Introduction to Animal Law By Paul Waldau

These materials support Lecture One in the series of "Animal Law" lectures by Paul Waldau.

Lecture One-Introduction to Animal Law

This series of lectures on animal law engage how legal systems encounter the animals outside our own species. This first lecture in the series introduces the most basic topics that fall naturally under the general heading "animal law." Thus, in this first lecture we look generally at the extent to which legal systems, specific cases, legislation, and background cultural values impact ways in which judges, administrators, politicians, lawyers, law students, legal scholars, and lay people think about animals other than humans. We also focus on the most noteworthy changes now found in the substantive areas of tort law, wills and trusts, family law, and criminal law. We also look at the issue of standing, and at the end we briefly summarize the most general differences in the "animal law" now in place regarding companion animals (some will use the word "pets" for this area), research animals, food animals, and wildlife. The lecture is prefaced by the background of the lecturer and some observations regarding language about animals, controversy about "animal rights," and the versatility of law in dealing with the lives outside our own species.

These written materials provide a general outline of the lecture, as well as various background materials and citations. Whenever a quote is used in the lecture, the entire quote is included in these written materials along with sufficient bibliographic information to locate the passage cited.

Animal Law as a Field

The term "animal law" today covers (1) the extent to which legal systems, specific cases, legislation, and background cultural values have affected (and will surely continue to affect) how judges, administrators, politicians, lawyers, law students, legal scholars, and lay people see and speak about animals other than humans; and (2) what is possible in legal systems.

Staying Aware of How We Talk about "Animals"

The standard vocabulary in law circles tracks the general society's preference for talking as if humans are not animals-hence the prevailing phrase is "humans and animals." Scientific terminology is different, of course, given that humans are primates, mammals, vertebrates, etc. In this lecture a variety of phrases drawn from many different disciplines discussing living beings are used-these include "nonhuman animals," "other animals," and "other-than-human animals."

Basic Legal Division

The lecture often refers to a basic dualism found in American law (and many other legal systems) that is very significant in current discussions about how law impacts the beings outside our species-the concept legal person includes humans and some human enterprises, such as corporations, while the concept legal things includes all other living beings and inanimate objects.

Quote used in text from website of the Federation of American Societies for Experimental Biology (opa.faseb.org) regarding the recent launch of an animal law website by the prominent and very active pro-research consortium known as National Association of Biomedical Research,

Animal activists and animal rights lawyers have stepped up the campaign to change existing laws as they relate to animals. This campaign involves legislative initiatives at the state and federal level and the establishment of new common law through the courts. These initiatives have the potential to profoundly affect animal research. NABR believes the biomedical research community should better understand existing laws affecting animals as well as the many new legal challenges and theories advocated by animal rights lawyers and activists. [This quote can be found at http://opa.faseb.org/pages/PolicyIssues/animalresearch_links.htm]

Questions Asked

Early in the lecture, a series of questions is identified as seminal for this first lecture and for the subsequent lectures as well. The following is that list of questions:

¨ What is now happening in the American legal system regarding animals?

¨ What is the meaning of "animal rights"?

¨ In what ways do case decisions and legislation reflect values from outside the law regarding other animals? In other words, what extra-legal sources are relevant to decisions in cases and the interpretation of legislation and administrative regulations?

¨ How well have decision-makers in law seen and/or understood other animals?

¨ What are the future prospects for using various parts of the legal system to address the status of other animals?

¨ How does the American legal system handle new scientific findings regarding the lives and complex realities of nonhuman animals?

At strategic points in this first lecture, it is noted that two groups of animals receive particularly heavy attention in modern animal law discussions. The first is the more complex living beings outside the human species, such as elephants, the large-brained social animals we know as whales and dolphins, or our closest evolutionary cousins the other great apes.

The second group is composed of cats and dogs-traditionally called "pets," a common name for this group in animal law circles is "companion animals." Polls consistently show that in the early 21st century an enormous majority of Americans-well over 90%-contend that their own dogs and cats are "family members." The latter is one of the principal forces putting into place what is referred to in these lectures as the "companion animal paradigm," which, it is argued, is one of the major driving forces in current changes in animal law.

Each of these two groups (the group of 100 or so species comprising whales and dolphins, the nonhuman great apes, and elephants, on the one hand, and companion animals, on the other) reflects important changes that are crucial in understanding "animal law." The first category (the most complex of nonhuman animals) is the subject of much change and development in modern scientific findings about many of these animals. The second category (cats and dogs) have become important because of important shifts in our own habits in treating as integral members of our families those animals we call "pets" or "companion animals".

New Findings

If you are interested in the new scientific findings referred to, but not specified in any detail, in the lecture, here are some sources that will get you started. The work on our cousin great apes is for many reasons much deeper, but the books listed below on elephants and dolphins will provide many entry points to research on, respectively, elephants and cetaceans.

Nonhuman Great Apes

· Parker, Sue Taylor, Mitchell, Robert W., and Boccia, Maria, eds, 1994. Self-Awareness in Animals and Humans: Developmental Perspectives (Cambridge: Cambridge University Press)

· Savage-Rumbaugh, E. Sue, and Roger Lewin. 1994. Kanzi: the ape at the brink of the human mind. New York: Wiley.

· Waal, F. B. M. de. 1996. Good natured: the origins of right and wrong in humans and other animals. Cambridge, Mass: Harvard University Press.

· Both books by Steven Wise (2000. Rattling the cage: toward legal rights for animals. Cambridge, Mass: Perseus Pub.; and 2002. Drawing the line: science and the case for animal rights. Cambridge, Mass: Perseus Books) cite many scientific studies on various great apes and other animals.

Elephants

· Forthman, Debra, et al., editors, An Elephant in the Room: The Science and Well-being of Elephants in Captivity. North Grafton: Center for Animals and Public Policy, 2009. Free versions of each chapter of this book in .pdf format are available at http://home.elephantsincaptivity.org/tabe.

· Payne, Katharine. 1998. Silent thunder: in the presence of elephants. New York: Simon & Schuster.

· Sukumar, R. 1994. Elephant days and nights: ten years with the Indian elephant. Delhi: Oxford University Press.

Cetaceans

· White, Thomas. 2007. In defense of dolphins: the new moral frontier. Malden MA: Blackwell Pub.

· Payne, Roger. 1995. Among whales. New York: Scribner.

Primary Objectives of Lecture

What follows is the list of primary goals or objectives mentioned early in the lecture:

¨ Engage the spirit, substance and principles of existing law as it addresses nonhuman animals.

¨ Develop a sense of the many different traditions that contribute to legal and other understandings of nonhuman animals, especially as these traditions affect how we conceptualize and frame legal protections with which court systems and lawyers must work.

¨ Grasp the complex debates about "animal law" and "animal rights" now common in 21st century policy discussions.

¨ Assess future possibilities of using various legal concepts and tools, such as rights, legal personhood and "standing, to address the relationship of humans to living beings outside the human species.

The Issue of Influential Changes or "Ferment"

Society-wide change regarding views of nonhuman animals that is a factor in the development of the field of animal law is described in various ways in this lecture. A 2001 article which describes this "ferment" in much greater detail is Waldau, Paul 2001. "Will the Heavens Fall? De-Radicalizing the Precedent-Breaking Decision." Animal Law 7:75-118.

Conceptual Possibilities

At different points, I make the point that the American legal system is capable of offering protections to other-than-human animals if the public supports such a development. Here's one passage from early in the lecture that bears further study:

As we go through various substantive areas, one thing which will become clear is that legal protections of nonhuman animals are conceptually possible-by this I mean that our legal system can rather naturally extend its protections to other-than-human animals because there is nothing, such as a logical contradiction or practical impossibility, that absolutely prevents us from using the legal system in this way if we want to.

The Legal System as a Tool Box Featuring Multiple Tools

The following examples are given in the lecture regarding non-rights tools in the "legal tool box" that can offer effective, fundamental legal protections to some animals.

· legislative measures can prevent ownership of nonhuman animals entirely, as some countries do with regard to chimpanzees. · administrative regulations can be used that restrict or altogether control certain behavior, as often happens with state wildlife regulations. · property rules can be framed in any number of ways that put fundamental legal protections for owned nonhumans into place (as when the law requires the owner to provide food, water and shelter and to avoid cruelty) · laws of inheritance and management of wealth can be shaped in ways that afford certain owned animals, before or after an owner's death, fundamental legal protections such as trusts or bequests · criminal laws can outlaw harmful behaviors

Law Schools Today

The list of those law schools that offer one or more courses on animal law is regularly updated at the website of the Animal Legal Defense Fund (www.aldf.org - check specifically at the following page: http://www.aldf.org/article.php?id=445

Constitutional Protections in Other Countries

As noted in the lecture, a number of countries include protection of nonhuman animals in their constitutions. Perhaps the best known example is the Constitution of India.

51A. Fundamental duties. It shall be the duty of every citizen of India (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; … (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;….

This provision is found in Part IVA of the Constitution of India, entitled "Fundamental Duties." Part IV is entitled "Directive Principles of State Policy" and follows Part III which is entitled "Fundamental Rights." So, in one sense, whatever protections are afforded to other animals by this section, these protections are not listed in the section of the constitution expressly labeled "fundamental rights." A second provision in Part IV (the "Directive Principles of State Policy") provides as follows:

48. Organisation of agriculture and animal husbandry.-The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.

Consider just how effective this protection is or isn't-does it, for example, prevent cows from starving? Does it impact at all artificial insemination? Genetic manipulation? The influential activist veterinarian Michael Fox has made the argument that it does not.

Switzerland. Even though the Swiss constitution calls out the status of nonhumans animals in Article 80, in 2000 two popular initiatives were circulated with the goal of establishing even greater constitution-level protections for nonhuman animals. The first Volksinitiative "für eine bessere Rechtsstellung der Tiere" (People's Initiative "for a better legal status of the animals") was delivered to the Swiss Federal Chancellery in August 2000-it was supported by 140,708 signatures. The second Volksinitiative "Tiere sind keine Sachen" ("animals are not things") was delivered to the Swiss Federal Chancellery in November with 108,526 signatures. Both initiatives sought constitution-level changes, with appropriate legal adjustments. The second also demanded establishment of federal prosecutors to act on behalf of the nonhuman animals' interests.

In April of 2001, the Federal Council supported the basic concerns of both initiatives but not as specific amendments to the Swiss federal constitution, but instead at the legislative level. So the Federal Council requested that the Parliament recommend rejection of both popular initiatives as constitutional changes. The Volksinitiatives were then withdrawn, with the Bundesrat making the necessary legislative amendments on April 1, 2003.

Article 80 Animal Protection (1) The Federation adopts rules on animal protection. (2) The Federation regulates in particular: a. the keeping and care of animals; b. experiments and intervention on live animals; c. the use of animals; d. the importation of animals and animal products; e. animal trade and transportation of animals; f. the killing of animals (3) The execution of the regulations falls to the cantons, as far as the law does not reserve it for the Federation.

It should also be noted that Article 120 of the Swiss constitution, which deals with "Gene Technology in the Non-Human Field," provides that legislation governing use of the reproductive and genetic material of animals and plants "shall take into account the dignity of creation and the security of man, animal and environment, and shall protect the genetic multiplicity of animal and vegetal species."

Germany. On May 15, 2002, the Bundestag voted 542-19 in favor of the proposal to add "and the animals" to Article 20a in the German constitution. Subsequently, 15 of the 16 German states approved the amendment, and the constitutional amendment became effective on August 1, 2002. Thus, in the summer of 2002 the German constitution Section 20A, as amended, provides: "[t]he State, in a spirit of responsibility for future generations, also protects the natural living conditions and the animals within the framework of the constitutional rules through the legislation and as provided by the laws through the executive power and the administration of justice."

Substantive Law: Property

This subsection begins, "Consider the simple, direct way that the first modern casebook in animal law began its discussion of substantive law."

Animals are property. These three words - and their legal implications and practical ramifications - define the most significant doctrines and cases in this book and the realities for current practitioners of animal law.

This statement appears in each edition of the most widely used animal law casebook-here's the bibliographic information for the three editions of this casebook.

Frasch, Pamela D. Animal Law. Durham, N.C.: Carolina Academic Press, 2000.

Waisman, Sonia, Bruce A. Wagman, and Pamela D. Frasch. Animal Law: Cases and Materials. 2nd ed. Durham, N.C.: Carolina Academic Press, 2002.

Waisman, Sonia S. Animal Law. 3rd Ed. ed. Durham, NC: Carolina Academic Press, 2006.

In the lecture, the first edition of this modern casebook is compared to a treatise published in 1900-Ingham, John H. The Law of Animals. Philadelphia: T. &. J. W. Johnson & Co., 1900. Reference is made to the fact that 6 and a half of Ingham's seven chapters deal with property issues-this is the reason that the subtitle to Ingham's book is "A Treatise on Property in Animals Wild and Domestic and the Rights and Responsibilities Arising Therefrom." Note when reviewing the book's structure how fully property concepts are the organizing principle of the book. Note how the notion of property is of paramount importance in each of the book's seven divisions.

Title I, Property in Animals § Chapter I, Wild Animals § Chapter II, Domestic Animals Title II, Transfer of Property § Chapter I, Sale and Mortgage § Chapter II, Estrays Title III, Rights of Owners of Animals § Chapter I, Injuring and Killing of Animals § Chapter II, Theft and Removal of Animals § Chapter III Injuries to Animals on Highways Title IV, Liabilities of Owners of Animals § Chapter I, Animals Trespassing and Running at Large § Chapter II, Impounding. Injuries on Highways. Diseased Animals. Nuisances. Racing § Chapter III, Vicious and Ferocious Animals Title V, Bailment and Carriage § Chapter I, Bailment § Chapter II, Carriers of Animals Title VI, Cruelty-Game Laws § Chapter I, Cruelty and Malicious Mischief § Chapter II, Game Laws Title VII, Injuries to Animals by Railways § Chapter I, Liability Irrespective of Fencing Laws § Chapter II, Liability under the Statutes Regulating Fences

Ingham's book was, in one sense, groundbreaking, for it was the first systematic, book-length treatment of the American legal system's handling of all other animals. Ingham's preface (page iii) begins with this musing about why there were not any other books on "animal law" when Ingham published this volume in 1900:

There is, in the author's opinion, natural cause for wonder why, at a time when of making many law-books there is no end, the large and important subject exploited in the present volume has been almost wholly disregarded.

Ingham's book doesn't give an answer to this question-perhaps the answer lies in the fact that "animals" simply weren't on the radar screen yet. Whatever the answer, the state of "animal law" in 1900 was such that Ingham's treatise contains almost nothing about the various ways in which legal systems can be used to protect nonhuman animals as valuable beings in and of themselves. Contrast Ingham's Table of Contents with the contents of the 2000 Casebook, which is set forth below (together with pagination so that you can see how much space is allocated to each subject-the Table of Contents evolved in subsequent editions, and that used in the third edition (2006) is also included below).

Table of Contents, 1st Edition (2000) [Waisman, Sonia. 2000. Animal law. Durham, N.C.: Carolina Academic] Ch. 1 Introduction 3 Ch. 2 Property Law 67 Ch. 3 Contract Law 109 Ch. 4 Tort Law 175 Ch. 5 Constitutional Law 277 Ch. 6 Selected Federal and Civil Statutes 455 Ch. 7 Criminal Law 601 Ch. 8 Contracts 541 Ch. 9 Wills and Trusts 587

Table of Contents, 3rd Edition (2006) [Waisman, Sonia, et al. 2006. Animal law: cases and materials. Durham, N.C.: Carolina Academic Press.] Ch. 1 What is an animal? 3 Ch. 2 Property and beyond: the evolution of rights 39 Ch. 3 Torts 71 Ch. 4 Constitutional law 183 Ch. 5 Commercial uses of animals 307 Ch. 6 Criminal law 469 Ch. 7 Contracts 541 Ch. 8 Wills and trusts 587 Ch. 9 Selected federal statutes 619

Another casebook used today is Favre, David S. 2008. Animal law: welfare, interests, and rights. Here is its Table of Contents. . 1. Introduction . 2. Animal Ownership . 3.Veterinarian Malpractice . 4. Damages for Harm to Pets . 5. State Regulation of Ownership . 6. Anti-Cruelty Laws, History & Intentional Acts . 7. Anti-Cruelty Laws - Duty to Provide Care . 8. Agricultural Animals . 9. Access to the Courts - Standing and Legal Injury . 10. The Animal Welfare Act . 11. Animal Rights - The Jurisprudence . 12. Animal Rights - The Social Movement

Property and "Unnecessary Pain and Suffering." The work by Gary Francione cited is Animals, Property, and the Law. Philadelphia: Temple University Press, 1995 (the discussion re "necessity" is at pages 21-23).

Additional quotes used in the property discussion-the quote by Judge Richard Posner ("One way to protect animals is to make them property, because people tend to protect what they own.") comes from Posner's review in Yale Law Journal of Steven M. Wise's 2000 book Rattling the Cage: Toward Legal Rights for Animals, Cambridge, Massachusetts: Merloyd Lawrence/Perseus. The review appears in Volume 110:527-541, December 2000.

The quotes from David Wolfson appear in Wolfson, David 1996. "Beyond the Law: Agribusiness and the Systemic Abuse of Animals Raised for Food or Food Production." Animal Law 2:123-151. This article is also in book form: Wolfson, David J. 1999. Beyond the Law: Agribusiness and the Systemic Abuse of Animals Raised for Food or Food Production. US: Farm Sanctuary.

Background Materials for Discussion of Modern Food Agriculture Techniques and Problems. The term "factory farming" is defined by Wikipedia (August 1, 2009) as follows:

The Oxford English Dictionary attributes the first recorded use of "factory farming" to an American journal of economics in 1890. It is now used widely by mainstream news organizations, including the BBC, The Washington Post, and CNN. A 1998 documentary, A Cow at My Table, shows the term is also used within the agricultural industry, although it is regarded by sections of the industry as a term used by activists. The Encyclopaedia Britannica writes that the term is "descriptive of standard farming practice in the U.S." and frequently used by animal rights activists. Webster's New Millennium defines it as "a system of large-scale industrialized and intensive agriculture that is focused on profit with animals kept indoors and restricted in mobility."

The Environmental Protection Agency (EPA) defines certain large production facilities as "concentrated animal feeding operations" (CAFO). To be termed such, the facility must: "stable, confine, and feed or maintain animals for a total of 45 days or more in any 12 month period; and, not sustain crops, vegetation forage growth, or post-harvest residues in normal growing season over any portion of the facility." [See United States, Environmental Protection Agency, Office of Water, Guide Manual on NPDES Regulations for Concentrated Animal Feeding Operations 4 (1995).]

The rapid shift to this sort of production facility can be seen in the following data. In 1980 only one percent of all cattle feedlots handled as many as 32,000 head. However, by 1991 nearly a third of all cattle feedlots in the United States contained at least 32,000 head. The number of hog producers in the United States declined from 670,000 in 1980 to 256,000 in 1992. However, the total number of hogs increased during that period, and nearly 80 percent of these hogs are raised in operations housing 1,000 animals or more. Similarly, the number of dairies milking 500 head or more almost doubled between 1974 and 1987, from 661 to 1,268. [Source: Larry Frarey et al., Livestock and the Environment: Watershed Solutions, Texas Institute for Applied Environmental Research, July 1994 at 13.]

Several of the books cited in the lecture include extended descriptions of modern food production techniques, as well as interviews with industry insiders:

Pollan, Michael. 2006. The omnivore's dilemma: a natural history of four meals. New York: Penguin Press.

Schlosser, Eric 2001. Fast Food Nation: The Dark Side of the All-American Meal, Houghton Mifflin (this contains the report that every month 90% of American children between the ages of 3-9 visit a McDonalds.)

Eisnitz, Gail 1998. Slaughterhouse: The Shocking Story of Greed, Neglect, and Inhumane Treatment Inside the U.S. Meat Industry, Amherst, New York: Prometheus Books.

Scully, Matthew 2002. Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy, New York, N.Y.: St. Martin's Press.

The Husbandry Ethic. Copied below is the abstract of the keynote Address at the American Veterinary Medical Association's Annual Meeting in 2004 in which the leading veterinary ethicist Bernard Rollin outlined problems with modern industry's abandonment of the husbandry ethic. The entire speech is available in the publication "Animal Agriculture and the Emerging Social Ethic for Animals", Journal of Animal Science 2004, Volume 82, pages 955- 964.

Businesses and professions must stay in accord with social ethics, or risk losing their autonomy. A major social ethical issue that has emerged in the past three decades is the treatment of animals in various areas of human use. This point can be illustrated with numerous examples across all areas of animal use. These examples reflect society's moral concern having outgrown the traditional ethic of animal cruelty that began in biblical times and is encoded in the laws of all civilized societies. There are five major reasons for this new social concern, most importantly, the replacement of husbandry- based agriculture with industrial agriculture. This loss of husbandry to industry has threatened the traditional fair contract between humans and animals, and resulted in significant amounts of animal suffering arising on four different fronts. Because such suffering is not occasioned by cruelty, a new ethic for animals was required to express social concerns. Since ethics proceed from preexisting ethics rather than ex nihilo, society has looked to its ethic for humans, appropriately modified, to find moral categories applicable to animals. This concept of legally encoded rights for animals has emerged as a plausible vehicle for reform. The meaning of this ethical movement for animal agriculture is examined. Animal agriculture should explore ways to replace the animal husbandry lost to industrialization.

Details on the slaughter industry, along with some interesting comments about enforcement issues by the head of the federal union of inspectors, can be found in Eisnitz 1998-Chapter 15 begins with an interview of Dave Carney, chairman of the National Joint Council of Food Inspection Locals (the federal meat inspectors' union). The following passage begins on page 188 and ends on page 190:

"How much do you know about what goes on inside packing plants?" he asked. "Some," I replied. "Well," he said, "there's a specific problem with enforcing the Humane Slaughter Act. That's because the large slaughtering operations are primarily concerned with productivity and profit. … They don't care about the effects on the animals. It's as if they're not even killing animals. They're 'disassembling' them, processing raw materials in a manufacturing operation." "To keep that production line moving … quite often uncooperative animals are beaten, they have prods poked in their faces … bones broken and eyes poked … left unattended for days. Sometimes animals are simply beaten to death out in the pens before being shipped into the slaughtering process. … Finally I was hearing from someone with clout. "But then, if you know that all these violations go on," I asked, "why don't inspectors do anything about them?" "First of all," he replied, "the way the plants are physically laid out, meat inspection is way down the line. A lot of times, inspectors can't even see the slaughter area from their stations. It's virtually impossible for them to monitor the slaughter area when they're trying to detect diseases and abnormalities in carcasses that are whizzing by." I knew that the Humane Slaughter Act regulations gave inspectors the authority to stop the line when they saw violations. But I also knew that they did not authorize inspectors to visit the plant's slaughter area hourly, daily, weekly, or ever, for that matter. "So how often does someone go down to the slaughter area and look?" I asked. "And leave his station?" Carney replied. "If an inspector did that, he'd be subject to disciplinary action for abandoning his inspection duties. Unless he stopped the line first, which would get him into even more trouble. Inspectors are tied to the line." "So what's the procedure for checking humane slaughter?" I asked. "There isn't one," he answered. "Hold on. You're telling me that inspectors have the authority to stop the line when they see humane violations, but basically, they're never allowed to see them?" "That's right," he said. "Inspectors are required to enforce humane regulations on paper only. Very seldom do they ever go into that area and actually enforce humane handling and slaughter. They can't. They're not allowed to." "Besides," he continued, "our inspectors are already overwhelmed with their meat inspection duties and the agency has never addressed the responsibility of humane slaughter." … "Inspectors are often disciplined for sticking to regulations and stopping production for a contamination problem- meat safety-which has a much higher priority than animal suffering."

U. S. Government reports on the pollution aspects of modern animal agriculture can be found at the EPA's website, www.epa.gov. A United Report on the effects of modern animal agriculture on global warming is the 2006 report of the Food and Agriculture Organization entitled "Livestock's long shadow: Environmental issues and options."

"Guardian" versus "Owner." The list of cities that have adopted legislation regarding "guardian" versus owner is at http://www.guardiancampaign.com/guardiancity.html.

The Rhode Island law amended by (Rhode Island) House Bill H 6119 provides in Section 4-1-1(4) as follows:

(4) "Guardian" shall mean a person(s) having the same rights and responsibilities of an owner, and both terms shall be used interchangeably. A guardian shall also mean a person who possesses, has title to or an interest in, harbors or has control, custody or possession of an animal and who is responsible for an animal's safety and well-being.

The full text of the law is available at http://www.rilin.state.ri.us/Statutes/TITLE4/4-1/INDEX.HTM. Rights

This brief discussion suggests that the concept of rights is complex. Importantly, it is suggested that a key question in any debate about rights (whether for humans or nonhumans) must always be asked: which rights for which animals?

To be sure, the discussion of whether this particular legal tool should be used is highly polarized in the present environment. The statement quoted ("Animal rights activists believe that animals should have the same rights as people.") comes from the website of the Foundation for Biomedical Research, (http://www.fbresearch.org/AnimalActivism/Threat.htm).

The cited work of the legal theorist Wesley Hohfeld is the 1919 book Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays. Hohfeld's analysis of rights is described in Wise's Rattling the Cage at 53-61. Here's a second source if you're interested, for Hohfeld's ideas are notoriously complicated-the discussion in L.H. Sumner, The Moral Foundation of Rights, Oxford Univ. Press 1987, at 15?53, is very helpful. The asymmetry between rights and duties (that is, the fact that some rights don't have corresponding duties) is also discussed by two Oxford philosophers in Harré, R. and Robinson, D. 1995. 'On the Primacy of Duties', Philosophy 70, 513-532.

Torts

This is an area of great ferment. One reason is the importance of the companion animal paradigm in several discussions, such as the debate over the appropriate measure of damages when tortious conduct by a defendant deprives an owner of his or her (the owner, soon to be plaintiff) companion animal.

The traditional measure of damages is the market value of the property lost. But this measure is now widely acknowledged as completely inadequate when a companion animal is lost, for most people who have a companion animal, which is most American households, would recoil at the notion that their dog or cat could simply be killed and then replaced without any true loss.

The attempts to respond to the law's perceived inadequacy on this issue include these strategies borrowing recognized theories of recovery based on the loss of human family members.

· tortious infliction of emotional distress · loss of companionship. · pain and suffering for the animal itself

In the case of Corso v. Crawford Dog and Cat Hospital, 97 Misc. 2d 530, 415 N.Y.S. 2d 182, 183 (Civ. Ct. 1979), the court stated, "This court now overrules prior precedent and holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property."

The case of Stephens v.State, 3 So. 458 (Miss. 1887), is quoted regarding an anticruelty statute: "This statute is for the benefit of animals, as creatures capable of feeling and suffering, and it was intended to protect them from cruelty, without reference to their being property, or to the damages which might thereby be occasioned to their owners."

Caps on Damages. The T-Bo Act of Tennesses is cited in the text. The entire law follows. Beyond the cap on non-monetary damages, notice the provisions exempting veterinarians, the location where the injury must occur, and the urban/country distinction.

*****

PUBLIC ACTS, 2000 CHAPTER NO. 762 SENATE BILL NO. 2157 By Cohen, Person Substituted for: House Bill No. 2583 By Briley, Kisber AN ACT To amend Tennessee Code Annotated, Title 44, Chapter 17, relative to damages for injured or killed pets. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 44, Chapter 17, Part 4, is amended by adding the following as a new, appropriately designated section:

Section 44-17-4__. (a) If a person's pet is killed or sustains injuries which result in death caused by the unlawful and intentional, or negligent, act of another or the animal of another, the trier of fact may find the individual causing the death or the owner of the animal causing the death liable for up to four thousand dollars ($4,000) in non-economic damages; provided that if such death is caused by the negligent act of another, the death or fatal injury must occur on the property of the deceased pet's owner or care- taker, or while under the control and supervision of the deceased pet's owner or care- taker. (b) As used in this section, "pet" means any domesticated dog or cat normally maintained in or near the household of its owner; (c) Limits for non-economic damages set out in subsection (a) shall not apply to causes of action for intentional infliction of emotional distress or any other civil action other than the direct and sole loss of a pet. (d) Non-economic damages awarded pursuant to this section shall be limited to compensation for the loss of the reasonably expected society, companionship, love and affection of the pet. (e) This section shall not apply to any not-for-profit entity or governmental agency, or their employees, negligently causing the death of a pet while acting on the behalf of public health or animal welfare; to any killing of a dog that has been or was killing or worrying livestock as in § 44-17-203; nor shall this section be construed to authorize any award of non-economic damages in an action for professional negligence against a licensed veterinarian. (f) The provisions of this section shall apply only in incorporated areas of any county having a population in excess of seventy-five thousand (75,000) according to the 1990 federal census or any subsequent census.

SECTION 2. This act shall be known and may be cited as the "T-Bo Act".

SECTION 3. If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.

SECTION 4. This act shall take effect upon becoming a law, the public welfare requiring it, and shall apply to any fatal injury sustained on or after the effective date of this act. PASSED: May 10, 2000 *****

Innovative Torts. The work of the scholar David Favre of Michigan State's law school is cited: Favre, David 2000. "Equitable Self-Ownership for Animals", 50 Duke Law Journal 473-502.

Favre's comments also appear in the report of the 2002 Harvard law school symposium cited in the lecture-see "The Evolving Legal Status of Chimpanzees," Animal Law 9: 1-95, which includes the presentations and more involving conference participants Jane Goodall, Richard Wrangham, Roger Fouts, Steven Wise and many others.

Wills and Trusts

The lecture focuses on amendments to the Uniform Trust Code from 1990 through 2000. These amendments recognized a trust that provides for a pet during the owner's lifetime and beyond, terminating on the death of the animal. Information on which jurisdictions have adopted the amended version of this model act can be found at http://www.aldf.org/article.php?id=281

Criminal Law

As suggested in the lecture, this is an area of the law that provides very mixed signals regarding "ferment" over nonhuman animals and animal law.

The quote from the scholar Cass R. Sunstein comes from his 2002 essay "Enforcing Existing Rights." 8 Animal Law i-vii, 2002: "the panoply of rights that animals now have at both the state and federal levels is much more expansive than outside observers acknowledge-both observers who are skeptical of the idea of animal rights and observers who are enthusiastic about the idea of animal rights."

The quote from Jerrold Tannenbaum, who also argues that anti?cruelty provisions in state laws create legal duties to nonhumans comes from Tannenbaum, Jerry, "Animals and the Law: Property, Cruelty, Rights", in Mack, Arien (ed.), 1995. Humans and Other Animals, Columbus, Ohio: Ohio State University Press, 125-193, at 167.

U.S. jurisdictions that provide felony penalties for cruelty violations are listed at http://www.aldf.org/resources/details.php?id=87. That website also compares various states' general features in the area of anticruelty protections (see http://www.aldf.org/resources/details.php?id=326 for rankings of states).

Information about states' exemption of food protection industries can be drawn from the Wolfson article cited above.

The quote from Matthew Scully, the former speechwriter for George W. Bush, is taken from page x of Dominion (cited above): "No age has ever been more solicitous to animals, more curious and caring. Yet no age has ever inflicted upon animals such massive punishments with such complete disregard, as witness scenes to be found on any given day at any modern industrial farm."

The second and longer passage from Scully's Dominion is taken from pages 285-6.

Just how bereft of human feeling that entire industry has become was clear at a municipal court case heard in Warren County, New Jersey, in the fall of 2000. A poultry company … was convicted of cruelly discarding live chickens in trash cans. The conviction was appealed and overturned, partly on the grounds that [the company] had only six employees overseeing 1.2 million laying hens, and with workers each left to tend two hundred thousand creatures it remained unproven they were aware of those particular birds dying in a trash can. The company's initial defense, offered to [the] Judge … by an attorney … asserted outright that this is exactly what the birds were anyway-trash: [Attorney]: We contend, Your Honor, that clearly my client meets the requirements [of the law]. Clearly it's a commercial farm. And clearly the handling of chickens, and how chickens are discarded, falls into agricultural management practices of my client. And we've … litigated this issue before in this county with respect to my client and how it handles its manure…. [The Court]: Isn't there a big distinction between manure and live animals? [Attorney]: No, Your Honor. Because the Right to Farm Act protects us in the operation of our farm and all of the agricultural management practices employed by our firm.

Family Law

The lecture focuses on custody battles over companion animals, and also references the ongoing developments by which nonhuman animals may be included under protective orders in domestic violence cases (the State of Maine is a pioneer in this effort-see New York Times article "New Maine Law Shields Animals in Domestic Violence Cases" by Pam Belluck, April 1, 2006). The latter development is instructive in this sense-the idea was first proposed in a law review article in 2001. This reflects that news ideas and approaches often have their source in a place other than legislatures. The article which first suggested this approach is Dianna J. Gentry, Including Companion Animals in Protective Orders: Curtailing the Reach of Domestic Violence,Yale J.L. & Feminism 97 (2001).

Standing

The standard description of the standing issue comes from the 1975 US Supreme court case Warth v. Seldin, 422 U.S. 490, 498: "The question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues."

The 1982 U.S. Supreme Court cited is Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, in which the court said that standing has not been "defined with complete consistency in all of the various cases decided by this court."

The 1998 federal case described in the lecture as a "landmark case in animal" is Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C.Cir.1998).

Summary of Law by Different Categories of Animals

This brief section looks at animal law from another vantage point that shows the irregular terrain of contemporary "animal law" in interesting ways. This different vantage point comes from comparing the different spirit and specifics of "animal law" as they are manifested in various major categories of the human-nonhuman intersection. So in closing, the lecture mentions the general contour of laws governing, respectively, companion animals, research animals, wildlife and food animals.

Companion animals are often the unstated paradigm underlying discussion of animal law. That status is reflected in developments in tort law and in the area of wills and trusts. Both litigation-wise and legislation-wise, companion animals are a hot topic. There are now numerous laws regarding pet sales, leash laws, breed bans, dog bite rules, handling of lost and found pets, and possible actions by local government, as with bans of certain formerly common practices such as declawing of cats.

Wildlife, too, also is a hot topic, although the focus in this category is typically at the species level rather than at the level of individuals, as is characteristically the case with companion animals.

Research animals have long been a hot topic, beginning in 19th century England. Laws in this area, thus, are, in some ways, the most developed form of legislation. The work of the philosopher Bernard Rollin, who for many years now has been the leading American veterinary ethicist, argues that the development since the 1970s of U.S. federal regulations governing laboratory reflects a changed social consensus on the moral issues involved in such uses of animals. See, for example, Rollin, Bernard E 2006. An Introduction to Veterinary Medical Ethics: Theory and Cases. 2nd ed. Ames: Blackwell.

Finally, food animals are not covered in any detail by American law, which is at first astonishing, given the numbers involved. But, as pointed out in the lecture, upon reflection it is precisely because of the numbers that the protections are so sparse.

The lecture's closing comments on the institutional presence for animal law reference existing national, state and municipal bar associations with animal law groups-these are listed by the Animal Legal Defense Fund at http://www.aldf.org/article.php?id=277.

Additional Resources

1. Websites

(1) Apart from the standard websites that list state and federal law, the following three websites offer extensive resources regarding state, national, and international laws impacting nonhumana animals.

(a) The Center for Animal Law Studies (hosted by Lewis and Clark Law School) (http://www.lclark.edu/law/centers/animal_law_studies/)

(b) Animal Legal Defense Fund (www.aldf.org)

(c) Animal Legal & Historical Web Center http://www.animallaw.info (hosted by Michigan State University College of Law).

(2) A good source of current developments is the website of The Humane Society of the United States (www.hsus.org), which offers recently enacted, pending and failed legislation at the national and state level.

(3) International Institute for Animal Law- www.animallawintl.org/index.htm-this is an advocacy organization.

(4) National Association for Biomedical Research- http://www.nabranimallaw.org/

(5) The American Veterinary Medical Association's website has an animal welfare page that includes this professional organization's positions on legislative issues-www.avma.org/issues/animal_welfare-this should be consulted for different points of view and policy arguments.

2. Books

Abram, David. The Spell of the Sensuous : Perception and Language in a More-Than-Human World. 1st ed. New York: Pantheon Books, 1996.

Arluke, Arnold, and Sanders, Clinton. 1996. Regarding Animals (Animals, Culture, and Society), Philadelphia: Temple University Press

Ascione, Frank R., and Arkow, Phil, eds., 1999. Child Abuse, Domestic Violence, and Animal Abuse: Linking the Circles of Compassion for Prevention and Intervention, West Lafayette, Indiana: Purdue University Press

Bean, Michael J., and Melanie J. Rowland 1997. The Evolution of National Wildlife Law, 3rd edn, Westport, Connecticut: Praeger

Carruthers, Peter 1992. The Animals Issue: Moral Theory in Practice, Cambridge: Cambridge University Press

Cavalieri, Paola, and Peter Singer, eds, 1993. The Great Ape Project: Equality Beyond Humanity, New York: St Martin's Griffin

Cazaux, Geertrui 1998. "Legitimating the Entry of 'the Animals Issue' into (Critical) Criminology", Humanity and Society 22(4): 365-385

Curnutt, Jordan 2001. Animals and the Law, Santa Barbara: ABC-CLIO

D'Amato, A., and Chopra, S. 1991. 'Whales: Their Emerging Right to Life', 85 American Journal of International Law 21-62

Descartes 1976. 'Animals are Machines', in Animal Rights and Human Obligations (Regan and Singer, eds., Prentice-Hall, Inc. 1976), 13-19

Evans, E. P. 1906/1988. The Criminal Prosecution and Capital Punishment of Animals: The Lost History of Europe's Animal Trials, Boston and London: Faber and Faber

Fano, A. 1998. Lethal Laws: Animal Testing, Human Health and Environmental Policy, New York: Zed

Favre, David 2000. "Equitable Self-Ownership for Animals", 50 Duke Law Journal 473-502

Favre, David S. 2008. Animal law: welfare, interests, and rights. New York: Aspen Publishers.

Favre, D.S., and Loring, M. 1983. Animal Law, Westport, CT: Quorum Books

Favre, David S. 1991. Wildlife Law, Detroit: Lupus Publications

Favre, David S. 1986. Laboratory Animal Act: A Legislative Proposal, 3 Pace Envtl L. Rev. 123-164

Favre, David S. 1999. Animal Law and Dog Behavior, Tucson, AZ: Lawyers & Judges Publishing Co.

Francione, Gary L. 1996. Rain Without Thunder: The Ideology of the Animal Rights Movement, Philadelphia, Temple University Press

Francione, Gary L. 2000. Introduction to Animal Rights: Your Child or the Dog?, Philadelphia: Temple University Press

Galvin, Roger 1985. What Rights for Animals? A Modest Proposal, 2 Pace Envtl. L. Rev. 245-251

Garner, Robert 1998. Political Animals: Animal Protection Politics in Britain and the United States, New York: St Martin's

Goble, Dale D., and Freyfogle, Eric, 2002. Wildlife Law: Cases and Materials, New York: Foundation

Goldberg, Wilks 1995. 'The Pet Theft Act: Congressional Intent Plowed Under by the United States Department of Agriculture', 1 Animal Law 103

Hessler 1997. 'Where Do We Draw the Line Between Harassment and Free Speech?: An Analysis of Hunter Harassment Laws', 3 Animal Law 129 (1997).

Holzer 1995. 'Contradictions Will Out: Animal Rights vs. Animal Sacrifice in the Supreme Court', 1 Animal Law 79 (1995).

Horwitz, Richard P. 1998. Hog Ties: Pigs, Manure, and Mortality in American Culture, New York: St. Martin's Press

Jamison, Wes 2000. "Animal Welfare Regulations: A Rough Crossing from Europe to US", Journal of the American Veterinary Medical Association 217(11): 1608-1612

Kopf 1997. 'Slamming Shut the Ark Door: Congress's Attack on the Listing Process of the Endangered Species Act', 3 Animal Law 103

Legood, Giles, ed., 2000. Veterinary Ethics: An Introduction, New York: Continuum

Lockwood, Randall, and Ascione, Frank R., eds., 1998. Cruelty to Animals and Interpersonal Violence: Readins in Research and Application, West Lafayette, Indiana: Purdue University Press

Musgrave, R. S., and M.A. Stein 1993. State Wildlife Laws Handbook. Rockville, Maryland: Government Institutes

Nussbaum, Martha C. 2001. "Animal rights: The need for a theoretical basis", 114 Harvard Law Review 1506-1549

Nussbaum, Martha Craven 2006. Frontiers of Justice : Disability, Nationality, Species Membership. Cambridge, Mass.: Harvard University Press

Orlans, F. Barbara 1998. 'History and ethical regulation of animal experimentation: an international perspective', in Helga Kuhse and Peter Singer, eds., A Companion to Bioethics, Oxford, UK: Blackwell, 399-410

Orlans, F. Barbara 2000. 'Ethical Themes of National Regulations Governing Animal Experiments: An International Perspective', in Applied Ethics in Animal Research: Philosophy, Regulation and Laboratory Applications, ed. by John P. Gluck, Tony Dipasquale, and F. Barbara Orlans, West Lafayette: Purdue University Press

Plater, Zygmunt J. B., et al., eds. 1996. Environmental Law and Policy: A Coursebook on Nature Law and Society, West/Wadsworth, 2nd edition.

Posner, Richard 2000. "Animal Rights" (review of Wise, Steven M. 2000. Rattling the Cage: Toward Legal Rights for Animals), 110 Yale Law Journal 527-541

Posner, Richard A. 2001. Frontiers of Legal Theory. Cambridge, Mass.: Harvard University Press

Posner, Richard A. 2001. Public Intellectuals : A Study of Decline. Cambridge , MA: Harvard University Press

Regan, Tom 1983. The Case for Animal Rights, Berkeley: University of California Press

Rollin, Bernard E. 1989. The Unheeded Cry: Animal Consciousness, Animal Pain and Science, Oxford: Oxford University Press

Rollin, Bernard E. 1992. Animal Rights and Human Morality, rev. edn, Buffalo: Prometheus Press

Rollin, Bernard E. 1995. The Frankenstein syndrome: Ethical and social issues in the genetic engineering of animals, New York (and Cambridge UK), Cambridge University Press

Rollin, Bernard E. 1995. Farm Animal Welfare: Social, Bioethical, and Research Issues, Ames, Iowa: Iowa State University Press

Rollin, Bernard E. 1999. 'Some Conceptual and Ethical Concerns about Current Views of Pain', Pain Forum 8(2):78-83, 1999

Rowan, Andrew, et al. 1999. Farm Animal Welfare: The Focus of Animal Protection in the USA in the 21st Century, North Grafton, Massachusetts: Tufts Center for Animals and Public Policy, Tufts University School of Veterinary Medicine

Rowan, Andrew, and Joan C. Weer. eds., 1996. Living with Wildlife: The Biology and Sociology of Suburban Deer and Beaver, Tufts Center for Animals and Public Policy, N. Grafton, MA

Rowan, A., and Loew, F. M. 1995. The Animal Research Controversy: Protest, Process, and Pubic Policy - An Analysis of Strategic Issues. North Grafton, Massachusetts: Center for Animals and Public Policy, Tufts University School of Veterinary Medicine

Rowan, Andrew, ed., 1988. Animals and People Sharing the World, Hanover, New Hampshire and London: University Press of New England

Schmahmann, David R., and Polacheck, Lori J. 1995. 'The Case Against Rights for Animals', 22 B. C. Envtl. Aff. L. Rev. 149

Singer, Peter 1990. Animal Liberation, 2nd edn, New York: Avon

Soave, Orland A. 1997. Animals, the Law and Veterinary Medicine: A Guide to Veterinary Law, San Francisco: Austin and Winfield

Sorabji, Richard 1993. Animals Minds and Human Morals: The Origins of the Western Debate, Ithaca, New York: Cornell University Press

Stone, Christopher D. 1974. Should Trees Have Standing? Toward Legal Rights for Natural Objects, Los Altos, CA: William Kaufmann (originally 45 S. Cal. L. rev. 450 (1972))

Sunstein, Cass R., and Nussbaum, Martha C., eds., 2004. Animal Rights: Current Debates and New Directions. New York: Oxford Univeristy Press

Tannenbaum, J. 1995. Veterinary Ethics: Animal Welfare, Client Relations, Competition and Collegiality, 2nd edition, St. Louis, MO: Mosby-Year Book

Tannenbaum, J. 1993. 'Veterinary medical ethics: A focus of conflicting interests', Journal of Social Issues 49:143-156

Tribe, Laurence H. 2001. "Ten Lessons Our Constitutional Experience Can Teach Us About the Puzzle of Animal Rights: The Work of Steven M. Wise", 7 Animal Law 1-8

Waldau, Paul, and Whitman, Sarah 2002. "The Animal Invitation", Global Dialogue, Winter 2002, 125-137

Wilson, James F. 1993. Law and Ethics of the Veterinary Profession, Yardley, PA: Priority

Wise, Steven M. 1998. 'Recovery of Common Law Damages for Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful Death of a Companion Animal', 4 Animal Law 33-93

3. Journals on Animal Law

Animal Law Review (http://www.lclark.edu/law/law_reviews/animal_law_review/) - a student- run law review at Lewis & Clark Law School in Portland, Oregon, this is by a considerable margin the oldest journal in the field.

Journal of Animal Law and Ethics (http://www.journalofanimallawandethics.com/) -an independent journal run by students at the University of Pennsylvania Law School.

Journal of Animal Law (www.animallaw.info/policy/pojouranimlawinfo.htm) - run by the students of Michigan State University College of law, this journal explores the legal and public policy issues surrounding animals at all levels of government: local, state, national, comparative national and international. This journal is published in its entirety, but print copies are also be available.

Journal of International Wildlife Law & Policy (www.jiwlp.com) -past issues available in part, this journal's website also offers regularly updated research bibliographies on wildlife issues lots of links updated regularly.

Stanford Journal of Animal Law and Policy (http://sjalp.stanford.edu/) - an on-line only journal founded in August 2007.