Volume Fourteen, Issue One, Fall 2007

Introduction

FINDING OUR VOICE: CHALLENGES AND OPPORTUNITIES FOR THE ANIMAL LAW COMMUNITY

Pamela Frasch

 

Articles

A CONTRACTARIAN VIEW OF ANIMAL RIGHTS: INSURING AGAINST THE POSSIBILITY OF BEING A NON-HUMAN ANIMAL

Julie Hilden

Contemporary research results regarding non-human animals’ intelligence, emotional life, and capacity for reciprocity strongly suggest the need for a sweeping re-evaluation of their legal status as mere property. In this essay, the author will contend that the contractarian theory of philosopher John Rawls provides an ideal basis for this re-evaluation. Rawls’ theory holds that the just rules for a given real-world society are those that would rationally be chosen behind an imaginary “veil of ignorance,” where the deciding parties are placed in an “original position” in which they have no idea of their personal qualities or the positions they will ultimately occupy in a real-world society. In the “original position,” Rawls contends, parties will metaphorically “insure against” contingencies such as being poor or disabled, by arranging society to offer a social safety-net for persons in those situations. However, what about the contingency of being a non-human animal? The author will argue that though Rawls intentionally left this contingency out, it should be included — and comments on the profound changes to current law that would result if rules devised behind Rawls’ veil of ignorance took into account the contingency that, in real-life society, parties would be not humans, but non-human animals.

 

ANIMAL EXPERIMENTATION: LESSONS FROM HUMAN EXPERIMENTATION

Arthur Birmingham LaFrance

Conventional wisdom tells us that animal experimentation is a relevant precursor to human experimentation. The failings of human experimentation to be more reliable, however, casts substantial doubt on the necessity and appropriateness of experimentation on animals. The federal government and medical community, since World War II, has used the Nuremberg Code and the “common rule” to determine how to ethically conduct human experimentation. Due to political, economic, or simply unethical decisions, government entities, doctors, and pharmaceutical companies have continued to conduct human experimentation without the informed consent of their subjects. These human experiments have mirrored the form of animal experiments and have often achieved meaningless”“or worse”“devastating results. Because of the danger and unreliability of human experimentation, the federal and local governments, in conjunction animal advocacy organizations, should take a series of concrete steps to eliminate an experimenter’s ability to cause pain, suffering, and unnecessary death to animals.

 

SUBVERTING JUSTICE: AN INDICTMENT OF THE ANIMAL ENTERPRISE TERRORISM ACT

Kim McCoy

The Animal Enterprise Terrorism Act (AETA) creates yet another obstacle for the animal advocacy movement. This article explores the reasons behind the AETA’s enactment and its implications for those who advocate on behalf of animals. The author notes the AETA targets individuals based solely on their political ideology and can deter these individuals from exercising their right to free speech due to the threat of being permanently branded as a terrorist. It is this infringement on First Amendment rights, coupled with the AETA’s overbreadth and vagueness, that lead the author to conclude the AETA is unconstitutional. The author also notes the many social policy flaws within the AETA and finds that the AETA is unnecessary, as existing laws cover every crime encompassed in its language. These defects lead the author to call for the AETA’s repeal and to suggest that individuals look to the judiciary for change.

 

PETS IN THE EYE OF THE STORM: HURRICANE KATRINA FLOODS THE COURTS WITH PET CUSTODY DISPUTES

Megan McNabb

The story of King Solomon includes the often-told tale of two women, both claiming ownership of one baby, who come before the king’s court in order to resolve their quarrel as to which of them is the true mother. This article recounts a modern-day King Solomon story: the “baby” is the animals left behind during Hurricane Katrina; the two mothers claiming ownership of the “baby” are the original owners of the animals and those who adopted the animals after the hurricane; and the role of King Solomon is played by judges in the custody dispute cases that arose after the storm. This article provides a summary of those custody disputes while examining the question of whether those who left their pets behind during Hurricane Katrina have the right to reclaim them from the animals’ new adoptive family. The animals of Hurricane Katrina became trapped in the middle of an unfortunate and complicated situation largely because of defects in our national policies and laws regarding animals and disasters. Therefore, this article also reviews legislative changes that have and should occur in laws concerning pets and disasters, pet adoption, and animals as property.

 

AT A COMPLEX CROSSROADS: ANIMAL LAW IN INDIAN COUNTRY

Rob Roy Smith

Animals play an especially important role in Indian history and culture. The value of animals to the tribes is reflected in every aspect of their culture, from song and dance to land use and treaty terms. 

Tribes today are still dependent on fish and wildlife for ceremonies and everyday living. The tribes have translated their value for animals into creative ways to protect domestic animals and manage animal populations, including working with state and federal governments to co-manage fish and wildlife populations. This article begins with a discussion of criminal and civil jurisdiction within Indian Country. The article provides a brief survey of the legal issues found at the intersection between Indian law and animal law, including both domestic animal issues and fish and wildlife issues. The article presents a working understanding of animal advocacy in Indian Country today and concludes that Indian Country may provide a valuable opportunity to craft model animal protection schemes.