Volume 16, Issue 1 (Spring 2009)

 

INTRODUCTION

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NATURAL BEHAVIOR

Jeffrey Moussaieff Masson

 

ARTICLES

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SPEAKING FOR THE MODERN PROMETHEUS: THE SIGNIFICANCE OF ANIMAL SUFFERING TO THE ABOLITION MOVEMENT

Elizabeth L. DeCoux

There is a great divide in animal advocacy between Abolition and Welfare. Abolitionists seek to end the property status of animals. Welfarists, while acquiescing in the categorization of animals as property, seek to improve the conditions in which those animals live and die. Abolitionists have worked toward their goal for decades, and Welfarists toward theirs for centuries, but animals continue to suffer and die in ever-increasing numbers. This Article reviews the theories and methods of Abolitionists and Welfarists and suggests one reason that they have failed to relieve animal suffering and death: Welfarists use the right tool in the service of the wrong goal; Abolitionists work toward the right goal but expressly decline to use the right tool. Specifically, Welfarists accurately portray the appalling conditions in which animals live and die, but they inaccurately claim that welfare measures can remedy those appalling conditions without any challenge to the property status of animals. Abolitionists correctly assert that the exploitation of animals must end, and they depict the astonishing rate at which animals are killed and eaten, but they typically spare their audience the unpleasant subject of animal suffering. The thesis of this Article is that the tide of animal suffering and death will turn only when Abolitionists employ the tool used to achieve social change throughout the history of the United States: accurately depicting the suffering of the oppressed, in image and narrative.

 

ANIMALS AS VULNERABLE SUBJECTS: BEYOND INTEREST-CONVERGENCE, HIERARCHY, AND PROPERTY

Ani B. Satz

This Article presents a new paradigm, premised on the equal protection principle, for the legal regulation of human interactions with domestic animals: Equal Protection of Animals (EPA). EPA combines the insights of vulnerability theorists with the equal protection principle and capability theory to create a mechanism for recognizing the equal claims of human and nonhuman animals to protections against suffering. Under such an approach, domestic animals—like humans—have claims to food, hydration, shelter, bodily integrity (including avoiding pain), companionship, and the ability to exercise and to engage in natural behaviors of movement.

Existing animal welfare and anti-cruelty laws, despite their stated purposes, fail to protect animals adequately. This Article identifies the ontology of the problem as interest-convergence, famously described by Derrick Bell in the desegregation context. The privileged (humans in this case) protect the disadvantaged (animals) only when their interests align. Because humans profit economically and socially from the exploitation of animals, interests often diverge. When this divergence occurs, all protections for animals are placed in jeopardy. Unlike protections for other disadvantaged groups, there is no constitutional or other legal floor guarding the basic liberties of animals. Interest convergence results in what I term “legal gerrymandering for human interest,” or the redrawing of the natural baseline of protections for animals to further human use of animals. In addition to undermining fundamental protections for animals against abuse and suffering, legal gerrymandering creates inconsistencies that violate legal norms of precedent and procedure. Specifically, I address differential treatment of animals of the same legal and species classes as well as different treatment of scientific evidence in animal law as opposed to other legal contexts. While some scholars seek to address the problem of inadequate animal protections, their proposals—treating animals as legal persons or quasi property— suffer two shortcomings. First, under traditional rights- and interests-based reforms, strong human rights or interests in using animals will always trump animal rights or interests, even with regard to avoiding some types of suffering. Second, existing scholarship is entrenched in a paralyzing debate about whether categorizing animals as “persons” instead of “property” will improve their legal protections. EPA does not have these limitations. EPA seeks to maximize the basic capabilities of human and nonhuman animals within the same population, addressing the hierarchy problem that human rights and interests are privileged over those of animals. Human claims to maximize basic capabilities cannot be valued above nonhuman animal claims for the same. Further, EPA directly considers animal capacities without regard to category; there is no need to categorize animals as persons or as a special form of property. 

 

 

OATS, WATER, HAY, AND EVERYTHING ELSE: THE REGULATION OF ANABOLIC STEROIDS IN THOROUGHBRED HORSE RACING

 

Bradley S. Friedman

 

In May 2008, a horse named Big Brown won the Kentucky Derby, narrowly beating a filly named Eight Belles. Just as Eight Belles crossed the finish line, she collapsed and was put to her death in front of millions of viewers as a result of her two broken legs. As the world tried to make sense of the tragedy, the prominent trainer of Big Brown casually announced that he administered anabolic steroids before the race to enhance Big Brown’s performance and that he would continue to give steroids before every other race for the same reason. Thus, the issue of anabolic steroids in horse racing, which had previously been confined to discussions among those involved in the industry, was thrust onto the national spectrum. While the use of anabolic steroids is a relatively new issue, since the death of Eight Belles thirty-two of the thirty-six racing states have passed some regulation of the use of anabolic steroids in racing. This Article provides an overview of those anabolic steroid regulations in the context of the history of regulation in Thoroughbred horse racing. This Article concludes that while the current limitation on the effectiveness of anabolic steroid regulation is a lack of research and accurate laboratory testing, using a pervasive federal law might be the most effective way of ending the use of anabolic steroids in horse racing.

 

RINGLING BROTHERS ON TRIAL: CIRCUS ELEPHANTS AND THE ENDANGERED SPECIES ACT

Mark Eichelman

In February 2009, the case of American Society for the Prevention of Cruelty to Animals, et al. v. Feld Entertainment, Inc. was heard in the United States District Court for the District of Columbia. The plaintiffs, four animal rights organizations and one former elephant handler for Ringling Brothers and Barnum & Bailey Circus, brought a citizen suit against Feld Entertainment, Inc. (FEI), owner of Ringling Brothers, alleging that the Circus’ use of bullhooks and leg tethers on its endangered Asian elephants constituted illegal “takings” under the Endangered Species Act (ESA). FEI argued that the plaintiffs did not have standing to bring suit, that the take provisions of the ESA do not apply to captive endangered species, and FEI’s actions did not constitute takings. This Article, written as the case went to trial, analyzes the standing, ESA, and take issues presented in this case and ultimately concludes that the district court should find that the plaintiffs do have standing, the ESA does apply to the captive Asian elephants, and FEI’s actions do constitute takings and should be enjoined.

 

COMMENT

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SON OF SAM AND DOG OF SAM: REGULATING DEPICTIONS OF ANIMAL CRUELTY THROUGH THE USE OF CRIMINAL ANTI-PROFIT STATUTES

Emma Ricaurte

In 1991, Congress enacted 18 U.S.C. § 48, which prohibits the interstate sale and distribution of depictions of animal cruelty, in response to the proliferation of animal “crush videos” on the Internet. In 2008, the Third Circuit, in United States v. Stevens, a case involving dog fighting, held that the law was an unconstitutional restriction on free speech. In April of 2009, the Supreme Court of the United States granted certiorari. Discussions about the regulation of depictions of animal cruelty have largely focused on whether the child pornography or obscenity exceptions to the First Amendment should be extended to include violent depictions of animal cruelty. This Article suggests that instead of expanding those doctrines, criminal anti-profit statutes or “Son of Sam” laws may be constitutionally applied to regulate the profitability of these images, thereby reducing the incentive to produce such materials and creating a lesser restriction on speech.