Volume 20, Issue 1 (Fall 2013)

 

EDITORS NOTE

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THE FIRST ANIMAL LAW JOURNAL, TWENTY VOLUMES LATER

Melissa Young

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 founding [the] journal, to Matthew Howard and Nancy Perry for their inspiration, and to Richard Katz for his invaluable support throughout the process.” Animal Law also gave “thanks to Michael Blumm for his advice and encouragement, and to the Board of [Animal Legal Defense Fund (ALDF)] for their support.”

 

INTRODUCTION

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TWENTY YEARS AND CHANGE

David Favre

This Introduction provides an overview of the evolution of animal law over
the past twenty years, demonstrating how changes in the law, social awareness, and legal education have directly affected this field. This Introduction describes both the positive and negative changes that have taken place, from the banning of dogfighting and cockfighting by federal law and some state laws; a spread in voter-adopted legislation providing for the protection of agricultural animals; and movements to reduce the use of chimpanzees in animal research; to the limitations of the Animal Welfare Act; changes in the United States Department of Agriculture (USDA) policy lifting the ban on USDA inspection of horsemeat; discrimination of certain breeds of dogs through breed-specific legislation; and the weakening of a number of federal laws providing protection to wildlife. This Introduction also provides an overview of case law, discussing attempts to achieve standing for animals and differing approaches in calculating damages for harm to pets. With respect to legal institutions, there has been an increasing presence of animal law sections within the American Bar Association and state bar associations. Animal law has also expanded within legal education. This is evidenced by the emergence of animal law conferences, publications in animal focused law reviews and textbooks, animal law courses at prestigious law schools, and full-time professors specializing in the area of animal law.

 

ARTICLES

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U.S. IVORY TRADE: CAN A CRACKDOWN ON TRAFFICKING SAVE THE LAST TITAN?

Beth Allgood, Marina Ratchford, Peter LaFontaine

Rampant poaching has put African elephants on the verge of extinction in

the wild, and the United States (U.S.) is complicit in this crisis. Despite the
best efforts of federal agencies, porous national borders, legal loopholes, and deep-seated difficulties in law enforcement make the U.S. a major market for illicit ivory. While the White House, the United Nations, and the European Union, along with other voices, are sounding alarms, bold and concrete actions have been slow in coming. The U.S., in particular, is only
beginning to acknowledge its own role in the slaughter, and still relies on a
patchwork of inadequate laws and regulations to control its domestic ivory
trade. The U.S. must quickly put a halt to its domestic ivory trade by adequately funding customs and wildlife inspectors and addressing the problem at every step along the chain of destruction—from the poachers and militants on the ground in Africa, to the international criminal syndicates underwriting the logistics of trafficking, to the consumers whose demand drives the crisis to ever-greater depths. This Article, analyzing never-before released data from the U.S. Fish and Wildlife Service, shines a light on the scope and scale of the underground trade in the U.S., unpacks the problems facing regulators and enforcement officials, and builds the case for a total ban on the commercial ivory trade, which threatens the existence of one of the planet’s greatest icons.

 

MEAT LABELING THROUGH THE LOOKING GLASS

Bruce Friedrich

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 two reasons: first, the FMIA’s labeling preemption only covers the USDA’s statutory scope of authority, which does not include on-farm treatment of animals; and second, both FMIA and a state cause of action would require the same thing—a non-fraudulent label. However, even if a court did find that a state cause of action based on a fraudulent label was preempted, consumer plaintiffs would have other avenues through which to pursue their claims.

 

NOT ALL DOGS GO TO HEAVEN: JUDAISM’S LESSONS IN BEASTLY MORALITY

Mark Goldfeder 

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 whether there might be an expansive contextual definition that would encompass animals with the cognitive ability to communicate and interact like people. Possible tests for humanity under Jewish law, all of which could include animals, such as the contextual/functionality test, or the moral intelligence test, suggest that from a Jewish law perspective, animals that possess the ability to make moral choices may be more human than not.

 

LEGISLATION TO PROTECT THE WELFARE OF FISH

Kelly Levenda

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 to fish. Using the World Organization for Animal Health’s Aquatic Animal Health Code as a model, this Article proposes model legislation for fish transport: the Humane Transport of Fish Act. This legislation would supplement regulations already in place at the state and federal level, which currently pertain only to regulating the aquaculture industry and food safety. This Article also proposes amending the “Humane Methods” section of the Humane Methods of Slaughter Act to include the slaughter of fish, and proposes related regulations to ensure that fish are humanely slaughtered. The massive amount of fish farmed in the United States and globally each year speaks to the potential impact formal regulation could have on the improvement and protection of fish welfare.

 

RECONCILING THE MIGRATORY BIRD TREATY ACT WITH EXPANDING WIND ENERGY TO KEEP BIG WHEELS TURNING AND ENDANGERED BIRDS FLYING

Robert J. Martin & Rob Ballard

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 continued expansion of wind power, and are reluctant to permit impediments to halt or restrict its growth. The growing conflict between the goals of protecting migratory birds and producing more wind power should be reconciled. This Article proposes three basic policy revisions: (1) authorization for the FWS to issue incidental take permits to wind power developers; (2) creation of a uniform standard for assessing avian impacts; and (3) amendment of the MBTA to allow for civil sanctions and citizen suits. Although “big wheels in the sky” must keep on turning and expanding to help reduce America’s dependence on fossil fuels and foreign energy sources, this worthy objective must be pursued without weakening federal protection of migratory birds.

 

SHOCKED, HORRIFIED, SICKENED: HOW CIGARETTES (AND THE LESSONS FROM THE TOBACCO LITIGATION) CAN TAKE YEARS OFF ANIMAL-BASED FOOD INDUSTRIES

Amanda Winalski

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 animal-based food industries. This Article, using the Hallmark slaughterhouse suit as a case study, illustrates how plaintiffs can deploy key strategies that prevailed against the tobacco industry—whistleblowing, fraud claims, government involvement in litigation, and identification of negatively impacted children. Finally, this Article outlines the potential developments that would deepen the parallels between the animal-based food and tobacco industries, suggesting conditions under which the litigation strategies used against the tobacco industry would become
increasingly applicable and valuable.

 

NOTES

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SAVING APES WITH THE LAWS OF MEN: GREAT APE PROTECTION IN A PROPERTY-BASED ANIMAL LAW SYSTEM

Alexandra B. Rhodes

This Note evaluates the methods advocates have taken toward furthering
great ape protection in the United States (U.S.). Many animal advocates
argue that abolishing animals’ property status is essential to establishing
effective protections; nonetheless, it will take time for our society to accept
the concept of legal personhood for animals. Therefore, this Note suggests
that for the time being, great ape protection should be framed in a human
context, to protect animals within the existing, property-based animal law
system. In general, this Note provides background on the property status of animals in the U.S., specifically analyzes the legal status of great apes domestically and abroad, and suggests how advocates may most efficiently work toward great ape protection today.

 

BOOK REVIEW

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FROM THE HALLS OF CONGRESS TO THE SHORES OF THE LITTLE T: THE SNAIL DARTER AND THE DAM: HOW PORK-BARREL POLITICS ENDANGERED A LITTLE FISH AND KILLED A RIVER BY ZYGMUNT J. B. PLATER

Sarah Blankenship

The snail darter has become a symbol of environmental extremism. In reality, however, the farmers, members of the Cherokee Nation, and concerned citizens were simply fighting to keep the Tennessee Valley Authority (TVA)’s Tellico Dam from destroying the last free-flowing miles of the Little Tennessee River. This Book Review examines the work of Zygmunt J.B. Plater, the law professor who, along with ordinary citizens, fought their case all the way to the United States Supreme Court in defense of their river, the snail darter, and the Endangered Species Act. Plater reveals the truth behind the landmark TVA v. Hill case in The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River, by recounting the history of the region and evolution of the case. He also exposes the perverse pork-barrel politics behind the Tellico Dam, and reveals the power of media on the public’s perception of the snail darter case that resonates to this day. This Review highlights the most important aspects of Plater’s story, but it also examines the ways in which Plater and his team could have improved the public perception of the TVA v. Hill controversy. This Review urges everyone who wishes to enter the public sphere to have their voices heard to read The Snail Darter and the Dam for its inspirational and instructive importance.