United States

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WELFARE IMPROVEMENTS FOR ORGANIC ANIMALS: CLOSING LOOPHOLES IN THE REGULATION OF ORGANIC ANIMAL HUSBANDRY

Summary: For many consumers, farm animal welfare matters. To ensure the well-being of farm animals, consumers often pay premium prices for animal products with humane labels. Because “organic” is an example of a label presumed to convey information about animal husbandry practices, animal products with this label may offer an alternative to products from animals that were raised “conventionally” on large, industrialized farms with minimal welfare protections. The Organic Foods Production Act of 1990 and enacting regulations require that organic animals be able to engage in natural behaviors. However, many of the requirements are general and thus result in significant variations in livestock living conditions, confounding consumer expectations of uniform organic production and high standards for organic farm animal welfare. This Comment discusses the background of organic regulations, including issues with their application in the areas of organic dairy and egg production. Next, this Comment analyzes aspects of organic regulations as applied to organic laying hens and organic pigs. Finally, this Comment suggests ways to make organic regulations more quantifiable and thus more enforceable so organic animals are able to engage in natural behaviors.

For many consumers, farm animal welfare matters. To ensure the well-being of farm animals, consumers often pay premium prices for animal products with humane labels. Because “organic” is an example of a label presumed to convey information about animal husbandry practices, animal products with this label may offer an alternative to products from animals that were raised “conventionally” on large, industrialized farms with minimal welfare protections. The Organic Foods Production Act of 1990 and enacting regulations require that organic animals be able to engage in natural behaviors. However, many of the requirements are general and thus result in significant variations in livestock living conditions, confounding consumer expectations of uniform organic production and high standards for organic farm animal welfare. This Comment discusses the background of organic regulations, including issues with their application in the areas of organic dairy and egg production. Next, this Comment analyzes aspects of organic regulations as applied to organic laying hens and organic pigs. Finally, this Comment suggests ways to make organic regulations more quantifiable and thus more enforceable so organic animals are able to engage in natural behaviors.

HUMAN DRAMA, ANIMAL TRIALS: WHAT THE MEDIEVAL ANIMAL TRIALS CAN TEACH US ABOUT JUSTICE FOR ANIMALS

Summary: 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 for offenses such as attacking humans and destroying crops. These animals were formally prosecuted in elaborate trials that included counsel to represent their interests. The history of the animal trials demonstrates how, in a human-created legal system, legal “rights” for animals can be used for human purposes that have little to do with the interests of the animals. This history shows us that formal legal rights for animals are only tools, rather than an end in themselves, and highlights the importance not just of expanding formal protections, but of putting them to work with empathy, in a way that strives (despite the inevitable limitations of a human justice system in this respect) to incorporate the animals’ own interests and own point of view.

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 for offenses such as attacking humans and destroying crops. These animals were formally prosecuted in elaborate trials that included counsel to represent their interests. The history of the animal trials demonstrates how, in a human-created legal system, legal “rights” for animals can be used for human purposes that have little to do with the interests of the animals. This history shows us that formal legal rights for animals are only tools, rather than an end in themselves, and highlights the importance not just of expanding formal protections, but of putting them to work with empathy, in a way that strives (despite the inevitable limitations of a human justice system in this respect) to incorporate the animals’ own interests and own point of view.

THE ENDANGERED SPECIES ACT V. THE UNITED STATES DEPARTMENT OF JUSTICE: HOW THE DEPARTMENT OF JUSTICE DERAILED CRIMINAL PROSECUTIONS UNDER THE ENDANGERED SPECIES

Summary: Historically, in prosecutions under the Endangered Species Act (ESA), to prove the element “knowingly” the government only had to prove that a defendant intentionally killed an animal that turned out to be endangered or threatened, not that the defendant knew the identity of the species or the endangered or threatened status of the animal when it was killed. Jury instructions to this effect were repeatedly upheld. Then, in a brief filed with the U.S. Supreme Court for McKittrick v. U.S., the federal government, unprompted, unnecessarily, and without explanation, said that it would not use this jury instruction in the future because the instruction did not properly explain “knowingly.” The U.S. Department of Justice subsequently issued a directive to its attorneys to that same effect. Now, there is a self-imposed rule in ESA prosecutions requiring prosecutors to prove that a defendant knew the animal was endangered or threatened at the time it was “taken” or killed. This Article discusses ways in which this change conflicts with the established law and its impact on ESA prosecutions.

Historically, in prosecutions under the Endangered Species Act (ESA), to prove the element “knowingly” the government only had to prove that a defendant intentionally killed an animal that turned out to be endangered or threatened, not that the defendant knew the identity of the species or the endangered or threatened status of the animal when it was killed. Jury instructions to this effect were repeatedly upheld. Then, in a brief filed with the U.S. Supreme Court for McKittrick v. U.S., the federal government, unprompted, unnecessarily, and without explanation, said that it would not use this jury instruction in the future because the instruction did not properly explain “knowingly.” The U.S. Department of Justice subsequently issued a directive to its attorneys to that same effect. Now, there is a self-imposed rule in ESA prosecutions requiring prosecutors to prove that a defendant knew the animal was endangered or threatened at the time it was “taken” or killed. This Article discusses ways in which this change conflicts with the established law and its impact on ESA prosecutions.

ON THE LAMB: TOWARD A NATIONAL ANIMAL ABUSER REGISTRY

Summary: A national animal abuser registry has the potential to provide law enforcement agencies with a much-needed tool for tracking animal abusers, but no such registry exists. This Comment first discusses existing state and federal criminal registries for sex offenders, child abusers, and elder abusers. It determines that existing criminal registries often contain inaccurate entries and that they have little deterrent effect, making their potential infringement on offenders’ Constitutional rights and other collateral consequences difficult to justify.  This Comment then turns to the viability of a national animal abuse registry, discussing the link between the abuse of animals and violence towards other humans. Although no state or national animal abuse registries currently exist, several states have tried to pass legislation that would create such registries. In the absence of state-run registries, independent animal interest groups have formed registries of their own. This Comment explores the inherent drawbacks of volunteer-run, financially unaccountable organizations promulgating information about animal abusers. It then concludes that government funding and staffing could fix the accountability gaps that exist with the registries developed by private organizations and proposes a framework for a national animal abuse registry.

A national animal abuser registry has the potential to provide law enforcement agencies with a much-needed tool for tracking animal abusers, but no such registry exists. This Comment first discusses existing state and federal criminal registries for sex offenders, child abusers, and elder abusers. It determines that existing criminal registries often contain inaccurate entries and that they have little deterrent effect, making their potential infringement on offenders’ Constitutional rights and other collateral consequences difficult to justify.  

This Comment then turns to the viability of a national animal abuse registry, discussing the link between the abuse of animals and violence towards other humans. Although no state or national animal abuse registries currently exist, several states have tried to pass legislation that would create such registries. In the absence of state-run registries, independent animal interest groups have formed registries of their own. This Comment explores the inherent drawbacks of volunteer-run, financially unaccountable organizations promulgating information about animal abusers. It then concludes that government funding and staffing could fix the accountability gaps that exist with the registries developed by private organizations and proposes a framework for a national animal abuse registry.

SHOULD THEY GO THE WAY OF THE HORSE AND BUGGY? HOW THE NEW YORK CITY HORSE-DRAWN CARRIAGE INDUSTRY HAS SURVIVED THIRTY YEARS OF OPPOSITION

Summary: This Comment reviews the history of the horse-drawn carriage industry in New York City and details legislative efforts to regulate the business. Many cities in the United States feature horse-drawn carriages as a tourist attraction, but they are most associated with New York. The long-standing controversy over the working and living conditions of the horses that pull the cabs has garnered less national attention than other animal welfare issues, despite the fatalities and injuries suffered by the equines on traffic-choked Manhattan streets. Supporters of the industry defend it as an important contributor to the local economy, an iconic symbol of the city, and a source of livelihood for the operators. They maintain that municipal regulations are sufficient to protect the horses from mistreatment and the public from the perils of accidents involving carriages. However, city regulation has historically proven to be inadequate and ineffective in ensuring that the horses are not exposed to inhumane conditions. Moreover, the inherent hazards and stressors of New York City streets take a toll on the horses’ health and well-being that regulation cannot address. For these reasons, the protection of the horses and the public cannot be assured until the carriage business in the city is abolished. This Comment discusses the movement to ban the industry, including proposals that would replace the carriages with replicas of antique cars. With inadequate regulation and political obstacles to a ban, it may ultimately take a tide of public sentiment to end the suffering of carriage horses.

This Comment reviews the history of the horse-drawn carriage industry in New York City and details legislative efforts to regulate the business. Many cities in the United States feature horse-drawn carriages as a tourist attraction, but they are most associated with New York. The long-standing controversy over the working and living conditions of the horses that pull the cabs has garnered less national attention than other animal welfare issues, despite the fatalities and injuries suffered by the equines on traffic-choked Manhattan streets. Supporters of the industry defend it as an important contributor to the local economy, an iconic symbol of the city, and a source of livelihood for the operators. They maintain that municipal regulations are sufficient to protect the horses from mistreatment and the public from the perils of accidents involving carriages. However, city regulation has historically proven to be inadequate and ineffective in ensuring that the horses are not exposed to inhumane conditions. Moreover, the inherent hazards and stressors of New York City streets take a toll on the horses’ health and well-being that regulation cannot address. For these reasons, the protection of the horses and the public cannot be assured until the carriage business in the city is abolished. This Comment discusses the movement to ban the industry, including proposals that would replace the carriages with replicas of antique cars. With inadequate regulation and political obstacles to a ban, it may ultimately take a tide of public sentiment to end the suffering of carriage horses.

COMPANION ANIMAL

Summary: This Article presents a theory of the economic value of companion animal life. Under the existing United States torts regime, the standard damages award available to an owner for an action arising from a companion animal death is its fair market value. This approach implicitly assumes that pet owners are irrational, given that they generally invest more in their pets than the animal’s fair market value. This Article suggests that, based on an economic model that conceptualizes companion animals as an employee-investment hybrid, the value of a companion animal is higher than its fair market value. This model has implications for economic damages calculations in wrongful death lawsuits and for companion animal welfare.

This Article presents a theory of the economic value of companion animal life. Under the existing United States torts regime, the standard damages award available to an owner for an action arising from a companion animal death is its fair market value. This approach implicitly assumes that pet owners are irrational, given that they generally invest more in their pets than the animal’s fair market value. This Article suggests that, based on an economic model that conceptualizes companion animals as an employee-investment hybrid, the value of a companion animal is higher than its fair market value. This model has implications for economic damages calculations in wrongful death lawsuits and for companion animal welfare.

LIBERATING ANIMAL LAW: BREAKING FREE FROM HUMAN-USE TYPOLOGIES

Summary: Animal protection laws have traditionally categorized animals according to the manner in which humans use them. Animals have been categorized as companion animals, animals used in medical testing, animals raised for slaughter, and wildlife, and the protection afforded to animals has been ostensibly commensurate to their use categorization. This Article focuses on two alternative strategies that provide legal protection for animals without relying on human use as their primary mode of categorization. First, the Article looks at protecting animals as a single category, in particular through the use of constitutional provisions. The Article then looks at a species-based model that seeks to extend some traditional “human rights” to Great Apes. Ultimately, the Article concludes that the species-based model provides a more effective alternative to the use-based model, since it provides an alternate means of categorization that shifts focus to the needs and capacities of animals. While generalized protection at the constitutional level may be rhetorically effective, it does not offer an alternative form of legal category that would allow for precision in legal rule-making.

Animal protection laws have traditionally categorized animals according to the manner in which humans use them. Animals have been categorized as companion animals, animals used in medical testing, animals raised for slaughter, and wildlife, and the protection afforded to animals has been ostensibly commensurate to their use categorization.

This Article focuses on two alternative strategies that provide legal protection for animals without relying on human use as their primary mode of categorization. First, the Article looks at protecting animals as a single category, in particular through the use of constitutional provisions. The Article then looks at a species-based model that seeks to extend some traditional “human rights” to Great Apes.

Ultimately, the Article concludes that the species-based model provides a more effective alternative to the use-based model, since it provides an alternate means of categorization that shifts focus to the needs and capacities of animals. While generalized protection at the constitutional level may be rhetorically effective, it does not offer an alternative form of legal category that would allow for precision in legal rule-making.

NONECONOMIC DAMAGE AWARDS IN VETERINARY MALPRACTICE: USING THE HUMAN MEDICAL EXPERIENCE AS A MODEL TO PREDICT THE EFFECT OF NONECONOMIC DAMAGE AWARDS ON THE PRACTICE OF COMPANION ANIMAL VETERINARY MEDICINE

Summary: Many scholars have argued for and against the recovery of noneconomic damages in cases of veterinary malpractice involving companion animals. However, scholarship has not focused on the results that allowing noneconomic damages may have on the structure of companion animal veterinary practices. This Article uses the human medical field as a predictive model to explore the potential effects of granting noneconomic damages in veterinary malpractice cases. The author argues that awarding damages substantial enough to encourage increased litigation will result in significant changes in the field of veterinary medicine. Allowing for recovery of noneconomic damages will make veterinary care more expensive and will not significantly deter negligent malpractice. Individuals will pay more for veterinary care or companion animals will receive less care if high noneconomic damage awards become the norm in veterinary malpractice cases. Although these changes will affect all veterinary facilities, ironically, high quality veterinary facilities may be more likely to be sued than their lower quality counterparts. The author concludes by discussing alternatives to malpractice litigation, the human-animal bond, and the possible factors contributing to the high cost of human medicine in the United States.

Many scholars have argued for and against the recovery of noneconomic damages in cases of veterinary malpractice involving companion animals. However, scholarship has not focused on the results that allowing noneconomic damages may have on the structure of companion animal veterinary practices. This Article uses the human medical field as a predictive model to explore the potential effects of granting noneconomic damages in veterinary malpractice cases. The author argues that awarding damages substantial enough to encourage increased litigation will result in significant changes in the field of veterinary medicine. Allowing for recovery of noneconomic damages will make veterinary care more expensive and will not significantly deter negligent malpractice. Individuals will pay more for veterinary care or companion animals will receive less care if high noneconomic damage awards become the norm in veterinary malpractice cases. Although these changes will affect all veterinary facilities, ironically, high quality veterinary facilities may be more likely to be sued than their lower quality counterparts. The author concludes by discussing alternatives to malpractice litigation, the human-animal bond, and the possible factors contributing to the high cost of human medicine in the United States.
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