Animal Law Commons^™

Front Matter

Animal Law Review

Front Matter includes Title Page, Masthead, advisors, and Table of Contents for Animal Law Review Volume 19, Issue 2, 2013.

Bullhooks And The Law: Is Pain And Suffering The Elephant In The Room?, Trevor J. Smith

Animal Law Review

In the United States, violent use of “bullhooks”—sharpened, steel-tipped rods—on captive elephants at carnivals, circuses, and zoos is all too routine. Yet animal-welfare advocates struggle to protect elephants from the (mis)use of bullhooks under the current regulatory regime. At the federal level, advocates cannot consistently rely on either the Animal Welfare Act or the Endangered Species Act, due to these statutes’ narrow provisions, standing limitations, and inconsistent enforcement. State animal-protection laws are equally deficient, as only two states have defined suffering and abuse clearly enough in their statutes to enable effective prosecution of elephant mistreatment, and plaintiffs in even these …

Consistently Inconsistent: The Constitution And Animals, Marianne Sullivan

Animal Law Review

No abstract provided.

2012 State Legislative Review, Laura Hagen

Animal Law Review

No abstract provided.

A Slave By Any Other Name Is Still A Slave: The Tilikum Case And Application Of The Thirteenth Amendment To Nonhuman Animals, Jeffrey S. Kerr, Martina Bernstein, Amanda S. Schwoerke, Matthew D. Strugar, Jared Goodman

Animal Law Review

On its face, the Thirteenth Amendment outlaws the conditions and practices of slavery and involuntary servitude wherever they may exist in this country—irrespective of the victim’s race, creed, sex, or species. In 2011, People for the Ethical Treatment of Animals, on behalf of five wild-captured orcas, sued SeaWorld for enslaving the orcas in violation of the Thirteenth Amendment. The case presented, for the first time, the question of whether the Thirteenth Amendment’s protections can extend to nonhuman animals. This Article examines the lawsuit’s factual, theoretical, and strategic underpinnings, and argues that the district court’s opinion ultimately dismissing the suit failed …

Lukumi At Twenty: A Legacy Of Uncertainty For Religious Liberty And Animal Welafere, James M. Oleske Jr.

Animal Law Review

Twenty years after the United States Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, uncertainty reigns in the lower courts and among commentators over the issue of constitutionally compelled religious exemptions. Despite the Court’s general disavowal of such exemptions in Employment Division v. Smith, Lukumi appeared to breathe life into a potentially significant exception to Smith. Under that exception—which this Article calls the “selective-exemption rule”—the Free Exercise Clause may still require religious exemptions from a law when the government selectively makes available other exemptions from that law. This Article addresses the key unresolved …

The First Animal Law Journal, Twenty Volumes Later, Melissa Young

Animal Law Review

Twenty volumes is no small feat for an independently funded, entirely student-run journal. With a total staff of twenty students, including a small Board comprised of Editor in Chief, James Goldstein, Jr.; Managing Editor, William Fig; Articles Editor, Kelly Jeffries; and Form and Style Editor, Benjamin Allen, Animal Law published the inaugural volume of the world’s first animal law journal in 1995.1 This landmark event was the result of the hard work of Lewis & Clark students, with some key support. In this first volume, Animal Law gave “special thanks to Benjamin Allen for his hard work and dedication in …

Front Matter

Animal Law Review

No abstract provided.

Meat Labeling Through The Looking Glass, Bruce Friedrich

Animal Law Review

The United States Department of Agriculture (USDA) regulates meat labeling under the statutory authority of the Federal Meat Inspection Act (FMIA). The FMIA’s labeling preemption clause prohibits labeling requirements beyond federal requirements, and would thus preclude state causes of action on the basis of deceptive labels that were properly approved under federal law. Through the eyes of Kat, a hypothetical consumer concerned with the origins of the meat she purchases for her family, this Article argues that consumers should be able to pursue state law claims based on fraudulent animal welfare labels on packages of meat. This is true for …

Legislation To Protect The Welfare Of Fish, Kelly Levenda

Animal Law Review

This Article examines the marginalization of fish under current animal welfare laws and regulations, explores the treatment of farm-raised fish during transport and slaughter, and proposes legislation and regulations in these two areas. While evidence indicates that fish are capable of experiencing pain, fear, and suffering—the traditional considerations informing concepts of animal welfare—current pre-slaughter transport and slaughter practices are completely uninformed by notions of fish welfare. Comparing the cognitive and sensory capacities of fish to other animals currently receiving animal welfare recognition through official regulation, this Article argues that protections afforded to animals during transport and slaughter should similarly apply …

Not Alll Dogs Go To Heaven: Judaism's Lessons In Beastly Morality, Mark Goldfeder

Animal Law Review

This Essay examines the moral status of animals and the definition of humanity under traditional Jewish law, as contained in Biblical texts and commentaries by ancient and historical Jewish scholars. Examining whether animals are capable of moral behavior, it provides examples from various Judaic sources to support the idea that animals are capable of making conscious, moral choices. This Essay goes on to investigate the effect that morality has on the rights and rewards given to animals under Jewish law, and whether, as conscious moral actors, animals have souls. Turning more broadly to the definition of humanity, this Essay discusses …

Reconciling The Migratory Bird Treaty Act With Expanding Wind Energy To Keep Big Wheels Turning And Endangered Birds Flying, Robert J. Martin, Rob Ballard

Animal Law Review

The Migratory Bird Treaty Act (MBTA) has proven invaluable in minimizing the destruction of the 240 avian species listed by its enforcement agency, the United States Fish and Wildlife Service (FWS), as “endangered or threatened” or “birds of conservation concern.”Recently, however, the Act is faced with a new challenge: How can it continue to achieve its objective when a highly desirable domestic source of sustainable energy—wind power—is experiencing unprecedented growth? Ever-larger wind projects propelled by giant turbines have become a serious danger to the existence of migratory birds and their natural habitats. Yet most policy makers strongly welcome and support …

Shocked, Horrified, Sickened: How Cigarettes (And The Lessons From The Tobacco Litigation) Can Take Years Off Animal-Based Food Industries, Amanda Winalski

Animal Law Review

Animal-based food industries—meat, egg, and dairy—have a history of opposing even relatively minor attempts to reduce human consumption of animal-based foods. In the face of growing evidence that eating meat, eggs, and dairy is detrimental to human health, these industries and their supporters maintain the opposite: that these foods are essential for a healthy diet and have no negative impact as normally consumed. Recognizing parallels between animal-based food industries and another industry heavily invested in maintaining the notion that its product was benign as normally consumed, this Article argues the tobacco litigation saga holds instructive lessons for combatting the current …

Front Matter

Animal Law Review

Front Matter includes advisors and Table of Contents for Animal Law Review Volume 18, Issue 2, 2012.

The Animal Rights Debate And The Expansion Of Public Discourse: Is It Possible For The Law Protecting Animals To Simultaneously Fail And Succeed?, Peter Sankoff

Animal Law Review

This Article uses the theory of deliberative democracy, as developed by Jürgen Habermas and others, to suggest that public discourse is essential to encouraging democratic change in animal welfare law. The author examines the legal regimes of Canada and New Zealand to determine which country better facilitates a public dialogue about the treatment of animals. The Article concludes that, while Canada has a number of laws that ostensibly protect animals, New Zealand’s regime is much better at creating the public discourse required to meaningfully advance animal protection. The author does not suggest that New Zealand’s regime is perfect; rather, New …

Shark Laws With Teeth: How Deep Can U.S. Conservation Laws Cut Into Global Trade Regulations, Kaitlin M. Wojnar

Animal Law Review

Controversy surrounding application of the Shark & Fishery Conservation Act of 2010 (Shark Conservation Act) reflects a culmination of competing interests between environmental conservation and international free trade. Non-governmental organizations are pressuring the United States (U.S.) government to use the Shark Conservation Act to impose trade sanctions against countries that do not have specific regulations on shark finning. The implementation of such import bans, however, could negatively impact the nation’s relationships with some of its principal trade partners and violate international obligations under multilateral trade treaties. This Note proposes that the U.S. cannot impose such an embargo on shark products …

Front Matter

Animal Law Review

Front Matter includes Title Page, Masthead, advisors, and Table of Contents for Animal Law Review Volume 19, Issue 1, 2012.

Empathy With Animals: A Litmus Test For Legal Personhood?, Dillard Carter

Animal Law Review

This is one of the fundamental questions that frame the study of animal law: To what extent should nonhuman animals be considered legal persons? Of course, this question presupposes that we share or can arrive at a common and stable conception of legal personhood. In fact, there are a variety of conceptions of legal personhood. This Introduction will explore one in particular and, in the process, question the extent to which simply being born Homo sapiens satisfies the potentially complex and demanding requirements of being a legal person. This argument will lead us to reframe animal law a bit and …

Passing The Baton: How Teamwork And Unbridled Optimism Created Lewis & Clark's Animal Law Program, Nancy Perry

Animal Law Review

No abstract provided.

Hot, Crowded, And Legal: A Look At Industrial Agriculture In The United States And Brazil, David N. Cassuto, Sarah Saville

Animal Law Review

Over the last sixty years, industrial agriculture has expanded in the United States and throughout the world, including in Brazil. Any benefit this expansion has brought comes at significant environmental and social costs. Industrial agriculture is a leading contributor to global climate change, air and water pollution, deforestation, and dangers in the workplace. This Article discusses the impact of industrial animal agriculture in the U.S. and Brazil. It also examines the laws pertaining to industrial agriculture in both countries and provides a comparative analysis of the two legal regimes. Finally, this Article concludes with the observation that although the price …

2011 Legislative And Administrative Review, Patrick Graves, Keith Mosman, Shayna Rogers

Animal Law Review

It is my pleasure to introduce Animal Law’s fourteenth annual Legislative and Administrative Review. The 2011 Legislative and Administrative Review analyzes some of the year’s most groundbreaking developments in animal-related state and federal legislation, such as federal regulations of genetically engineered fish and attempts by state legislatures to overturn animal-related citizen initiatives.

Additionally, for the first time in Animal Law’s history, this year’s Review also includes an analysis of some of the most important animal-related administrative law developments of the year. Because many decisions impacting animals occur in the administrative arena, it is our hope that the administrative section complements …

Some Tenants Have Tails: When Housing Providers Must Permit Animals To Reside In "No-Pet" Properties, Tara A. Waterlander

Animal Law Review

Living with a disability can make finding a home a difficult task. Discrimination against the use of a service or assistive animal in lease agreements is a hurdle to finding a home for persons with disabilities. This discrimination is particularly pronounced when the individual suffers from a mental or emotional disability, because these disabilities are “invisible.” Because these disabilities are invisible, landlords are often reluctant to make reasonable accommodations in lease agreements to further the use of service and assistive animals in the treatment of mental illnesses or other disabilities, as required by the Fair Housing Act. This Article considers …

Coalitions In The Jungle: Advancing Animal Welfare Through Challenges To Concentration In The Meat Industry, Lis Kamila

Animal Law Review

The meat processing conglomerates that currently control the majority of the market share in the meatpacking industry are responsible for its most systemic animal abuses. Increased concentration has enabled these larger processors to dictate animal treatment standards maintained by meat producers, most of whom have caved to economic pressure and moved their animals from small farms into Concentrated Animal Feeding Operations. Animal welfare proponents have failed to adequately challenge the concentration of the meat industry and in 2012 have yet to fully explore strategies made available by the Packers & Stockyards Act of 1921 (PSA). This Article proposes that a …

The Universal Declaration Of Animal Rights Or The Creation Of A New Equilibrium Between Species, Jean-Marc Neumann

Animal Law Review

This Essay is a translation of the author’s original French text. It examines the Universal Declaration of Animal Rights of 1978, which lays out fundamental rights for animals in fourteen articles. This Essay explores the origins of and influences behind the original Declaration, as well as details the changes which were brought to it in a revised version in 1989. It then examines the scope of the Declaration and why it has not had the far-reaching implications its authors once hoped for. Finally, this Essay questions what the Declaration means for the future of animal rights and whether the document …

A Short History Of (Mostly) Western Animal Law: Part I, Thomas G. Kelch

Animal Law Review

This Article, presented in two parts, travels through animal law from ancient Babylonia to the present, analyzing examples of laws from the ancient, medieval, Renaissance and Enlightenment, recent modern, and modern historical periods. In performing this analysis, particular attention is focused on the primary motives and purposes behind these laws. What is discovered is that there has been a historical progression in the primary motives underlying animal laws in these different periods. While economic and religious motives dominate the ancient and medieval periods, in the Renaissance and Enlightenment we see social engineering—efforts to change human behavior—come to the fore. In …

No Way To Treat Man's Best Friends: The Uncounted Injuries Of Animal Cruielty Victims, Samantha D. E. Tucker

Animal Law Review

As society has come to recognize the sentience and intelligence of nonhuman animals, jurisdictions across the United States (U.S.) have promulgated animal protection laws. Despite the development of anti-cruelty statutes, though, states with sentence enhancement mechanisms continue to elevate criminal offenders’ sentences only if they injure human victims. This Note considers the development of anti-cruelty laws and explores how sentencing guidelines, victim injury points, and other sentence enhancement mechanisms function in U.S. criminal justice systems. It examines how multiple states treat victim injury, focusing particularly on Florida where, in October 2011, a Florida Assistant State Attorney—in what was likely the …

Rules For Playing God: The Need For Assisted Migration & New Regulation, Jessica Kabaz-Gomez

Animal Law Review

Climate change is quickly transforming habitats. Species in affected regions are facing extinction as they are unable to migrate to suitable environments. This Note discusses assisted migration, the intentional human-assisted movement of imperiled species to suitable habitats outside of their historic range, as an important—though controversial—conservation tool. There are, however, no comprehensive assisted migration regulations in the United States. This Note argues that the U.S. Fish & Wildlife Service (FWS) should be the agency to issue regulations regarding assisted migration because FWS already has broad authority under the Endangered Species Act to conserve wildlife. This Note proposes that new regulations …

Critical Animal Studies And Animal Law, Maneesha Deckha

Animal Law Review

Law is anthropocentric. With the limited exception of its treatment of the corporation, law is a system of rules that privileges the concept of the human and ascribes reality through a human perspective. Appreciating this, it is truly impressive that animal issues in the law have become so prominent throughout the legal education system. With this increased exposure to posthumanist critiques of the legal system and its status for and treatment of animals, an increasing number of those involved in legal education are rethinking the law’s species-based hierarchy that places humans at the apex. This flourishing interest in animal law …

An International Treaty For Animal Welfare, David Favre

Animal Law Review

Currently there is no international agreement that ensures the welfare and protection of animals. Nor is there any international standard that regulates and defines the acceptable treatment of animals. This lack of international consensus leads to the current disparate treatment of animals around the world, echoing the need for an international framework addressing the issue. This Article discusses a proposed umbrella treaty, the International Convention for the Protection of Animals (ICPA). This umbrella treaty would enable animal welfare issues to gain international recognition and protection by setting the general guidelines and polices regarding the treatment and use of animals. This …

Human Drama, Animal Trials: What The Medieval Animal Trials Can Teach Us About Justice For Animals, Katie Sykes

Animal Law Review

The legal system generally does little to protect animals, and one aspect of its inadequacy is a matter of formal structure: under United States and Canadian law, animals are not legal “persons” with an independent right to the protections of the legal system. There are calls to expand the status of animals in the law by providing them with legal standing, the right to be represented by a lawyer, and other formal protections. But, in a way, some of this has happened before. There is a long history, primarily from the medieval and early modern periods, of animals being tried …