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 "fr 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 Law277
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 955964.
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 husbandrybased 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 problemmeat 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 Harr, 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 caretaker, 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 Lawwww.animallawintl.org/index.htm-this is an advocacy organization.
(4) National Association for Biomedical Researchhttp://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 studentrun 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.