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Animals in Tort Law: property status & noneconomic damages
Jan27

Animals in Tort Law: property status & noneconomic damages

A Texas appellate court recently ruled that owners of a wrongfully euthanized dog may recover “sentimental” or “intrinsic” damages. While this interpretation of state law might result in an award greater than an animal’s “fair market value” (which, in many cases, can be next to nothing), it still puts companion animals in a category closer to a family heirloom than a living, sentient being. The property status of animals remains a hot topic, so thanks to Jennie for her guest-blog today! When choosing a topic for my Law Review note, I was asked to consider a legal concept I had learned during my 1L year that I found strange or inconsistent with reality. I came up with a topic rather quickly: I wanted to write about animals as property—and why they ought to have a higher legal classification than that. I remember writing “WTF?” in the margins of my torts book next to the case that explained why animals are considered property in the eyes of the law. I remember wondering if the judge who wrote the opinion could honestly sit there and analogize animals to inanimate possessions like cars or furniture with a straight face.  It doesn’t take studies and statistics to show that people regard their animals more as family members and less as mere property (though statistics do support that point time and time again). I grew up in a family that gave our pets Christmas and birthday gifts, spent thousands of dollars on our pets’ medical care when necessary, and took more pictures of our pets than the rest of the family combined.  Low and behold, we didn’t do this with our cars or our furniture. And I had a feeling my family was more of the rule than the exception.  In my note, I decided to focus on why the law is so stagnant in this area and what can be done to give animals a higher legal status. I started by examining case law. Soon, I found a pattern—judges and juries really were sympathetic to pet owners whose pets had been injured or killed due to the tortuous conduct of another, but were almost always unwilling to award anything but economic damages, reflective of animals’ property status.  When they did award noneconomic damages, they were often very small and the court was careful to limit the award to the facts of that specific case. One involved an old lady whose dog was killed and whose house was subsequently burgled—the court awarded damages for the worth of the dog as a guard against intruders, but made sure to limit the award to the facts...

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Africa’s Endangered Black Rhino: the illegal horn trade
Dec16

Africa’s Endangered Black Rhino: the illegal horn trade

According to the International Rhino Foundation, gold is trading at approximately $1,410 a kilogram; meanwhile, a kilogram of rhino horn (comprised of the protein keratin, calcium, and melanin) is worth between $50,000 and $60,000 on the Asian black market. Most often, the horn is ground into powder for use in Traditional Chinese Medicine. Mid-20th century, there were approximately 65,000 black rhino; now, there are estimated to be only 3600 African black rhino left in the world. Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) In 1973, an agreement among 175 member countries established CITES. This became the primary international treaty concerning wildlife trade, with the purpose of preventing species from becoming endangered or extinct as a result of international trade. Article II of CITES includes three appendices, with Appendix I listing species that are given the highest priority for protection as “critically endangered,” meaning they are closest to extinction: the black rhino is among them. The international trade of rhino horn was banned in 1976 by signatories to CITES. In 1988, the United States prohibited importation of rhino caught in the wild. In 1993, the Chinese government also banned the use of rhino horn, or any other parts from endangered species, in Traditional Chinese Medicine. As impressive as CITES may sound, it is important to keep in mind its inherent limitations. Members adhere to CITES agreements as binding; however, decisions about measures and implementation are at each member’s discretion when creating their own domestic laws. Thus, CITES provisions figure into the protection of animals only in as much as they influence the crafting and enforcement of each nation’s individual laws. Secondly, the impact of CITES is limited because, unlike our Endangered Species Act, it does not address the preservation of species habitat. The depletion of the African landscape only exacerbates the problem for rhinos that are already losing the battle against poachers. Laws in Africa African countries have laws and bans in place with the purpose of protecting the rhino and other endangered species. For example, in South Africa, the Threatened or Protected Species Regulations of 2007 (TOPS), drafted in terms of the National Environmental Management Biodiversity Act of 2004 (NEMBA), states that no person, without a valid permit, may hunt, capture, kill, convey, import, export, keep live rhino in captivity, or possess a rhino horn. Despite these strict laws, the illegal rhino horn trade is flourishing in South Africa, where most of the remaining black rhino can be found. First, there is an exception made to allow the trade of rhino horn as part of a trophy resulting from a legal trophy hunt. And now,...

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Pet Estate Planning
Nov18

Pet Estate Planning

When my dear friend Jennie told me she was working on a Pet Estate Planning Questionnaire, I asked her right away to share it with me so I could better provide for my own canine kids. I am very grateful that she also was willing to write a guest-blog for all of us on such an important subject. In modern times, a high percentage of Americans regard their pets as family members.  Approximately 45% of dog owners report that they take their dogs on vacation with them. More than half of pet owners would prefer the company of their pet to that of a human if stranded on a desert island. Half of all pet owners would be very likely to risk their lives to save their pet’s life. These views are become increasingly apparent in the estate planning context. The most recent famous cases have involved hotel heiress Leona Helmsley leaving $12 million (later reduced to $2 million) to her maltese, Trouble, and a rumored million-dollar estate plan for talk show host Oprah Winfrey’s cocker spaniels. However, people other than the rich and famous are utilizing pet estate plans as well. Currently, approximately 20% of Americans provide for their furry and feathered friends in their estate plans. Pet Estate Planning Questionnaire Perhaps the simplest way of making sure your pets are cared for upon your death or incapacity is to write a letter or fill out a questionnaire for the person in charge of administering your estate plan.  This document should go into the fine details of your pet’s personality: what kind of food does he like? Where are his favorite hiding places? What kind of play does he enjoy? The letter/questionnaire should detail every little thing that you think would be helpful for a caretaker to know about your pet. This document can then be kept in a safe place with the rest of your estate planning documents. To download a (free) copy of the pet questionnaire, click here. If you plan accordingly, you can have the letter/questionnaire incorporated into your trust or will by reference, making it legally enforceable and allowing you to change it without having to amend the actual estate planning documents.  However, the letter/questionnaire is not legally enforceable in and of itself. For this reason, a lot of pet owners choose to account for their pets directly in their estate planning documents. Will or Trust? The will is the first estate planning document that comes to mind for most people.  Simply put, the will directs where probate property (the majority of most people’s property) should be transferred upon your death.  Unfortunately, wills may not...

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How Farm Subsidies (Mal)Function
Nov10

How Farm Subsidies (Mal)Function

I attended a presentation by Dr. Andrew Weil a couple of weeks ago on the subject of  food in today’s culture and public health. Part of the discussion focused on the role of  farm subsidies, which  make unhealthy food products the most accessible. Meanwhile, no fruits or vegetables are subsidized. Looking at the increasing rates of obesity and Type 2 diabetes in the U.S. — just those two factors alone — we cannot ignore that something’s gone terribly awry, and a lot of it has to do with the food we’re putting into our bodies. It’s time to get real about food. Real food, not processed food products. Farm Subsidies & the American Farmer Government subsidies to farmers really blossomed under Roosevelt during the New Deal era as a way of helping farmers during the Depression. The sad truth is that, in an economic climate today where small farmers are struggling, the effect of subsidies largely has the opposite of its intended effect. Today, the government gives about $30 billion in agricultural subsidies. Nearly 75% of subsidy dollars are given to only 10% of subsidized farms — the biggest players in agribusiness rather than the family farmers. Furthermore, more than 90% of the subsidies go to just a handful of crops: corn, wheat, soy, cotton, and rice. Consequently, we have an over-production of a few products and a lack of diversity in farming. Government subsidies usually are not available to smaller farmers. Unlike subsidized farm operations, small farmers have to bear the actual costs of producing the same crops that the subsidized businesses are producing. What’s worse, they have to sell at the lower market prices that are a direct result of the surplus created by their subsidized competitors. As it turns out, rather than helping small farmers, government subsidies widen the gap in competition to the point of practically taking the smaller farmers out of the game completely. Corn Syrup & Animal Feed The subsidization of corn has led to a surplus of the grain, which means agribusiness is always looking for creative ways to package and sell the overabundant supply. The surplus is what led to the explosion of the corn syrup industry in America (obesity!). It’s also created a monster otherwise known as the animal-feed industry. Feeding grain to animals whose systems cannot digest grain results in sick animals on massive feed lots. There, agribusiness is only interested in growing animals as big and quickly as possible — treating living, sentient beings just like any other “crop,” with little regard for the animals’ welfare and quality of life. Cows are supposed to eat grass, not corn. What It Really Costs Us In the form of government subsidies, we...

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Bills in Play on Capitol Hill
Oct21

Bills in Play on Capitol Hill

Last weekend during the Animal Law Conference at Lewis & Clark, ASPCA’s Nancy Perry presented the latest news in legislation concerning animal welfare. There are quite a few federal bills in play during this first session of the 112th Congress. I encourage everyone to contact your own representatives in the House and the Senate to express your support for legislation that can make a difference in countless animals’ lives. American Horse Slaughter Prevention Act 100,000 horses are exported from the United States each year to slaughter in other countries for human consumption. This bill would prohibit the sale or transport of horses in interstate or foreign commerce for the purpose of processing them for human consumption. Horse Transportation Safety Act Although there is a USDA regulation that prohibits use of double-decked trucks to transport horses to slaughter, the agency has commented that it lacks resources to enforce the regulation. (The federal law as it stands also allows transport in double-decked trucks for horses going to destinations other than slaughterhouses.) Although states such as Pennsylvania and New York have banned this method of transport, we need a federal law that will protect horses as they are transported across state lines. Interstate Horse Racing Improvement Act This bill would amend current law to prohibit the use of performance-enhancing drugs in horse racing. Corolla Wild Horses Protection Act Gorgeous mustangs along the coastline! This bill directs the Secretary of the Interior to enter into an agreement that would ensure the management of  the free-roaming wild horses in North Carolina’s Currituck National Wildlife Refuge. Veteran Dog Training Therapy Act The implementation of a pilot program to include dog training therapy for veterans. Even better: this bill, which just was passed as part of a package of veteran benefits, includes the use of shelter dogs. Helping veterans and giving shelter dogs loving homes — LOVE it! Animal Fighting Spectator Prohibition Act Prosecuting animal fighting is tough, especially when a crowd of spectators scatters and not one of them is held responsible for complicity in the criminal behavior. It’s simple: if someone goes to a dog-fighting event, (s)he is helping to make these kinds of ventures profitable. And, besides providing economic incentive, spectators are participating in an immoral, criminal activity. This bill would ensure that spectators are held accountable for their part in the animal fighting underworld. Long overdue. Fairness to Pet Owners Act Medications for animals can be extremely pricey. This bill provides people with the ability to receive a copy of veterinary prescriptions so that they can choose to have those prescriptions filled elsewhere, perhaps at a significantly lower cost. Puppy Uniform Protection...

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In Portland for the Animal Law Conference
Oct14

In Portland for the Animal Law Conference

This weekend, I’m in Portland for the 19th Annual Animal Law Conference at Lewis & Clark. The conference is the result of a collaboration between the Center for Animal Law Studies at Lewis & Clark, the Animal Legal Defense Fund, and the Lewis & Clark’s student chapter of the Animal Legal Defense Fund (SALDF). Each year, law students and lawyers come together to explore a wide range of hot topics in the field of Animal Law. This year’s theme is “Standing Up for Animals: Can a Bad Economy Inspire Greater Goodness?”  Topics include: Human Science: Is the End of Testing Within Reach? International Voices in Animal Law: Canada & Mexico Enforcement: Building a Case Against Cruelty Drawing Connections Between Animal law & Other Disciplines Whose Case is it Anyway? Animals’ vs. Owners’ Interests in Litigation International Voices in Animal Law: Switzerland & Egypt Using Your Law Degree to Help Sanctuaries Animal Shelters, Humane Societies, & Rescues: When Funding Dries Up Exotic Pets, People, and Public Policy Global Animal Concerns Making Cultural Judgments: Animals We Eat, Animals We Love Wolf re-Introduction, Management, and Protection Private Prosecutions & the Enforcement of Canadian Animal Protection Legislation As you can see, it’s a weekend packed with thought-provoking topics. It’s also a wonderful weekend of catching up with friends who, during the rest of the year, are scattered around the country — all doing amazing things on behalf of animals everywhere. Extra special for me this year: Joyce Tischler, who was my instructor for the law class on Farmed Animals this past summer, will be the keynote speaker at tonight’s reception. The conference is sold out, but you can view most of the sessions through the live webinar option available on the conference’s web site. If you’re a law student or lawyer, mark your calendar for next October so you can join us!...

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