks.11 Yet twenty-five American ing, and pain or suffering inflicted standing that has been rightly states exempt common farming prac- pursuant to biomedical research was accused of “suffering from inconsis- tices entirely from cruelty prosecution. not that kind.16 Thirty states, along tency, unreliability, and inordinate Five others exempt some of them.12 As with the District of Columbia, now complexity.”21 of 2002 eighteen of these thirty states exempt nonhuman animals used in The source of federal judicial power had amended their anti-cruelty biomedical research from the reach of is Article III, section 2 of the U.S. statutes to add these exemptions with- their anti-cruelty statutes.17 Many of Constitution. Federal judges may only in the previous thirteen years, seven in these statutes, however, condition decide “cases” and “controversies.” the previous eight years.13 More states their exemptions upon compliance In order to surmount the constitu- are likely to follow. with the minimal dictates of the fed- tional obstacle of standing, a plaintiff In the famous English “McLibel” eral Animal Welfare Act, enacted in in a federal court must allege and case, two plaintiffs—McDonald’s Cor- 1966. However the Animal Welfare Act prove that he or she has suffered what poration and its English subsidiary— itself exempts the great majority of has come to be called routinely an sued for defamation for, among other nonhuman animals actually used in injury-in-fact. It was not until 1970 things, statements that they engaged biomedical research.18 that the U.S. Supreme Court adopted in cruelty toward the nonhuman ani- this relatively lenient standard.22 mals whom they served for food. The Before then, one could obtain stand- corporations urged the trial judge to Standing ing only if one could show that one’s rule that in England, as in most Lacking legal personhood and legal legal right had been invaded.23 An American states, customary farming rights, nonhuman animals are essen- injury-in-fact must then be “fairly practices should be deemed accept- tially invisible to civil judges. This traceable to . . . allegedly unlawful able. He refused, observing that a means that no one can file lawsuits conduct and likely to be redressed by farming practice could be both cruel directly on their behalf. Their inter- the requested relief.”24 and legal, and rejected the McDon- ests can be protected only indirectly. But injury-in-fact, traceability, and ald’s request, saying that not “to do This can happen when a legal person, redressability are just the constitu- so would be to hand the decision as to who has legal rights (usually an adult tional requirements. There may be what is cruel to the food industry human being) files a lawsuit either to others. The most common of the so- completely.”14 stop an illegal act or to seek compen- called prudential requirements for That is precisely what the majority sation for injuries already inflicted. standing is that a plaintiff’s claim of American states do. Professor David Not just any legal person can sue to “must fall within the zone of interests Wolfson has observed that the “effect protect animals. American courts protected by the law invoked.”25 This of this trend of amendments cannot generally prohibit a litigant from requirement arises when plaintiffs be overemphasized. The trend indi- asserting the legal rights of another seek review of the decision of a feder- cates a nationwide perception that it person.19 Judges, federal and state, al agency under the federal Adminis- was necessary to amend anti-cruelty usually restrict those able to obtain a trative Procedures Act.26 It guides a statutes to avoid their possible appli- judicial decision to plaintiffs with a court in deciding whether the partic- cation to animals raised for food or sufficient large stake in the outcome ular plaintiff who has challenged an food production. Amendments specif- of a controversy.20 This is the doctrine agency’s decision should be heard.27

100 The State of the Animals II: 2003 If the court decides that the plain- the psychological well-being of pri- tiff’s interests are “so marginally mates. This time an ape language Toward related to or inconsistent with the researcher was said to lack standing purposes implicit in the statute or because it was his university, and not Protection for that it cannot be reasonably assumed he, who might have suffered an injury, Great Apes that Congress intended to permit the while a business that sold primate In Rattling the Cage: Toward Legal suit,” it will not hear the claim of the housing that could be used if valid Rights for Animals (2000), I argued particular plaintiff.28 standards had been issued lacked that, under the common law, entitle- In the 1990s the Animal Legal standing because it fell outside of the ment to legal rights turns on the Defense Fund (ALDF) brought a land- zone of interests. nature of an animal’s mind; that mark trio of cases in the federal In 1996 the ALDF tried a third numerous scientific investigations courts in Washington, D.C., to try to time, claiming once again that the have demonstrated that at least two obtain standing to litigate in the Secretary of Agriculture had failed to great apes, chimpanzees and bono- interests of nonhuman animals. issue the minimum standards re- bos, possess minds so extraordinary Three times ALDF won in the District quired to promote the psychological that they tower above the minimum Court and three times these victories well-being of primates. One plaintiff, sufficient for rights; and that the day were overturned by a three-judge Marc Jurnove, was alleged to have vis- has come to grant basic legal rights panel of the Court of Appeals. On the ited a zoo repeatedly and seen pri- to these apes. In Drawing the Line: appeal of the third decision to the full mates kept in inhumane conditions Science and the Case for Animal bench of that court, ALDF achieved a whom he intended to continue to visit Rights (2002), I made the same argu- singular success. regularly. For the third time, a panel ment on behalf of the other two great In the first case, Animal Legal of the Court of Appeals reversed a apes, gorillas and orangutans. Defense Fund v. Espy (I),29 an inactive lower court victory for the Animal That day in which the great apes researcher and a lawyer-member of an Legal Defense Fund. This time a fur- obtain legal rights will cap a long animal oversight committee, as well ther appeal was requested before all legal and political process. Among its as two animal protection organiza- the judges of that Appeals Court, and first fruits were the 1985 amend- tions, complained that the Secretary they ruled, 7 to 4, that Jurnove had ments to the Animal Welfare Act. of Agriculture had excluded 90 per- standing.32 The majority said that There the Secretary of Agriculture cent of the nonhuman animals who people have a protected aesthetic was directed to “promulgate stan- were used in biomedical research— interest in observing animals free dards to govern the humane han- rats, mice, and birds—from the defin- from inhumane treatment. It turned dling, care, treatment, and trans- ition of “animal” in the regulations back arguments that the dissent portation of animals by dealers, he was required to issue under the embraced that a plaintiff could obtain research facilities, and exhibitors. . . federal Animal Welfare Act.30 A three- standing only if he alleged that ani- [and to] include minimum require- judge panel of the Court of Appeals mals whom he wished to observe ments. . . [for] a physical environment for the District of Columbia found the faced extinction, not just suffering; adequate to promote the psychologi- researcher had not suffered the that causation did not exist because cal well-being of primates.”34 This required injury-in-fact because it was the Department of Agriculture had amounted to a recognition by Con- not immediate, while the lawyer was not authorized the inhumane treat- gress that primates had a psychology said to be improperly trying to com- ment, but had just not acted to pre- that could be in good health or poor. pel a general executive enforcement vent it; and that one could only spec- Britain was next to step in the of the law. The organizations were dis- ulate that any changes in the direction of legal rights for great missed from the suit, for although treatment of the primates would apes. In 1997, on its own initiative, they met the three constitutional actually satisfy Jurnove’s aesthetic the British government’s Home Sec- requirements for standing, they did sensibilities. In 2000 other plaintiffs retary banned the use of all four not fall within the zone of interest of used this victory to obtain standing species of great apes, not just chim- the Animal Welfare Act. in, and finally to win, another lawsuit panzees and bonobos but orangutans In a second case, Animal Legal that complained that the Secretary of and gorillas, too, as biomedical re- Defense Fund v. Espy (II),31 the same Agriculture had illegally excluded search subjects.35 This ban on the use Court of Appeals turned aside for lack rats, mice, and birds from the defini- of great apes, he wrote, “was a matter of standing a challenge to the suffi- tion of “animals” to be protected by of morality. The cognitive and behav- ciency of the standards that the Sec- the Animal Welfare Act.33 Unfortu- ioural characteristics and qualities of retary of Agriculture had issued for nately, in 2002 Congress enacted an these animals mean that it is unethi- the exercise of dogs used in biomed- exemption to the definition of ani- cal to treat them as expendable for ical research and to promote a physi- mals that nullified this win. The research.”36 Under current British cal environment adequate to meet standing victory remains, however. legislation, there must be a weighing

The Evolution of Animal Law since 1950 101 of the cost to a nonhuman animal of Zealand Parliament did not grant all the countries of the world, but a biomedical procedure with the ben- legal rights to the great apes. Instead especially the so-called range coun- efit to human beings. Only when the it prohibited research, testing, and tries, embrace an international Decla- human benefit outweighs the nonhu- teaching involving the use of a great ration for the Protection of Great man cost may the procedure be ape without approval of the director- Apes and a subsequent Convention licensed. Steve Wilkes, head of the general who, in granting approval, for the Protection of Great Apes that Home Office’s Animal Procedures must be satisfied that use of the ape name the great apes as “World Her- Section, said that the benefit to a is in his or her best interests or in the itage Species.” This is a new category human being could never outweigh best interests of his or her species, roughly modeled on the existing the cost to a great ape.37 and that the benefits to be derived are treaty that allows for the designation In New Zealand a 1998 attempt led not outweighed by the likely harm to of World Heritage Sites. If this decla- to formal Parliamentary hearings that the ape.40 ration materializes, the new category were highly publicized around the In the United States, at least chim- of World Heritage Species would world. Prominent New Zealand advo- panzees, but likely all the great apes, tighten the protection of great apes cates of legal rights for great apes, appear to be edging toward a de facto under international law and under including lawyers, professors, scien- “right” to life. If not the most expen- the domestic law of range countries tists, and philosophers, sought to sive nonhuman animals to maintain and provide special protections under build upon an idea that had been the in biomedical research, chimpanzees international law. focus of a powerful book, The Great certainly are among the most expen- Ape Project: Equality Beyond Human- sive. In 1995 it was estimated that it ity.38 Animal Welfare Bill No. 2, which cost between $113,000 and $321,000 Toward Legal sought to streamline and modernize to maintain a captive chimpanzee Kiwi animal protection law, was pend- used in biomedical research over his Rights for ing before the New Zealand Parlia- or her natural lifespan.41 That it 44 ment. The submitters sought to have would doubtless be far cheaper to kill Animals it amended as proposed by the group them the way mice and rats routinely The ancient Greek and Roman worlds Great Ape Project (New Zealand) in are killed when their usefulness has were dominated by the belief that the order to grant great apes three basic ceased was forcefully etched in a universe was designed for human legal rights. These were the rights not minority statement appended to a beings. Small wonder that from these to be deprived of life, not to be sub- report of the National Research Coun- worlds emerged the jurisprudential jected to torture or cruel treatment, cil, an arm of the National Academy idea that, in the words of the early and not to be subjected to medical or of Sciences, in 1997. The statement Roman jurist Hermogenianus, “All law scientific experimentation. They also firmly opposed the use of public was established for men’s sake.”45 sought to provide for the appoint- money to support chimpanzees in Why should law not have been estab- ment, when necessary, of human retirement sanctuaries, “since there lished just for the sake of men? guardians to defend these great ape is no potential return on research dol- According to the early Greeks and rights.39 lars invested in chimpanzees perma- Romans, everything else was. In In their Submission to Parliament, nently removed from the research Roman law, “persons” had legal the submitters argued that pool,” and urged that they be eutha- rights, while “things” were the [b]eing fellow hominids, the nized.42 The majority, however, reject- objects of the rights of persons. And great apes are more closely related euthanasia as a method of popula- all those beings who were believed to ed to humans than to any other tion control of captive chimpanzees lack free will—women, children, animals. They share many of our on the grounds that slaves, the insane, and nonhuman ani- characteristics including some the phylogenetic status and psy- mals—were at some time classified as that we thought were uniquely chological complexity of chim- property. ours, such as self-awareness, the panzees indicate that they should Roman law has had a tremendous ability to reason and the ability to be accorded a special status with effect upon Western law as a whole, imagine what others are thinking regard to euthanasia that might and especially upon property law. The and feeling. In humans, these not apply to other research ani- law of nonhuman animals in the Unit- traits are often cited as a basis for mals, for example, rats, dogs, or ed States at the beginning of the sec- ascribing basic legal rights. We some other nonhuman primates. ond millennium is nearly identical to believe that a strong case now Simply put, killing a chimpanzee the Roman law of nonhuman animals exists for giving basic legal rights currently requires more ethical as it existed when the first millenni- to the other members of the and scientific justification than um turned. While all humans are Hominidae family. killing a dog, and it should con- legal persons, all legal persons are not The Animal Welfare Act of 1999 tinue to do so.43 human beings. Some are artificial that eventually cleared the New In 2002 a move was afoot to have persons, like corporations and ships.

102 The State of the Animals II: 2003 However, all of the more than one mil- broke legal rights into their lowest and comprehensive principles, found- lion species of nonhuman animals— common denominators, using terms ed on reason, natural justice, and chimpanzees, cheetahs, cats, and that judges commonly employ, such enlightened public policy, modified cockroaches—are not legal persons as privilege, claim, duty, immunity, and adapted to all the circumstances but are legal things. disability, power, and liability, but he of all the particular cases that fall Some may confuse being the object never formally defined them. Instead, within it.”48 of legal protection with having legal he spelled out how the common Why the common law over legisla- personhood. They may point to the denominators relate to each other. tion? The common law is created by criminal anti-cruelty statutes, which I According to Hohfeld, legal relation- English-speaking judges while in the briefly discussed, that have existed for ships can exist only between two legal process of deciding cases. Unlike leg- well over a century in every American persons and one thing. One of the two islators, judges are at least formally jurisdiction as evidence that nonhu- persons always has a legal advantage bound to do justice. Properly inter- man animals are legal persons with (or right) over the other. The other preted, the common law is meant to legal rights. But they would probably person has the corresponding legal be flexible, adaptable to changes in be wrong. Criminal statutes are pro- disadvantage. Just as a man can’t be public morality, and sensitive to new hibitions enacted by legislatures. a husband without a wife and a scientific discoveries. Among its chief Sometimes they protect persons, as woman can’t be a wife without a hus- values are liberty and equality. These when legislatures make it a crime to band, neither a legal advantage nor a favor common law personhood, as a assault a fellow human being. But disadvantage can exist all by itself. matter of liberty, at least for those they may also commonly protect The legal rights of nonhuman ani- nonhuman animals, such as chim- things. For example, in Massachusetts mals might first be achieved in any of panzees, bonobos, gorillas, orang- it is a felony, punishable by imprison- three ways. Most agree that the least utans, dolphins, and whales, who pos- ment for up to five years, to destroy a likely will be through the re-interpre- sess such highly advanced cognitive cemetery shrub. It also is a crime to tation or amendment of state or fed- abilities as consciousness, perhaps smash the windshield of your neigh- eral constitutions, or through inter- even self-consciousness; a sense of bor’s automobile or set his dog afire. national treaties. For example, the self; and the abilities to desire and act Violate these prohibitions and you Treaty of Amsterdam that came into intentionally. In other words, they may be charged with a crime by the force on May 1, 1999, formally have what I call a “practical autono- state, convicted, and punished. But acknowledged that nonhuman ani- my,” which is, I argue, sufficient, neither the shrub nor the automobile mals are “sentient beings” and not though not necessary, for basic legal nor the dog has thereby been given merely goods or agricultural prod- rights.49 An animal’s species is irrele- any legal rights. ucts. The European Community and vant to his or her entitlement to lib- What are legal rights? Potter Stew- the member states signatory to the erty rights; any who possesses practi- art, a twentieth century justice of the treaty are required “to pay full regard cal autonomy has what is sufficient United States Supreme Court, to the welfare requirements of ani- for basic rights as a matter of liber- famously observed about pornogra- mals.” In 2002 the German Parlia- ty.50 And as long as society awards phy, “I know it when I see it.”46 Simi- ment amended Article 26 of the Basic personhood to non-autonomous larly, people have an intuitive “feel” Law to give nonhuman animals the humans, such as the very young, the for what legal rights are, even if they right to be “respected as fellow crea- severely retarded, and the persistent- can’t quite define them. Some of the tures” and to be protected from ly vegetative, then it must also award most important rights, such as bodily “avoidable pain.” Half of the sixteen basic rights, as a matter of equality as integrity and bodily liberty, act like a German states already have some sort well, to nonhuman animals with prac- suit of legal armor, shielding the bod- of animal rights provisions in their tical autonomy. ies and personalities of natural per- constitutions.47 sons from invasion and injury. These In the United States, most believe rights are so important that they usu- that gaining personhood is much ally are enshrined in the bills of rights more probable through legislative of state and federal constitutions. enactment than through a constitu- For most of the last century, legal tional change. But a change in the scholars, judges, and lawyers often common law (which Germany does classified legal rights in the way that not have) may be the most likely of Wesley Hohfeld, a professor at Yale all. What is the common law? Lemuel Law School, proposed during World Shaw, the nineteenth century chief War I. Hohfeld said that a legal right justice of the Supreme Judicial Court was any theoretical advantage con- of Massachusetts, provided this good ferred by recognized legal rules. He definition: it “consists of a few broad

The Evolution of Animal Law since 1950 103 more arcane subjects of animal pro- succeed. (As of 2002 a second animal Legal Education tection law and animal rights law lay law review, this one a Northeast nearly forty years in the future. regional publication, was in the plan- in Animal Law There were no animal law confer- ning stages.) It is important that gen- I have written that an animal rights ences in 1950. In the 1980s the Ani- eral law reviews have begun publish- lawyer should not expect a judge to mal Legal Defense Fund held sporadic ing animal law articles, including appreciate the merits of arguments in conferences. By 2002 four state bar those written by such prominent legal favor of the legal personhood of any associations (in Washington, Texas, academics as Cass Sunstein of the nonhuman animal the first time, or Michigan, and Washington, D.C.) had University of Chicago School of Law the fifth time, he or she encounters formed animal law sections, as had and Anthony D’Amato of the North- them. While a sympathetic judge the New York City and San Diego western University School of Law. might be found here and there, no County bar associations. Several Oxford University Press has just pub- appellate bench will seize the lead states (Connecticut, Florida, Georgia, lished a series of groundbreaking until the issue has been thoroughly and Oregon) appeared to be in the essays edited by Sunstein and Martha aired in law journals, books, and con- process of forming animal law sec- Nussbaum in Animal Rights: Current ferences. Law reviews discussing ani- tions. Since 1995 the Committee on Debates in New Directions. mal legal rights must be established Legal Issues of the Association of the The first American law school class around the country in order to pro- Bar of New York City has held a con- in animal law was offered by the Pace vide an important scholarly forum in tinuing series of educational semi- University School of Law in White which the relevant legal issues can be nars on animal issues, and annual full- Plains, New York, in the mid-1980s. explored. Legal conferences must be blown legal conferences. This series The instructor was adjunct professor organized, law school courses devoted of programs was capped by “The Jolene Marion, a pioneer in animal to educating students on animal law Legal Status of Non-Human Ani- rights law. Though it lasted just a few issues must be established, animal mals,” a 1999 conference that years, it paved the way for every ani- rights lawyers and law professors attracted speakers from three conti- mal law class that followed. In 1990 I must reach out to acquaint the pro- nents and hundreds of participants.53 began teaching a law school class at fession with the importance of their The Center for the Expansion of Fun- the Vermont Law School, again as an work and the power of their argu- damental Rights has begun a pro- adjunct. This course, entitled “Animal 51 ments. gram to take the issue of animal Rights Law,” focused on whether non- Legal education, in every sense of rights law directly to the judges who human animals should be eligible for that term—law reviews, legal confer- will be making the decisions, by offer- basic legal rights. ences, and law school courses—is ing to send speakers to judicial con- In 2002 animal law classes were critical to the legal changes that ani- ferences throughout the United being offered at nineteen American mal rights lawyers seek. As of 2002 States. law schools, including Harvard, much work remained. In 1950 it had Precisely a quarter century after Georgetown, UCLA, Hastings, and not even begun. The wildlife legal Environmental Law was founded, Ani- George Washington universities. scholar Michael Bean has written mal Law joined it as a sister publica- Courses were being offered in the that, even in 1977, “the very term tion. David Favre wrote in the pre- United Kingdom, Holland, and Aus- ‘wildlife law’ was novel, for few had miere issue that, tria. Most of these courses were seen fit to distinguish such a body of [i]n the tradition of the prior stu- taught by practitioners acting as law from the broader categories of dents at Lewis and Clark, a sub- adjunct professors or lecturers on law. ‘environmental law’ or ‘natural stantial number of present stu- They offered such an intellectual 52 resources law.’” dents have focused upon what will smorgasbord that a student might In 1950 no law reviews—those be a cutting area of scholarship attend several and encounter little scholarly journals published by the for the next generation of law stu- repetition. students of every American law dents—animal related legal Most focused on “animal law” and school—were devoted exclusively to issues. In the 1970s the new area surveyed either the statutes and case even environmental (much less ani- of jurisprudence was environmen- law in which the nature of nonhuman mal rights) law. That gap was not tal law. In the 1990s there is a animals is important, or “animal pro- plugged until 1970, when Environ- growing interest in animal tection law,” which addresses how mental Law began to be published by issues.”54 attorneys can protect the interests of students of the Northwestern School Animal Law is important because nonhuman animals within a legal sys- of Law of Lewis and Clark College in it was, and remains, both a cause and tem that considers them to be legal Portland, Oregon. In the middle of an effect of the intensifying interest things. Some courses, however, con- the twentieth century no law school in animal law within the legal profes- centrated on “animal rights law,” in classes solely addressed environmen- sion, an interest that must continue which the arguments are explored for tal law, much less wildlife law. The to build if animal rights lawyers are to and against having judges recognize

104 The State of the Animals II: 2003 that at least some nonhuman animals ture and the systemic abuse of animals raised for panzees in U.S. research institutions,” 37 Ameri- food or food production 27 Watkins Glen, N.Y.: can Journal of Primatology 25. possess at least some basic legal Farm Sanctuary, Inc. 42Chimpanzees in research: Strategies for their rights. All classes were given a boost 13Id. ethical care, management, and use. 1997. 66–67 by the publication in the year 2000 of 14McDonald’s Corporation v. Steel, Washington, D.C.: National Research Council. http://www.mcspotlight.org/case/trial/verdict/ 43Id. at 28. Animal Law, the first casebook exclu- _jud2c.html, at page 5 (High Court of Justice, 44This section has been adapted from S.M. sively concerned with animal law Queen’s Bench Division June 19, 1997), rev. in Wise, Rattling the cage: Toward legal rights for ani- issues.55 As its authors noted, “There part on other grnds (Court of Appeals, March 31, mals (Perseus Books 2000); S.M. Wise, Hardly a 1999). revolution: The eligibility of nonhuman animals has been a reticence in many legal 15Wolfson, D.L., note 12, supra, at 31. for dignity: Rights in a liberal democracy, 22 Ver- quarters to teach, learn, or practice 16Taub v. State, 443 A. 2d 819, 821 (Md. mont Law Review 793 (1998); S.M. Wise, Legal in the area specifically because of the 1983). rights for nonhuman animals: The case for chim- 17P.D. Frasch et al., note 10, supra, at 76–77 panzees and bonobos, 2 Animal Law 179 (1996); absence of meaningful assistance and and note 31. S.M. Wise, The legal thinghood of nonhuman ani- coverage.” The authors’ hope that 18Id. at 76–77. mals, 23(2) Boston College Environmental Affairs their casebook will “serve as a valu- 19Allen v. Wright, 468 U.S. 737, 751 (1984); Law Review 471 (1996); and S.M. Wise, How Warth v. Selden, 422 U.S. 490, 499 (1975). nonhuman animals were trapped in a nonexistent able guide to students and professors 20Sierra Club v. Morton, 405 U.S. 727, 731 universe, 1 Animal Law 15 (1995). stepping onto this new frontier and (1972). 45Momsen, T., P. Krueger, and A. Watson, eds. provide more law schools with a tem- 21Davis, K.C., and R.J. Pierce, Jr. 1994. Admin- 1985. Dig. 1.5.2 Hermogenianus, Epitome of law, istrative Law Treatise, (3rd. ed.) sec. 16.1. Book 1. Philadelphia: University of Pennsylvania plate for animal law courses” has Boston: Little, Brown and Company. Press. been fulfilled.56 22Barlow v. Collins, 397 U.S. 159 (1970); 46Jacobellis v. Ohio, 378 U.S. 184, 197 The last fifty years—and especially Association of Data Processing Service Organiza- (1964)(Stewart, J., concurring). tions v. Camp, 397 U.S. 150 (1970). See Tribe, 47Koenig, R. 2000. Animal rights amendment the last ten—have seen tremendous L.H. 1999. American Constitutional law (third defeated. 288 Science: 412. April 21. strides in the evolution of animal pro- edition) 393 New York: Foundation Press. 48Norway Plains Company v. Boston and tection law, both in its teaching and 23Tennessee Electric Power Co. v. Tennessee Maine Railroad, 67 Mass. (1 Gray ) 263, 267 Valley Authority, 306 U.S. 118, 137–139 (1939). (1854). in the laying of the foundations for 24Allen, note 19, supra, at 751. 49S.M. Wise (Rattling the cage), note 44, supra, true animal rights law. The first seri- 25Id. at 243–248. ous attempts to gain legal rights for 265 U.S.C. 702. 50Id. at 63–87, 243–270. 27Clarke v. Securities Decision Association, 51S.M. Wise. 1999. Animal thing to animal at least some nonhuman animals will 479 U.S. 388, 399 (1987). person: Thoughts on time, place, and theories. 5 likely be upon us in this decade. 28Id. Animal Law 61: 66–67. 2923 F. 3d. 496 (D.C. Cir. 1994). 52Bean, M. 1983. The Evolution of National 30Compare 7 U.S.C. 2132(h) with 36 Fed. Reg. Wildlife Law. Revised and expanded edition 1. Notes 24, 917, 24, 919 (1971). New York: Praeger Publishers. 1Radford, M. 2001. Animal welfare law in 3129 F. 3d. 53The proceedings were published in 8 Animal Britain—Regulation and responsibility 261. New 32Animal Legal Defense Fund v. Glickman, 154 Law (2002). York: Oxford University Press. F. 3d 426 (D.C. Cir. 1998)(en banc), cert. den. 54Favre, D. 1995. Time for a sharper legal 2Id. at 99. 119 S.Ct. 1454 (1999). For an excellent treat- focus. 1 Animal Law 1: 1. 3Id. at 99–100, 101. ment of the case, see R.R. Smith, “Standing on 55Frasch, P. et al. 2000. Animal law. Durham, 4Favre, D., and V. Tsang. 1993. The develop- their own four legs: The future of animal welfare N.C.: Carolina Academic Press. ment of anti-cruelty laws during the 1800s. litigation after Animal Legal Defense Fund, Inc. v. 56Id. at xviii. Detroit College of Law Review 1, reprinted in D. Glickman.” 1999. 29 Environmental Law: 989. Favre and P.L. Borschelt, 1999, Animal Law and 33Alternatives Research & Development Foun- Dog Behavior 251, 264 Tucson, Ariz.: Lawyers and dation v. Glickman, 101 F. Supp. 2d 7 (DDC Judges Publishing Co., Inc. 2000). 5Id. at 251. 347 U.S.C. sec. 2143(a)(2)(B)(1985). 6Radford, M. 1999. ‘Unnecessary suffering’: 35Personal communication from S. Wilkes, The cornerstone of animal protection legislation head of Animal Procedures Section, Home Office, considered, Criminal Law Review 702; Annota- Constitutional and Community Directorate to tion, “What constitutes statutory offense of cru- Steven M. Wise, March 26, 1998; Supplementary elty to animals,” 82 ALR 2d 794, 798. Note to the Home Secretary’s response to the 7Annotation, note 6, supra, at 799. Animals Procedures Committee—Interim report 8Leavitt, E.S. 1968. Animals and their legal on the review of the operation of the Animals rights: A survey of American laws from 1641 to (Scientific Procedures) Act 1986 para. 10 1968. Washington, D.C.: Animal Welfare Insti- (November 6, 1997). tute. 36Supplementary Note to the Home Secre- 9Favre, D.S., and M. Loring. 1983. Animal law tary’s response to the Animals Procedures Com- 127 Westport, Conn.: Quorum Books. mittee—Interim report on the review of the oper- 10Personal communication from Pamela ation of the Animals (Scientific Procedures) Act Frasch, April 16, 2002; P.D. Frasch et al. 1999. 1986, note 35, supra, at para. 11. State anti-cruelty statutes: An overview, 5 Animal 37PACE News. 1998. at 8:1 (January–March). Law 69: 69. 38The Great Ape Project: Equality beyond 11USDA/NASS “Meat Animal Production, Dis- humanity. 1993. Cavalieri, P., and P. Singer, eds. position, & Income(1998); USDA/NASS “Broiler New York: St. Martin’s Press/Griffin. Hatchery” (October 1999); USDA/NASS “Chick- 39Submission of David Penny and 37 others to en and Eggs (October 1999); USDA/NASS Turkey the Parliamentary Select Committee on Primary Hatchery (October 1999); USDA/NASS Livestock Production concerning the Animal Welfare Bill Slaughter 1998 Summary (March 1999); No. 25, 14 (October 27, 1998). USDA/NASS Poultry Slaughter 1998 Summary 40New Zealand Animal Welfare Act of 1999, (February 1999). sec. 76A. 12Wolfson, D.L. 1999. Beyond the law: Agricul- 41B. Dyke et al. 1995. “Future costs of chim-

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