'Now, it's the lawyers' turn'

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Over a crisp New England weekend in November 2004, some 200 people convened in the hallowed halls of Yale Law School with a singular purpose: identifying ways of strengthening animal protection laws through the legislatures and courts.

Gathered from across the country and overseas in New Haven, Conn., this cadre of lawyers, professors, and law students are like many Americans in their conviction that animals are inherently valuable and deserving of humane treatment.

Yet, they go considerably further than many Americans in their belief that all nonhuman animals are equally important and entitled to greater protections under the law. There are even those who would go so far as to see parallels between slavery and the modern-day concentrated animal feeding operation.

Some conference attendees may well balk at the "animal rightist" label, opting for the less inflammatory "animal protectionist" moniker instead. But whatever their ideologic nuances, they are the legally savvy wing of a social movement determined on using the courts and legislatures to elevate the status of animals in society.

The Animal Legal Defense Fund and Yale Law School sponsored the conference titled "The Future of Animal Law," held Nov. 5-7. Headquartered in Petaluma, Calif., ALDF boasts some 100,000 members and has, for the past 25 years, worked for stronger enforcement of anticruelty laws.

"Animal law has become something that's gone way beyond our dreams," said ALDF founder and Executive Director Joyce Tischler. To date, at least 38 law schools teach animal law courses, while more and more nonprofit organizations dedicated to the study of animal law are emerging.

The field of animal law has grown dramatically over recent years, and Tischler, an attorney, wants it to grow even more. Her vision is for animal law to be taught in every American Bar Association-accredited law school, animal law practices to abound, and every judge and district attorney to be educated about animal law.

Of those in the legal profession who work to protect animals, Tischler said they share in a "divine passion: the desire to help those who are voiceless." 

Rights and liberties

Is it any wonder the animal rights movement exists? Liberty is a foundation of American society, and through the years, the sanctity of individual rights has been upheld and expanded. Once-marginalized groups now share in those same freedoms. Today, members of the animal rights movement see themselves as waging a similar crusade but this time to bring justice to nonhuman animals.

There is also a longstanding cultural norm against harming animals—the nation's first anticruelty statute was passed in 1867 in New York with the help of Henry Bergh, founder of the American Society for the Prevention of Cruelty to Animals.

"A hundred-plus years ago, our legal system recognized that animals are different. They have interests; they can feel pain; and we as a society ought to mitigate that pain, where possible," observed conference speaker and Michigan State University College of Law professor, David Favre.

Some philosophers and ethicists have been laying the foundation for the animal rights movement for the past several decades. Today, arguments in favor of treating animals more humanely and ending so-called exploitative practices are gaining ground among some elements of a society where pets are treated like children and grief counselors help cope with the death of a pet.

Guest speaker Wayne Pacelle, president and CEO of the Humane Society of the United States, put it succinctly. "We are in the midst of a struggle over the ideas of the place of animals in society," Pacelle said.

It isn't difficult to understand why the animal rights movement is gaining momentum. As Favre sees it, a new stage of the movement is under way. "The first phase was the philosopher phase of the animal rights movement; they put it on the agenda," Favre said. "Now, it's the lawyers' turn." 

They do have rights, in a way

It can be argued that many animals in the United States already do have rights, although they are protections in the narrowest sense.

Anticruelty statutes, for example, criminalize animal abuse. A provision of the federal Animal Welfare Act requires that dogs used for research be given regular opportunities for exercise. The Endangered Species Act protects the Florida panther and other rare wildlife from being hunted to extinction.

Though they pale in comparison with the legal rights known by humans, these laws do, nevertheless, provide certain nonhuman animals with narrow protections enforceable under the law. What the animal rightist and protectionist find so troubling is the inconsistency with which the laws are applied.

The rightist and protectionist would submit the following example as a legal and ethical dilemma: a person castrating a dog without the benefit of anesthesia could conceivably be charged with animal cruelty. And yet, numerous cows and pigs undergo the same procedure every day on farms across America. Whereas the one case is deemed inhumane and possibly criminal, the other is an acceptable animal husbandry practice.

Lawyers such as those attending the Yale conference are working toward identifying and implementing strategies for getting laws passed that protect all animals equally. "We don't have to have a war that provides instant rights for animals," Favre said. "We don't have to have a constitutional amendment from the federal government that says animals are people. It's just not going to happen, so we've got to find another way." 

Guardians, trusts, and implied rights

One novel venture in animal law is changing the legal status of animals from property to "legal persons." The thinking behind this approach is animals suffer because their property status affords them few legal protections. If animals were classified as legal persons, then they would be entitled to greater safeguards and privileges.

The pet guardian campaign is such an endeavor. Started by the rights group In Defense of Animals of Mill Valley, Calif., pet guardianship is gaining acceptance by a small but growing number of municipalities and at least one state.

The campaign's stated goal is the improvement of animal welfare by redefining pet owners as pet guardians. The theory is that people will treat their pets humanely if they see themselves as protectors rather than property owners.

Another developing area of animal law is trusts. ALDF President Steve Ann Chambers explained how recent developments in trust law make it one of the most promising areas of animal law.

Until six years ago, people wanting to provide for pets after their own death had to transfer ownership of the pet, as well money for their care, to someone in whom they had total faith. Such confidence had to be well-placed, because trusts for animals were not enforceable and were considered to be "honorary." If a beneficiary or potential beneficiary wanted to get in the way of the pet trust, the animals almost always lost, Chambers explained.

That, however, is no longer the case in at least 25 states and the District of Columbia, where animal trust legislation has been enacted, Chambers said.

In 1990, the National Conference of Commissioners on Uniform State Laws amended the Uniform Trust Code to validate enforceable trusts for the care of domestic or pet animals. The commissioners amended the code again in 2000, allowing a trust to provide for a pet during the owner's lifetime and beyond, terminating on the death of the animal.

More important, the trust can be enforced by a person appointed by the terms of the trust or, if such a person doesn't exist, by a person appointed by the court. "This concept of granting a person standing to represent an animal is based on the act that gives (standing) to a person representing a (human) ward," Chambers said.

Bruce Wagman, adjunct professor of law at the University of California-Berkeley, spoke about another legal frontier in animal law: implied rights of action in the area of anticruelty laws. An implied right is a right not stated explicitly in a particular law. Nevertheless, a plaintiff can bring a lawsuit on the premise that such an entitlement does, in fact, exist.

Under most circumstances, only the government can prosecute violations of criminal law, Wagman explained. District attorneys don't prosecute many animal abusers because they are either too busy or there are more pressing cases to try.

"The animal protection laws, and especially the cruelty laws, have little or no enforcement mechanism," he said. "There are a lot cruelty cases we hear about—those are the ones that make the news—but for the most part, they're not getting prosecuted. There's just more crime than they can handle and not enough time."

One potential remedy is for individuals and organizations to enforce these laws through private rights of action. This approach is born of a sense of frustration that the laws aren't doing enough to protect animals and citizens are precluded from speaking on behalf of animals, Wagman said.

This innovative tactic faces serious obstacles, however. The intended beneficiary of most anticruelty statutes is the animal owner and not the abused animal. So far, courts do not recognize lawsuits brought on behalf of an animal. Wagman suggested that one could argue that enforcing anticruelty laws benefits the public, since an aim of such laws is to enforce the public policy against cruelty to animals.

The most difficult challenge will be proving to a court that lawmakers intended for private suits to be brought on the behalf of abused animals.

Wagman recognizes it is a novel notion to use private rights of action to expand animal protection, but he feels good about the prospects. "Hopefully, at some point, in the right jurisdiction, with the right judge, with the right set of facts, we're going to be able to start these inroads."