Animal Law in a Nutshell
Authors:
Waisman, Sonia S. / Frasch, Pamela D. / Hessler, Katherine M.
Edition:
3rd
Copyright Date:
2021
24 chapters
have results for Animal Law in a Nutshell
Chapter 1 Introduction 5 results
- When the authors of this Nutshell first began teaching animal law in the mid-1990s, only a handful of other American law schools offered an animal law course. Today, there are well over 150 American Bar Association accredited law schools with at least one animal law course. During the same twenty-five-year period, we have seen similar dramatic growth in the number of city, state, regional, and national bar association animal law committees and sections and the number of legal periodicals devoted to animal law. Equally impressive are the number of animal law textbooks and other resources available to students and practitioners alike who wish to deepen their understanding of this area of law. It is hard to know precisely what has prompted this significant growth, but some commentators believe it is due to our rapidly evolving understanding of animals as complex beings with their own interests worthy of protection. Other commentators point to the changing nature of families in the...
- Laws protecting, impacting, regulating, and controlling animals have been an integral part of American jurisprudence since the very early days of colonization. However, the distinct field now known as “Animal Law” is a relatively new development. Animal Law brings together statutes and cases from multiple fields of law that consider, at their core, the interests of animals or the interests of humans with respect to animals. The way in which the law defines and treats animals often has depended on prevailing public attitudes about morality and economics. Although the role of animals and societal perceptions of them have changed over time, those factors remain at work in modern statutes and litigation. As a result, a particular animal may receive more or less protection under our laws depending on that animal’s role in society. For example, a mouse who is a companion animal will enjoy substantial protection, while that same mouse in a research facility is virtually unprotected.
- To cover this highly interdisciplinary field of law, this Nutshell is organized according to the individual disciplines as they apply to animals or intersect with animal-related issues. Due to the overlap in issues that can arise in various contexts, such as constitutional challenges, for example, those issues appear in multiple chapters. Similarly, there is interplay between tort causes of action and the remedies available for them.
- Given the dynamic nature of Animal Law, this book necessarily has touched on only the main areas of concern for students and practitioners. In order to keep this book to one volume, we had to make difficult decisions regarding what to include and what to omit. This was a frustrating exercise for us, and we understand that some readers may wish that their favorite area of Animal Law had been covered more completely in this book. For those readers, we encourage you to continue your study and research. Even the most cursory search on the internet will yield multiple excellent resources for you to learn more about your particular area of interest. In addition, at the conclusion of each chapter we include suggested readings designed to guide further research.
- We hope you enjoy learning more about this fascinating area of law.
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Chapter 11 Farmed Animals 144 results (showing 5 best matches)
- Advocates seeking to improve conditions of farmed animals have achieved some success in recent years regarding egg production, veal, and gestation crates, as discussed earlier in this chapter. However, on the whole, regulation relating to the conditions of farmed animals has changed only minimally for some animals and not at all for most animals. Importantly, advocates are barred from bringing an action where they lack standing. Constitutional standing is discussed in greater detail in Chapter 9. Subsection A below discusses the application of standing in actions to improve conditions of farmed animals. Additionally, federal laws may preempt state laws that seek to improve conditions for farmed animals. Finally, some states have passed “ag-gag” laws that prohibit animal advocates from even documenting abuse of farmed animals.
- The primary state method of regulating the conditions and treatment of animals is the anti-cruelty statute. For more on such statutes, see Chapter 3. However, state anti-cruelty laws generally exempt either farmed animals or all practices that are customary in raising them. Additionally, state anti-cruelty laws may define “animal” to exclude farmed animals, so they are not covered in the first instance.
- There is perhaps no category of animals that exemplifies animals’ legal property status more than farmed animals. For more on the legal classification of farmed animals and other livestock, see Chapter 2. Farmed animals receive less protection under the law than even wild animals because they are almost completely unprotected by state anti-cruelty statutes and federal legislation. This is due in part to their economic importance, as well as general acceptance of the farming of animals. Most Americans have an idyllic view of an animal’s life on the farm, although in reality that life might include branding without anesthesia, separating newborn animals from their mothers, prolonged intensive confinement, and other actions that would be illegal with respect to companion animals. Modern farming practices in large confinement operations also include practices not previously used in traditional farming, such as de-beaking,
- This chapter discusses the operation of state and federal laws regarding farmed animals. It first examines the extent of state exemptions of farming practices from anti-cruelty statutes and then considers some additional causes of action available at the state level. Moving to the federal level, this chapter covers a variety of national laws, a few of which pertain directly to farmed animals and others that are used to address the environmental and human health impacts of modern industrial farming practices. Finally, although the use of animals in agribusiness is an increasing area of focus for animal, environmental, and public health advocates, there are substantial barriers to improving conditions for farmed animals, and this chapter surveys them.
- Only a few states, including California and New York, have anti-cruelty laws that appear to apply to farmed animals. (defining “animal” to include “every dumb creature”);
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Chapter 15 International Animal Law 110 results (showing 5 best matches)
- While laws relating to animals exist worldwide, different countries offer differing levels of protection in various contexts. Given an increasingly global economy, countries also come together in agreements to, for example, manage wildlife populations and decide how to govern trade, including trade in animal-based products. This chapter provides an introduction to comparative animal law through discussion of legislation relating to animals in China and the European Union—which both have significant global influence—and discuss selected international agreements that affect animals.
- China has an important and growing role in the global economy, as well as a population with changing food preferences and a burgeoning awareness of animal protection issues. Improvements in China’s animal laws stand to benefit billions of farmed animals, as well as hundreds of millions of other animals, both wild and domestic.
- Around the world, nations’ animal protections range from constitutional provisions recognizing the importance of animal welfare in India, Switzerland, and Germany to laws, regulations, and court opinions governing specific treatment of certain types of animals, such as an Israeli Supreme Court decision banning foie gras due to the cruelty in force-feeding geese to create that product from their livers, and a New Zealand prohibition on research using great apes. Other countries in Africa, Asia, and elsewhere are striving to control illegal trade in wildlife and wildlife parts. For more detailed discussion of animal law in many countries, see
- Bruce A. Wagman & Matthew Liebman
- Beyond the EU’s standards for animal welfare, certain EU member countries have established more stringent criteria. For example, Sweden, an EU member country, and the United Kingdom, which was an EU member country at the time, have banned gestation crates entirely. Switzerland, which arguably has the most protective, comprehensive animal laws in the world, has enshrined animal protection in its constitution and regulated specifics of animal treatment in a lengthy Animal Protection Act and Animal Protection Ordinance. In 1992, Switzerland was the first country to ban battery cages, and it banned gestation crates in 2007. The Swiss also have established many other novel protections for animals, including protection for animal dignity. For further information about Swiss animal law, see
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Chapter 3 Criminal Law 238 results (showing 5 best matches)
- Depending on the jurisdiction and the circumstances of a particular case, in addition to the prosecutor, there may be a variety of police officers, humane investigators, animal control officers, veterinarians, wildlife rehabilitators, or other experts involved in investigating and prosecuting an animal cruelty case. These officers and professionals can also advise a private individual on the appropriate method for reporting animal abuse in a particular jurisdiction. Often, animal advocacy organizations, such as the Animal Legal Defense Fund, are instrumental in assisting law enforcement in the investigation and prosecution of a case. In particularly egregious cases, media outlets can bring the appropriate officials’ attention to the situation. In most jurisdictions, however, it is best for an individual with information regarding a possible animal abuse case to report it to local police, animal control, or the local humane society shelter or organization.
- Animal cruelty investigations resemble investigations of crimes against humans, but they differ in certain key aspects due to animals’ inability to recount events and sometimes due to vague or outdated statutory provisions. Particularly in cases of extreme abuse, an animal cruelty investigation can be very comprehensive, involving DNA testing, documenting the crime scene, performing necropsies on deceased animals to determine the cause(s) of death, and other investigatory techniques commonly used by investigators in crimes against humans. These investigative steps are especially important in animal abuse cases because the animal victim, even if alive, cannot describe the abuse. Animal cruelty investigations are likely to involve experts such as veterinarians and pathologists. Veterinarians are particularly important as they can also establish the appropriate standard of care by which to gauge the cruelty or neglect ( , how much a healthy animal should weigh, how long this animal...
- Care for animals who are victims of abuse can be costly; forfeiture and cost of care bonds address the problem of how to care for an animal in custody. Cost of care bonds require the defendant to pay for the animal’s care while in custody in order to maintain ownership of the animal. Forfeiture of an animal involves divesting the defendant of ownership so the animal can be placed in a safe and permanent home. Due to animals’ property status under the law, requiring a defendant to forfeit an animal is a taking without compensation under the Fifth and Fourteenth Amendments. Because it is a taking, forfeiture requires notice and a hearing, although the requirements for both vary by state.
- Establishing the standard of care can be challenging in the animal hoarding context where a defendant has kept tens or even hundreds of animals in abhorrent and cruel conditions. While prosecutions of animal hoarders inevitably involve egregious cases in which animals have to be euthanized upon seizure, some of the animals are able to recover when given proper care and attention. In the absence of state statutes dealing specifically with animal hoarding, the prosecutor generally must establish a breach of the duty of care for each animal involved. For more on animal hoarding, see section VII.C of this chapter.
- However, many states have enacted sentencing laws limiting the number of punishable offenses for the same conduct occurring within one criminal episode to the number of individual victims. . In those states that consider animal cruelty to be a crime against the state, defendants may argue that there is only one victim, the state, and thus, the defendant may be penalized only once for the offending conduct, regardless of the number of animals injured. Prosecutors, in turn, may counter that animals constitute victims for anti-merger purposes, relying on applicable rules of construction, legislative history, and relevant statutes, such as those indicating that the primary focus of modern anti-cruelty laws is the well-being of individual animals, rather than protection of their owners or the general public. (reversing merger of twenty counts of animal neglect on the grounds that “the underlying substantive criminal statute . . . protects individual animals . . . . In adopting that...
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Chapter 10 Selected Federal Wildlife Laws 156 results (showing 5 best matches)
- The Lacey Act applies to “fish and wildlife” which it defines as including any wild animal, dead or alive.
- As you have seen in other chapters, many of the laws and regulations relating to animals are found at the state level. For example, states generally are responsible for regulating domestic, farmed, and wild animals. Nevertheless, there also are a substantial number of federal laws relating to animals, and particularly to wildlife. This chapter briefly outlines and presents case law arising from a few of the major federal statutes that commonly impact the actions of individuals, organizations, and companies in relation to wild animals: the Endangered Species Act, Marine Mammal Protection Act, Wild Horses and Burros Act, Lacey Act, Animal Damage Control Act, and National Wildlife Refuge System Administration Act.
- The table below provides a brief overview of selected federal laws that protect wild animals. For a comprehensive list of federal animal law statutes as of 2010, see
- If the agency approves adoption of certain animals, it must ensure the animals will not be commercially exploited. The WHBA allows qualified individuals to adopt animals only if they can assure humane treatment and care. When title is transferred, the animals lose their status as “free-roaming” under the WHBA. In a suit to enjoin the adoptions of animals for slaughter or exploitation, a court held that if an agency is aware of the intention to commercially exploit the animals after adoption, the agency has a duty to deny adoption. If adoption is not possible, the agency must humanely destroy excess animals and cannot delegate that obligation to others through placement with unqualified persons through the adoption program.
- , was originally passed in 1900 to reduce the wholesale slaughter of wild animals for commercial purposes. . This law has three main provisions: (1) it forbids the willful disturbance of animals or their nests, as well as the killing of any animal within an area set aside under any law; (2) it forbids the importation of specific species; and (3) it prohibits the use of aircraft, motor vehicles, and poison to kill wild horses and burros. The Lacey Act was substantially amended in 1981 to address wildlife trafficking. Its amendments, , make violating state hunting laws and crossing state or national boundaries for that purpose a federal offense. Congress intended the Lacey Act to gradually “dry up” the market for poached animals.
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Chapter 2 Defining “Animal” 47 results (showing 5 best matches)
- The question of whether an animal is categorized as companion, domestic, wild, exotic, livestock, or domesticated animal under a given statute is often the subject of judicial interpretation, given that the terms can overlap and be quite confusing, as different state statutes use different terms to refer to the same species of animal. Likewise, within a state and depending on the context, the same animal can be defined differently under different laws. For example, a pig or a horse may be a companion animal under anti-cruelty provisions, but also livestock under provisions regulating agribusiness. Also, state legislatures may re-classify animals so that new statutory schemes apply to certain categories of animals. For example, in Missouri, ostriches were re-classified under state statute from exotic animals to livestock or farm animals. . If a statute does not contain an express definition for a species of animal, courts may analogize the traits of the animal in question to the...
- Dogs and cats are perhaps the quintessential companion animals, and sometimes are called “domestic” animals. Yet this was not always the case. Historically, “domestic” animals were generally farm and working animals and were recognized as having “intrinsic” value under common law. For example, in
- Unwarranted Discrepancies in the Advancement of Animal Law: The Growing Disparity in Protection Between Companion Animals and Agricultural Animals
- If species of animals are defined as “wild” or “exotic,” they may receive reduced protection under state anti-cruelty statutes, and owners of these animals may be subject to strict liability for harm the animals cause (although many state statutes and local ordinances limit an individual’s ability to own a wild or exotic animal). To determine whether an animal is “wild” or “exotic,” a court may look to the state’s Public Health and Safety Code or Game and Wildlife Code for a definition. (finding that ferrets are wild animals). For example, a West Virginia statute defines “wild animals” as “all mammals native to the State of West Virginia occurring either in a natural state or in captivity, except house mice or rats.” Exotic animals generally are defined as animals not native to the state or to the United States.
- John H. Ingham, The Law of Animals: A Treatise on Property in Animal Wild and Domestic and the Rights and Responsibilities Arising Therefrom
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Chapter 5 Remedies for Harm Done to Animals 51 results (showing 5 best matches)
- Remedies in cases arising out of tortious harm to companion animals are complicated for many of the same reasons described in Chapter 4. First and foremost, the property status of animals under the law greatly influences the remedies available for harm done to them. As a preliminary matter, because of this property status, remedies do not flow directly to the actual victim of the tortious conduct—the animals themselves. Instead, the remedies flow to the human owners or caregivers. Second, the type of animals harmed also is critical in determining appropriate and available remedies. Unlike animals maintained for commercial uses (where a market value for a harmed animal is likely to be more readily ascertainable), companion animals often are perceived and treated as family members by their owners or caretakers—to the point where many individuals view themselves as their companion animals’ guardian or “parent” and not as an owner.
- While it is possible for plaintiffs to obtain an increased award based on an animal’s special skills, some jurisdictions take a narrower view, increasing the award only where there has been a demonstrated economic investment in the animal. Therefore, harm to animals such as those bred for show or used as service animals may be more likely to result in an increased award because of the increased financial investment in breeding or training. In cases involving animals who did not formally assist their owners or caretakers, courts often adhere to a narrower view of compensatory damages.
- Part of the financial loss suffered by plaintiff owners or caretakers of harmed companion animals is the value of the animals themselves. A more difficult concept than assessing veterinary bills or other expenses incurred as a result of the tortious act, or perhaps a simple concept with complex application, is how to value companion animals who have been killed by tortious conduct. While animals maintained for commercial uses (such as farmed animals) obviously may be harmed as well by tortious acts, valuation of those animals within the legal system is generally a much simpler and more straightforward process of determining fair market value than the valuation of a companion animal. This is especially true of a companion animal who is a mixed breed, rescued, or adopted from a shelter for companionship, rather than a purebred, purchased for breeding or show. In the valuation of companion animals, some courts have considered the “intrinsic” or “special” value the animal had to the...
- In the tort or bailment context, it is a given that plaintiff owners or caretakers of harmed animals may recover for their own financial losses stemming from the harm, such as veterinary bills for the care of the animals after the tortious harm. As discussed in Chapter 4, the availability of monetary compensation to these plaintiffs for noneconomic loss (such as emotional distress and loss of companionship) depends on a variety of factors. These factors include: the facts of the case ( , whether a plaintiff chooses to plead property-based intentional torts such as conversion or trespass to chattel if the facts support such claims); case precedent and any applicable statutory law in the particular jurisdiction; and, last but not least, how a particular judge or appellate panel chooses to interpret and apply precedent or statutes, and in those cases that reach a state’s highest court, whether that court is willing to take an active role in the evolution of common law. By its nature,...law
- Absent statutory authority in a given jurisdiction, emotional distress damages generally are not available for negligent harm to animals, due to common law precedent that such damages are not available in property damage cases and the fact that animals currently remain as “property” under the law.
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Chapter 8 Wills and Trusts 43 results (showing 5 best matches)
- Traditionally, the property status of animals precluded them from being beneficiaries upon their owner’s death. However, owners are now increasingly able to provide for their animals using trust or probate provisions. In construing such provisions, many of the traditional requirements, restrictions, and interpretive canons found in will and trust law remain applicable. Commonly regulated or litigated issues surrounding wills and trusts to benefit animals include the eligibility of an animal to be a beneficiary, the disposition of the animal or animals immediately after the testator’s or trustor’s death, life expectancy and state law regarding duration of benefits, the amount necessary to provide for the life span of the animal, and the enforceability of the provisions under state statutory and case law. Custody disputes can arise in probate and are generally treated analogously to custody disputes in other contexts; see Chapter 6 for more on custody disputes.
- One court, when faced with a will provision leaving property directly to an animal, found that the gift was void because an animal could not be a beneficiary. As such, the property passed according to intestacy laws.
- Eligible Animals: The trust must designate the animal beneficiaries. An animal may need to be a “pet” or “domestic” animal, as under the New York, California, and Oklahoma statutes. Such requirements may limit the types of animals eligible to be beneficiaries. For more on the definitions of such terms outside the context of probate statutes, see Chapter 2. In contrast to the limitations in those states, Washington allows trustors to designate any nonhuman vertebrate animal in a trust instrument. California, Connecticut, Delaware, Indiana, Iowa, Massachusetts, Nevada, Oklahoma, and Texas all require the animal to be alive at the trustor’s death.
- Enforcement of the Trust: States have not strayed far from the UTC and UPC in that they generally allow courts to appoint a trustee where the trust instrument does not appoint one. If the court appoints a trustee, Nevada requires that preference be given to an individual with a demonstrated interest in the animal’s welfare. Washington allows an individual with custody of the beneficiary animal to enforce the trust. Oklahoma bars trustees from acting as animal trust enforcers unless the trust instrument explicitly permits a dual trustee-enforcer role. Louisiana similarly encourages distinct roles in the administration of animal trusts: the trust instrument may separately designate a trustee, a trust enforcer, and a caregiver (who takes custody of the animal beneficiary, becoming responsible for the animal’s care).
- The UTC provides a framework for the creation of a trust for an animal or animals alive during the settlor’s lifetime. Such trusts terminate upon the death of the last animal beneficiary. The trust may be enforced by a person appointed in the trust or by a person appointed by the court. A third party with an interest in the animal’s welfare may request that a court enforce, or appoint or remove a person to enforce, the trust. The amount in the trust must be used for the intended purpose, unless the amount is clearly excessive. If the amount in trust is deemed excessive, a court may reduce it and grant the excess to the settlor, or the settlor’s successors in interest.
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Chapter 14 Animal Activism 67 results (showing 5 best matches)
- An increase in activism and direct action, particularly with respect to farmed animals, research, and hunting, has resulted in the enactment of some statutes targeting the behavior of animal rights activists. Litigation and controversy in this area commonly focus on state and federal constitutional protections, hunter harassment statutes, SLAPP (Strategic Lawsuits Against Public Participation) suits and legislation, claims of animal terrorism (based on the Animal Enterprise Protection Act and its successor, the Animal Enterprise Terrorism Act), and allegations of criminal behavior, including vandalism and the illegal release of animals from farm or research facilities (often pursuant to state statutes colloquially termed “ag-gag” laws). This chapter provides a brief survey of the protections afforded to activists generally, and the way in which those protections are specifically limited by hunter harassment laws and federal and state laws regulating speech and protecting animal...
- Framed by their proponents as measures to protect the commercial interests of those who use animals in agriculture and research, and decried by their opponents as an attempt to silence (or “gag”—hence the colloquial term “ag-gag” laws) whistleblowing and stifle public debate regarding farmed animal conditions, ag-gag laws criminalize certain behavior using some combination of three statutory strategies. Statutes focused on covert documentation of conditions at animal agribusiness facilities bar recording images or sound at such facilities without the owners’ consent. Ag-gag laws that enable these facilities to more easily avoid hiring undercover reporters or animal activists prohibit agricultural job applicants from misrepresenting themselves while seeking employment. held to be unconstitutional in
- Intentionally impeding lawful taking of an animal by disrupting the animal, the individual, or the environment; making loud noises or gestures or placing baits to affect animals or the individual hunter; guilty of a lesser offense for entering or remaining in designated hunting areas of private or public land with a disruptive purpose.
- (contextualizes ag-gag statutes within statutory developments protective of animal-using industries, namely agricultural disparagement laws, AEPA, and AETA; argues that such laws represent a continuum of strategies aimed at hampering pro-animal efforts); Alicia Prygoski,
- The Church of Animal Liberation:
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Chapter 13 Hunting, Trapping, and Fishing 49 results (showing 5 best matches)
- Hunting laws and regulations apply to wild animals and generally not to captive game animals. In a case involving domesticated deer, the Oklahoma Supreme Court held that the deer were not subject to state hunting laws. The court held that wild animals belong to the state unless they are kept captive, in which case the individual who keeps the animals has a qualified property right in them that is lost if the animals return to their wild state.
- Stephen K. Otto & Animal Legal Def. Fund, 2019 U.S.
- Federal laws apply if an activity takes place on federal property, or if the animal involved is protected by a federal statute, such as the Endangered Species Act or the Migratory Bird Treaty Act. For more on federal laws affecting animals, see Chapter 10.
- Internet hunting involves logging on to a website where a captive animal is situated in a room and a gun is wired to a camera and linked to the user’s keyboard. The user can then follow the movements of the animal, point the camera and, with a click of the mouse, shoot the animal.
- In addition to state regulations regarding hunting, trapping and fishing, certain federal statutes protecting wild animals impose additional limitations and requirements. (Selected federal statutes protecting wild animals are discussed in Chapter 10.) In a case analyzing the permitting requirements under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act, a court rejected a defendant’s claim that these Acts violated the Religious Freedom Restoration Act because the defendant was not a member of a recognized Native American tribe or religion. Under the MBTA, Native Americans can possess and trade animals (or elements of animals, such as feathers) without a permit, but because the defendant was not a Native American, he was required to comply with the federal permitting requirements. . Federal laws prohibit certain hunting and fishing practices as well. For example, the Airborne Hunting Act makes it illegal to shoot or harass any bird, fish, or other animal
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Chapter 9 Standing 41 results (showing 5 best matches)
- Animals do not have standing to sue, at least in part because they are deemed property under the law. They cannot speak for themselves both literally (with the rare exception of some birds, and nonhuman primates able to communicate by sign language) and figuratively. Individuals or organizations may be able to sue on behalf of animals if they have a special interest in the animal, if that interest gives rise to an injury unique to the individuals or organizations, if such unique injury results from an injury to the animal in question, and if they meet the applicable standing requirements discussed in the preceding section. Even then, the individuals or organizations would be invoking their own legal rights and not those of the animal.
- Animal law, as an interdisciplinary field, encompasses a number of constitutional questions. Many of these are addressed in the chapters in which the questions arise. For example, procedural due process requirements under the Fourteenth Amendment are discussed in Chapter 7 (State and Local Regulation of Animal Ownership, section II). Fifth Amendment due process and Fourth Amendment search and seizure protections are discussed in Chapter 3 (Criminal Law, section VI). First Amendment free speech rights are discussed in Chapter 14 (Animal Activism, section II). Constitutional challenges such as overbreadth and vagueness, as well as Commerce Clause and Equal Protection Clause challenges, arise in many chapters throughout the text.
- Jurisdictions with statutes treating animal abuse or neglect as abatable public nuisances offer an alternative mechanism by which to address animal cruelty via a private right of action. Growing out of common law nuisance doctrine, nuisance abatement laws regulate activities that tend to negatively impact the surrounding community’s quality of life—often explicitly including illegal gambling, illegal prostitution, and illegal drug manufacturing or dealing. These statutes authorize various people—typically government attorneys and members of the impacted community, though sometimes extending to any person—to bring a civil action enjoining the nuisance. Generally, whether animal cruelty falls within a state’s range of abatable public nuisances will depend on the facts of the animal cruelty incident in question, and the language used in the state’s abatement statute. (defining regularly occurring criminal activity as an abatable nuisance); ...nuisances; this is particularly useful in...
- In some cases, those advocating for animals may name the animal or animals as additional plaintiffs. In those relatively few cases where courts have analyzed whether animal plaintiffs have standing, however, the courts have determined they do not. For example, the plaintiffs in one case challenged the transfer of Kama the dolphin from an aquarium to the Navy. Kama was named as one of the plaintiffs. The federal district court looked at the word “person” as used in statutory provisions outlining cognizable claims under the Marine Mammal Protection Act and the Endangered Species Act (both discussed in more detail in Chapter 10) and determined that, without express authorization from Congress, the word “person” did not include animals. Additionally, the court found that , authorizing suits on behalf of children or incompetent persons, did not apply to animals. The court also looked to , which required that the capacity to sue be determined according to the law of an individual’s...animals
- The Elephant in the Room: Detrimental Effects of Animals’ Property Status on Standing in Animal Protection Cases
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Acknowledgments 3 results
- We would also like to thank those who have supported us in this project from the very beginning and without whom it might not have been completed. We are sincerely grateful to former Dean Robert Klonoff for his support of this work and that of the Center for Animal Law Studies at the Lewis & Clark Law School. Additionally, it is not possible to engage in serious animal law work without owing a large debt of gratitude to Joyce Tischler, whose foundational work has created a path for so many to follow, and whose continued dedication and gracious assistance to so many of us inures to the growth of the field of animal law as well as to the benefit of the animals on whose behalf we work.
- Without the assistance and forbearance of our wonderful families and friends we could not have completed this third edition of the Nutshell. We are exceedingly grateful to all of them.
- This third edition would not have been possible without the assistance of our law clerk, Karen Martens. We also want to acknowledge Professors Rajesh Reddy and David Rosengard. They provided invaluable insight and expertise adding immensely to the project.
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Chapter 4 Torts 94 results (showing 5 best matches)
- While the property status of animals under the law may impede the success of some of the claims discussed above, there are common law torts available to plaintiffs that are based on the status of animals as property under the law. These property-based torts include replevin, conversion, and trespass to chattel, in addition to statutory provisions that may permit a civil action for damages for otherwise criminal conduct. Some plaintiffs may choose not to include claims based on the legal status of their companion animal as property, finding the notion that their beloved companion animal is treated as property under the law offensive to their sensibilities. Strategically, however, if such claims are available under the facts of a given case, they may be useful tools in obtaining recovery and they may also be utilized by creative counsel as a means of raising the court’s awareness regarding animals as much more than mere inanimate property. One advantage to intentional torts such as...
- Claims arising out of tortious harm to animals (often, though not always, companion animals) is an emerging and rapidly growing area of the law, yet it remains deeply rooted in historic common law and in some instances tied to statutes applicable to humans. The status of animals as property under the law factors heavily into the causes of action that may be asserted and the nature and extent of damages that may be awarded. The fact that this particular form of “property” consists of animate beings—who in many instances are loved as family members, though not recognized as such under the law—raises its own unique set of issues in this area of the law.
- Under the legal concept of animals as property, boarding an animal at a kennel, stable, or other facility is a bailment. Bailment contracts involving animals generally are mutually beneficial in that the bailor’s animal is cared for in exchange for money paid to the bailee. Negligence is not required in these cases because bailment actions are contractual. Instead, once the claimant, generally the bailor, establishes the existence of a bailment contract, delivery of the animal, and the bailee’s subsequent failure to return the animal, the burden shifts to the defendant bailee to provide a legal excuse for the failure to return the animal in a suitable condition. In a case where a mare broke her leg at a breeding stable, the Ohio Supreme Court found the contract for breeding the mare was a bailment. The defendant argued that appropriate care was exercised, but failed to provide a legal excuse for not returning the animal in a particular condition. Without knowledge of how the injury...
- Indirect tort claims such as malpractice or loss of companionship may recognize that injury to an animal causes injury to humans who are close to the animal. Because Congress and the states have not granted express standing to animals, the court’s standing requirements limit human plaintiffs to these indirect tort claims for compensation for torts committed against animals. Some states have other options. North Carolina allows citizens to file civil actions for violations of criminal animal cruelty laws. Oregon allows citizens to file a nuisance abatement suit where animal crimes are alleged. For more on barriers to standing for animals (generally outside the content of tort claims) and methods used to overcome them, see Chapters 9 and 10.
- The common law rule for harm caused by companion animals was that owners or possessors of the animals would not be liable unless they knew of the animals’ vicious propensities abnormal to that class of animal. propensity to jump without being directed to do so; but the court noted that even enthusiastic playful jumping by a dog could, in certain circumstances, be construed as a “vicious propensity”).
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Chapter 6 Contracts 76 results (showing 5 best matches)
- Animals often come between tenants and their landlords in the context of lease violations. A lease may prohibit or limit the type, breed, or number of animals a tenant may keep. In construing these lease provisions, federal and state laws, as well as general rules of contract construction, govern the court’s analysis. This section touches on common lease restrictions and potential defenses tenants may raise. For instance, a tenant may seek to classify her animal as a service animal, requiring a reasonable accommodation under the Americans with Disabilities Act (ADA) ( ) or under state or federal Fair Housing Acts; a tenant may also argue selective enforcement of the restriction, or waiver and estoppel. In part due to the rise in disputes of this nature, states or local governments may also address some of these claims and defenses by statute or ordinance. This section explores some of these jurisdictional differences in the context of the commonly litigated issues surrounding animals in
- Some courts are willing to impose liability on a landlord even in cases where the tenant is violating a term of the lease. In a case involving a ferret kept in violation of the ferret owners’ lease, a federal court in Pennsylvania held the landlord liable for injuries caused by the animal based on the court’s determination that ferrets are wild animals. The court considered the definition of a “wild animal” in the state’s Game and Wildlife Code, finding that ferrets—unlike dogs and cats—were not treated as domestic animals in other statutes, and that the behavior of ferrets generally is consistent with that of a wild animal, regardless of how any particular ferret might behave. Keeping a wild animal gives rise to potential liability. Pennsylvania extends that liability to landlords who have both knowledge of the animal’s presence and the authority to evict her owners. The court, therefore, held the landlord liable for knowing of the ferret and failing to act.
- The property status of animals under the law does not change under the “best interest” standard. Courts applying this standard simply are taking a real world approach to the issue in considering the animal’s best interest, much like in custody disputes involving children. For example, courts have applied the child custody concepts of managing conservators and visitation rights to animal custody cases. A court in a Texas divorce case upheld the trial court’s designation of the wife as the managing conservator of the couple’s dog, with reasonable visitation for the husband. In doing so, the court noted the property status of animals and the fact that the dog had been given to the wife as a gift. . For another example of a court analogizing to child custody disputes in considering the custody of an animal, see
- Whether and to what extent a court will consider the interests of an animal varies by jurisdiction and the particular judge hearing the case, and it also may depend on the facts involved, such as in the case of neglect or abuse. See Chapter 3 for further discussion of animal abuse and family violence, animals in protective orders, and other abuse-related issues.
- The reader may note the absence of discussion regarding contracts for the sale of animals. Historically, animals are treated as commodities in purchase/sale contracts and much of the litigation surrounding such contracts does not center on the welfare of the animals. Thus, a discussion of contracts for the sale of animals is outside the scope of this book. Bailment contracts, however, do deal directly with the welfare of the animal involved and, as such, are discussed herein, in Chapter 4, section VI.
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Chapter 7 State and Local Regulation of Animal Ownership 47 results (showing 5 best matches)
- Public nuisances in animal law cases may arise in a number of contexts, such as a neighbor with potentially dangerous exotic animals or an industrial farm that has hundreds or thousands of farmed animals. (These are also known as “factory farms” and are discussed in more detail in Chapter 11.) For example, large hog operations generate a substantial amount of waste that must be managed. If not properly managed, serious and potentially harmful air and water pollution often result and can detrimentally impact surrounding communities in numerous ways. So-called “Right to Farm” laws have been passed to combat claims that focus on the effects of farming practices. “Right to Farm” laws are intended to discourage nuisance claims by creating a statutory presumption (albeit a rebuttable one) that whatever nuisance is created by the operation is outweighed by the public value in having working farms in the community.
- Local governments may regulate the type, number, and use of animals in an area through zoning restrictions. Three is often the maximum number of animals an individual can keep in urban residential areas, but regulations may vary depending on the species of animal. For example, in Multnomah County (Portland, Oregon), residents are restricted to having three dogs and ten cats, absent a license allowing additional animals. Breed restrictions or leash requirements may also be included in zoning regulations.
- Cynthia A. McNeely & Sarah A. Lindquist,
- Modern anti-cruelty laws are perhaps the most obvious and pervasive example of state governments limiting owners’ actions to protect the owners’ own property (the animals) from the owners themselves. Other common examples include prohibitions on cosmetic surgeries, such as tail docking and ear cropping; limitations on the numbers of animals allowed to reside in a home absent a license; requirements to have vaccinations against rabies and other transmittable diseases; and restrictions on future ownership of animals by individuals who have been convicted of animal abuse. Although these restrictions operate as limitations on personal
- Police powers, however, are not unlimited. State or federal constitutions’ due process, commerce, and equal protection clauses all act as checks on overly aggressive uses of police powers. This protection against improper governmental intrusion impacts animal ownership just as it does other areas of individual rights and protections. In addition to possible constitutional limitations, state laws cannot be inconsistent with federal laws, although they may provide for stricter standards. (in a challenge to an ordinance forbidding the keeping of wild animals, the court held that the federal Animal Welfare Act did not preempt stricter state regulations).
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Title Page 4 results
- Clinical Professor of Law, Director, Animal Law Clinic Director, Aquatic Animal Law Institute Center for Animal Law Studies Lewis & Clark Law School
- Professor of Law and Associate DeanAnimal Law and Policy Founder, Center for Animal Law Studies Lewis & Clark Law School
- In a nutshell
- Animal Law
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Chapter 12 Animals in Research 98 results (showing 5 best matches)
- Private and publicly funded research facilities commonly use animals both as subjects in experiments and as objects of experimentation that can be patentable property. In either case, facilities, animal dealers, and exhibitors must comply with federal and state regulations that affect the acquisition, care, and fate of the animals. The Animal Welfare Act (AWA), , is the principal source of regulation for animals used in research or for exhibition. Other federal statutes also may affect research, depending on the animal involved. For example, if the animal is an endangered species or a marine mammal, the Endangered Species Act or Marine Mammal Protection Act may be implicated. For more on these statutes, see Chapter 10. Interactions between researchers, animal advocates, and activists have been the subject of restrictive legislation, such as the Animal Enterprise Protection Act and the Animal Enterprise Terrorism Act, which are discussed in Chapter 14.
- John J. Pippin, Animal Research in Medical Sciences: Seeking a Convergence of Science, Medicine, and Animal Law, 54 S. Tex. L. Rev. 469 (2013)
- For animals used in research, uses of genetic engineering are numerous. For example, rats and mice are engineered for susceptibility to ailments that afflict humans, including Alzheimer’s disease, Parkinson’s disease, and cancer. Researchers use the animals to model those diseases and develop new drugs to treat them. Increasingly, researchers are also “biopharming” animals by engineering them to produce pharmaceutical compounds that are useful for humans. The first such product, a human anti-clotting protein produced in goats’ milk called ATryn, was approved for commercial use in the United States in 2009. Genetically engineered animals are also being prepared for xenotransplantation, a process in which cells, tissues, or whole organs from animals are transplanted into humans.
- Like companion animals and animals used in research, farmed animals have been subject to cloning and genetic engineering for a variety of purposes. Some prized breeding livestock are cloned. Other farmed animals are engineered to enhance their nutritional value for humans (including a chicken engineered to produce eggs with lowered cholesterol), reach market weight faster, resist disease, and even reduce agricultural pollution. For example, the “Enviropig” was engineered to produce less phosphorous in manure. However, that research project lost funding in 2012, and the pigs were all killed.
- Cloning and genetic engineering are relatively novel technologies. Many cloned and genetically engineered animals are in the research phase, but a few are already commercially available. So far, cloning and genetic engineering affect animals used in research, agriculture, and recreation; companion animals; and even wildlife.
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Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © 2016 LEG, Inc. d/b/a West Academic
- © 2021 LEG, Inc. d/b/a West Academic
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Outline 76 results (showing 5 best matches)
Index 115 results (showing 5 best matches)
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Dedication 2 results
Table of Cases 67 results (showing 5 best matches)
- Park Mgmt. Corp. v. In Defense of Animals, 458
- Allen v. Pennsylvania Society for Prevention of Cruelty to Animals, 351
- American Society for the Prevention of Cruelty to Animals v. Feld Entertainment, Inc., 265
- American Society for the Prevention of Cruelty to Animals v. Ringling Brothers and Barnum & Bailey Circus, 264
- Animal Legal Defense Fund Boston v. Provimi Veal Corp., 277, 358, 360, 391
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- Joanne and Larry Doherty Chair in Legal Ethics & Professor of Law, University of Houston Law Center
- John Deaver Drinko/Baker & Hostetler Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Dean and Joseph L. Rauh, Jr. Chair of Public Interest LawUniversity of the District of Columbia David A. Clarke School of Law
- Robert A. Sullivan Professor of Law Emeritus
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
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- Publication Date: December 7th, 2020
- ISBN: 9781684678853
- Subject: Animal Law
- Series: Nutshells
- Type: Overviews
- Description: Topics include animal anti-cruelty laws, industrial and agricultural uses of animals, torts and other claims for harm done to animals, as well as federal, state and local regulation of animal ownership and use, animal rights activism, hunting, fishing and other recreational uses of animals, animals in entertainment, issues arising when animals are the subject of a contract or the intended beneficiary of a will or trust, remedies for harm done to animals, international animal law, constitutional law issues, and anticipated future legal developments in the field.