Laws about animals have been around for a very long time, but until relatively recently, the law – and lawyers, for the most part -- viewed animals not as sentient beings with rights and interests of their own but solely in relation to humans. Thus, most statutes and cases involving animals focused on issues of ownership: who had property rights in a herd of cattle? Who was the owner of a biting dog? Who had responsibility for damage done by a wandering pig who had gotten through a broken fence? Who had the right to hunt game on certain tracts of land? Who had the right to fish in certain waters? Early efforts to protect animals from cruelty or unnecessary slaughter focused on human stewardship of the animals rather than animals’ right to be free of pain or simply to live.
Even when legal protections began to be extended to wildlife, the concept of ownership still loomed large. After all, a litigant needs to establish standing to bring suit, and interest in property is one way to do that. So environmentalists argued, successfully, that wildlife is owned by the public and thus, any member of the public had standing to bring suit to protect wildlife.
But what about animals as individuals with rights of their own? This concept was introduced in the case of Jones v. Butz, which sought to declare that an exception for kosher butchers in the Humane Slaughter Act was unconstitutional on Free Exercise and Establishment Clause grounds. Under the Humane Slaughter Act, animals being slaughtered for food had to be rendered insensible through a single blow or gunshot or electrical shock, except when the animal was slaughtered in accordance with kosher practices; in that case, the animal was not stunned but could be slaughtered while conscious with simultaneous cuts to the jugular veins using a sharp knife. Although the plaintiffs ultimately lost the case, the argument was grounded on the food animal’s perception of pain: given that the purpose of the law was to promote humane slaughter practices, did the religious exemption cause more pain to the slaughtered animals and thus render the slaughter inhumane?
Even though the case was lost, a movement was born. The attorney for the plaintiffs in Jones v. Butz, Henry Mark “Hank” Holzer, became counsel for the Society for Animal Rights and created the Animal Rights Law Reporter. Joyce Tischler and Laurence Kessenick formed Attorneys for Animal Rights (later the Animal Legal Defense Fund) in San Francisco in 1978. Chapters of the group were launched in New York City, Boston, Washington and other cities. Attorneys continued to take cases seeking to vindicate the rights of animals, though not always successfully – and not always for pay. There were disagreements within the movement about tactics, with those who wanted to pursue a radical, rights-based strategy ultimately parting ways with those who wanted to take a more incremental approach.
But little by little, the efforts of the animal-law attorneys began to change the legal landscape as well as public perceptions about animals. Arguing that animals had rights went from being a radical concept to something plausible, even mainstream. Publicity generated by trials involving animals – from criminal trials involving the maltreatment of lab animals to standoffs with the US Navy over plans to slaughter wild donkeys in the way of a bombing range to a hearing to determine the fate of a dog whose late owner had feared what would happen to her after death and directed in her will that the dog be put down when the owner died – helped bring the public’s awareness and attention to the rights of animals. Even where animal rights lose in court, such as in the recent Supreme Court decision holding that statutes criminalizing animal “crush” videos were unconstitutional, public reaction often energizes the efforts of animal lawyers.
The breadth of animal law is astonishing. Animal lawyers handle cases involving dogs who have been declared dangerous and ordered destroyed; advise companies on adopting more humane practices for the farms that supply their food animals; push for appropriate habitats for zoo animals; sue to enforce anti-cruelty laws against circuses; do estate planning for pet owners who want to provide for their companions’ care after their death; work for tighter regulation of the treatment of lab animals; work with animal advocates to craft proposed legislation, seek to prevent the slaughter of wildlife in the way of human development, and on and on. About half of the bar associations in the United States have a section, committee or other group dedicated to animal law.
As the practice of animal law has expanded and matured, so has the scholarship. Law schools across the country now offer courses, seminars, special programs and conferences on animal law. Student-edited and professional journals publish articles from scholars, students and practitioners. There are a growing number of casebooks and monographs on animal law, which include not only U.S. animal law, but European Union law as well. This area of the law will continue to grow and develop as new practitioners enter the field and courts and scholars develop the literature.
Jones v. Butz, 374 F. Supp. 1284 (S.D.N.Y. 1974)
Michele Finerty, Leaders of the Pack: Law Librarians and the Advancement of Animal Law, AALL SPECTRUM, December 2010, at 8.
U.S. v. Stevens, 130 S.Ct. 1577 (2010)
Joyce Tischler, The History of Animal Law, Part I (1972-1987), 1 STAN. J. ANIMAL L. & POL’Y 1 (2008).
Bruce A. Wagman, Growing Up With Animal Law: From Courtrooms to Casebooks, 60 J. LEGAL EDUC. 193 (2010)