Journal of Animal Law 2005.01.Pdf
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VOL. I 2005 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. I 2005 TABLE OF CONTENTS INTRODUCTION The Gathering Momentum…………………………………………………………………. 1 David Favre ARTICLES & ESSAYS Non-Economic Damages: Where does it get us and how do we get there? ……………….. 7 Sonia Waisman A new movement in tort law seeks to provide money damages to persons losing a companion animal. These non-compensatory damages are highly controversial, and spark a debate as to whether such awards are the best thing for the animals—or for the lawyers. Would a change in the property status of companion animals better solve this important and emotional legal question? Invented Cages: The Plight of Wild Animals in Captivity ………………………………... 23 Anuj Shah & Alyce Miller The rate of private possession of wild animals in the United States has escalated in recent years. Laws at the federal, state, and local levels remain woefully inadequate to the task of addressing the treatment and welfare of the animals themselves and many animals “slip through the cracks,” resulting in abuse, neglect, and often death. This article explores numerous facets of problems inherent in the private possession of exotic animals. The Recent Development of Portugese Law in the Field of Animal Rights ………………. 61 Professor Fernando Arajúo Portugal has had a long and bloody tradition of violence against animals, not the least of which includes Spanish-style bullfighting that has shown itself to be quite resistant to legal, cultural, and social reforms that would respect the right of animals to be free from suffering. While Portugal’s evolution towards respecting animal rights and welfare has been a slow and painful process, Portugal has nevertheless made some remarkable strides towards eradicating the suffering of animals, most notably with the passage of the Law of 1995. Portuguese scholars and activists have been instrumental in forcing the Portuguese government and citizenry to come to terms with the inhumane treatment of animals. J O U R N A L O F A N I M A L L A W VOL. I 2005 TABLE OF CONTENTS A Survey of Agreements and Federal Legislation Protecting Polar Bears in the United States ………………………………………………………………………………. 73 Jamie Woolsey Throughout the past few decades, international concern for polar bear welfare has increased dramatically. The multinational agreements forged for their conservation require significant policing, cooperation, and understanding of the complex ecological and economic considerations surrounding these predators. Woolsey’s article explores the international agreements and measures designed to save both the bears and their critical habitat. Defining Animals as Crime Victims………………………………………………………... 91 Andrew N. Ireland Moore Animals who are victims of abuse and neglect should be afforded protections similar to those granted to human victims of crime, and as such, a reformulation of the classification of abused animals from property to crime victims is needed. Defining animals as victims of crime, rather than mere property will aid in providing animals with the additional safeguards and protections of the criminal justice system that they deserve. NOTES & COMMENTS “Evading Extinction: A 21st Century Survey of Legal Challenges to Wild Siberian Tiger Conservation” ……………………………………………………………………………... 109 Julie Santangelo (University of California at Hastings Law School) When Ritual Slaughter Isn’t Kosher: An Examination of Shechita and the Humane Methods of Slaughter Act………………………………………………………….……… 129 Michelle Hodkin (Michigan State University College of Law) BOOK REVIEW I Fought the Law: A Review of Terrorists or Freedom Fighters? Reflections on the Liberation of Animals, Edited by Steven Best and Anthony J. Nocella II …….………….. 151 Matthew Liebman (Stanford Law School) 2004-2005 CASE LAW REVIEW……………………………………………………….…… 169 Sara Chisnell Voigt and Anna Sloan J O U R N A L O F A N I M A L L A W VOL. I 2005 EDITORIAL BOARD 2004-2005 Editor-in-Chief MICHELLE D. HODKIN Managing Editor CHARLES F. HALL, IV Articles Editor TRACY E. VANDENBERGH Notes & Comments Editor ADRIEN DEFORD Executive Editor ANNA SLOAN Executive Editor SARA CHISNELL VOIGT Associate Editor TANYA IRWIN Faculty Advisor DAVID FAVRE The 2004-2005 Editorial Board would like to express appreciation to Professor Daivd Favre and the Animal Legal Defense Fund for strong, steady support. Additionally, the 2004-2005 Board recognizes the hard work of members of the 2005-2006 Editorial Board for participating in the final phases of publishing this first issue. J O U R N A L O F A N I M A L L A W VOL. I 2005 PEER REVIEW COMMITTEE 2004-2005 FERNANDO ARAÚJO TAIMIE L. BRYANT DAVID CASSUTO DAVID FAVRE, CHAIR REBECCA J. HUSS PETER SANKOFF STEVEN M. WISE The Journal of Animal Law received support from the Animal Legal Defense Fund and from the Student Bar Association of Michigan State University College of Law. The Journal also is funded by subscription revenues. Subscription requests and article submissions may be sent to: Journal of Animal Law, Michigan State University College of Law, 368 Law College Building, Lansing MI 48824. The Journal of Animal Law is published annually by law students at ABA accredited law schools. Membership is open to any law student attending an ABA accredited law college. Qualified candidates are encouraged to apply. Current yearly subscription rates are $25.00 in the U.S. and current yearly Internet subscription rates are $15.00. Subscriptions are renrewed automatically unless a request for discontinuance is received. Back issues may be obtained from: William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209. The Journal welcomes the submission of articles, book reviews, and notes & comments. Each manuscript must be double spaced, in 12 point, Times New Roman; footnotes must be single spaced, 10 point, Times New Roman. Submissions should include both a printed copy and a copy on IBM PC compatible disks using Microsoft Word (or saved as “rich text format”). Submissions must conform closely to the 17th edition of The Bluebook: A Uniform System of Citation. Authors should provide photocopies of the title page of all sources used and photocopies of the phrases and sentences quoted from the original sources. Copyright © 2005 by the Journal of Animal Law J O U R N A L O F A N I M A L L A W VOL. I 2005 PEER REVIEW COMMITTEE Fernando Araujo is a professor of law at the University of Lisbon Faculty of Law, where he teaches Law and Economics, Philosophy of Law, and Bioethics. He is the author of the first Portuguese book on animal rights. Taimie L. Bryant teaches Property Law, Japanese Law, Comparative Japanese Family Law, Animals and the Law, and Nonprofit Organizations. Since 1995, she has turned her attention to animal rights, focusing both on the theoretical issues of conceptualizing such rights and on legislative and other legal regulations of human treatment of animals. Professor Bryant earned a Ph.D. in anthropology from UCLA, where she focused on the substantive fields of legal and psychological anthropology while pursuing various research topics in Japan. Her principal scholarly focus has been contemporary Japanese family law. David Cassuto is Associate Professor of Law at Pace University School of Law where he teaches Animal Law, Environmental Law, Property Law, and Professional Responsibility. Professor Cassuto has published and lectured widely on issues in legal and environmental studies, including animal law. He holds a B.A. from Wesleyan University, an M.A. & Ph.D. from Indiana University, and a J.D. from the University of California, Berkeley, Boalt Hall School of Law. David Favre is a professor of law at Michigan State University College of Law. He is Faculty Advisor to the Journal of Animal Law and Chair of the Peer Review Committee of the Journal. As Editor-in-Chief of the Animal Legal and Historical Web Center, he has published several books on animal issues. He teaches Animal Law, Wildlife Law, and International Environmental Law. J O U R N A L O F A N I M A L L A W VOL. I 2005 PEER REVIEW COMMITTEE Rebecca J. Huss is a professor of law at Valparaiso University School of Law in Valparaiso, Indiana. She has a LL.M. in international and comparative law from the University of Iowa School of Law and graduated magna cum laude from the University of Richmond School of Law. Recent law review publications include: No Pets Allowed: Housing Issues and Companion Animals; Valuation in Veterinary Malpractice; Separation, Custody, and Estate Planning Issues Relating to Companion Animals; and Valuing Man’s and Woman’s Best Friend: The Moral and Legal Status of Companion Animals. Her primary focus in research and writing is on the changing nature of the relationship between humans and their companion animals and whether the law adequately reflects the importance of that relationship. Peter Sankoff is Lecturer at the University of Auckland (New Zealand) Faculty of Law, teaching in the areas of criminal law and evidence. Peter graduated with a B.A. in broadcast journalism from Concordia University in 1992, a J.D. from the University of Toronto in 1996, and a LL.M. from Osgoode Hall Law School at York University in 2005. Upon completion of his J.D., he attained a clerkship under Madame Justice Claire L’Heureux-Dubé of the Supreme Court of Canada. He is the co-author of Witnesses, a Canadian text on evidence and procedure, and numerous articles on human rights, criminal procedure and evidence. Since May 2002, Peter has been the Co-Chair of the Executive Committee of the Animal Rights Legal Advocacy Network (ARLAN). He is also Editor of the ARLAN Report, which discusses topics relating to animals and the law, and he regularly gives seminars and writes articles on animal law issues.