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Nicole Fox

17 Whittier L. Rev. 145
Publish Date:
Fall 1995
Place of Publication: Whittier Law Review
Printable Version



Copyright 1995, Whittier Law Review/Nicole Fox.  Reprinted with Permission.

"You have just dined, and however scrupulously the slaughterhouse is concealed  in the graceful distance of miles, there is complicity."

Ralph Waldo Emerson

I. Introduction


Emerson's statement sheds light on how society turns both a deaf ear and a  blind eye to the cruel punishment 1meted out to animals. 2It is particularly befitting, especially today, in light of the changes that  have taken place in the agricultural business. Prior to 1940, small-scale  farms, principally managed by families, raised the majority of farm animals  used for food. 3These farmers raised the animals outside to ensure that the animals received  enough sunlight for Vitamin D and enough space for disease control. 4Since the 1940's, however, large corporations have purchased a majority of  available farmland and thus transformed farming into a business. 5Corporate farms have prospered because  "federal policy and market forces have favored large-scale mechanized and  capital-intensive farming as the means to ensuring cheap and plentiful food." 6

To accomplish these goals of efficiency and price reduction, and to increase  profits, corporate farms raise farm animals in intensive confinement.  "Intensive confinement" is a method of raising farm animals which maximizes the use of land and  space in order to maximize corporate profits. 7Corporate farmers raise their animals in small, overcrowded cages with a  single farmer often raising over five million animals. 8Farms that raise animals under these conditions are known as factory farms.  This intense confinement forces farm animals to  "live stressful, sickly and grotesquely inhumane existences" 9and often induces abnormal behavior, such as cannibalism, among the animals. 10

Current laws that regulate corporate farming were primarily established to  protect family farmers from unfair competition. 11 As such, very few federal statutes directly aim to protect farm animals. While  every state has animal anti-cruelty statutes, 12 the federal government has been woefully remiss in prescribing similar  protections for farm animals. As the statutes are currently interpreted and  enforced, farm animals are not given the protections that other animals receive  through their status as property. The only federal statutes, at present, that  exist to protect animals are the Twenty-Eight Hour Law, 13 the Humane Methods of Livestock Slaughter Act, 14 and the Animal Welfare Act of 1976. 15

Although purporting to prevent animal cruelty, each statute is deficient in  preventing cruelty to farm animals. The Twenty-Eight Hour Law merely limits the  time period animals may be held in transport to twenty-eight hours. 16 Congress expressly limited the coverage of the Twenty-Eight Hour Law to the  transportation conditions for farm animals 17 rather then extending its protection to their living conditions as well.  Similarly, the Humane Methods of Slaughter Act, while preventing the inhumane  slaughter of livestock, does nothing to stop the inhumane slaughter of  poultry 18 or the painful handling of ritually slaughtered animals. 19 Finally, the Animal Welfare Act purports to regulate the use of animals for  experimentation, yet specifically excludes farm animals from its coverage. 20 As such, farm animals used in scientific experiments are not protected.

These federal statutes, because of their loopholes and deficiencies, permit  the well-documented cruel treatment of farm animals. This article will  discuss the reasons why these statutes should be reinterpreted and will propose  means for remedying these problems which will help to ensure that, in the  future, a more complete group of legislative protections for farm animals will  be realized. Toward this end, this article recognizes the immediate need to  further farm animal welfare, rather than mandating that farm animals become  holders of legal rights.

This article will propose that existing statutes be reinterpreted in order to  protect farm animals. Although the statutes as currently applied are  insufficient in deterring cruelty to farm animals, the statutes may be  reinterpreted based upon their intent for humane treatment of animals. This  reinterpretation would give effect to the legislature's intent to provide for  the humane treatment of farm animals.

This article will next provide various policy arguments which support the  position that the law should better regulate current animal husbandry  practices. In addition, the intense confinement used on corporate farms will  be described in order to establish that this farming method is, in fact, cruel  and in need of regulation.

Next, the historical perspective will detail the rise of animal protection  regulations. Section V of the article will analyze the federal statutes  relating to the treatment of animals with an emphasis upon the purposes and  deficiencies of current laws and regulations. The purpose of the Author's  Proposal is twofold. First, it provides a closer examination of the areas  where the current federal statutes fail to prevent various types of farm animal  cruelty and proposals regarding the means by which the statutes may be expanded  to prevent the practices in question. The analysis will then set forth both  proposed and foreign statutes which are designed to prevent farm animal  cruelty. Each of these statutes will be analyzed in an attempt to examine the  strengths and weaknesses of each statute. Finally, the author's proposal is  given, setting forth how this Author would prevent the cruelty that is built into the modern confinement method of farming while still balancing the  important concern of economic feasibility.

II. Policy Considerations Pertaining to the Protection of Farm Animals

Proponents of animal rights and animal welfare have various explanations for  why animals should be granted legal rights or provided protection. These  explanations range from attacks on the traditional excuses for why animals  should not be given legal rights (i.e., animals are not sentient beings), to  insightful, and sometimes analogical, arguments.

Christopher Stone, in his perceptive paper, entitled: Should Trees Have  Standing? Toward Legal Rights for Natural Objects, 21 argues that natural objects should be given legal rights. 22 To support his proposition, Stone notes that at one time legal rights for  groups such as women, Blacks, Indians, children, and fetuses had been  "unthinkable." 23 Stone notes that whenever  "there is a movement to confer rights onto some new 'entity,' the proposal is  bound to sound odd or frightening or laughable." 24 Stone states that this is because  "we are inclined to suppose the rightlessness of rightless 'things' to be a  decree of Nature, not a legal convention acting in support of some status quo." 25 In other words, we justify exclusion of certain groups on the basis of some  natural difference between 'them' and 'us' rather than recognizing that the  exclusion of these groups is merely based on some traditional and potentially  outmoded legal notion.

Another proponent, Bernard Rollin, wrote,  "rights are moral notions that grow out of respect for the individual. They  build protective fences around the individual . . . even where a price is  paid by the general welfare." 26 Rollin uses the concept of 'moral concern' as the basis of his argument. 27 He argues  "that one cannot separate questions of law from questions of right and wrong, that is, from morality." 28 Because our laws are based upon society's concept of what is right and wrong,  Rollin argues that we need to determine our ethical position towards animals. 29 If we determine that animals are of moral concern then a discussion of their  legal status ensues, 30 because  "the notion of rights is based on the basic moral idea that the individual is  the fundamental object of moral concern and . . . that the individual has  intrinsic value. . . ." 31

In deciding whether animals are of moral concern, Rollin examined the  traditional justifications supporting the contention that animals are not of  moral concern. First, Rollin looked at the explanation that animals do not have  immortal souls, but humans do. 32 Rollin dismissed this argument by simply questioning what 'immortality' has  to do with 'morality.' 33 Second, Rollin examined the explanation that animals do not reason or use  language. 34 Rollin attacked this argument by inquiring as to what extent the ability to  reason has to do with being an object of moral concern, pointing out that  many examples of non-reasoning objects of moral concern exist (infants, insane  people, people in comas). 35 As for language, Rollin argues that it is difficult to separate language and  communication 36 and many, if not all, animals communicate in some manner. 37

Christopher Stone also attacks the argument that natural objects should not  have rights because they cannot speak. 38 By analogizing to other things which cannot speak, and yet, are given legal  rights, (i.e., corporations, infants, states, incompetents) Stone effectively  disables this argument. 39 Stone then argues that just as these nonspeaking legal entities are  represented by a guardian, conservator, or trustee, so too may a natural  object. 40

One of the most compellingly written arguments for animal welfare comes from Peter Singer. Singer first establishes that  "the basic principle of equality does not require equal or identical treatment;  it requires equal consideration." 41 The amount of  "consideration" given to different people should not vary according to any difference in the  ability of these people. 42 Likewise, he argues, the consideration given animals and humans should not  differ if that consideration is based on any difference in ability between  these two groups. 43

However, Singer believes that humans do give less consideration to nonhuman  animals and he labels this concept  "specieism." 44 'Specieism' is defined by Singer as  "a prejudice or attitude of bias in favor of the interests of members of one's  own species and against those of members of other species." 45

Singer proposes that the interest of animals, which is treated as subordinate  to human interest, is  "an interest in not suffering." 46 Therefore, humans are not to give less consideration to animals because  animals have an interest in not suffering.

If a being suffers there can be no moral justification for refusing to take  that suffering into consideration. No matter what the nature of the being, the  principle of equality requires that its suffering be counted equally with the  like suffering insofar as rough comparisons can be made of any other  being. 47

This interest in not suffering should be kept in mind throughout the reading  of this article, because it serves as the underlying principle in the analysis  of each statute. If animals have an interest in not suffering, and humans are  to give consideration to this interest, then legislation should address and  prohibit cruel animal husbandry practices.

III. Rise of the Factory Farm
A. Life on a Factory Farm

For a better understanding of what life on a factory farm is like,        an example of the factory farm method for laying hens is necessary.  Chickens  are hatched out of incubators. 48 The female and male chickens are then separated. 49 Male chickens are not needed because the farmer is in the business of egg  production, rather than meat production. Therefore, male chickens are  disposed of in plastic garbage bags, 50 where they  "suffocate under the weight of other chicks dumped on top of them." 51 The farmer usually sells their carcasses to fertilizer companies rather than  invest more money in a bird that cannot produce eggs. 52

Farmers then debeak the female chickens in order to deter cannibalistic  behavior caused by the stress of the high density living conditions. 53 Chickens, by instinct, normally establish a pecking order. 54 However, under these conditions, the chickens are unable to do so because each  coop contains approximately 80,000 chickens. 55

The debeaking is done, often twice, without anesthetics. 56 The debeaking is accomplished through the use of guillotine-like devices which  have hot blades. 57 "The infant chick's beak is inserted into the instrument, and the hot blade cuts  off the end of it." 58 The temperature of the blades is significant because  "an excessively hot blade causes blisters in the mouth. A cold or dull blade may  cause the development of a fleshy, bulb-like growth on the end of the  mandible. Such growths are very sensitive." 59 It should be noted that debeaking is not like cutting one's nails  researchers analogize the feeling to the pain felt by humans who have amputated  limbs. 60 This analogy is based on        the fact that the debeaked chickens show nerve growth similar to that found in  human amputee patients. 61

After the debeaking, the chickens are placed into cages which average 12-by-20  inches in size (with five chickens per cage). 62 Researchers have found that the cage size necessary for five chickens to  turn around with ease is at least sixteen by fourty-one and a half inches. 63 Therefore, it is impossible for the chickens to turn around with ease in the  12-by-20 inch cage. These chickens may spend their entire life without enough  space to open their wings to their full span. 64 The stress of the overcrowded living eventually causes the chickens to be come aggressive, with birds pecking at one another's feathers and sometimes  killing and eating one another. 65

Also problematic is the wired bottom of the cages. The chickens' toes get  caught in the wire, and, as they grow, their toes actually attach to the wire. 66 The wires are also problematic because when the chickens groom, they rub  their bellies against the wiring. 67 Normally, chickens groom themselves in dust. 68 But the farmers do not provide dust for the chickens, causing the chickens to  lose their feathers and to get sores from friction created by the wired cages. 69

On some farms, chickens spend much of their lives in darkness. 70 The farmers have found that the chickens are calmer without light. 71 As such, the farmers leave the lights off for the majority of the daytime,  rather than decrease the number of chickens per cage or decrease the number of  chickens per building. 72 Still, other farmers leave artificial light on semi-continuously to increase  egg production. 73

When the chicken buildings do not have adequate excrement removal systems,  the ambient air becomes heavily composed of ammonia. 74 The ammonia is  "nauseating to the caretaker, irritates the eyes, and affects chickens." 75 Researchers recommend that ammonia concentrations not exceed 25 parts per  million, yet  "much higher concentrations of ammonia can be tolerated, perhaps as high as  100 parts per million for short periods." 76 While 100 parts per million are declared tolerable, 30 parts per million  degenerate the bird's respiratory health. 77 The mortality rate for factory chickens is excessively high because of these  living conditions. 78 Factory farms lose ten to fifteen percent of their chickens each year due to  the stress of overcrowded living. 79

When laying chickens are no longer productive they are slaughtered for human  consumption. 80 Before slaughter, they are often not fed because the farmers do not want to  invest any more money. 81 Therefore, the chickens may go several hours without food or water. 82 Also, chickens are excluded from the Humane Slaughter Act which requires the  humane slaughter of livestock. 83 In many cases, chickens are  "conscious[] and breathing not only as they move toward the knife but,  afterward, upon entering the scald tank." 84

B. Economic Explanations for Factory Farm Conditions

The arguments which condone and justify these living conditions were presented  by the American Veterinary Medical Association (AVMA), other scientists,  farmers and congressional leaders during the congressional hearings for the  Veal Calf Protection Act before Chairman E. de la Garza. 85

In discussing the treatment of veal calves, the AVMA stated  "that confinement rearing may provide opportunities to enhance the health and  welfare of veal calves because it facilitates frequent observation and careful  monitoring and control of the animal's health and nutritional status.  Confinement rearing can also protect animals from adverse environmental  conditions, parasites and predators." 86

It was expressed, during the hearings, that animal scientists believe this  treatment is warranted:  "At this time, in no way are we able to discriminate precisely enough among the  various levels of overall animal well-being engendered by different  production practices and systems." 87

Still other farmers, including members of Congress, stated that  "producers of livestock are 'animal welfarists' in the most honest sense of the  word," 88 because farmers' livelihoods depend upon the health and well-being of the  animals. 89 This dependence, they argue, instills an inherent concern in the animal's  well-being and manifests itself in the farmer's good treatment of the animals. 90 Charles W. Stenholm of Texas stated,  "you show me a producer who knowingly abuses his or her own livestock in any way  and I will show you a producer that is soon to go broke." 91 While this statement might have been true when family farms predominated, the  current method of factory farming is a booming industry which, by definition,  treats animals inhumanely.

The congressional leaders who believe farm animals are not cruelly treated  include Mr. Stenholm, Vin Weber of Minnesota, and Ron Marlenee of Montana. 92 These congressional representatives contend that non-farmers should not  interfere with farming matters and  "find it amazing that the intentions and motives of some of America's finest  citizens farmers are being questioned by those who are so far removed from  the farm." 93 Representative Gunderson of Wisconsin was concerned with budgetary constraints  placed on the U.S. Department of Agriculture ("USDA") and contended that  "if we are going to get into the business of animal regulation, we ought to be  doing that at the  state level." 94

In contrast, Representative Lee Hamilton of Indiana and Senator Daniel Akaka  of Hawaii support animal protection legislation. For example, Senator Akaka  introduced the Downed Animal Protection Act 95 which was intended to protect sick animals brought to the stockyard. 96 Another representative who favors animal protection legislation is Andy Jacobs  of Indiana. Mr. Jacobs introduced the Humane Methods of Poultry Slaughter Act 97 which was intended to amend the Poultry Products Inspection Act 98 "to require the humane slaughter of poultry." 99

The congressional leaders who advocate that farmers are inherently concerned  with the health of their animals seem to base their judgment upon past  industry customs rather than current industry standards.   "The trend in American agriculture is toward bigger farms that rely on  automation rather than labor." 100 This trend is seen in the egg industry where  "over 95 percent of the eggs in the United States come from high-tech factories  that hold captive anywhere from 250,000 to 5 million hens each." 101 Representative Stenholm's words seem erroneous in light of the trend towards  financially profitable intensive confinement of farm animals.

IV. Historical Perspective: The Development of Animal Protection Law

"Historically, animals have occupied an interesting, if ofttimes unenviable,  position within and before the law." 102 During the Middle Ages, animals were actually brought to trial, and in many  cases, executed. 103 Animals were executed for crimes and  "sometimes excommunicated, even though they were said to lack souls and not to be part of the  Christian community in the first place." 104 Animals were often brought before ecclesiastical and civil courts for crimes  including  "unlawful occupancy . . . and murder." 105 In 1474, in Switzerland, a rooster was prosecuted for having laid an egg. 106 Sorcerers desired the egg because they wanted to use it in magical  preparations. 107 The prosecution alleged that the devil entered into the rooster whereas the  defense contended that the laying of the egg was not premeditated or voluntary. 108 Ultimately, the rooster was burned at the stake. 109

In 1641, the Puritans enacted the  "Body of Liberties." 110 While the Liberties were enacted to control the Massachusetts Bay magistrates'  power, 111 the Liberties also contained two provisions to protect animals. 112 Liberty 92 made it illegal to  "exercise any tyranny or cruelty toward any bruit creatures which are usually  kept for the use of man." 113 Liberty 93 made it illegal for  "any man . . . to leade or drive Cattle from place to place that is far of, so  that they be weary, or hungry, or fall sick, or lambe." 114 The liberties made Massachusetts the first government of colonial America to  enact animal anti-cruelty legislation. 115 However, the animal protection ideas embodied in these enactments did not yet  enter the social consciousness of mainstream United States.

By 1822, in England, the public beating and overworking of domestic animals  had become commonplace. 116 "It is clear that the most immediate impetus for many who founded the humane  movement . . . was the extensive cruelty to animals that was a part of daily life.  . . ." 117 In response to this cruelty to animals, in 1822, the English Parliament  passed Martin's Act. 118 The Act punished anyone who wantonly or cruelly beat a horse, mule, cattle or  sheep. 119 A conviction could bring imprisonment for up to three months. 120

Martin's Act was strengthened by the social activism in England in the 1800's. 121 Some members of the woman suffrage and the slave abolitionist movements  rededicated themselves to improving the treatment of animals. 122 With these individuals as charter members, and with the passage of Martin's  Act came the formation of the Society for the Prevention of Cruelty to Animals  (SPCA) the organization which  "sparked the initial growth of what became known as the animal welfare movement." 123 Initially, this movement concentrated its efforts on the protection of  domestic animals from cruelty. 124 The SPCA's efforts  "helped turn Martin's legislation into a powerful tool for change." 125

During the 1870's, the British public grew concerned over the use of animals  in experiments without anesthesia. 126 From this concern sprang the antivivisection movement. 127 An antivivisectionist became known as  "a person opposed to animal experimentation." 128 Antivivisectionist efforts in lobbying helped to bring about the Cruelty to  Animals Act of 1876. 129 The Cruelty to Animals Act effectively restricted animal experimentation  because the delays and denials of licenses associated with it greatly  inconvenienced researchers, resulting in an inability to conduct such  experimentation. 130

The movement in England provided an impetus for various groups    in the United States and eventually led New York to enact an anticruelty  statute in 1828. 131 This statute provided that  "every person who shall maliciously kill, maim, or wound any horse, ox, or other  cattle, or sheep, belonging to another, or shall maliciously and cruelly beat  or torture any such animal, whether belonging to himself or another, shall,  upon conviction, be adjudged guilty of a misdemeanor." 132 Thus, New York was the first established state in the United States to  "take animals out of the class of mere property and give them the legal right to  be well treated." 133 Under this statute, a butcher was convicted and sentenced to one day in prison  "for tying the legs of calves and piling them in a cart." 134

The New York statute underwent various amendments until 1867, when a draft was  enacted that extended protection to any animal and listed specific offenses. 135 These offenses included the impounding of an animal without sufficient water  and food, needless animal mutilation, and animal fighting. 136

"By 1907 every state . . . had an anti-cruelty statute on the books." 137 In 1835, Massachusetts enacted an anti-cruelty statute that prescribed one  year of imprisonment or a $ 100 penalty. 138 Idaho's anti-cruelty statute also made it illegal to poison a domestic animal. 139 On March 30, 1868, California enacted its cruelty to animals statute. 140 As amended in 1905, the act provided that:  "every person who maliciously kills, maims, or wounds an animal . . . or who . .  .  tortures, . . . mutilates, or . . . subjects any animal to needless suffering, . . . or in any manner abuses any animal . . . is for every such offense  guilty of a misdemeanor." 141 The statute further made it illegal for anyone to carry, or to authorize the  carrying of, any domestic animal on any vehicle in an inhumane or cruel  manner. 142

Today, many states implicitly protect farm animals through their   anti-cruelty laws. 143 However, no state  "regulates animal production practices on the farm or ranch itself. . . ." 144 For example, many states, such as Nevada, do not  "prohibit or interfere with established methods of animal husbandry, including  the raising, handling, feeding, housing and transporting of livestock or farm  animals." 145

V. Modern Federal Law

While there are three major federal statutes providing for animal welfare,  only two pertain to farm animals. These two statutes are the Twenty-Eight Hour  Law, 146 and the Humane Methods of Slaughter Act. 147 The third federal statute in this area is the Animal Welfare Act. 148 These statutes protect animals during transportation, slaughter, and research.  In this section, the provisions of these statutes and the policies behind their  enactment are discussed.

A. The Twenty-Eight Hour Law

The Twenty-Eight Hour Law was initially enacted in 1873 and replaced in 1906. 149 Congress enacted the Twenty-Eight Hour Law in response to public outcry  against the treatment of cattle during transportation. 150 During transportation, animals were exposed to extreme temperatures, crowded  onto vehicles, and transported without food or water. 151 Many animals reached the  "stockyards emaciated, injured, or dead." 152 The public learned of these atrocities through newspaper articles which  chronicled shipments of cattle across the United States. 153 Public outcry prompted Congress to take steps  "to guard against this cruel treatment of animals in their handling and care." 154

A second concern which led to the enactment of this law was the potential  economic harm suffered by the animal's owner when animals were transported in this manner. 155 Confinement over a period of hours caused the animal's  "flesh and weight" to deteriorate. 156 Such deterioration caused loss to the animal's owner because the owner re ceived less money for the animal due to the decreased amount of product able  to be sold at market. 157 The provision was designed to ensure that animals did not deteriorate or  suffer cruelty in transport.

The Twenty-Eight Hour Law provides that  "cattle, sheep, swine, or other animals" transported interstate by  "railroad, express company, car company, common carrier" or vessel shall not be confined in transport for longer than twenty-eight  consecutive hours. 158 At some point during the twenty-eight hours, the animals need to be unloaded  from the vehicle in a humane manner and taken to an area where they can rest  and be provided with food and water. 159 The animals must be allowed to rest in these pens for at least five  consecutive hours. 160

However, the owner or custodian may, upon written request, extend the  confinement of the animals for up to thirty-six hours. 161 Additionally, the animals are not required to be unloaded from the vehicle  in the event of a storm or other unanticipated cause. 162 When unloading is necessary, the owner or custodian must pay the expenses. 163

When first enacted, these provisions were unsuccessful at truly curbing animal  cruelty because the transportation companies provided pens that were  insufficient for serving the goal of allowing the animals to experience proper  rest periods. 164 This was so because these early pens did not have feeding or water troughs,  were too muddy for cattle to lie down in to rest, and did not protect against  rain or snow. 165 After numerous complaints by transporters, the 1873 version of the Act was  repealed. 166

However, in 1906, Congress reenacted the statute and this time the United  States Department of Agriculture inspected rest stations to ensure compliance with the act. 167 Transporters who did not comply were informed of their failures and often  prosecuted. 168

In United States v. Oregon Railway  & Navigation Co., 169 the defendant company held in transport 81 hogs for greater than twenty eight hours without food, water or rest. 170 The company did not procure written authorization of the owner of the hogs  to extend the confinement period, as required by the statute. 171 As a result, the court found that the transporting company violated the  statute. 172 In making this finding, the court stated:

It is unusual treatment to confine animals in close quarters at any time, as  in the course of transportation, which subjects them to the rocking and  swerving of the vehicles in which they are carried.  When so confined for any  great length of time without rest, food, or water, it needs no elaboration to  convince one that the treatment will be attended with cruelty, and the cruelty  will increase in severity the longer the treatment is administered. 173

The court further noted that the statutory provision pertaining to holding  the transport company liable was not unconstitutional because the transporter  has custody of the animals, thereby creating an agency relationship between  the transporter and the owner. 174

The law was successful at curbing animal suffering as it caused the railroads  to build 450 rest stations which were routinely inspected by USDA employees. 175

Currently, transporters must provide ample potable water 176 and pens with:

(1) sufficient space for all the livestock to lie down at the same time, (2)  properly designed facilities for feeding and watering the livestock, (3)  reasonably well-drained, clean, and safe floors of concrete, cinders, gravel,  hard-packed earth, or other suitable material, and (4) suitable protection from  weather reasonably to be expected in the region in which the pens are located. 177

However, this law has not been updated since the advent of tracking;  therefore, the act does not apply to the transport of animals by truck. 178 This exclusion of trucking from the Twenty-Eight Hour Law is troubling  because, today, farm animals are transported primarily by trucks. 179

The Twenty-Eight Hour Law specifically sets the penalty  "for every such failure at . . . not less than $ 100 nor more than $ 500." 180 The statute further prescribes that United States Attorneys have a duty to  prosecute. Consequently, no private cause of action exists. 181

The issue of how to determine damages under the Twenty-Eight Hour Law was  decided in Baltimore  & Ohio Southwestern Railway Co.  v. United States. 182 Baltimore Railroad transported cattle that were loaded into separate cars at  different times and at different stations. 183 Baltimore failed to unload certain cattle after twenty-eight hours, thereby  violating the Twenty-Eight Hour Law. 184 Baltimore argued that the train should be looked at as one unit, and that only  this one unit was subject to the Twenty-Eight Hour Law. 185 However, the Court decided that Baltimore should have unloaded each car of  cattle according to when each was loaded. 186 Thus, Baltimore was subject to greater liability. The Court ruled this way  because  "the statute was not primarily intended for the benefit of the owners. Indeed,  it is restrictive of their rights. . . . [The statute's] declared 'intent was  to prohibit continuous confinement [of animals] beyond a period of  [twenty-eight] hours.'" 187

B. Humane Slaughter Act

The first version of this Act was established to promote four values. First,  Congress was concerned about the working conditions for the employees of the  slaughterhouses. 188 A second concern was the     [*163]   improvement of slaughterhouse products. 189 Third, Congress was concerned with setting up a smooth flowing livestock  products system because this would maximize the producer's profits and decrease  consumer costs. 190 Finally, the Act was intended  "to bring about the use of humane methods in all livestock and poultry slaughter  operations in the United States." 191

From 1955 to 1958, multiple drafts of the Act were presented to Congress, all  of which Congress rejected. 192 Senator Hubert Humphrey introduced the first bill in 1955. 193 However, the USDA rejected the bill because it believed that the meat industry  could determine humane slaughter methods better than the legislature. 194 Entities such as the Department of the Army and the Department of Agriculture  opposed previous attempts to enact humane slaughter legislation. 195

Finally, in 1958, after the Senate modified the bill to allow the kosher  killing of animals; the bill passed the Senate by a 72 to 9 vote. 196 The law took effect on June 30, 1960, when President Eisenhower signed it. 197 The United States was forty years behind the Netherlands, thirty-six years  behind Norway, thirty-two years behind Scotland, twenty-seven years behind  England, and twenty-three years behind Sweden in enacting humane slaughter  legislation. 198 After the passage of the Humane Methods of Slaughter Act, the United States  Army threatened to evade the Act by applying it only to meat sales in excess of  $ 2500. 199 However, after attacks by Senator Humphrey, Representative W.R. Poage, and  Representative Martha Griffiths, the Army withdrew its plan and the Act went  into effect. 200

Under the statute, two humane slaughter methods are approved.  The statute  provides that:  "(a) all animals are rendered insensible to pain by a single blow or gunshot or  an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown,  cast or cut" 201 or:

(b) by slaughtering in accordance with the ritual requirements of the Jewish  faith or any other religious faith that prescribes a method of slaughter  whereby the animal suffers loss of consciousness by anemia of the brain  caused by the simultaneous and instantaneous severance of the carotid  arteries with a sharp instrument and handling in connection with such  slaughtering. 202

When rendering an animal insensible to pain with a stunning instrument, the  animals should not be excited or uncomfortable. 203 The animals should be taken into the stunning area in a manner that limits  excitement and discomfort because  "accurate placement of stunning equipment is difficult on nervous or injured  animals." 204

The various methods of stunning are also prescribed. 205 One method involves physical brain destruction by a penetrating instrument. 206 Another method involves a non-penetrating instrument that causes concussion  and changes in intracranial pressure. 207

Two main problems exist with this Act. First, the Act does not provide for the  humane slaughter of poultry. The Humane Slaughter Act applies to the slaughter  of  "cattle, calves, horses, mules, sheep, swine, and other livestock." 208 However, poultry was excluded from the Act. 209 Therefore, no federal legislation currently exists which provides for the humane slaughter of poultry.

Second, the Humane Slaughter Act allows for the slaughter of animals in  accordance with certain humane religious rituals. Under the laws of kashrut, 210 the eating of certain animals and parts of animals is prohibited, the eating  of certain mixtures of food is prohibited, and the slaughtering of animals must  be performed using prescribed methods. 211 Under kashrut law, the animal must be slaughtered with a sharp knife that  "cuts the animal's throat severing the arteries, veins, and windpipe in one  continuous stroke. In this way, blood drains so quickly from the brain that the  animal feels no pain." 212

In Jones v. Butz, 213 the plaintiff challenged the religious ritual slaughter allowance because a  Department of Agriculture regulation required that an animal not be put down on  the ground when it is killed. 214 This regulation, in conjunction with Kosher law, causes animals to be  shackled and hoisted when conscious.

In Jones, the plaintiff argued that the conscious hoisting was inhumane  because the animal was aware of its pain. 215 However, the court determined that when Congress enacted the Humane Slaughter  Act, it was fully aware of the method used in Kosher slaughter; therefore, the  Kosher slaughter method was permitted to continue. 216 Each slaughter method allowed under the Act  "is supported by legislative history as a justifiable legislative determination  that the stated method of slaughter is indeed humane." 217

C. Animal Welfare Act

In 1966, Congress passed the Animal Welfare Act. 218 The Act was passed in response to public fears that their pets would be stolen  and sold to researchers. 219 A magazine article, which contained photographs depicting abusive treatment  of stolen dogs by animal dealers, initiated the outburst. 220 After reading this article, the public sent Congress  "more mail on the pending bills than on civil rights or Vietnam." 221 One purpose of the bill was  "to prevent the use or sale of stolen dogs or cats for purposes of research or  experimentation." 222 Further, Congress recognized that not only was the state law inadequate  because it could not regulate the interstate operation of selling stolen  animals, but that  "much of the responsibility for creating this huge demand for medical research  animals rested with the Federal Government." 223

The 1966 version of the Animal Welfare Act:

protect[ed the] owners of dogs and cats from the theft of such pets . . . and  regulated the transportation, purchase, sale, handling, and treatment of  dogs, cats, and certain other animals destined for use in research or  experimentation; and . . . regulated the handling, care, and treatment of  dogs, cats, and certain other animals in research facilities. 224

The 1966 version limited the definition of 'animal' to  "live dogs and cats . . . monkeys (all nonhuman primate mammals), guinea pigs .  . .  hamsters . . . and rabbits." 225

Subsequent amendments to the Act reflect societal concerns relating to  humane animal treatment. The 1970 Amendment  "represents a continuing commitment by Congress to the ethic of kindness to dumb  animals." 226 This version extended the definition of animal to  "all  warm-blooded animals designated by the Secretary with only limited and  specifically defined exceptions." 227 The Amendment also expanded regulation to include animal exhibitors and  wholesale pet dealers. 228 Finally, this Amendment  "established by law the humane ethic that animals should be accorded the basic  creature comforts of adequate housing, ample food and water, reasonable  handling, decent sanitation, and sufficient ventilation." 229

The 1976 Amendment expanded the regulation to include animal carriers and  handlers. 230 The Amendment also extended the definition of animal to include hunting dogs. 231

One of the 1985 amendments provided for the psychological wellbeing of  primates used in experiments. 232 Provisions exist for the size of cages used to store dogs or chimpanzees.  Another provision requires the exercising of dogs used in experiments. 233 The 1985 amendments  "reflect the importance of the 'three R's': reduction in the number of animals  used, refinement of cruel techniques, and replacement of animals with plants  and computer simulations." 234 However, the Act is not intended to prevent or end animal experimentation. 235 Rather, the Act establishes minimum standards of care. 236 The Act does not attempt to regulate the sort of research conducted. One  reason for this is that the United States public has determined that the  exploitation of animals, for the benefit of humans, is acceptable. 237

The Animal Welfare Act authorizes the Secretary of Agriculture to set  standards which animal dealers, research facilities and exhibitors must follow.  The standards relate to  "handling, feeding, watering, sanitation, ventilation, shelter from extremes  of weather and temperatures, and adequate veterinary care." 238 The standards are designed to ensure that the research animals are exposed  to minimal pain and, except when withholding is necessary for the research, anesthetized or euthanized. 239

Even with four amendments to the Act, each amendment continued to  specifically exclude farm animals. 240 "The official legislative history of the Animal Welfare Act does not explain why  farm animals have always been excluded." 241

VI. Author's Analysis

This portion of the article will discuss various forms of cruelty to farm  animals, including: intensive confinement, debeaking of chickens, inhumane  slaughter of poultry, inhumane handling of ritually slaughtered animals,  inhumane treatment of downed animals, and the unregulated use of farm animals  in scientific research. The analysis in this section includes a discussion of  constitutional authority to enact farm animal protection legislation. Also  discussed are three proposed statutes that were intended to curb farm animal  cruelty. The farm animal protection legislation of the European Community and  Sweden will be discussed. Finally, the Author will introduce a proposed  statute.

A. Congressional Authority

Congress has authority to enact farm animal protection legislation under the  Commerce Clause because, in most cases, farm animals are part of interstate  commerce. The Commerce Clause may also extend protection to farm animals  before, and regardless of whether, they enter interstate commerce.

The Supreme Court, in Wickard v. Filburn, 242 decided that if local activity substantially affects interstate commerce,  then Congress may regulate that local activity. 243 In Wickard, the Court authorized the congressional regulation of a farmer's  crop although the farmer did not sell the crop but maintained it for personal  use. 244 The Court stated that local activity may substantially affect interstate  commerce, because of its aggregate economic impact. The Court reasoned that a  substantial effect on interstate commerce existed because the personal  consumption of homegrown farm products  "constituted the most variable factor in the disappearance of the wheat crop." 245 The Court added that an aggregate approach may be used to determine the  effect that a particular activity has on interstate commerce. 246

A factory farm that does not sell items interstate may still affect interstate  commerce. A farm that sells intrastate may be able to sell farm animal products  at a lower cost because this farmer would not be required to comply with  federal regulations. This decreased price may tip the balance of competition  between the local farmer and the farmer who produces for interstate commerce in  favor of the local farmer.  When aggregating the number of local farmers, the  effect is to decrease the amount of interstate commerce.

Congress may also regulate factory farming in situations involving unfair  competition. In United States v. Darby, 247 the Supreme Court stated:

The motive and purpose of the present regulation are plainly to make effective  the Congressional conception of public policy that interstate commerce should  not be made the instrument of competition in the distribution of goods  produced under substandard labor conditions, which competition is injurious to  the commerce and to the states from and to which the commerce flows. 248

In Darby, a lumber manufacturer violated the Fair Labor Standards Act of  1938 when he set employee wages below the nationally prescribed minimum wage. 249 The Court determined the Fair Labor Standards Act was  "directed at the suppression of a method or kind of competition in interstate  commerce which it has in effect condemned as 'unfair.'" 250 In Darby, the unfair competition that concerned the Court was that a company  with lower employee wages could underbid another company which set its  employee wages at the national minimum wage. 251

Similar competition occurs in the agricultural business. Factory farmers mass  produce farm animals. Under this method, the farmers spend little capital on  caring for the animals while earning great profits due to the decreased costs involved with raising the animals. The sheer number  of animals raised by the factory farmer makes it difficult, if not impossible,  for the family farmer to compete. While farm size is increasing, the number of  farms is decreasing. 252 Farms are owned by corporations rather than individual farmers. 253 These factors decrease the influence that family farmers now have over  farming. 254 Therefore, under the foregoing analysis, it seems clear that Congress may  regulate corporate farmers.

B. Regulating Areas of Farm Animal Cruelty

1. Cruelty Through Confinement

The lack of rigorous statutes gives license to the factory farms to treat  their animals in any manner which they deem efficient and economical,  allowing for, in many cases, cruel treatment of farm animals.  While Congress  intervened to prevent animal cruelty by enacting the Twenty-Eight Hour Law,  Congress has not yet responded to the cruelty practiced on factory farms.

Although Congress limited the protections of the Twenty-Eight Hour Law to the  confinement of animals during transport, this Act could be extended to the  confinement that occurs on factory farms. In 1906, Congress was concerned with  the overcrowded, confined conditions that occurred during transport, as seen  in the following excerpt:

The average weight [of the calves] . . . was 75 pounds each.  The size of the  car . . . which contained 112 calves, was 40 1/2 x 8 1/2 feet, or 49572 square  inches;. . . . The average amount of space allotted to each calf as confined in  the car . . . was 442 square inches;. . . . The amount of space necessary to  provide adequate means for rest of a calf weighing 75 pounds while in transit  is 579 square inches. If crowded, the amount of space necessary is 471 square  inches. The 112 calves in the car . . . would require 52752 square inches in  order to rest. 255

Courts have repeatedly found that these and similar conditions violate the  intent of the Twenty-Eight Hour Law. 256

At factory farms, the animals are confined for their entire lives.  For  example, veal calves are housed in crates which measure twentytwo inches. 257 Such living conditions are standard in factory farms. 258 However, in a study to determine the optimal crate size for veal calves, a  researcher found that a crate at least 35.46 inches wide was necessary. 259 Therefore, the conditions during confinement for factory farm animals are  similar to those involved with confinement during transport. The confinement at  factory farms should be illegal because similar confinement over a  twenty-eight hour period during transport is illegal. To fully sustain the  intent of the Twenty-Eight Hour Law, Congress should extend the protection of  the Twenty-Eight Hour Law to the housing conditions on factory farms.

2. Cruelty Through Mutilation

Cruelty through mutilation of farm animals occurs frequently, as witnessed by  the debeaking of chickens. Similar cruelty occurs to cattle, largely stemming  from the initiation of the Dairy Termination Program which authorized the hot  iron branding of cattle's faces. 260 The Dairy Termination Program was instituted in response to milk over  production problems. This program resulted in the slaughter or export of  approximately 1.5 million head of dairy cattle. 261 The cattle in this program were facially branded for identification purposes. 262 The branding method involved  "was painful . . . and could damage underlying facial structure (muscles used  in chewing, salivary glands, and eyes)." 263

An animal welfare group challenged this facial branding regulation in Humane  Society of Rochester v. Lyng. 264 The United States District Court for the Western District of New York  determined that this method of branding was inhumane because a less injurious  alternative exist ed; therefore, the court held that the Department of Agriculture's regu lation was arbitrary and capricious, and contravened New York animal cruelty  law. 265 In New York, cruelty to animals includes  "unjustifiably injuring, maiming, mutilating or killing any animal." 266

Although Humane Society rested partially on New York animal cruelty law and  not federal law, the court's arguments provide persuasive grounds for  arguments relating to regulation of the debeaking of chickens. The hot iron  facial branding is similar to the debeaking process for chickens because both  involve long-term mutilation and pain associated with injury to the animal's  body. 267 In Humane Society,  "the government's attorney conceded that if the avoidance of unnecessary  cruelty to animals is not already government policy, then it should be." 268 The debeaking of chickens is unnecessary, because other remedial measures  are available, such as an increase in the required cage size, or a decrease in  the number of chickens allowed per cage.  Furthermore, if the reasoning of the  Humane Society decision is to be adhered to, then the cruelty involved in  current debeaking practices should also be stopped.

3. Cruelty Through Pre-Slaughter Handling in Ritual Slaughters

An analysis parallel to that previously made in part VI.B.2: Cruelty through  Mutilation, may be made here. 269 Just as hot iron facial branding was deemed cruelty to animals in Humane  Society, so too may the shackling and hoisting of conscious animals during  ritual slaughter. Under Kosher slaughter practices, the animal may not be  stunned or rendered unconscious 270 because this is deemed an injury, and, under kashrut, an animal used for human  food may not have an injury lead to its death. 271 This need for the animal to be conscious, in conjunction with USDA  regulations, causes the animal to suffer.

USDA regulations prohibit the sale of any animal for use as human food which is adulterated. 272 This 'adulterated' label  "applies to any carcass . . . prepared . . . under insanitary conditions. . . ." 273 An example of an insanitary condition can be seen when an animal, placed on  the slaughterhouse floor for slaughter, comes into contact with another  animal's blood. Because animals slaughtered in this manner could not be sold,  many slaughterhouses use shackling and hoisting methods instead. 274

The combination of the USDA regulations and kashrut requirements causes an  animal to be conscious of its suffering when shackled and hoisted. For example,  "when a heavy iron chain is clamped around the leg of a heavy beef animal  weighing between 1,000 and 2,000 pounds, and the steer is jerked off its feet,  the skin will open and slip away from the bone. The canon bone will often be  snapped or fractured." 275

This suffering is comparable to that recognized in Humane Society because the  animals in both cases are conscious of their physical pain.  However, the  cruelty at issue in Humane Society was long term, 276 while the cruelty of shackling and hoisting ranges in time from a few seconds  to a few minutes. 277 Yet, if the purpose of the Humane Methods of Slaughter Act (to slaughter  livestock humanely) is to be effectuated, then a modification to the  exception for ritual slaughter must occur.

The Humane Slaughter Act should be modified to include provisions on  pre-slaughter handling. The section providing for ritual slaughter should not  be repealed because it is only in conjunction with USDA regulations that ritual  slaughter techniques become inhumane.  Therefore, only a modification of the  statute is necessary. This proposed modification would involve adding a list  of the approved preslaughter handling techniques. These techniques would  provide alternative methods to shackling and hoisting. An alternative method  was created by the American Association for the Prevention of Cruelty to Animals (ASPCA). 278 The ASPCA created a pen in which the animal is placed into a stall. 279 The stall has an opening for the animal's head and a chin lift to raise the  animal's head. 280 "The chin lift holds the animal's head until the throat is cut." 281

4. Cruelty Through Research

With the exclusion of farm animals from the Animal Welfare Act, farm animals  essentially have no legal protection. Research using farm animals is performed  because of the farmers' economic desire for animals which are more efficient  producers or which have greater growth potentials. 282 Special interest groups are concerned because current research involving  genetic alterations and hormone injections has potentially serious  consequences when applied to animals. 283 For example,  "broilers grow so fast and have such selected overdevelopment that many of them  can't walk or even stand up." 284 Other research involves  "transgenic pigs given human growth hormone genes: the pigs have disabling  arthritis[,] crossed eyes, and die prematurely." 285

Advocates of genetic research point to the fact that people have almost always  controlled the traits found in present day domestic animals through the use  of selective breeding. 286 These advocates assert that the current research is not distinguishable from  traditional selective breeding techniques, because in neither situation is the  researcher certain of the results. 287 While the research may be considered necessary for human health and safety,  the question still remains as to how this goal of improving human health and  safety relates to the rights of animals to have a  "cruelty-free" life.

Although Congress determined that animal suffering during experimentation is inhumane, Congress has not admitted the same for the suffering  of farm animals during experimentation. Thus, Congress has, in effect,  discriminated against a certain group of animals apparently arbitrarily and  without reason.

C. Foreign Laws

The European Community (EC) took sweeping measures in regulating cruelty to  farm animals.  "Public opinion . . . forced legislators to implement tighter rules to protect  farm animals . . . after an earlier wave of disquiet at factory farming." 288 The EC and some European countries independently of the EC banned the use of  Bovine Growth Hormone (BGH) and other hormones. 289 BGH is similar to the hormone in cows which triggers milk production. 290 The injection of BGH into cows causes the cows to produce more milk. 291 Chemical companies which manufacture BGH assert that BGH will make the dairy  industry more efficient. 292 Cows injected with BGH have a high incidence of udder infection. 293 The EC has also banned the importation of animals which were injected with  anabolic agents. 294

In contrast to the United States, the EC has adopted minimum housing standards  for chickens. 295 The EC will phase in, over a period of at least seven years, several  important standards. 296 Under these standards, chicken cages must measure at least 450 centimeters  "for each laying hen" and  "at least 40 cm high over 65% of the cage area and not less than 35 cm at any  point." 297 Also, the cage  "floors . . .  must be constructed so as to support adequately each of the  forwardfacing claws of each foot." 298 Appropriate lighting must be provided, adequate lighting for sleep, and insulation and ventilation must keep  "air velocity, dust level, temperature, relative air humidity and gas  concentrations . . . within limits that are not harmful to the poultry." 299

These provisions may provide for the safe housing of poultry without causing  significant economic hardship on the farmers. 300 European consumers show that they are willing to pay the extra money for  animal products if the animals are raised cruelty free and fed healthy diets. 301

The Swedish Animal Protection Act sets forth broad provisions for the humane  treatment of domestic animals. The Act sets guidelines for  "the care and treatment of domestic animals . . . [and for] other animals . .  . kept in captivity." 302 "Cattle have been given grazing rights[,] . . . pigs can no longer be tethered  and must be granted separate bedding and feeding places." 303

The Act provides that the animals be given adequate water, food, and living  space. 304 The Act also states that  "animals which are bred and kept for the production of food . . . shall be kept  and handled in a good environment for animals and in such a way as to promote  their health and allow natural behavior." 305 Like the Downed Animal Act, 306 the Swedish Act prohibits the beating of animals by devices which may injure  them. 307 The Act also provides that  "the use of animals [in experimentation] . . . shall be subject to examination  on ethical ground before commencement of the activity." 308

However, the Act, in many respects, is overly vague and ambiguous. The Act  applies to domestic animals and other captive animals but, definitions for  these terms are not given. 309 Without a statutory definition of  "captive" an owner of an animal may reasonably challenge this provision on the grounds  that his animal is not captive. The  Act also states that  "animals must not be overstrained" but does not specify what  "overstrained" means. 310 Therefore, this provision may apply to the stress induced by overcrowded  conditions, may relate to the strain of physical abuse, or may refer to  something else. Similar vagaries exist in other sections of this Act. 311

Another problem with this Act is the potential for excluding poultry and  rabbits from the humane slaughter provision. 312 Without explanation, the statute provides that the government or National  Board of Agriculture may exclude poultry and rabbits from the requirement of  "stunning before being bled prior to slaughter." 313

As for penalties, the Act provides that a person who has neglected to follow  supervisory authority,  "seriously neglected the supervision or care of an animal, or . . . has  maltreated an animal" may be  "ordered . . . to dispose of [the animal] and forbidden . . . to procure  animals at all, or a certain kind of animal." 314 Animals may also be taken into the custody of police. 315 A person who violates the Act may be fined or imprisoned. 316 However,  "no penalty shall be imposed for minor offenses." 317 This provision eliminates the effectiveness of the statute because, while  negligent and deliberate acts are punishable, they are punishable only if an  act is not a minor offense.  Therefore, a farmer may purposefully cause an  animal to suffer in violation of the statute, yet that farmer will not be  forced to take legal responsibility for that act.

D. Proposed Statutes

1. Veal Calf Protection Act

In 1989, Congress debated the Veal Calf Protection Act. 318 The Act would have been the first step towards ending the cruelty inherent in  factory farming. Yet, groups like the American Veterinary Medical Association  (AVMA), which claim to support the welfare of animals, opposed this Act. 319 In a statement before Congress, on behalf of the AVMA, the president of the  American Association of Bovine Practitioners stated:

Fundamentally, I believe that young calves should be kept in strict isolation,  and at a minimum, I prefer to see calves offered strictly limited contact with  other calves in order to minimize their exposure to pathogenic organisms.  Although calves are herd animals, their need for socialization must be  carefully balanced against the likely transfer of disease. 320

Apparently, the author of this statement does not recognize the need for the  psychological well-being of animals, even though the Animal Welfare Act does.  The Animal Welfare Act expressly recognizes that the psychological well-being  of primates must be enhanced with an adequate physical environment. 321

The Veal Calf Protection Act provided in part that:

(1) it is the public policy of the United States to avoid cruelty to animals;  (2) the frequent method of confining calves for life in small crates to produce  veal causes unnecessary physical restrictions resulting in behavioral  deprivation and impaired health; (3) the frequent practice of feeding calves a  diet deficient in solid food and iron to produce formula-fed veal causes the  animals to become anemic and to suffer from digestive and other health  problems. . . . 322

The bill would have made it illegal for anyone to house a veal calf in a crate  which measured less then the length of the calf plus six inches or which  prevented physical contact among the calves. 323

This bill has a major deficiency in that it is not far-reaching.      While the bill provides that veal calves be given some access to other animals  of the same species, the bill does not require that veal calves be given access  to their mothers or access to outside grazing. The bill still allows farmers to  feed veal calves processed liquids and foods rather than requiring the veal  calf to nurse from its mother, a process which would provide the calf with all  its nutrients. This failure to provide for  "normal" behavior in farm animals is indicative of Congress' continuing deference to  the animal husbandry industry's desire for profit rather than concern for the  welfare of animals.

2. Downed Animal Protection Act

The Downed Animal Protection Act of 1993 was designed to amend the Packers and  Stockyards Act of 1921. 324 The Packers and Stockyards Act regulated the unfair competition among  livestock and poultry dealers, but did not provide for the humane treatment of  injured animals. 325

The bill was designed to make it illegal  "to buy, sell, give, receive, transfer, market, or hold non-ambulatory  livestock unless the livestock has been humanely euthanized." 326 'Humanely euthanized' is defined by the Act as  "killing an animal by mechanical, chemical, or other means that rapidly and  effectively renders the animal insensitive to pain." 327

The Downed Animal Act was designed to prevent the suffering of animals who  have broken bones or are ill. 328 Often these animals fall during transport or while walking into the stockyard.  These animals are trampled over by other animals or are prodded and dragged by  stockyard employees. 329 Farmers keep these animals alive solely for economic reasons the farmers  hope to sell the animals to the slaughterhouse. 330

Proponents of the bill felt that the  "bill would eliminate the motivation for keeping suffering animals alive  because they could not be sold and [that additionally, the bill] would create  an incentive to ensure  that animals . . . not be transported in a sick condition[,] because if they  fall, they will have to be euthanized." 331

3. Humane Methods of Poultry Slaughter Act

Currently, no federal legislation provides for the humane slaughter of  poultry. With poultry  "constituting over 80 percent of animals slaughtered for food," 332 there is inconsistency in the law.

Under the Humane Methods of Poultry Slaughter Act of 1993, poultry would be  required to be humanely slaughtered. 333 This Act would have amended the Poultry Products Inspection Act, 334 which ensured that poultry and poultry products were properly labeled and  packaged for consumer health and safety, but did not provide for the humane  slaughter of poultry. 335

Under the Humane Methods of Poultry Slaughter Act, before slaughter, the  poultry would have to be  "rendered insensible to pain by electrical, chemical, or other means that is  rapid and effective before or immediately after being shackled or otherwise  prepared for slaughter." 336 The Act also provides that poultry be slaughtered in accordance with humane  religious rituals, as allowed for the slaughter of livestock under the Humane  Slaughter Act. 337 This alternative is problematic for the same reasons previously discussed in  regards to the Humane Slaughter Act. To effectively curb the suffering of  poultry at slaughter, this Act should require the humane pre-slaughter handling  of poultry.

E. Author's Proposals

Based upon the inadequacies of federal legislation, the author proposes the  following recommendations as guidance for future legislation. While these  proposals may not take effect for years due to economic and practical  hurdles, two factors should be noted. First, if farm animals are to be given  rights then these rights arguably should not be subordinate to economic  considerations. As such, under no circumstance should it be more cost effective to pay a fine than to continue any  cruel or inhumane practice.

Second, while corporate farms will be financially disadvantaged, there will  not be a food shortage as was the fear in the past, a fear which ignited the  use of factory farms. Furthermore, the eventuality of economic hardship is  unlikely because a market does exist for humanely treated animals to be used  for human food.

However, practical problems do exist, such as, where these animals will be  located. This becomes an issue because large numbers of animals and limited  farm space make placement of these animals onto currently available farmlands  impracticable. Therefore, farmers should be given individual time guidelines  for compliance.

The following proposals may serve as guidelines for future legislation  seeking to protect farm animals.

1. Housing

a. Farm animals should live outside and have adequate shelter from weather.

b. These animals should be provided with the raw materials that are a  necessary part of their habitat and instinctive behavior.

c. These animals should live among their own species so that they may have  physical contact and interaction.

d. These animals may live among other compatible species.

e. Animals should be provided the necessary nutritious food and liquid.  Offspring should be fed by their mother unless the mother is unwilling or  physically unable to provide such food or liquid.

f. Physical modification of animals is prohibited, as these alterations should  be deemed cruel. Physical modification means any change to the animal's body  unless performed for the animal's health. However, no physical modification  may be made if it is in response to abnormal behavior which was induced by  human intervention.

2. Transportation

Congress should extend the provisions of the Twenty-Eight Hour Law to all  current and future methods of transporting animals.

3. Pre-slaughter Handling

a. At stockyards:

1. Animals should not be prodded or stunned.

2. Animals which are seriously injured should be humanely slaughtered. The  time between which the animal is injured and killed should not exceed one hour.  This period should     [*182]   be measured from the time at which the injury should reasonably have been  discovered.

b. Handling prior to slaughter done in accord with religious ritual:

1. Animals should not be hoisted while conscious.

2. Animals should be placed in pens where they will be slaughtered. Animals  should not be in these pens in excess of one hour.

4. Slaughter of Poultry

The Humane Methods of Slaughter Act should be expanded to include poultry.

5. Research Involving Farm Animals

The Animal Welfare Act should be expanded to pertain to all farm animals.

6. Protection from Foreign Trade

To protect United States farmers and to ensure fair trade, the United States  should not allow the importation of any food or product involving animals not  raised in a humane manner.

7. Enforcement

The United States Department of Agriculture should establish an agency to  enforce these provisions. Such agency should have access to all farms to make  investigations and searches.

8. Punishment

a. A person who violates any of the above provisions should be found guilty of  a misdemeanor if the offending conduct is intentional or willful.

b.A person who violates these provisions should be fined.

VII. Conclusion

Federal laws which regulate abuse to farm animals are effectively nonexistent.  The three major federal statutes which purport to protect animals are deficient  in the various manners set out in this article.  These deficiencies give  license to corporate farmers to mishandle their animals and to inflict pain.  While Congress has declared analogous treatment to be inhumane, Congress has  been remiss in declaring so for this treatment of farm animals. Other countries  have already established  a national policy of humane treatment for farm animals. Congress should take  on this responsibility.


n1 Cruelty to animals is defined as  "the infliction of physical pain, suffering, or death upon an animal, when not  necessary for purposes of training or discipline or (in the case of death) to  procure food . . . but done . . . with reckless indifference to its pain." Black's Law Dictionary 377 (6th ed. 1990); Punishment is  "severe, rough, or disastrous treatment." Webster's Third New Int'l Dictionary 1843 (3d ed. 1976).


n2  "Most people, especially in towns, tend to be ignorant of the processes by which  food reaches their table, or if not ignorant they find it more comfortable to  forget." Ruth Harrison, On Factory Farming, in Animals, Men and Morals: An Enquiry into  the Maltreatment of Non-Humans 11, 11-12 (Stanley Godlovitch et al. eds., 1971).


n3 Wayne Pacelle, Bio-Machines: Life on the Farm Ain't What it Used to Be, 137  Vegetarian Times 30, 31 (1989).


n4 Id.


n5 Id.


n6 Steve Lustgarden, The High Price of Cheap Food: Consumers and Family Farms  Are the Losers As Factory Farms Take Over, 205 Vegetarian Times 72, 73 (1994).


n7 Amy Blount Achor, Animal Rights: A Beginner's Guide 78 (1992).


n8 Pacelle, supra note 3, at 32.


n9 E.M. Liska, An Important Message for All, Det. Free Press, Sept. 29, 1988, at  A10.


n10 Peter Singer, Animal Liberation 99 (2d ed. 1990).


n11 See generally J.W. Looney, The Changing Focus of Government Regulation of  Agriculture in the United States, 44 Mercer L. Rev. 763 (1993) (discussing laws which regulate agriculture).


n12 Holly Hazard et al., The Animals' Advocate: Investigating Animal Abuse 23  (Animal Legal Defense Fund eds., 1987).


n13 45 U.S.C. sections 71 -74 (1988).


n14 7 U.S.C. sections 1901 -1906 (1994).


n15 7 U.S.C. sections 2131 -2156 (1994).


n16 45 U.S.C. section 71 (1988).


n17 Id.


n18 Poultry are not considered livestock and are thus excluded from the Humane  Methods of Slaughter Act. See Geoffrey S. Becker, Humane Treatment of Farm  Animals: Overview and Selected Issues 26 (Congressional Research Service, 1992).


n19 7 U.S.C. section 1902 (1994).


n20 Id. sections 2132, 2143.


n21 Christopher D. Stone, Should Trees Have Standing? Toward Legal Rights for  Natural Objects,  45 S. Cal. L. Rev. 450 (1972).


n22 Id.


n23  Id. at 453-56.


n24  Id. at 455.


n25 Id.


n26 Bernard E. Rollin, The Legal and Moral Bases of Animal Rights, in Ethics and  Animals 103, 106 (Harlan B. Miller  & William H. Williams eds., 1983) (emphasis in original).


n27 Id. at 103.


n28 Id. at 105.


n29 Id. at 103.


n30 Id.


n31 Id. at 106.


n32 Id. at 107-08.


n33 Id. at 107.


n34 Id. at 108.


n35 Id. at 109.


n36 Id.


n37 Id.


n38 Stone, supra note 21, at 464.


n39 Id.


n40 Id.


n41 Singer, supra note 10, at 2 (emphasis in original).


n42 Id. at 4-5.


n43 Id. at 8.


n44 Id. at 6.


n45 Id.


n46 Id. at 8.


n47 Id. at 8.


n48 Achor, supra note 7, at 81.


n49 Id.


n50 Id. See also Singer, supra note 10, at 107-08.


n51 Singer, supra note 10, at 107-08.


n52 See United Poultry Concerns, Inc., Chickens (1994) [hereinafter United Poultry  Concerns].


n53 Achor, supra note 7, at 81; Singer, supra note 10, at 102, 107.


n54 Singer, supra note 10, at 100. A pecking order is  "the basic pattern of social organization within a flock of poultry in which  each bird is permitted to peck another lower in the scale without fear of  retaliation and is expected to submit to pecking by one of higher rank. . . ." Webster's Third New Int'l Dictionary 1662 (3d ed. 1976).


n55 Singer, supra note 10, at 100.


n56 Id. at 107. See also Achor, supra note 7, at 81.


n57 Singer, supra note 10, at 101.


n58 Id.


n59 Id. (citing F.D. Thornberry et al., Debeaking: Laying Stock to Control  Cannibalism, Poultry Digest, May 1975, at 205).


n60 Id. at 101-02 (citing J. Breward  & M. Gentle, Neuroma Formation and Abnormal Afferent Nerve Discharges After  Partial Beak Amputation (Beak Trimming) in Poultry, 41 Experienta 1132-34  (1985)).


n61 Id.


n62 Singer, supra note 10, at 111 (citing Poultry Trib., Nov. 1986).


n63 B.M. Freeman, Floor Space Allowance for the Caged Domestic Fowl, 112 The  Veterinary Rec. 562, 563 (1983).


n64 Singer, supra note 10, at 111 (explaining that the full wingspan is  approximately 30 inches).


n65 Id. at 114.


n66 Id. at 110.


n67 H.B. Simonsen et al., Effect of Floor Type and Density on the Integument of  EggLayers, 59 Poultry Sci. 2202, 2205-06 (1980).


n68 Singer, supra note 10, at 116.


n69 Simonsen, supra note 67, at 2206.


n70 Singer, supra note 10, at 99.


n71 Id.


n72 Id.


n73 See Council Directive 88/166, art. 2, Commission Eur. Comm. 1988 O.J. (L74).


n74 Mack O. North  & Donald D. Bell, Commercial Chicken Production Manual 189 (4th ed. 1990).


n75 Id.


n76 Id.


n77 Id.


n78 Singer, supra note 10, at 117.


n79 Id.


n80 Id. at 105.


n81 Achor, supra note 7, at 82.


n82 Id.


n83 7 U.S.C. section 1901 (1994).


n84 See generally United Poultry Concerns, supra note 52.


n85 Veal Calf Protection Act: Joint Hearing on H.R. 84 Before the Subcomm. on  Livestock, Dairy, and Poultry and the Subcomm. on Dept. Operations, Research,  and Foreign Agriculture of the House Comm. on Agriculture, 101st Cong., 1st  Sess. 203 (1989) [hereinafter Hearings]; 136 Cong. Rec. H6535, H6683 (Aug. 1,  1990).


n86 Hearings, supra note 85, at 203 (statement of Keith E. Sterner for the AUMA).


n87 Id. at 34 (statement of Prof. Stanley E. Curtis).


n88 Id. at 14 (statement of Hon. Ron Marlenee).


n89 Id. at 1 (statement of Hon. Charles W. Stenholm).


n90 Id.


n91 Id. (statement of Hon. Charles W. Stenholm).


n92 101 Cong. Rec. H6535, H6682 (Aug. 1, 1990).


n93 Hearings, supra note 85, at 203 (statement of Ron Marlenee); 136 Cong. Rec.   H6535, H6683 (Aug. 1, 1990) (statement of Mr. Weber).


n94 136 Cong. Rec. H6535, H6683 (Aug. 1, 1990).


n95 S. 367, 103d Cong., 1st Sess. (1993).


n96 Holly Hazard, Downed Animals: Historic Bill in the Making, The Animals' Advo cate, Winter 1992, at 1.


n97 H.R. Rep. No. 649, 103d Cong., 1st Sess. (1993).


n98 21 U.S.C. section 456 (1988).


n99 H.R. Rep. No. 649, 103d Cong., 1st Sess. (1993); 4 Poultry Press 5 (1994)  (citing Congressional Hearing on Humane Methods of Poultry Slaughter Act  (H.R. 649) (held September 28, 1994)).


n100 Pacelle, supra note 3, at 30.


n101 Id.


n102 Tom Regan, All that Dwell Therein: Animal Rights and Environmental Ethics 150  (1982).


n103 Id.


n104 Rollin, supra note 26, at 107.


n105 Regan, supra note 102, at 150.


n106 Walter Woodburn Hyde, The Prosecution and Punishment of Animals and Lifeless  Things in the Middle Ages and Modern Times,  64 U. Pa. L. Rev. 696, 708 (1916) (citing Memoires de la Societe Royale des Antiquaires de France, Tome VIII 428  (1827); Chamber's Book of Days I, 129; E.P. Evans, The Criminal Prosecution and  Capital Punishment of Animals 11-12 (London 1906)).


n107 Id.


n108 Id.


n109 Id.


n110 Lawrence Finsen  & Susan Finsen, The Animal Rights Movement in America: From Compassion to  Respect 42 (1994).


n111 Lawrence M. Friedman, A History of American Law 78 (1973).


n112 Finsen  & Finsen, supra note 110, at 42.


n113 Id.


n114 Emily Stewart Leavitt, Animals and their Legal Rights 13 (2d ed. 1970)  (quoting The Body of Liberties, Liberty 93).


n115 Id.


n116 See generally Id.


n117 Finsen  & Finsen, supra note 110, at 30.


n118 Id. at 31.


n119 Id.


n120 Id.


n121 Id.


n122 Id. at 26. Britain abolished the slave trade for itself and its colonies in  1807 and 1840, respectively. Id. Also during this time period was  "the advent of the woman suffrage movement." Id.


n123 Helena Silverstein, Unleashing Rights: Law and the Politics of the Animal  Rights Movement 78 (1992).


n124 Id.


n125 Finsen  & Finsen, supra note 110, at 31.


n126 Id. at 32.


n127 See id.


n128 Webster's Third New Int'l Dictionary 97 (3d ed. 1976).


n129 Finsen  & Finsen, supra note 110, at 33.


n130 Id. at 34.


n131 Id. at 31. See also Leavitt, supra note 114, at 15.


n132 Leavitt, supra note 114, at 15.


n133 Id.


n134 Finsen  & Finsen, supra note 110, at 45.


n135 Leavitt, supra note 114, at 19.


n136 Id.


n137 Finsen  & Finsen, supra note 110, at 52.


n138 Leavitt, supra note 114, at 16.


n139 Id. at 17.


n140 An Act for the More Effectual Prevention of Cruelty to Animals, Cal. Cong.  17th Sess. ch. 454, 604 (1868).


n141 1905 Stat. 597.


n142 Becker, supra note 18, at 28.


n143 Id. at 27.


n144 Id.


n145 Nev. Rev. Stat. section 574.200(6) (1993).


n146 45 U.S.C. sections 71 -74 (1988).


n147 7 U.S.C. sections 1901 -1906 (1994).


n148 7 U.S.C. section 2131 -56 (1994).


n149 Becker, supra note 18, at 27.


n150 Leavitt, supra note 114, at 29, 30.


n151 Daniel Moretti, Animal Rights and the Law 95 (1984).


n152 Becker, supra note 18, at 27.


n153 Leavitt, supra note 114, at 30.


n154 United States v. Oregon R. & Nav. Co., 163 F. 640, 640 (C.C.D. Or. 1908).


n155 Id.


n156 Id.


n157 Id.


n158 45 U.S.C. section 71 (1988).


n159 Id.


n160 Id.


n161 Id.


n162 Id.


n163 45 U.S.C. section 72 (1988).


n164 Leavitt, supra note 114, at 30.


n165 Id.


n166 Id.


n167 Id. at 31.


n168 Id.


n169 163 F. 640 (C.C.D. Or. 1908).


n170 Id.


n171 Id.


n172 Id. at 640-41.


n173 Id. at 641.


n174 Id.


n175 Leavitt, supra note 114, at 31.


n176 9 C.F.R. section 89.4 (1995).


n177 9 C.F.R. section 89.5 (1995).


n178 Becker, supra note 18, at 27.


n179 Id.


n180 45 U.S.C. section 73 (1988).


n181 Id. section 74.


n182 220 U.S. 94 (1911).


n183 Id. at 97.


n184 Id.


n185 Id.


n186 Id. at 105.


n187 Id. at 106 (quoting Law of June 29, 1906, ch. 3594, section 1, 34 Stat. 607) (current  version at 45 U.S.C. sections 71 -74 (1988)).


n188 7 U.S.C. section 1901 (1994).


n189 Id.


n190 Id.


n191 S. Rep. No. 1724, 85th Cong., 2d Sess. (1958), reprinted in 1958 U.S.C.C.A.N.   3932.


n192 Leavitt, supra note 114, at 35-36.


n193 Id. at 35.


n194 Id.


n195 S. Rep. No. 1724, 85th Cong., 2d Sess. (1958), reprinted in 1958 U.S.C.C.A.N.   3934-36 (letters from Department of Army (Wilber M. Brucker, Secretary of the  Army) and Department of Agriculture (True D. Morse, Acting Secretary)).


n196 Leavitt, supra note 114, at 36.


n197 Id. at 37.


n198 Id. at 33.


n199 Id. at 37.


n200 Id. at 37-38.


n201 Id. A shackle is  "something that confines the legs or arms so as to prevent their free motion." Webster's Third New Int'l Dictionary 2083 (3d ed. 1976); Hoist is  "to raise into position by means of tackle." Id. at 1077; Tackle is defined as  "an assemblage of ropes and pulleys arranged to gain mechanical advantage for  hoisting and pulling." Id. at 2326; Cast is  "to cause to move by throwing." Id. at 347.


n202 7 U.S.C. section 1902 (1994).


n203 9 C.F.R. section 313.15(a)(1) (1995).


n204 Id. section (a)(2).


n205 Id. section (b)(1).


n206 Id.  "Penetrating instruments on detonation deliver bolts of varying diameters and  lengths through the skull and into the brain. Unconsciousness is produced  immediately by physical brain destruction and a combination of changes in  intracranial pressure and acceleration concussion." Id. Acceleration concussion is  "an injury to the brain sustained by the impact of the moving head with a solid  object, as in a fall or an automobile accident." Attorneys' Dictionary of Medicine and Word Finder A-30 (17th ed. 1986).  Intracranial pressure is  "the pressure upon the outer surface of the brain and the inner surface of the  skull." Id. at I-81.


n207 9 C.F.R. section 313.15 (b)(1) (1995).  "Nonpenetrating or mushroom stunners on detonation deliver a bolt with a  flattened circular head against the external surface of the animal's head over  the brain. . . . Unconsciousness is produced immediately by a combination of  acceleration concussion and changes in intracranial pressures." Id.


n208 Id.


n209 Becker, supra note 18, at 26.


n210 Kashrut is the Hebrew word for Kosher. See Ran-Dav's County Kosher, Inc. v. New Jersey, 608 A.2d 1353, 1355 (N.J. 1992).


n211 Id. at 1356 (citing 579 A.2d 316 quoting 8 Encyclopedia of Religion 270-71 (1987)). In Ran-Dav's County Kosher,  Inc. v. New Jersey, New Jersey passed regulations to ensure that  slaughterhouses, which claimed to have processed kosher food, did use kosher  methods of slaughter. Id. at 1355. The New Jersey Supreme Court found that this  regulation violated the Establishment Clause because  "the regulation[] imposed substantive religious standards for the  kosher-products industry and authorized civil enforcement of those religious  standards with the assistance of clergy, directly and substantially entangling  government in religious matters." Id.


n212 Catherine Beth Sullivan, Are Kosher Food Laws Constitutionally Kosher?, 21 B.C.  Envtl. Aff. L. Rev. 201, 205 (1993) (citing Leo Trepp, Judaism: Development and Life 154 (1966)).


n213 374 F. Supp. 1284 (S.D.N.Y. 1974).


n214 Id. at 1290 n.8. See 21 U.S.C. section 610 (1988).


n215 Jones, 374 F. Supp. at 1290.


n216 Id.


n217 Id. at 1291.


n218 S. Rep. No. 1281, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N.   2635.


n219 H.R. Rep. No. 801, 94th Cong., 2d Sess. (1976), reprinted in 1976 U.S.C.C.A.N.   758.


n220 Leavitt, supra note 114, at 48.


n221 Id. at 49.


n222 S. Rep. No. 1281, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N.   2635.


n223 Id. at 2636.


n224 Id. at 2637.


n225 Id. at 2638.


n226 H.R. Rep. No. 1651, 91st Cong., 2d Sess. (1970), reprinted in 1970  U.S.C.C.A.N.  5104.


n227 Id.


n228 Id.


n229 Id.


n230 H.R. Rep. No. 801, 94th Cong., 2d Sess. 6 (1976), reprinted in 1976  U.S.C.C.A.N.  758.


n231 Id. at 7.


n232 7 U.S.C. section 2143 (1994).


n233 Id.


n234 137 Cong. Rec. E1295 (1991).


n235 S. Rep. No. 1281, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N.   2637.


n236 Id.


n237 Elizabeth Joy Hecht, Note, Beyond Animal Legal Defense Fund v. Quigg, The Con troversy Over Transgenic Animal Patents Continues, 41 Am. U. L. Rev. 1023, 1056 (1992).


n238 Id.


n239 Id.


n240 H.R. Rep. No. 801, 94th Cong., 2d Sess. 11 (1976), reprinted in 1976  U.S.C.C.A.N. 758, 785.


n241 Becker, supra note 18, at 26.


n242 Wickard v. Filburn, 317 U.S. 111, 124-25 (1942).


n243 Id.


n244 Id. at 114-17.


n245 Id. at 127.


n246 Id. at 127-28.


n247 312 U.S. 100 (1941).


n248 Id. at 115.


n249 Id. at 108.


n250 Id. at 122.


n251 Id.


n252 Looney, supra note 11, at 792.


n253 Id.


n254 Id.


n255 United States v. Boston & M.R.R., 117 F.2d 424, 426 (1st Cir. 1941) (citing to trial record).


n256 See id. at 424. See also United States v. New York Cent. & H.R.R. Co., 191 F.  938 (C.C.W.D.N.Y. 1911); United States v. Oregon R. & Nav. Co., 163 F. 640 (C.C.D. Or.  1908).


n257 Singer, supra note 10, at 131.


n258 Id.


n259 Id. (quoting J. Webster et al., Improved Husbandry Systems for Veal Calves,  Animal Health Trust and Farm Animal Care Trust 5 (n.d.)).


n260 Humane Society of Rochester v. Lyng, 633 F. Supp. 480, 482 (W.D.N.Y. 1986).


n261 Id. at 481. Whether the over production of milk is a valid justification for killing a cow  will not be argued in this paper. This argument inevitably brings up the issue  of animal rights (does the cow have a right to its life). Animal rights per  se is not discussed in this article.


n262 Id. at 482.


n263 Id.


n264 Id.


n265 Id. at 486-87.


n266 N.Y. Agric. & Mkts. Law section 353 (Consol. 1994).


n267 Humane Soc'y, 633 F. Supp. at 482; Singer, supra note 10, at 101 (citing F.D.  Thornberry et al., Debeaking  Laying Stock to Control Cannibalism, Poultry Dig. 205 (May 1975); Singer, supra  note 10, at 101-02 (citing J. Breward  & M. Gentle, Neuroma Formation and Abnormal Afferent Nerve Discharges after  Partial Beak Amputation (Beak Trimming) in Poultry, 41 Experienta 1132-34  (1985)).


n268 Humane Soc'y, 633 F. Supp. at 486.


n269 See supra part VI.B.2.


n270 Hazard, supra note 12, at 20.


n271 See generally Sullivan, supra note 212.


n272 21 U.S.C. section 610 (1988).


n273 Id. section 601.


n274 Tali H. Shaddow, Comment, Religious Ritual Exemptions: Sacrificing Animal  Rights for Ideology,  24 Loy. L.A. L. Rev. 1367, 1372 (1991) (citing Grandin, Humanitarian Aspects of Shehitah in the United States, 39  Judaism: Q.J. Jewish Life  & Thought 436, 438 (1990)).


n275  Id. at 1379 (citing John MacFarlane, Animals into Meat: A Report on the Pre-Slaughter  Handling of Livestock 16-17 (1971)).


n276 Humane Soc'y, 633 F. Supp. at 482.


n277 Singer, supra note 10, at 154.


n278 Shaddow, supra note 273, at 1378-79 (citing Grandin, Humanitarian Aspects of  Shehitah in the United States, 39 Judaism: Q.J. Jewish Life  & Thought 436, 436 (1990)).


n279 Id.


n280 Id.


n281 Id.


n282 Singer, supra note 10, at 156.


n283 Hecht, supra note 237, at 1026; Reagan Anne Kulseth, Note, Biotechnology and  Animal Patents: When Someone Builds a Better Mouse,  32 Ariz. L. Rev. 691, 708 (1990); Rebecca Dresser, Ethical and Legal Issues in Patenting New Animal Life, in  28 Jurimetrics J. 399, 422-23 (1988).


n284 Pacelle, supra note 3, at 34 (quoting Jim Mason).


n285 Dresser, supra note 283 at 422 (citing Sarah Taylor, Patenting Life 6 (Con gressional Research Service, 1987)).


n286 Hecht, supra note 237, at 1026; Dresser, supra note 282, at 423; Kulseth,  supra note 282, at 708.


n287 Hecht, supra note 237, at 1027.


n288 Tony Carritt, Consumers Force Shift from Factory Farms in Europe, Reuters,  Oct.  11, 1989, available in Westlaw, International News.


n289 Wade Roush, Who Decides about Biotech? (Controversy over Recombinant Bovine  Growth Hormone), 94 Technology Review 28, 30 (1991); Jeannine Kenney  & Dick Fallert, Livestock Hormones on the United States, 12 Nat'l Food Review  21, 21 (1989).


n290 Roush, supra note 289 at 30.


n291 Id.


n292 Id.


n293 Id.


n294 Kenney  & Fallert, supra note 289, at 21.


n295 Commission Eur. Comm. title 88/166 (1988); Comm'n Eur. Comm. title 86/113  (1986).


n296 Commission Eur. Comm. title 88/166 (1988); Comm'n Eur. Comm. title 86/113  (1986).


n297 Commission Eur. Comm. title 88/166 (1988).


n298 Id.


n299 Id.


n300 See generally Carritt, supra note 288.


n301 See generally id.


n302 Swedish Code of Statutes section 1, SFS 534, The Animal Protection Act, (June  2, 1988) [hereinafter Swedish Code of Statutes].


n303 Steve Lohr, Swedish Farm Animals Get a Bill of Rights, N.Y. Times, Oct. 25,  1988, at A1.


n304 Swedish Code of Statutes supra note 302, section 1.


n305 Id. section 4.


n306 See supra part VI.D.2.


n307 Swedish Code of Statutes supra note 302, section 5.


n308 Id. section 21.


n309 Id. section 1.


n310 Id. section 5.


n311 Section 2 states  "animals shall be treated well. . . ." But no definition of  "treated well" is provided. Id. section 2. Section 12 provides that  "breeding of a kind that may entail suffering for the animals or have an effect  on their natural behavior" may be prohibited. Id.  section 12 (emphasis added). However, what is  considered  "an effect" is not established.


n312 Id. section 14.


n313 Id.


n314 Id. section 29.


n315 Id. section 31.


n316 Id. section 36.


n317 Id.


n318 See generally Hearings, supra note 85.


n319 Id. at 201 (statement of Keith E. Sterner, DVM President, American Association  of Bovine Practitioners for American Veterinary Medical Association).


n320 Id. at 204 (statement of Keith E. Sterner, DVM President, American Association  of Bovine Practitioners for American Veterinary Medical Association).


n321 7 U.S.C. section 2143 (a)(2)(B) (1994).


n322 135 Cong. Rec. E2661 (1989).


n323 Id.


n324 S. 367, 103d Cong., 1st Sess. (Feb. 16, 1993); 7 U.S.C. section 217 (a) (1994).


n325 7 U.S.C. section 192 (1982). A packer is  "a specialist in loading pack animals." Webster's Third New Int'l Dictionary 1618 (3d ed. 1976).


n326 S. 367, 103d Cong., 1st Sess. (Feb. 16, 1993). Non-ambulatory is defined as  incapable of walking. The Random House Dictionary 26 (2d ed. 1980).


n327 S. 367, 103d Cong., 1st Sess. (Feb. 16, 1993).


n328 Hazard, supra note 96, at 1.


n329 Id. at 2, 3


n330 Id.


n331 Id. at 3.


n332 Id. at 4.


n333 H.R. 649, 103d Cong., 1st Sess. (1993).


n334 21 U.S.C. section 456 (1988).


n335 Id.


n336 H.R. 649, 103d Cong., 1st Sess. (1993).


n337 Id.




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